Public Prosecutor v Urinmal [2013] VUSC 101; Criminal Case 01-13 (1 June 2013)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Vanuatu

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

DESIRE URINMAL
GRATIEN MALTAPE
THEOPHILE KILITER
FERNAND LAPINMAL
KEN LESNAWON
BAE LUKE MALTOK
LUKE SARISETS
JEAN MARK YORLEY
ATOL KILITER
KAMMY BUKTAN
JOSES SARISETS
JEAN NAWINMAL
GIDEON JOSIAH LESNAWON

Coram: Chief Justice, Vincent Lunabek
Counsel: Mr. Simcha Blessing for the Public Prosecutor
Mr. Collin Leo for the Defendants

Dates of trial: 20,21,22,23,24,25,27 and 28 May 2013
Date of Verdict: 1st June 2013

This is the judgment in this case. The trial takes place at Lakatoro, Malekula. The proceedings are conducted in Bislama. The Judgment is in English.

There are thirteen (13) Defendants in this Trial, namely: Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon.

The Defendants are charged with Riot, Intentional Assault, Kidnapping, Threats to Kill, False Imprisonment and Extortion. The nature of the offences and the particulars of these offences are contained in the Information dated 20th May 2013. They are set out as follows:

Riot is contrary to sections 68 (3) and 70 of the Penal Code Act (Cap. 135).
It is particularized that Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luce Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawenmal, and Gideon Josiah Lesnawon, on or about the 2nd November 2012 at Malekula, assembled with intent to commit the offences of Assaults, False Imprisonment, Kidnapping and Extortion of Gaston Muluane and executed the purpose for which they assembled.

Intentional Assault is contrary to section 107 (b) of the Penal Code Act (Cap. 135).
It is particularized that Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Desire Urinmal, Kammy Buktan, Gideon Josiah Lesnawon, Fernand Lapinmal, Jean Mark Yorley, Ken Lesnawon, Jean Nawinmal and Atol Kiliter, on or about the 2nd of November 2012 at Malekula Intentionally Assaulted the body of Gaston Muluane, causing damages of temporary nature.

Kidnapping is contrary to section 105 (b) of the Penal Code Act (Cap. 135).
It is particularized that Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Desire Urinmal, Kammy Buktan, Gideon Josiah Lesnawon, Fernand Lapinmal, Jean Mark Yorley, Ken Lesnawon, Jean Nawinmal, and Atol Kiliter, on or about the 2nd of November 2012 at Malekula by Force compelled Gaston Muluane to go from one place to another place namely, Lakatoro to Rano.

Intentional Assault is contrary to section 107 (b) of the Penal Code Act (Cap. 135).
It is particularized that Kammy Buktan, on or about the 2nd of November 2012 at Malekula intentionally assaulted the body of Gaston Muluane causing damage of temporary nature.

Threats to kill are contrary to section 115 of the Penal Code Act (Cap 135).
It is particularized that Kammy Buktan, on or about the 2nd of November 2012 at Malekula, caused Gaston Muluane to receive Oral Threats to Kill by directly uttering to him words to this or like effect, “bai mifala istop killim dead you mo sakem you long river”.

Intentional Assault is contrary to section 107 (b) of the Penal Code Act (Cap 135).
It is particularized that Kammy Buktan, Bae Luke Maltok and Fernand Lapinmal, on or about the 2ndof November 2012 at Malekula, intentionally assaulted the body of Gaston Muluane causing damage of temporary nature.

False Imprisonment is contrary to section 118 of the Penal Code Act (Cap. 135).
It is particularized that Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon, on or about the 2nd November 2012 at Malekula, without lawful authority confined Gaston Muluane against his will.

Extortion is contrary to section 138 of the Penal Code Act (Cap. 135).
It is particularized that Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon, on or about the 2nd November 2012 at Malekula, by violence and threats of violence compelled Gaston Muluane to do an act against his will namely, to sign a document proffered to him by the forenamed Defendants to revoke his rights to file Criminal charges against the then Member of Parliament Don Steven Ken or otherwise file an Election Petition against the aforementioned member of Parliament.

