N10865

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 403 & 406 & 407 OF 2023

THE STATE

V

BEN GUNA
(No 1)

Minj: Miviri J
2024 :12th & 14th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Death from Gunshot – Body Cut by Bush knives – Identification – Accused Known By Name & Prior Acquiescence – No Masks Face Clear – Observation at Close Quarters – Not Fleeting Glance – Very good View – Identification Beyond All Reasonable Doubt – Principle Offender – Intent to Kill – Killing – Guilty of Wilful Murder – Remanded For Sentence.
CRIMINAL LAW – PRACTICE AND PROCEDURE – Rape S 347 CCA – Deprivation of Liberty Section 355 CCA – Wife of Deceased – Penetration Not Disputed – Without Consent Not Disputed – Identification – Observation at Close Quarters – Not Fleeting Glance – Very good View – Identification Beyond All Reasonable Doubt – Principal Offender – Penetration of Vagina by Penis –Victim Forcefully Abducted & Detained Against Will Two Weeks – No Other Hypothesis other than Guilt – Prosecution Evidence Only – Guilty of Rape – Guilty of Deprivation of Liberty – Remanded for Sentence.

Facts
Prisoner was in the company of others who ambushed and shot the deceased in the forehead with a gun killing him. Then they set about cutting his body and then forcefully taking away his wife raping her along the way. Then taking her away to their village detaining her. There the accused sexually penetrating her without her consent.

Held
Two Indictments presented
First Indictment Wilful Murder
Second Indictment 1st count Rape &
2nd Count Deprivation of Liberty.
No Joinder of Charges S 531 (4) CCA.
Indictments in Order to be heard together.
No prejudice to Defence of Accused.
Offences arising out of the same or related facts.
No issue homicide.
Identification of Accused.
Good identification.
Accused seen in broad day light.
Well known by witnesses.
Identification beyond doubt.
Intent to Kill.
Guilty of Wilful Murder
No Challenge to State evidence
No other hypothesis other than guilt
Guilty of Rape
Guilty of Deprivation of Liberty.

Cases Cited: 
Ombusu v The State [1996] PNGLR 335
Aihi v The State (No 2) [1982] PNGLR 44
Beng v The State [1977] PNGLR 115
Nare v Independent State of Papua New Guinea [2022] PGSC 87; SC2294 
Pawa v The State [1981] PNGLR 498
John Jaminan v The State [1983] PNGLR 318
Amoko, The State v [1981] PNGLR 373
Wani v The State [1979] PNGLR 593
State v Genia (No 1) [2024] PGNC 78; N10731

Counsel:
J, Kesan, for the State
R, Mangi, for Defence

VERDICT
14th June 2024
1.	MIVIRI J: This is the verdict after trial of Ben Guna of Waramass village, Jimi, Jiwaka Province who is alleged to have wilfully murdered one Philip Gilma. Then take his wife one Anita Philip rape and detain her against her will and rape her whilst confining her in a house against her will.

2.	On the 08th of May 2021 at about 3.00pm Ben Guna was accompanied by six other men who were armed with guns and bush knives. Together they went to Waramambol village, Jimi, Jiwaka Province. At that time one Philip Gilma accompanied by his wife Anita Philip and two others were returning from their coffee gardens with bags of coffee cherries. 

3.	The accused and his accomplices were waiting in ambush on the bush track that Philip Gilma and the others were using to return home. When they came upon the ambush, the accused and the accomplices shot him in the head with a factory-made gun. He fell down and they surrounded him and chopped him all over his body leaving him dead.
 
4.	They then kidnapped Anita Philip wife of the deceased took her away against her will to their village. On the way one of the Accused’s friends had sexual intercourse with the victim.

5.	They took her to their village and confined her in a house for almost a week, within which the Accused Ben Guna had sexual intercourse with her on the 11th May 2021 at about 2.00pm. And she was held in that village until her relatives came and rescued her on or about the 15th May 2021.

6.	In so doing the Accused and his accomplices intended to cause the death of Philip Gilma. And they unlawfully deprived Anita Philip of her liberty and sexually penetrated her against her will. And the Accused and accomplices aided and abetted each other in pursuit of an unlawful purpose pursuant to sections 7 and 8 of the Criminal Code.

7.	The first indictment was pursuant to section 299 (1) of the Criminal Code Act of wilful murder reading: -

(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 wilful murder.

