IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No. 06 of 2002

PUBLIC PROSECUTOR

-v-

1) TOM TUPUN
2) RENE KUAU
3) HARRY IAUNAMUAN
4) ALICK ROUSIKANG
5) SAM NIRUA
6) ROUSIATI PAILET
7) HENRY SAIPEA
8) ANICK IARAPAT (IAPSEI)
9) JACK KAHU (NATOU)
10) SAVIER TAKNIK
11) ALBERT ROUSIKANG
12) ARTHUR JOEL
13) DAVID NIKAU
14) JACOB SAE

Coram: Chief Justice Lunabek

Counsels: Mr. Collin Leo for the Public Prosecutor
Mr. Bill Bani for the Defendants

Date of hearings: 24, 25, 26, 27 March 2003
Date of Verdict and Sentence: 28 March 2003
Date of written reasons published: 27 October 2003

REASONS FOR JUDGMENT

This is the judgment in this case, the trial took place at Isangel, Tanna. The proceedings are conducted in Bislama. The judgment is in English.

There are 14 defendants in this trial. They were charged with 5 counts. The nature of the counts and the charges are set out below:

In Count 1:

The 14 defendants: Harry Iaumahuan, Tom Tupun, Alick Rousikang, Jack Sai, Nirua Sam, Anick Iarapat, Jack Kahu, Taknik Savier, Rene Kuao, Albert Rousikang, Author Joel Narawas, Henry Saipea, Rousita Pailet and David Nakau, are charged with the offence of Unlawful Assembly, contrary to Section 69 of the Penal Code Act [CAP. 135].

It is, then, particularized that the defendants are from Enuhup Village South West of Tanna. On or about 14 October 2002 in the area of Iatukur Nakamal, they assembled together with the intention of killing a woman: Rebecca Kang. At the time, her family were frightened of the defendants.

In Count 2:

The above named 14 defendants are charged with the offence of Intentional Homicide, contrary to Section 106(1)(a) of the Penal Code Act [CAP. 135].

It is particularized that on or about 14 October 2002, at Enuhup Village the defendants intentionally killed the old woman, Rebecca Kang.

In Count 3:

The above-named 14 defendants are charged with the offence of Arson, contrary to Section 134 of the Penal Code Act [CAP. 135].

It is particularized that on or about 14 October 2002, at Enuhup Village, they intentionally burnt down the house of Noel Kema and Rebecca Kang.

Count 4:

The defendant, Jacob Sae, is charged with the offence of Intentional Assault, contrary to Section 107(b) of the Penal Code Act [CAP. 135].

It is particularized that sometimes on 14 October 2002, at Enuhup Village, Jacob Sai intentionally assaulted the old man Noel Kema and as a result of the assault, Noel Kema sustained injury of temporary nature.

In Count 5:

The defendant, Tom Tupun, is charged with the offence of Aiding and Abetting Intentional Homicide, contrary to Sections 30 and 106 of the Penal Code [CAP. 135].

The particulars of that offence is that sometime on 14 October 2002, at Enuhup Village, Tom Tupun aided and abetting by advising or soliciting or suggesting to his people to kill the old woman Rebecca Kang.

Each and all defendants pleaded not guilty in respect to each of the five offences as charged in the five counts.

The pleas are taken and the trial proceeds on these counts. The defendants understand their statutory right under Section 81 of the Criminal Procedure Code [CAP. 136] which was read and explained to each of them.

STANDARD OF PROOF AND ESSENTIAL ELEMENTS OF THE OFFENCES

This is a criminal trial. The law is that the prosecution must prove the charges. There is no burden on the defence whatsoever. It is the duty of the prosecution to prove each and all essential elements of the offence charged against each and all of the defendants, beyond reasonable doubt. If at the end of the trial, I am left with a reasonable doubt as to one or any or all of the defendant’s guilt, then, anyone or all of them will be entitled to the benefit of that doubt and be acquitted.

Some part of the prosecution evidence was based on circumstantial evidence. The prosecution has the legal burden to prove the elements of the charges against each and all the defendants beyond reasonable doubt. In situations as the present case, the appropriate course to take by the Court is that each item of circumstantial evidence does not have to be independently proved beyond reasonable doubt. A number of facts, each of which alone is not proved beyond reasonable doubt, may, when taken together by the judge of fact, operated so as to justify an inference beyond reasonable doubt of an assault on the body of another person causing damage/injury. Some of the damages/injuries resulted in the death of the victim. The prosecution is not required to disprove any inference that the ingenuity of counsel might devise. I must exclude any reasonable hypothesis based on the evidence which is consistent with innocence but no more.

Section 8 of the Penal Code [CAP. 135] indicates proof beyond reasonable doubt but states that “the determination of proof beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous”.

Inferences may be drawn from proven facts if they follow logically from them. If they do not, then the showing of any conclusion is speculation and not proof.

•	The 14 above-named defendants are charged in Count 1 with the offence of Unlawful Assembly, contrary to Section 69 of the Penal Code Act.

Section 69 says:

“No person shall take part in an unlawful assembly.
Penalty: Imprisonment for 3 years.”

Section 68(1) defines the offence of Unlawful Assembly as follows:

“(1)	When three or more persons assembled with intent to commit an offence, or being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause nearby persons reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.

(2)	It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves with common purpose in such a manner as aforesaid.

(3)	….”

Before I can convict any or all the defendants, the prosecution must prove each and all essential elements of the offence of Unlawful Assembly. They are set out below:

1.	That on 14 October 2002 three or more of the defendants assembled together.

2.	That they assembled together with intent to carry out some common purpose.

3.	That they conduct themselves in such a manner-

(a)	as to cause nearby persons reasonably to fear that the persons so assembled will commit a breach of peace; or

(b)	will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace.

•	The 14 defendants are charged in count 2 with the offence of Intentional Homicide, contrary to Section 106(1)(a) of the Penal Code.

Section 106(1)(a) provides:

“No person shall by any unlawful act or omission intentionally cause the death of another person.