Each and all Defendants pleaded not guilty in respect to each of the offences as charged against one or each and all of them in the Amended Information dated 20th May 2013, save that Defendant Jean Nawinmal was not present when the other 12 Defendants entered not guilty pleas as charged on Monday 20 May 2013 at 9.00am o’clock in the morning. He was arrested by the Police of Lakatoro after a warrant was issued by the Court. He was arrested and brought in Court in the afternoon of the same day. His pleas on the offences he was charged with are recorded as not guilty pleas. Both Counsels accept that position to be the appropriate position to adopt in respect to that defendant.

The pleas of all Defendants are recorded as not guilty pleas on each and all counts and the trial proceeded on these counts. The defendants understand their statutory rights under section 81 of the Criminal Procedure Code (CPC) Act (Cap.136) which were read and explained to them.

The prosecution case is that the alleged crimes occurred on 2 November 2012, just after the General Elections of 30 October 2012. The issues arose prior to the 2nd November 2012. It is alleged that after the General Elections, there were allegations of corrupt practices occurring before the General Elections. It is said one specific document came into the custody of the complainant. When the Defendants found out that the document will be used as evidence in court, it is the prosecution case that the Defendants assembled together with the primary intention to retrieve the document before it be used in court as evidence. So to retrieve the document, the Defendants must engage in some Criminal activities. They agree together, they will do what it takes to catch the complainant on 2 November. It is the trust of the prosecution case the defendants searched the complainant, Gaston Muluane, to compel him and take him from a place to another place and to retrieve the document/information out of him. The Defendants executed their plan against the complainant by kidnapping him from Lakatoro to Rano. They hold him against his will up until 3.00am o'clock on 3 November 2012. They applied on the complainant force, threats to retrieve the document.

Mr. Collin Leo summaries the Defence case in this way:- The case of the defence is that on 2 November 2012, Mrs. Imak Maltok was at her house. It was after the General Elections of 30 October 2012. At about 10.00AM-12.00PM o'clock, Mr. Gaston Muluane approached Mrs. Imak Maltok at her house. The Defence says that Mr. Gaston Muluane trespassed in her yard. The Defence says that Gaston held with him a written document when he approached the house of Imak Maltok. The Defence says Gaston talked on the phone and told Imak that Police wanted Imak to sign a document. Gaston then called Imak's daughter (Jessica Maltok) to witness her mother to sign the document. The Defence says Imak signed the document by force. The Defence says that because of the force made by Gaston, Mrs. Imak Maltok put her initial letter "I" on the document. The defence says that because she was not educated she did not know what was it the document. The defence says after Gaston obtained Imak's signature on the documents, Gaston ran way with the document. The defence says the document was already written in the paper before Mrs. Imak put her initial "I" on it.

Then Mrs. Imak Maltok called or approached Mr. Jean Tony who is the President of People Services Party (P.S.P) Executive Committee. Mrs. Imak expressed to him he fear and concerns that Gaston forced her to sign a document and the document in question could be used in court to challenge the election of Don Steven Ken. The defence says Mrs. Imak Maltok was a member of P.S.P Executive Committee. The defence says given the urgency of the concerns of Imak which were expressed to Jean Tony, Jean Tony then contacted the Committee present at the campsite of Don Steven Ken to take that document back to Mrs. Imak Maltok. The defence says Mr. Jean Tony phoned Kammy Buktan who was the driver of MP Don Ken and drunken kava at that time with others expressing the concerns as to how Gaston forced her to sign the document.

The defence says Mrs. Imak Maltok is the owner of the document and it was a time just after the General Elections. The defence says Kammy Buktan as a Member of PSP Party with other Defendants who were in the truck drunk kava at Alfred Nakamal. Mr. Luke Sarisets saw the truck of former MP Kisito Teilemb running in fast speed. He tried to stop the truck as Gaston was in that truck with Kisito Teilemb. Kisito drove his truck to Lakatoro police station and the defendants drove behind them. The defence says, the purpose of the Defendants was to ask Gaston to back the documents.

The defence case is that when they were at the house of police constable Justino at Lakatoro, the first thing they did was they informed constable Justino that they came to ask Gaston to give the documents back to them. The defence says that when the defendants enquired them constable Justino told them to take Gaston Muluane with them and to sort out the issue at Rano.