(2)	A person who commits wilful murder shall be liable to be Imprisonment for Life.
8.	And the second indictment was pursuant to section 347 of the Criminal Code which read; “(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.”

9.	The third indictment against the accused was of deprivation of liberty pursuant to section 355 of the Code reading; “A person who unlawfully–
(a)	confines or detains another in any place against his will; or
(b)	deprives another of his personal liberty,
is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.”
10.	I raised whether it was contrary to section 531 (4) of the Code in the presentation of the two indictments one for wilful murder and second for, first count rape and the second count, deprivation of liberty. Joinder of Charges on the same indictment. Counsel submitted that there were no breaches against the law because there were two separate indictments. This was not a joinder on the same indictment. Wilful Murder was not joined in the same indictment so that there was a joinder of the charges. Which would entail the State to abandoned one for another day, and to pursue with the other. It was not the case seen in Ombusu v The State [1996] PNGLR 335. It was not a lumped hearing as the offences arose from the facts that were committed. It was not a case as seen in Ombusu (supra) where the homicide came out responding to the rape. Here it was part of the same transaction, Philip Gilma was shot dead, cut up, and his wife was taken away and raped, and detained, then raped. So the facts warranted to run all together the evidence being the same in all. And both offences were by two different indictments both in the event of a guilty verdict drawing a maximum of life imprisonment, not death as was the case in Ombusu supra. There was no prejudice to the accused in the running of the trials together. The evidence relied on was the same and could not be broken into two trials set apart from each other. Convenience was not the underlying theme, rather justice to both the State and the defence was under pinning. And in this regard it warranted. It did not prejudice or denied justice, so it was run as it did here together. The facts were inseparable including the evidence in both cases. And it was summed by that section itself which I set out here: 531. Joinder Of Charges: General Rules. 
(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.
(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted–
(a) by the same acts or omissions; or
(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,
charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.
(3) If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may–
(a) require the prosecutor to elect on which of the several charges he will proceed; or
(b) direct that the trial of the accused person on each or any of the charges be had separately.
(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

11.	Hence there was no illegality in the procedure adopted and followed.

12.	Defence then applied for the accused to sit and be stationed for the trial in the public gallery as the issue was one of identification. That it would not serve his defence if he sat in the dock. He could be easily picked out prejudicing his defence. The application relied on section 155 (4) of the Constitution on the inherent powers of the Court to do justice in the case. But did not make out on what basis applicant accused be moved to the public gallery. It did not fit the scene set out by Aihi v The State (No 2) [1982] PNGLR 44. That, adherence to the law the appeal period will deny her justice. Following the law would cause injustice in his defence. Here the sitting arrangements in Court would deny him justice. Nor would he be unfairly treated in where he sat in the dock. It was not an identification parade at a police Station. This was a criminal trial in a court room designated and gazetted as such by law. And it was designated that all accused persons will sit out the trial in the dock, not in the public gallery. The Court room was specifically designed so that the lawyers were at the bar, the court on the bench and the witnesses in the stand, and the accused in the dock. Further it was a matter of law within the principles in this area of the law set out in Beng v The State [1977] PNGLR 115. And Justice was not defeated nor denied the accused if the application was refused. There was no basis in fact and law apparent or identifiable to grant the application. It was refused and the trial was ordered to proceed with the accused in the dock.

13.	The first witness on oath for the state was wife of Philip Gilma who recalled that on the 08th May 2021, early in the morning, accompanied by her husband with another Lina, and Boni, they went to their coffee garden to tender it and also to pick cherries. Which they were carrying on their back packed into bags. They completed and were returning when they came upon the ambush set up by Kombiye Yambe, Councillor Zuwi Kandel, Brum Dongilia, Kolip Tanz, Badi Galei, Ben Guna, and Mulia Win. Out of that seven (7) one is in Court. He is Ben Guna who is over there and points out the accused in the dock.

14.	And when they came upon the ambush of the seven, Kombiye Yambe got a gun and shot Philip Gilma in the head, and he fell to the ground. As he did the seven came and started cutting him with the bush knives they had whilst he was lying on the ground. They stood scattered around him and cut at random all over his body. Each took it upon themselves to cut him as they saw fit. We were very close together and as I was crying, they kidnapped me and pulled me along with them. Further along the way Councillor Zuwi removed all his clothes and then had sexual intercourse with me. Two others who were coming after us were a little bit behind. They kidnapped me along to Karap village where they detained me there for two (2) weeks as a prisoner. Because the door was locked, and I was kept inside it. And whilst there Ben Guna took me out and he forcefully had sexual intercourse with me. I did not want but he forced me to have sexual intercourse with me. And I was rescued by my family when I went to the coffee garden. Ben Guna is one of the seven (7) who killed my husband because I saw him and recognized him. He is from the neighbouring village of Waramass which is close to Karap. Further up is Tapebuka about 7 kilometers like from the Court house to Kunjip. He held a bush knife in his hands at that time.