Penalty:	(a)	if the homicide is not premeditated, imprisonment for 20 years;

(b)	… .”

Causing death is defined under Section 109 of the Penal Code Act [Cap.135].

Section 109 provides:

“A person shall be deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases-

(a)	if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill;

(b)	if he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living;

(c) 	if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so cause;

(d)	if by any act or omission he hastened the death of a person suffered under any disease or injury which apart from such act or omission would have cause death;

(e)	if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.”

Before I can convict any or all the defendants, the prosecution must prove each and all essential elements of the offence charged in Count 2. They are as follows:

1.	That the defendants caused the death of the deceased Rebecca Kang on 14 October 2002.

2.	That the defendant acted with intent to cause grievous bodily arm or they are reckless as to whether or not death occurred as a result of their action.

•	The 14 above-named defendants are charged in count 3 with the offence of Arson, contrary to Section 134 of the Penal Code Act [CAP. 135].

Section 134 says:

“No person shall wilfully and unlawfully set fire to, or damage by means of any explosive, any building or other property whatsoever which to his knowledge belongs to another.

Penalty: Imprisonment for 10 years 

(2) 	……”

The prosecution must prove each and all the following essential elements of that offence as charged in count 3. They are set out as follows:

1.	On 14 October 2002, the defendants set fire to a house.

2.	The fire caused damage to the said house.

3.	The house belongs to the deceased.

4.	The defendants know that the house belongs to the victim/deceased.

•	The defendant, Jacob Sae, is charged in count 4 with the offence of Intentional Assault, contrary to Section 107(b) of the Penal Code.

Section 107(b) says:

“No person shall commit intentional assault on the body of another person.

(a)	….

(b)	if damage of temporary nature caused, imprisonment for 1 year.”

The prosecution must prove each and all essential elements of that offence: they are as follows:

1.	The defendant Jacob Sae intentionally assaulted the victim (Noel Kema).

2.	Noel Kema has injury on his body as a result of such an assault.

3.	The injury is of a temporary nature.

•	The defendant, Tom Tupun, is charged in count 5 with the offence of Aiding and Abetting Intentional Homicide, contrary to Sections 30 and 106 of the Penal Code Act [CAP. 135].

The prosecution must prove each and all essential elements of that offence.

They are set out below:

1.	That the defendant, Tom Tupun, aided and/or abetted to cause grievous arm on the body of Rebecca Kang.

2.	That the victim, Rebecca Kema died as a result of the grievous bodily harm on her body.

3.	That the defendant, Tom Tupun, aided and/or abetted to cause the death of Rebecca Kang.

Summary of Evidence

The details of the evidence are contained in the Court file. What I do here is to give part of the evidence that are important and relevant for the decision.

SUMMARY OF THE PROSECUTION CASE AND EVIDENCE

Prosecution case

The prosecution case is that on Monday 14 October 2002, the defendants planned to kill the deceased Rebecca Kang. At 8.00 P.M. o’clock at night at Rebecca’s house, while Tom Tupun went to question Rebecca about whether or not the rumour that she killed lots of people with black magic is true or not, other defendants surrounded Rebecca’s house. Rebecca said she did not know the rumour and she denied her involvement. Tom Tupun asked her again if she performed black magic to kill people in the village. Rebecca denied again. The interrogations of Rebecca and expected answers from her changed their shape and became real disputes between Tom Tupun and Christine Kema (Rebecca’s daughter) who tried to defend her old mother. At that point in time, there were three groups of people surrounding Rebecca’s house. The prosecution says those were the defendants. Tom Tupun forced Rebecca to admit that she practiced black magic and killed people in the village. Rebecca denied again. Then, two of the defendants who were around Rebecca’s house, stepped in the disputes and accused Rebecca of practicing black magic which they heard from someone else. Some of the defendants moved and came closer to the place Tom Tupun was with Rebecca, Christine and her father, Noel Kang. The tensions became at a maximum level and out of control. Christine rushed in the house got her two children and sought refuge to other relatives. Rebecca and her husband, Noel Kang, remained outside their house. The prosecution says the defendants set fire to Rebecca’s house, assaulted Noel Kema and killed Rebecca.

PROSECUTION EVIDENCE

Christine Kema is the first prosecution witness. She gave evidence to the effect that on Monday 14 October 2002, at about 8.00PM o’clock in the evening, her mother, Rebecca Kang, her father, Noel Kema, and her two (2) children were in their house at Enuhup village, South West Tanna. They were ready or about to sleep. The defendant, Tom Tupun, went to their house and called the name of Rebecca and requested her to come outside. Rebecca did not reply. Christine, instead, replied. Tom Tupun said he wanted to talk to Rebecca. Christine came outside with a hurricane light. She put it between the door and a stool she sat on. The hurricane light was shining.

She asked Tom Tupun why he called her Mother. She asked Tupun if he wanted to see her or tell something. Tom Tupun replied positively by saying “yes”. So Christine called her mother (Rebecca Kang) to come outside. Tome Tupun and Jacob Sai were outside. Christine asked both of them why can’t you come tomorrow during day time. Tupun replied “No”. It is good just between us. When Rebecca came outside, Tupun questioned Rebecca: “there were rumours that you killed people with black magic, is that true?”

Rebecca did not reply. She instead called on her husband, Noel Kema, to come outside. When Noel Kema came outside, Tom Tupun told him not to sit close to him. Christine said her father went to sit with her on a stool.

Tom Tupun asked again to Rebecca Kang, whether it was true that he killed people with black magic. Rebecca then said she did not know. Tom Tupun then forced Rebecca to answer his question. If she failed to answer his question, there were lots of people who were around the house. Tom asked Rebecca if she has a ‘tabu stone’(black magic stone) in her house.

Christine said she replied to Tupun. She said she swept in the house and around the house. She did not find any stone. The argument went on for some time.