The defence says that on the authorization given by a police officer in a rural community, the defendants respected and followed. The defence says as a result of the authorization then, Mr. Gaston Muluane walked freely and came inside the truck of the Defendants. The Defence says, Mr Luke Sarisets went first inside the truck, and Gaston Muluane followed him and sat on the right side close to the window. The defence says when the Defendants left Lakatoro, they were in a hurry as they got instructions that Mr. Timothy Maltok was already in the campsite.

It is the defence case that there was no threatening, there was no assault taking place. The defence says when the defendants arrive at the camp; Mr. Gaston Muluane opened the door of the truck and got outside. Mr. Luke Sarisets went outside and told Gaston Muluane to go to a place in the camp so that they can sort out the issue of the document. The defence says that there was no assault occurring in the camp. The defence says at the camp, there were white chairs, table used for the purposes of meeting of supporters of Don Ken before the elections and after the elections they used the chairs and table for day to day meetings The defence case is Gaston Muluane sat on a chair. The enquiries progressed by the Defendants about the documents Gaston run away with. The defence says that during the discussions, Mr. Gaston admitted that he had destroyed the document (which is not true). Then the defendants through Kammy Buktan went and got Imak Maltok to verify the discussions about the documents. The defence says that Mr. Timothy Maltok who is Gaston chief was present at that time to show that there was good spirit and understanding.

The defence of each and all Defendants to each and all counts laid against each and all or anymore or some of them only in the information dated 20 May 2013 under the predictions of the Penal Code Act (Cap 135) is of general denial to the following offences in the information.

1. Riot, contrary to s. 68 (3) and 70 Penal Code (Count 1)
2. Intentional Assault, contrary to s. 107 (b) Penal Code (Counts 2, 4 and 6).
3. Kidnapping, contrary to s. 105 (b) Penal Code (Count 3)
4. Threats to kill, contrary to s. 115 Penal Code (Count 5)
5. False Imprisonment, contrary to s. 118 Penal Code (Count 7)
6. Extortion, contrary to s. 138 (f) Penal Code (Count 8)

The Defence finally says that all Defendants are members of People Services Party (P.S.P). The Defence says the way Gaston Muluane forced a member of PSP really provoked the PSP members that is why they moved to take back the document. Mrs. Imak Maltok as an Executive member of PSP is oldest member.

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 offences charged against any or each and all of the Defendants, beyond reasonable doubt. It is not the task of the defence to prove the innocence of each and all Defendants. If at the end of the trial, the judge is left with a reasonable doubt as to the guilt of one or anyone or each and all defendants, then anyone or each and all of them will be entitled to the benefit of that doubt and be acquitted. When the court determines proof of beyond reasonable doubt, the court shall exclude consideration of any possibility which is merely, fanciful or frivolous (section 8 Penal Code Act). Proof beyond reasonable doubt does not mean proof based on absolute certainty. It requires that the judge must be satisfied on the whole of the evidence at the end of the trial that, as a conscientious and responsible judge of fact, the prosecution has proved each and all essential elements of the offences in the information.

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 such a situation, 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, operate, so as to justify an inference beyond reasonable doubt of an offence in the Information.
The Prosecution is not required to disprove any of the inference that the ingenuity of counsel might devise. The court must exclude any reasonable hypothesis based on the evidence which is consistent with innocence but not more.

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

In this case, a number of Defendants elected to exercise their right to remain silent. The position for me as a judge of fact to follow is summarised in Swanson v Public Prosecutor [1998] VUCA 9; Criminal Appeal Case 06 & 11 of 1997 (26 June 1998):

“In a circumstantial evidence case, where the accused makes no statement out of Court and/or elects not to give evidence, inferences can be drawn from the absence of any explanation from the person "with unique knowledge of the complicated dealings to which the charges relate"... The limits of the right to draw inferences from an accused’s silence are discussed in such cases as Trompert v. Police [1985] 1 NZLR 357 and Weissersteiner v. R. [1993] HCA 65; [1993] 117 ALR 545. It is basically aer of common sense to be usbe used in the circumstances of the case. See Haw Tua Tau v. Public Prosecutor [ 1982] AC 136, 151, 153. (a Judge-alone criminal trial).