15.	In cross examination she firmed out her evidence of the accused village including the locality and where accused originated from including his clan and that of the other six accomplices of the accused. She also stated their clans calling individually aligning them alongside their respective clans, and whether or not they were enemies, or foes. She was a Christian who had back sided but believed in God. And she was 2 meters looking at what happened to her husband when he was shot and then cut up by the Accused and the six (6) accomplices. And she showed that out in court very clearly without any hesitation, or long pauses in her evidence. She admitted that she was carrying a heavy bag of coffee cherries, but it was very close to her just two meters apart. And from this distance she saw that Ben Guna was wearing a black shirt with a black coat. His trousers were also black. He had no shoes but had a wool cap. And he cut the deceased on his neck. Whilst Councillor Zuwi Kandel cut his legs. Brum Dongilia cut the other leg. And Kolip Tanz cut him on his back.

16.	She admitted that she was frightened and surprised at the attack but saw Ben Guna who is in the dock with Thomas Galiye Walep who is from Karap village, but his small village is Kandabila. And he is from the enemy tribe. She denied that she inferred the accused to the crime because of his association with this person. She was firm that she saw him because he went down and killed my husband and Thomas Galiye Walep was also arrested. She maintained in bold that Ben Guna was a hired man to kill her husband. Because he used a gun to kill him. And he also cut her husband with the bush knife when he was lying on the ground.

17.	I observed her very closely when she gave her evidence. She was very clear in her mind as to what happened on that day, and how her husband had met his death, because both were two meters apart walking close to each other. When attacked they were close, and she was able to see the Accused Ben Guna and the others clearly. She gave her answers intelligently and without any hesitation or pauses. She was immediate to response to the questions that were posed her by the defence counsel. She was meticulous in her description of the defendant and his accomplices. She described the accused right to what he was wearing and where he was from clan and village. These intricate details including whether the accused had shoes to his feet was given straight without any hesitation. She said he was bare feet. It reflected her clear and concise observations of what happened on that day. Her view was unobstructed, and she was at very close quarters with the accused when she made the observation of the crime. I found her to be a very intelligent witness who was quick to response to the questions that were posed her by the defence counsel. She left no detail out from her questions. I am firm that without the other evidence of Lina Robin there was no inconsistency or lies in her evidence. She was a witness of the truth as it unfolded before her eyes. She was with the Accused for two weeks detained at his leisure and when he committed rape upon her, she saw him very close body touching, and intimacy forced upon her to the Accused leisure and pleasure. I do not find any doubts to deny her evidence. She is an intelligent witness and a very truthful witness. I have no doubts or reservations as to the veracity of her evidence. I believe she told the truth to the fullest as it occurred to her.

18.	I reject the submissions by the defence that she was an inconsistent and lying witness who could not be believed. Because the questioning of the defence covered every hole that was in the case and made it watertight. The questions probed into minute details of the clothes that were worn by the Accused, and his accomplices. She described all in detail. She described what each did in the homicide of her husband. In my view when a witness describes right to minute intimate intricate details, it means the witness is very observant and knows what they saw and did on that day. Only a witness present could go that far. And all these details came out because of the persistence of questioning of the defence counsel. At one stage the court hinted to counsel to defend her client, rather than to prosecute her client. This did not draw any draw backs by defence counsel. She unearthed details that were left out by the State Counsel to the detriment of her client’s case. Details only a person observant could see. And that is the case of this witness. I reject any submissions that she was an inconsistent lying and deceitful witness. In fact, only on her evidence alone the State case would have discharged its burden of proof after the questioning by defence counsel. In any case he remained silent so how could his defence be run in the light of the alibi in the record of interview that had no notice in accordance with the rules on file served the State. No motive came out against the evidence of the State witnesses against accused.