Then, Tupun asked Christine not to talk and defend her mother but Rebecca must talk. Christine saw and heard Albert Rousikang accusing Rebecca that she spoiled and killed people with black magic. Christine saw Alick Rousikang in one of the groups around the house. She, then, saw Arthur Joel who came and whisper at the ear of Tom Tupun. Arthur held a bush knife in his hand. Harry Iaumahuan and Jacob Sai then moved closer to Noel Kema. 

The talking between Tom Tupun, Christine Kema, Rebecca Kang and her husband, Noel Kema became then increasingly a dispute. The tensions were high. Christine was looking at Tom Tupun and Harry Iaumahuan.

At that point in time, then, the old man Kema was assaulted and felt on the ground. Christine did not see who assaulted her father. But she said when her father felt on the ground, she saw Jacob Sai stood near to him (lying on the ground).

Rebecca, then, went to see her husband. Tom Tupun and Harry I. followed Rebecca.

Tom Tupun told Rebecca that she was the one who killed people with black magic and she killed his brother Sam Rawares. Rebecca denied and said she did know nothing about the rumours.

Tom Tupun told Rebecca that if she did not admit, people who are around her house will kill her. If she admitted that she killed people, with black magic, then, she won’t be killed. Rebecca again denied.

At that point, the tensions were at a maximum level, Rebecca made a signal to her daughter, Christine, to leave the house with her two (2) children. Christine went in the house quickly as she could she got her two (2) children and left. Then, she could hear noise on the house like struck or stone thrown on the house. She heard Rebecca crying and calling on her husband.

She was cross-examined by the defence counsel. She was not disturbed in her evidence in chief. She confirmed that on 14 October 2002 she saw the defendants she mentioned in her statement. The defendants that are not mentioned in her statement, she did not see them on the night of 14 October 2002. She knew Tom Tupun who is her cousin brother. They lived in the same village. Jacob Sai is also her cousin brother. Substantive part of Christine’s evidence or accounts of events are not disputed by the defence.

Sam Nuares was the second prosecution witness. He gave evidence to the following effect. He is from Itaka village at Green Point (Tanna). On 14 October 2002, he went to Eanuhu village to attend the funeral of a man (Sam Rawares).

After the burial of Sam Rawares, Sam Nuares went to Eanahu village. On his way, he saw Tom Tupun and other defendants at Tupun’s Nakamal. He arrived at Enuhu, drank kava and went to sleep.

Later ladies woke him up and informed him that there was a big fight. He got up and saw that women ran away and hid. He went to the place where the house was burnt. In his way there, he met with MP François and David Nakau who tried to stop people going to the place of the incident.

He said when he arrived at the place of the incident, the house was still burning. There was a big fire. The chickens flew everywhere. Some of the people who were at the scene of the incident threw stones at the burning house. 

When he arrived, he saw Rebecca Kang was sitting and powerless. She could not move. When people who were involved in the incident saw the witness, he said some of them moved and intended to assault Noel Kema. Some of these move towards him. He heard a voice saying assault him. He is one of them. It was Tom Tupun’s voice. He said he knew very well the defendants. He lived with them when he was at school in class 1 until today. He knew and recognized that voice. Arthur took a stone to throw at him. He said he called the name of Arthur. Arthur recognized him and did not throw the stone at him. 

He said he asked them where they were going. They told him to go for Noel Kema. All of them carried stone. Some of them carried knives.

He said he then went and stayed in front of Noel Kema. He said at that point in time, he recognized Harry Iaunamuan who was surprised to see him (witness) there. He saw Savier Taknik held a bush knife and show it to him (witness). He saw Albert Rousikang with a belt knife. Savier Taknik fastened a bush knife on his side. Noel Kema satdown on the ground. Andre Saipa questioned Noel Kema if he has a magic stone. He said they tried to kill Noel Kema. He tried to stop them. He asked them to stop. They tried again to kill Noel Kema. He said, then, he heard a voice commanding the boys says words to this effect: “if that is so, kill the old lady”. He said he recognized the voice. It was the voice of Tom Tupun.

He said he told them: “why yufala bae i kilim tufala. Two (2) houses were already burnt.”
He then saw three men came out from the place where Tom Tupun was and gave out his orders. He said: “mi harem nomo body blong Rebecca i faerap. Mi harem olsem oli kikim wetem shoes.”

He said he did not recognize the face of three (3) men. He said Tom Tupun would know them. When the three men assaulted Rebecca Kang, he said, Andre Saipa warned Noel Kema that if he heard any rum ours again that Noel Kema did something, he will be dead. Then all of them left. He was there with Noel Kema. He helped Noel Kema to stand up. Noel Kema walked 7 to 11 metres. He said Rebecca did no longer move. He tried to help Rebecca. He gave her water. She drunk and felt on the ground. He went to seek help.

When he arrived at the football field he met MP François and a teacher of Nikiti school who helped. They took Rebecca to the dispensary. He and Noel Kema followed them but far behind. He said he saw Noel Kema was worried about his wife Rebecca. He then said in the road between the place of incident and the dispensary, a man came and walked with both of them (witness and Kema).

When they arrived at the dispensary, Rebecca died already. He said he took Noel Kema in a different house. Noel Kema at that stage did not know that Rebecca already died.

He said MP François and others took Rebecca to the dispensary but she died in the road.

He said he came behind with Noel Kema, He said he tried to save Kema’s life. He took him (Kema) to a different house. Kema asked about his wife. He said he told him that Rebecca was alright.

Sam Nuares was cross-examined. He said he walked passed Tom Tupun’s Nakamal. He denied he was too drunk with kava. He said when he went to the place of incident, he could control himself. He confirmed he saw David Nakau and PM François at the football field which is about 100 meter from the place of the incident. MP François wanted to go to the place of incident but he was stopped. He said he was not afraid.

Although people tried to stop him going there, he went to the place of the incident. He said they were lots of people. He was asked if there were 50 men. He said yes. But he confirmed that the names of people who he saw and recognized them are contained in his written statement. At that time, he said there were different groups. Some stayed with this witness. Others ran everywhere and chased the chickens. Others destroyed flowers.

He confirmed the voice was that of Tom Tupun. He recognized it. He said the voice came out behind the group underneath a flower tree there. He saw a shadow of a man there. 