Tdge did not rely on the ache accused's silence as a basis for drawing adverse inferences against the accused. In our view, he did not need to do so because the other inferences discussed alreaply justified the convictioictions. However, since the inferences are available to be drawn from unchallenged evidence, we should have thought that this case provided a suitable occasion for the drawing of inferences adverse to the accused, stemming as a matter of common sense from his lack of any explanation."

Others decide to give evidence in the witness box. The court must consider the evidence of the Defendants and their witnesses on the same footing as the evidence of the prosecution witnesses.

68. (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 assembling was lawful if, being assembled; they conduct themselves with common purpose in such a manner as aforesaid.

(3) When an unlawful assembly has begun to execute the purpose for which it assembled by a breach of peace and to the terror of the public, the assembly is called a riot.

Before the court can convict the Defendants of the offence of riot, the prosecution must prove each and all essential elements of that offence which are set out below:-

3. That they begun to execute the purpose for which they assembled by a breach of the peace and to the terror of the public.

Penalty:

(a) if no physical damage is caused, imprisonment for 3 months;

(b) if damage of a temporary nature is caused, imprisonment for 1 year;

(d) if the damage caused results in death, although the offender did not intend to cause such death, imprisonment for 10 years.

Before the court can convict any defendant or all defendants for the offences in counts 2, 4 & 6, the prosecution must prove each and all essential elements of these offences which are:-

1. Named Defendant(s) (in counts 2, 4, & 6) assaulted the body of the complainant on 2 November 2012.

2. Named Defendant(s) (in counts 2, 4 & 6) intended to assault the body of the complainant.

3. Named Defendant(s) (in counts 2, 4 & 6) caused injury/damage of temporary nature on the body of the complainant.

(a) convey any person beyond the limits of the Republic without the consent of that person, or of some person legally authorized to consent on behalf of that person; or

(b) by force compel, or by any fraudulent means induce, any person to go from any place to another place.

Subsection (b) is the relevant one for the offence charged in count 3 in the Information.

Before the Court can convict a defendant for the offence of kidnapping, the prosecution must prove each and all essential following elements of that offence:-

1) That Defendants took or carried away or transported complainant (Gaston Muluane) from a place to another place on 2 November 2012; and

2) That Defendants compelled complainant (Gaston Muluane) by force in his taking or carrying away or transportation; and

3) That Defendants took or carried away or transported Gaston Muluane without his consent; and

4) That Defendants took or carried away or transported complainant (Gaston Muluane) without lawful excuse.

No person shall, knowing the contents thereof, directly or indirectly, cause any person to receive any oral or written threats to kill any person.

Before the court can convict the named Defendants, the prosecution must prove each and all essential elements of that offence which are:-

1. Defendant Kammy Buktan caused the complainant (Gaston) to receive oral threats of his (own) killing.

No person shall without lawful authority arrest, detain or confine any other person against his will.

Before the court can convict the Defendants charged for that offence under section 118 of the Penal Code, the Prosecution must prove each and all essential elements of this offence which are:-

(a) threaten expressly or impliedly to make about any person, living or dead, any accusation or disclosure of any offence, or moral misconduct, whether the accusation or disclosure is true or not;

(b) threaten expressly or impliedly that any person shall make any such accusation or disclosure about any person living or dead;

(d) send or cause to be sent to any person any document containing any such threat;

(e) by any such means compel or attempt to compel any person to sign, execute, make, accept, endorse, alter, or destroy the whole or part of any valuable security, or to write, impress, or affix any name or seal upon any document in order that it may afterwards be used as a valuable security;

(f) by any such means induce or compel or attempt to induce or compel any person to do any act against his will, other than an act which it is his legal duty to do, or not to do any lawful act.

Subsection (f) of s 138 of the Act is the relevant subsection for the charge of extortion in count 8 of the Information.