19.	Second witness Lina Robin originally from Waramass, same village as accused recalled that day 08th May 2021. She accompanied Philip Gilma and his wife Anita Philip to go pick coffee cherries. They did the picking completed and were returning when Kombiye Yambe, Councillor Zuwi Kandel, Brum Dongilia, Kolip Tanz, Badi Galei, Ben Guna, and Mulia Win caught them in an ambush. She also recounted that Kombiye Yambe shot the Philip Gilma in the forehead with a shot gun, and he fell down to the ground. As he did, they all came armed with bush knives and started cutting him all over the body. She said they were crying when they took Philip Gilma’s wife Anita. And it was around 2.00pm when this happened. She remained crying there over his body until others came and they took him back.

20.	Again, like Anita Philip she pointed out the accused by name Ben Guna stating that She knew him because he was from Waramass not far down from Waramambol to Karap because it was K10 by bus. And she knew the Accused because he was a popular face there. And he was a hired man to kill the deceased. Again, in cross examination by defence counsel details that were missing in the State case were sealed up. She maintained that she was right behind as they were going down hill and she saw what happened from that angel. She was two meters. And admitted that there were trees. And that the road was small and narrow, and she too was carrying a bag of coffee cherries. But she described that the deceased Philip Gilma was ahead of her with his wife Anita and She was following when she saw what happened. She saw Kombiye Yambe took the gun and shot Philip Gilma in the forehead, and he died. Then the six of them got their bush knives that they held and cut him all over his body repeatedly at random. When nit picked by the defence as to who cut what on the deceased, she detailed that Ben Guna was one of them when he cut the deceased with a bush knife all over his body. And She too described that he wore a black shirt. That Kombiye Yambe killed the deceased and ran away. Mulia Win also wore a black. The same for Badi Galei, and Kolip Tanz. They were all wearing black at that time of the killing. It was a short time from when he was shot to when they converged upon him and cut him up.

21.	She too truthfully said she was frightened and weeping over his death. And was surprised when he was shot. She remained with the body, but Anita was beaten up and taken away by them. And she was alone by herself with the body. She too is a Christian. She also stated that Ben Guna was hired to kill the deceased Philip Gilma. And that he was hired by Councillor Zuwi Kandel and Kombiye Yambe. She said they wanted to fight so they hired him to come and kill Philip. Asked repeatedly that Ben Guna was not the one responsible for the death of Philip Gilma, she answered boldly and confidently that he was one of them who murdered him. And Pointed to the Accused in the dock stating Ben Guna is there, and he is one who took the bush knife and cut the body of Philip. It was mountain and I was coming down, so it was a clear view when I saw what happened. Like Anita she maintained that Ben Guna was not identified because he was with Thomas Galiye Walep, but that she was watching what happened in that he was one of the seven who murdered Philip. 

22.	I have no doubts in the veracity of this witness’s evidence. She is a very strong, confident and truthful witness. She too came out with details particularizing her evidence to the clothes that the accused with accomplices wore. Including where they were from and of seen the accused prior as he was a popular face. Not only that but she named him without reservation not because of any reason, but the fact that she saw him do what he did on that day leading to the death of the deceased, and the taking away of Anita Philip. I am not swayed having seen her in the witness box give her evidence. I have no doubts that she was telling the truth, because she came out with details unquestionable of what each accomplice of the accused did including him. Only a witness who saw what happened will confidently tell that story. This is what this witness did tell the story as it unfolded before her eyes. I am confident that I will accept her evidence as the truth of the events of that day leading to the death of Philip Gilma and the adduction forcefully of Anita Philip corroborating her.

23.	Both Anita Philip and Lina Robin are eyewitnesses and victims of that criminal actions on that day. What they saw will not be extinguished by photographs as it unfolded before them. Each has confidently told that as it unfolded. Both are not inconsistent nor incredible in any way with the photographs because they are not clear photographs depicting out by a policeman trained to get same. They appear to have been taken with a camera in a mobile phone by a relative of the deceased. Given that Police would require time to get to that location. A policeman is trained and would know where to direct to take photographs. It would not be the same for a lay ordinary member of the public. There are therefore no inconsistencies in the four photographs and the evidence of both eyewitnesses. I reject that submission as without merit.