He said he did not see who assaulted Noel Kema. He said when he arrived at the scene of the incident, he saw Harry I. coming out from the place where Noel Kema was. Rebecca was laying down there. He said when the fire diminished, he heard that voice saying words to this effect: “sipos hemi olsem, yufala i go kilim Rebecca”. He confirmed there were three (3) men coming out from the place where the voice came from. They went and killed Rebecca.

He repeated that it was during the time he protected Noel Kema that the 3 men went and killed Rebecca. So he said Tom Tupun should have known them.

He confirmed he recognized 8 of the defendants as listed in his statement.

He also said Thomas Tor helped him to stop the fight. He said he went to the place of incident first. Thomas Tor came after him.

He was challenged as to whether he saw any of the defendants with knives. He said when he just arrived at the place of the incident, he said he remembered about “bandit blong Philippines”. He said they have knives with them. Arthur Joel used stone. Andre Saipea has knife. He said he did not know who set fire to the houses.

Under re-examination, he was asked as to how he recognized the voice of Tom Tupun. He said when he was small, he stayed with the group of the defendants. They lived in the same village. The voice cannot be different or for a different man. He knew the defendants’ local language. He said they played and stayed together. He confirmed the voice was that of Tome Tupun. 

The next prosecution witness was Napuati John. A police C.I.D. officer base in Tanna. He is a C.I.D. officer for 11 years. He worked in Tanna for 6 years. He took the statements of Rene Kuau and Alick Rousikang. Before he took their statements, he cautioned them. Rene Kuau stated in his statement that Tupun told them at his Nakamal to go to Eunuhu village, Rene put in his state that he ran away and went into the bush.

He said also that Alick admitted he joined the group but he did not do anything.

He was cross-examined and he confirmed that the statement was that of Rene and Alick.

He finally said he did not know what is the plan in question.

Jean Eruai was the next prosecution witness. He gave evidence that he worked as a teacher for over 20 years. He is also a chief and exercised the role of a chief for 6-7 years now.

He gave evidence that during and after the incident in the village, people ran away and refused to come back in the village. They are afraid. He said there were custom ceremonies performed for the people of the village to return in the village. There was a pig killing ceremony to clean and clear the faces of the families. A little girl was given by the families of the defendants to the family of the deceased. The community have rebuilt the houses which were burnt.

Moise Robert and Louis Naliu were the next prosecution witnesses. They are both qualified and very experienced registered nurses. They both worked at Isangel Hospital. Moise Robert is of Tanna Island. He worked as a registered nurse for 7 years.
Louis Naliu has 20 years of experience as a working in the hospital. They jointly made a medical report. Rebecca was examined on 15 October 2002. The report of the two nurses show that the deceased Rebecca had sustained the following injuries:

•	Right upper and lower jaw fractured and dislocated

•	Left breast bone fractured and abrasions 

•	Right 8th, 7th ribs fractured 

•	Abdomen soft

•	PV bleeding

•	Feet bruise right foot

The injuries resulted from serious assaults. She sustained during the incident of 14 October 2002 at her house. Rebecca Kang Kema died as a result of these injuries on her body.

Louis Naliu says the injuries can be caused by very serious blow on the body. His experience is that if someone uses his hand to assault the rips of another, it may be that one bone of the rips could be fractured but here the injuries sustained show that hand was not used. The struck was done on several occasions by the use of wood or stone. The 6th, 7th and 8th rips of Rebecca were broken. Some very strong force were needed.

Both nurses were cross-examined. They are not detracted from their evidence in chief. It was put to each of them that they did not put Rebecca through x-rays. Both said that without x-rays, they can easily identify if a bone of the rips was broken.

The last prosecution witness was Francisco Ritchy. He is a nurse at Ikity dispensary. He did not witness the incident. He examined Noel Kema on 15 October 2002. He said Kema’s ear was injured as a result of the assault he sustained on his body. He examined the left and right side of Kema’s belly. He said there were bruises as a result of the assault he sustained on his body.

That is the end of the prosecution’s evidence.

SUMMARY OF THE DEFENCE CASE AND EVIDENCE

THE DEFENCE CASE

The defence case is that the charges brought against the defendants are serious. The defence says that the evidence of the prosecution’s main witnesses, Christine Kema and Sam Naures are not accurate. The defence denied that any of the defendants killed the deceased. There was no identification of any of the defendants who killed the victim.

The defence said that there is a reason for Tom Tupun to go on that night of 14 October 2002 to Rebecca’s house where the incident happened.

The defence said they will show a black magic stone found, in the house of the deceased Rebecca. They said the stone was used to practice witchcraft.

THE DEFENCE EVIDENCE

Tom Tupun is the first defence witness. He gave evidence to the following effect. He is from South West of Tanna. He lives in small village not far from the village of Ianuhu. A gardener and former Councillor of Tafea Province. He said it is not the first time he was before the Court to give evidence.

He said on 14 October 2002, one of his brothers, Sam Rawaru died. He was buried on the same day in the afternoon in the village of Iatipur.

After the burial, he drunk kava with the people of Iatipur village and returned home at night. 

He then came to Rebecca’s house in the night at about 8.00PM. When he arrived there he said there were lots of people around the house of Rebecca and her family. 

He said the purpose for him to go inside the yard of Rebecca is because of the stone (witchcraft stone).

He knocked at the door. Inside house, there were Christine, Rebecca, Noel Kema. When he knocked, then Christine replied. He told Christine that he wanted to see Christine and her mother Rebecca.

Christine came outside with a hurricane light and put it between the door and a stool outside. Rebecca then came outside. She looked around, there were lots of people. He said when he wanted to talk to her Rebecca called on her husband, Noel Kema. He said he told Rebecca he did not want to talk to Mr. Kema. He wanted to talk to Rebecca. He also said that at that time Jacob Sae sat on the other end of the stool on which Christine sat. Then Mr. Noel Kema also came outside and sat on a chair. He asked Rebecca to take a chair but she refused. He said he started to ask her questions. He said he told Rebecca that there was lots of rumours that she practice witchcraft to kill people. He said Rebecca denied. He said he told her that tomorrow lots of people will take her to the nakamal and questioned her. Then he said there was a voice on the opposite side, near a mango tree accusing Rebecca of going down to creek and ate with the spirits of her ancestors and sometimes they came and ate at Rebecca’s house. He said he recognized that voice which is that of Albert Rousikang. While Rebecca took time to reply, he said, another voice said: “you look you ia now i talem se toktok ia”.

He then said that at that time Christine got up from where she sat and got inside the house, took her two (2) children and left. Then Rebecca moved closer to light. Then he said he asked this last question to Rebecca: “you gat one stone?” He said Rebecca said yes she has a stone. It was inside the house under the table beside the door. He said he and Rebecca got inside the house, he said, there was fire. The house started to burn. The said he ran outside. He said he told Atnik and Sae that he had the stone, they can leave.

When he was asked if he got the stone, he replied he did not see any stone inside the house and he did not see Henry Saipea. He said he told Sae and Atnik to leave and return to Enai. 

He said he did not have the stone when he returned to Enai. He said different person got it. He denied Kema felt on the ground. He said he did not return to the place of the incident.

He knew Thomas Tor. He saw Thomas Tor. He saw Thomas at Enai latter that night. He said Thomas Tor told him not to move around and to keep quiet.

He said he knew Sam Naures. Sam Naures was at school at Ikity until class 6.

He said on 14 October 2002 at the time of incident he did not have a knife nor Jacob Sae. He said he was informed of the death of Rebecca the next day in the morning. He did not know who burnt the house. He did not know whether Noel Kema felt on the ground at that time. 

He said at the time of incident, he was not in the bush. He was in a clear place. 

He was asked if at the time of incident, the voice commanding others to kill Rebecca was his voice, he replied that at that time he did not see Sam Naures. He denied the voice is his.

Tupun was cross-examined. He said there was lots of people at the burial of his brother Sam Rawaru. People from nearby villages also attended the burial.

He confirmed after the burial, he went to Rebecca’s house during the night. There were lots of people around Rebecca’s yard. He said he did not know why people surrounded Rebecca’s house. He said he did not know why Jacobe Sae was there too at that time. 

Jacob Sae is his cousin brother. 

He knew Christine and Christine knew him. He denied he ever told Rebecca that she must admit that she had a stone otherwise people whoa were around the house will kill her. He said he went inside the house with Rebecca.

He said he knew the defendants. He said he knew Sam Nuares and if Sam Nuares spoke, he would have recognize his voice.

He said the person who took the stone come after him.

He denied he lied when he said he took the stone in his previous answers. He went inside he did not see the stone. He said he did not know why Rebecca died.

He said he and Sam Nuares knew each other well. 

Under re-examination, he said he did not take the stone. He said when he came outside he knew the stone was inside the house because Rebecca showed it to a different person.

He further said that during the incident he was at a clear place. There was no bush and flowers. If the defendants spoke, you could understand them. If Sam Naures talked to me I could recognize his voice.

He then said the voice mentioned by Sam Nuares in his evidence is not his. He said if he had spoken during that night the defendants will recognize his voice.

Henry Saipea is the second witness of the defence. He gave evidence that he is from Iamatukura village South West Tanna. He is married and has 3 children.

He said on 14 October 2002 after the burial of Sam Rawara, they drank kava and then because there were lots of people there, so they moved to Eanuhu village to go on drinking kava. When they arrive at Eanuhu village, they heard people shouting in a nakamal which was near the house of Rebecca. He said people moved in and out next to the boundary of Rebecca’s house. He said Kema is his uncle. Rebecca is his auntie. He said during that night, he heard that people are searching for witchcraft stone. He said he went into Rebecca’s yard. He said before he moved there, he got a custom leave (remedy) against the magical power of the stone. He said when he got there, there were lots of people. He said there were also lots of people inside the house. When they got inside the house, Rebecca showed a table. There was a person holding a torch light who went in ahead of them. He said he got the stone and he saw the house got burnt. He said he then took the stone and got outside the house. He took the stone and place it at a banian tree which is about 20 meters from the village.

Then he said he come back at the place of the incident because he said he left Rebecca and there was fire.

He said when he returned he saw Kema near a flower tree and took Kema back to sit on a chair. But there was lots of people. Kema sat beside a tree. He said he asked Kema if he has any other stone. He said Kema told him has another stone but it was kept by Bruno. He said Rebecca told him that the stone was inside the house. Rebecca walked straight towards the fire. He said he brought her back to safe place at least 3 times.

Then he said the saw Thomas Tor. Thomas Tor talked to him. He said he told Thomas that he look after Noel Kema.

He said Sam Nuares just arrived. When Sam arrived Thomas Tor had gone already.

He said he was the one who looked after Kema. Sam Nuares lied. He denied he had a bush knife. Then he said he left Kema to Sam Nuares. He said he then left and returned to Iatukur village.

He produced the stone to the Court [Exhibit D.1]. He said the stone is a special one. There was a hole in the stone from one end to the other. He said they put a piece of food inside the hole and closed the other end. The person aimed at will be sick. The stone started to eat him/her.

He denied any person on 14 October 2002 assaulted Kema. He said Tom Tupun was not there. He did not see Tom. people who assaulted Rebecca.

He said there were lots of flowers they were there at the time of the incident.

He was cross-examined. He confirmed that he took the stone. He said he saw Tom Tupun with Rebecca inside. He took the stone and come outside with it.

He confirmed he saw Sam Nuares at the time of incident. He said he left Kema with Sam.

He said he did not recognize any other people at that time.

The third defence witness is Jacob Sae. He gave evidence that he is a gardener. On 14 October 2002, he went to Christine’s house and saw Tom Tupun there talking with Christine. He said he did not know that Tom Tupun knocked at Rebecca’s door. When he saw Tom Tupun talking to Christine, he sat at the sat at the right side of Christine. Kema sat at Christine’s left side.