24.	It is the same with the medical report by Health Extension officer Joesph Anzu who sees all the cuts all over the body and sets them out clearly in the medical report exhibit P3(a)... “chopped him good on his body, and damage all the main blood veins, tendons and muscles. Multiple knife wounds main parts of the muscles damage.” This is supported by Exhibit P3(b) Condition directly leading to death (a) Bullet Wound (b) Severe Bleeding… Multiple wounds” Which is signed by the Health Extension officer Joesph Anzu dated 08 May 2021. This is evidence that is consistent with the account of the two eyewitnesses that I have set out above. What the defence counsel has strenuously tried in vain to make is not there. There is no iota of inconsistencies or incredible evidence if these are all seen in aggregate. This is independent verification of the account of both eyewitnesses of the actions undertaken illegally unlawfully by the persons named who shot, assaulted, and killed the deceased. Then they took away his wife and detained her and raped her. There is strong spiral of truth leading from the two eyewitnesses to this evidence. There is no doubt at all if all are viewed in aggregate, establishing that Philip Gilma was wilfully murdered by his assailants, Kombiye Yambe who shot him, and the others Councillor Zuwi Kandel, Brum Dongilia, Kolip Tanz, Badi Galei, Ben Guna, and Mulia Win all cut him with the bush knives they had.

25.	It is consistent with Beng (supra) that identification of the Accused Ben Guna has been firmed out. He is recognized and the conditions in which the identification is made is very conducive to enable both witnesses to see and identify him as he took part in that offence. Later detaining and denying the liberty of Anita Philip and sexually penetrating her against her will. The State evidence is unchallenged by the defendant because the accused has remained silent. He is entitled to do as he has done. There will be no adverse inferences drawn from that fact. He is presumed innocent until proven guilty. The onus is on the State start to finish. Here there is nothing that will entail as evidence in his case, except his record of interview. There are no admissions in Exhibit P1(a) and P1(b) conducted on the 03rd June 2021 at the Minj Police Station with the Accused. Interestingly at Question 16 he is asked, “On Saturday 08th May 2021 at about 3.00pm where were you? Ans: I was at Banz. Question 17, Who was with you at that time in Banz? Ans: I was selling smoke and betelnuts in a table.” This is an alibi that has been left in the air without evidence to support his cause. It is false alongside the evidence of the State that is set out above for the reasons set out. Because that is not the examination of the defence in the witnesses of the State: Nare v Independent State of Papua New Guinea [2022] PGSC 87; SC2294 (7 September 2022). And it has not been taken any further with the silence of the Accused. His silence means the State is not contradicted in its evidence. The examination of witnesses by the defence has made the state case even stronger. Because no alternatives have been placed by evidence in court in defence. The State evidence is uncontradicted and remains intact. Effectively it means there is no alibi effectively to shield the defence. The identification evidence of the State witnesses remains uncontradicted. And which is material to the State case. That is the effect of the silence of the Accused: Pawa v The State [1981] PNGLR 498. His false alibi now corroborates the evidence of the State witnesses John Jaminan v The State [1983] PNGLR 318.

26.	I am satisfied beyond all reasonable doubts that the Accused is part and partial of that offence and his role is clear from the evidence of both eyewitnesses read in the light of the law in principal offenders in Amoko, The State v [1981] PNGLR 373. It is very clear accused is an aider and abettor and fits what the Supreme Court set out in Wani v The State [1979] PNGLR 593. He is not merely present there, but actively takes part in the cutting of the deceased with the bush knife that he held and used. I am convinced that there is intent to kill the deceased as set out in the facts, there is no other reasonable hypothesis given, he was shot with a gun and then cut up repeatedly, there is intent to kill and there is a killing, State v Genia (No 1) [2024] PGNC 78; N10731 (27 March 2024). I return a guilty verdict of wilful murder upon the Indictment dated the 12th June 2024 against Ben Guna of Waramass village, Jimi, Jiwaka Province.

27.	For the same reasons set out above, I have no doubt in my mind that Ben Guna is guilty of sexually penetrating the vagina of Anita Philip with his penis without her consent when he abducted her after wilfully killing her husband, Philip Gilma. And he detained her depriving her personal liberty from the 08th May 2021 to the 15th May 2021. I find him guilty on that count also on that Indictment dated the 12th June 2024. Anita Philip had her husband wilfully murdered and she has been forcefully taken away deprived of her liberty. I return a guilty verdict pursuant to section 355 (b) of the Code against Ben Guna.

28.	The verdict is guilty on all charges preferred and he is remanded to await sentence.

Orders Accordingly
__________________________________________________________________
Office of the Public Prosecutor      :  Lawyer for the State	
Office of the Public Solicitor        : Lawyer for the Defendant