He said there was a light close to the door. He said there was no other person. He said Tupun asked Christine if she practiced witchcraft to kill people. There was a voice saying Rebecca visited devils at the creek. Then another voice accusing Rebecca of poisoning people with witchcraft. He said Christine rushed in the house. She got her 2 children and left.

He was asked if he was close to Kema when he felt down. Then he said he could not explain. He saw Kema was sitting. Tupun sat down on a chair. When Christine rushed in the house. Tom Tupun did not say a world He did not recall what Tupun said to Rebecca. 

He then said Tom Tupun asked where was the stone. Rebecca replied that the stone was inside. He said Tom Tupun went First followed by Rebecca inside the house. When both were inside the house, he said he and Kema were outside. Then he said some other persons got inside the house too. He did not know them. He said not long after, Tom Tupun came outside and they left and went to Iamai. There were three (3) of them: himself Tupun and Taknick. There were lots of people. He saw the fire.

He did not see Sam Nuares But he saw Thomas Tor at Eanai. He did no have a knife during the incident. He did not se anyone holding a knife. He knew about Rebecca’s death on the next morning at about 10.00AM o’clock.

He was cross-examined. He confirmed he came to Christine’s house. He said Tom Tupun talking to Christine. He saw Kema was standing there. Rebecca also was there. Kema was standing at the left side o Christine. He said Rebecca denied he poisoned people with witchcraft. It was put to him that at that stage, he moved closer to Noel Kema. He denied. He said he went there because he wanted to know what they are talking about. He said a voice he recognized to be that to be that of Albert Rausikang. A second voice again who said words to this effect: “you look, you ia nao i stap poisenem ol man”. He said, then Christine left. He, Tupun, Kema and Rebecca stayed.

He further said when Tupun got inside the house, he sat with Kema. Christine had left. Tom Tupun and Rebecca went inside the house. He said he did not know whether they got the stone. He and Kema stayed outside. He said Kema never felt on the ground. He said when Tom Tupun and Rebecca went in the house, some people followed them in the house. He then said Kema stood up and he sat down. When Tom Tupun came outside, they left and went to Eanai village. He said at that time, he did not see any person near the house. He denied that when Kema felt on the ground he stoop up. He denied that when Kema stood up he too stood up.

He said he did not know who set the fire on the house. He said: “mifala 5 nomo stap. Mi, Rebecca, Kema, Tupun mo Christine”.

He said he did not see Sam Nuares. He said he did not see Thomas Tor at that time. He saw Thomas in the village of Eani.

He said he heard about the death of Rebecca the next morning.

Albert Rousikang is the fourth witness of the defence. He is from Enuhu village. He is married and has 5 children. He worked for a local company chain sawmill at green point. He said he attended the burial of Sam Rawaru. He returned home in the late afternoon. O his way home, he said he decided to go and changed his bulluck. He fastened his bulluck near the second house as he said he has two (2) houses on 2 different places. He then returned to Eani village. He said when he returned in the road he heard Tom talking to Christine. He said Rebecca’s house is close to the Road. So he decided to go there. He was standing in a dark corner. He saw Christine, Tupun, Sael, Kema and Rebecca there. He was at about 10 meters. Only Rebecca stood up. The rest sat down. He said Tom questioned Rebecca. Tom asked Rebecca: “you nao you stap poisonem ol man?” He asked that question twice.

He then said he intervened from the place he was and told Rebecca that word to the following effect: “you talem no be long road long we you talem you go long tabu place…”

He said that time he saw Christine running into the house. He said he was standing underneath the flower three.

At that point in time, he said Sam Nuares was not yet at the scene.

He was cross-examined. He said he cut timber. He cut timber with special took including knife. He come down to check and change the place of his fastened bulluck. Alick Rousikang was on the other side. At the time there was no fire as yet. He stood there. He did not go close to them. Jacob Sae sat Tupun sat. He denied holding a stone or a knife. He did not see Alick Rousikang. He heard and recognized his voice. He said when he spoke, he did not know whether there were lots of people who heard it. The group of people was on the other side. He saw Tom and Rebecca went into the house. Other people followed but he did not know them. 

Then Tupun came outside. He said he went underneath the mango tree. Tom called on Jacob Sae and they left.

Thomas Tor is the second last defence witness. He is the representative of Ikity community. He is an ex policeman. He retired as policeman in 1995.

He gave evidence that on 14 October 2002, he was at Ikity village. He was ready to sleep when he heard the noise of the iron roof caused by the burning of the house. He went to the scene. On his way there he did not see anybody. He entered the football field there was nobody. He saw the fire. It was a big fire and lots of people were around and watched the fire including children.

He said he did not talk to anyone. He talked loud to the people at that time: “yufala i burnem house be hemia antap ia yufala i burnem.”

He said he saw Rebecca. Rebecca told him: “oh bubu ol thing for me oli loss”.

He said he asked who burnt the house. Children told him, there were some men running up there and followed the road.

He said he saw Saipea stood with Noel Kema. He said he asked Saipea about the condition of old man Kema. He said Saipea told him that Kema was alright. He then corrected and said Saipea told him that he look after Kema. He said he told Saipea to stay and look after Kema. He will run and follow the men who moved up the road. 

On his return, he said he took Kema and Rebecca to hospital.

At the time, he said when he arrived at the scene, there were lots of people. He saw Saipea but he did not see Sam Nuares. During that night he said he run Tom Tupun’s place (Enai). He asked Tom as to who burnt the house. Tom told him that he did not know. He said he told Tom to inform people who did this to stop and not to burn any other houses again.

He then came back to the place where the house was burnt.

On his way back to the place of the incident he met with Samuel and Kapir. They are the grand children of Kema and Rebecca. They were informed about the incident. They followed him to the village to take Kema and Rebecca to the hospital.

He said they did not arrive in the village as when they arrive at a creek, they saw Sam Nuares and Noel Kema were resting there. He said he asked Sam Nuares about old Rebecca. Sam Nuares told him that the Ikity school teacher and MP François took Rebecca to Ikity dispensary. They have already gone. He said he asked Kema as to how he felt. He said Kema told him that he was weak and tired so they rested there.

He said he, Sam Nuares and Kema walked slowly to the dispensary. They were then informed that Rebecca was dead. 

Thomas Tor was cross-examined. He said he heard about the noise made by the burning of the iron roof of the house about 8 to 9 o’clock PM in the evening. He said in place where the house was burnt, he saw lots of people including children. Some of them are present in the Court today. He saw Rebecca. She was sitting there. He did not yet see Sam Nuares. There was nobody with Rebecca. Rebecca told him that she lost everything.

Saipea was with Kema. 

He said at the beginning of the incident, he saw Saipea. He said he did not check the condition of Rebecca. He said Saipea told him that she was alright. He said he told Saipea to look after Rebecca when he run to Enai to find out who burnt the houses. He said he did not know why Saipea did not stay or follow Kema to dispensary. Saipea was not there with Kema.

He did not se Jacob Sae.

The last defence witness is Savier Taknik. He is from Enup village. He is married. He has 4 children. He gave evidence that on 14 October 2002 in the night Sam Nuares saw him but he did not a knife. He said he talked to Sam Nuares. He said Sam Nuares was drunk of kava. He was asked as to what he told Sam Nuares about, he said he did not talk to Sam Nuares.

He did not see Thomas Tor.

He was cross-examined. On 14 October 2002, after the burial of Sam Rawaru, he and others drunk kava. He then got a torch light and went back to the village. 

At the start of the burning of the house, he did not see Sam. He only saw Kema and Rebecca. He did not see Thomas Tor. Then he said he saw Sam Nuares when he arrived. He drunk kava. He was in the middle between Saipea, Kema and him (witness). He said Sam saw him holding a torch light. He said also that Saipea told Sam to look after Kema and he and Saipea went home. At that time, he said he did not see Rebecca. He did not see the children. He heard about the death of Rebecca on the next morning.

He was then re-examined. He said during that night he did not see Sam Nuares. He explained that from the start when the house was burnt he did not see Sam Nuares. He said, then I saw Sam coming.

That is the end of the defence evidence.

FINDINGS AND DISCUSSIONS ON EVIDENCE

I have heard the evidence in this trial for 4 days. I have carefully listened to the testimony of each and all of the witnesses’ testimonies. I have also observed and considered the demeanour of each and all witnesses. The following are the facts as found and accepted by the Court.

On 14 October 2002, Sam Rawaru died. He was buried in the afternoon on that day.

On 14 October 2002, Tom Tupun went to Rebecca’s house at 8.00PM o’clock in the night. Tupun went there because he suspected that Rebecca killed his brother Sam Rawaru. Tupun went to Rebecca’s house and questioned Rebecca whether she was the person who killed people by the use of witchcraft.

When Tupun arrived at Rebecca’s house, Jacob Sae followed him there. There were lots of people around Rebecca’s house.

I accept the evidence of Christine Kema that there were three (3) groups. A group of people on one side of Christine’s mother’s house in which she said she recognized Harry Iaumahuan. Two other groups of persons on the other side. A group where Christine said she recognized Albert Rousikang and Arther Joel but she did not recognized others. Another group that Christine did not recognized any.

On the evidence, all the defendants were present and involved in the incident of 14 October 2002 except 3 of them: Nirua sam, Rousita Pailet, David Nikau. 

The defendants planned at Tupun’s nakamal to ask Rebecca if she is the one who killed people with the use of witchcraft. The evidence of CID police officer to the effect that one of the defendants admitted in his statement that Tom Tupun told them at his nakamal to go Enuhu village, the village where the incident took place.

The defendants say they came to Rebecca’s house to take the witchcraft stone. I accept Sam Nuares’ evidence that he was there during the evidence and saw all of the defendants. I accept Sam’s evidence that he protected Kema. I reject the defendant Harry Saipea’s evidence that he protected and looked after Kema during the incident.

I reject part of the evidence of Thomas Tor which support that part of Saipea’s evidence. The evidence pointed to the contrary. The conduct of Saipea to leave Kema in the condition on the early morning of 15 October 2002 did not support his evidence. Thomas Tor also did not understand why Harry Saipea left Kema without further help. I do not accept the explanation put forward by Harry Saipea.

I reject the evidence of the defendants that they found a witchcraft stone at Rebecca’s house during that night. This was clear from the incident of Tom Tupun who said he found and got the stone. He latter said he came outside the house with the stone.

He said another man got the stone. Harry Saipea said he got the stone inside Rebecca’s house. Christine said there was no stone there. The defendant Jacob Sae who was there said he did not see the stone.

The stone as exhibit D1 was not taken out from Rebecca’s house. It must be taken from a different place for whatever purpose.

I accept the evidence of Sam Nuares that he saw the defendants holding stone and knife. I reject the defence evidence to the contrary.

I accept Sam Nuares evidence that he can recognize the voice of Tom Tupun. Tom Tupun also recognizes the voice of Sam Nuares. Sam Nuares knew each and all of the defendants. Although, he is from green point (Tanna), but he was at school with the defendants.

I do not accept the evidence of Tom Tupun that after he went into Rebecca’s house to take the stone and then left.

Tom Tupun says there was no bush and no flowers there. The witnesses from the prosecution and the defence gave evidence of flowers there. Tom said he was not standing in the bush. He was standing in a clear place.

I accept the evidence of Sam Nuares that there was a voice commanding others to kill Kema. I accept Sam Nuares that he intervened to protect Kema from others. I accept also that part of his evidence in which Sam said he recognized that voice which is that of Tom Tupun.

I accept also Sam Nuares evidence that while he was protecting Kema the same voice who came out from the flower commanding others to the following effect:

“Sipos hemi olsem, yufala kilim Rebecca”.

Then three (3) men came out from the same place and assaulted seriously Rebecca. Nuares said he could not identify the 3 men he said “mi harem nomo body blong Rebecca I faerap. Mi harem olsem oli kikim wetem shoes.”

I accept Sam Nuares’ evidence that the voice is Tom Tupun’s.

There is no evidence as to who set fire on the house. As to the assault on Kema, I accept the evidence of Christine that although she did not see who assaulted Noel Kema, Jacob Sae was with Kema. When Kema was assaulted he felf down on the ground. Jacob Sai was standing aside him. The evidence show that during the argument, Jacob Sae moved from the part of the stool he sat on and moved closer to Noel Kema. When Noel Kema was assaulted and felt on the ground, Jacob Sae was standing beside Kema. I do not accept Jacob Sae’s version of the facts. I am not impressed by the evidence of Savier Taknick. There were lots of contradictions and I reject it.

I finally accept the evidence of two nurses: Moise Robert and Louis Naliu.

On 15 October 2002, Noel Kema was treated by the medical officer Francisco Ritchy at Ikity dispensary, South West Tanna. Noel Kema had sustained injuries on his body: his left ear was broken. His left and right side of his belly sustained injuries. The injuries on the body of Noel Kema resulted from the incident of 14 October 2002 during which his houses were burnt.

 Mrs. Rebecca Kang Kema was declared death on 14 October 2002. There is no dispute that Rebecca died on her way to Ikity dispensary. She had sustained the following injuries:

•	Right upper and lower jaw fractured and dislocated

•	Left breast bone fractured and abrasions

•	Right 8th, 7th ribs fractured

•	Abdomen soft

•	PV bleeding

•	Feet bruise right foot.

The injuries resulted from the serious assaults she sustained during the incident of 14 October 2002 at her house. Rebecca Kang Kema died as a result of these injuries on her body.

Application of the law: Verdict 

In Count 1:

On the basis of the evidence and facts as found, I am satisfied that the prosecution proved the offence as charged in count 1 beyond reasonable doubt against the following defendants: under Section 69 of the Penal Code [CAP. 135].

Harry Iaumahian
Tom Tupun
Alick Rousikang
Tocob Sae
Anick Iarapat
Jack Kahu
Taknik Savier
Rene Kuau
Albert Rousikang
Author Joel
Henry Saipea

Count 1: 

Harry Iaumahuan - 	Guilty 
Tom Tupun - 		Guilty
Alick Rousikang - 	Guilty
Jacob Sae - 		Guilty
Anick Iarapat - 	Guilty
Jack Kahu -		Guilty
Taknik Savier -	Guilty
Rene Kuau - 		Guilty
Albert Rousikang -	Guilty
Author Joel -		Guilty
Henry Saipea - 	Guilty

A verdict of not guilty is entered in count 1 in respect to the following defendants: Nirua Sam, Rousita Pailet, David Nikau.

In Count 2:	On the evidence, the prosecution failed to prove the offence on the criminal standard required against the defendants as charged under Section 106(1)(a) of the Penal Code [CAP. 135].

A not guilty verdict is entered for all the defendants. 

In Count 3:	On the evidence, the prosecution failed to prove the offence as charged against each and all the defendants under Section 134 of the Penal Code [CAP. 135]. Not guilty plea for all defendants.

In Count 4:	I am satisfied the prosecution has proved the case beyond reasonable doubt against Jacob Sae. Jacob Sae is found guilty as charged in Count 4 under Section 107(b) of the Penal Code [CAP. 135].

In Count 5:	On the basis of the evidence I am satisfied beyond reasonable doubt of the following:

On 14 October 2002, Tom Tupun was at Rebecca’s house. Rebecca died as a result of serious assaults she sustained on her body. At the time of the incident, Tom Tupun was present. He gave command to others (3 men) to kill Rebecca. Tom Tupun participated before the actual killing in the incident. He gave command for others to kill Rebecca. Tom Tupun and others planned to go to Rebecca’s house to ask Rebecca if she has a black magic stone and if she is the person who killed people by the use of witchcraft.

Tom Tupun encouraged others to commit the crime. (kill Rebecca). Tom Tupun commanded others to kill Rebecca. This amounted to procuring through the intervention of others. Tom advised, counsels incited other to kill Rebecca. Rebecca was badly and seriously assaulted on 14 October 2002. Rebecca died just after as a result of the assaults on her body. There is no doubt about the mocus rea.

There was a direct link between the command of killing Rebecca and the death of Rebecca as a result of such advice counsel, soliciting and procurement. I am not detracted from the fact that the principals are acquitted. The evidence is overwhelming against Tom Tupun.

Count 5:	The prosecution has proved the offence as charged in count 5 beyond reasonable doubt against Tom Tupun. Tom Tupun is found guilty as charged in count 5 under ss. 30 and 106(1)(a) of the Penal Code [CAP. 135].

SENTENCE

Defendants Harry Iaumahuan, Tom Tupun, Alick Rousikang, Jack Kahu, Taknik Savier, Remy Kuau, Albert Rousikang, Arthur Joel Narawas, Henry Saipea are convicted of the offence of Unlawful Assembly contrary to Section 69 of the Penal Code Act [CAP. 135].

Defendant Jacob Sae is convicted of the offence of Intentional Assault contrary to Section 107(b) of Penal Code Act [CAP. 135].

Defendant Tom Tupun is convicted of the offence of Aiding and Abetting Intentional Homicide contrary to Section 106(1)(a) and Section 30 of the Penal Code Act [CAP. 135].

Upon considering the submissions and mitigation of the defence, the following sentence is imposed:

In Count 1:	8 months imprisonment with immediate effect on the following defendants:

Harry Iaumahuan, Tom Tupun, Alick Rousikang, Jack Kahu, Taknik Savier, Remy Kuau, Albert Rousikang, Arthur Joel Narawas, Henry Saipea.

In Count 2:	Jacob Sae is sentenced 8 months imprisonment with immediate effect – to be served consecutively with Count 1.

In Count 5:	Tom Tupun is sentenced for 8 years imprisonment with immediate effect. This sentence is to be served consecutively with the sentence in count 1.

BY THE COURT

Vincent LUNABEK
Chief Justice