Before the court can convict the Defendants charged for that offence, the Prosecution must prove each and all essential elements of this offence which are:-

1. That Defendants induced or compelled or attempted to induce or compel the complainant to do an act against his will.

The Prosecution called six (6) Witnesses. Gaston Muluane is the first prosecution witness. He gave evidence to the following effect. He is from Rano, North East Malekula. He is a self-employed person. On 1st November 2012, he was in his village at Rano. On that date, his chief Timothy Maltok came to see him when he was in his junior brother's house. Timothy came and gave a basket which was full of photographs. Timothy showed him the photographs when he was still in the house of his junior brother. Timothy told them these photos were distributed by Mr. Gratien Maltape on 29th October 2012 to Mrs. Imark Maltok who is Timothy's wife in the presence of Mr. Patrick Salwarsets and Timothy Maltok. The witness explained that the photographs were pictures of Mr. Don Steven Ken - their Member of Parliament and Logo of the MP's Political Party at the back. There were writings of Mrs. Imak Maltok and others on the back of the photos. He was shown a photo and he identified the photo as that of MP Don Steven Ken with his party logo and on the other-side there were the names of Mrs. Maltok and Timothy. He confirmed that this was one of the photos Timothy Maltok showed to him. It was marked (Exhibit P1). He said Timothy Maltok told them that he had evidence of wrong practices during the general elections on 30th October 2012 through Mrs. Imak Maltok. Then he saw Timothy holding his mobile phone and composed the number of one Kisito Teilemb. He said he was still at Rano village when he saw Kisito Teilemb came in his village with his white land cruser. He said Kisitio Teilemb asked them to go on his truck. He said Kisito Teilemb drove him and Timothy to Vao Village. He explained that they went to Vao because Timothy Maltok wanted to show evidence of mal practices occurring during the elections of 30 October 2012 to the people of Vao. On the same day, in the afternoon on their way back from Vao, Kisito Teilemb dropped off Timothy Maltok at Lavalsal Atchin as Timothy wanted to show the photos to the people of Atchin. Kisito Teilemb dropped this witness off at his village at Rano and Kisito returned to Norsup where he resides.

The next day on 2 November 2012 the witness said Timothy Maltok arrived in the village with a white Mitsubishi driven by one Crowley Malverus. He was asked to follow them and they went to Lakatoro Province Head Quarter. Then they took the same truck to return to Rano but on their way, they dropped off Timothy Maltok at Tautu. He also gave evidence that Timothy told him that after he returned to Rano village, he must go to Timothy's house which is next yard to his and put in writing the version of his wife (Timothy's) about the photographs. He also testified that Timothy told him that if his family asked of his whereabouts, he will tell them that he was ready to go to Port Vila to file an election petition. The witness said he did what Timothy instructed him to do as he was under Timothy's chiefly leadership. He gave evidence of how he carried out Timothy's instructions. He explained that when he arrived at Rano on 2 November 2012, he went to Timothy's house. Mrs. Imark Timothy was there at her house. He asked to talk to her and he went with Mrs. Imark in her kitchen and wrote down Mrs. Imark Maltok's statement of the distribution of the photographs on 29 October 2012 by Gratien Maltape. It was about 12.00 o'clock midday. He gave evidence of the content of the statement he wrote out for Mrs. Imark Maltok to the following effect. Mrs. Imark said it was true that on 29 October 2012, Mr. Gratien Maltape distributed the phototgraphs of Don Stephen Ken. She said Don Ken commissioned them to do it on 29 October 2012. If they casted their votes by casting this face on the photos – they took the photo as ID and they wrote their names and after the elections they could go to the camp site and asked what they wanted or if they go to Port – Vila, they could go and see MP Don Ken at his house at Agathis. He said Mrs. Imark agreed to sign the statement. Mrs. Imark signed the statement in the presence of her daughter Jessica and him. The letter is exhibited P2. After he got the statement for Imark, he went back to his home. About 4:00 PM o'clock on 2 November 2012, he went to a village called Jerusalem situated about 400 – 500 meters from his house (a distance between the Court house and the Lakatoro Market House he said). He said he went to Jerusalem because he was informed that the same kind of photographs of MP. Don Stephen Ken was also distributed on 29 October 2012 by one Jean Tony. The photographs were given to Mrs. Helen Combe. On his way, he realized that some people searched for him. He saw a blue land cruser. He knew the people in the said truck were looking for the photographs. He said Kammy Buktan drove the said blue land cruser truck which belonged to Don Steven Ken.

At about 4.00 PM – 5.00 PM, he said the people who searched him assembled at Jerusalem under a mango tree. He heard them swearing and talking loudly. They were angry. They proffered abusive words. He said he saw Mr. Gratien Maltape clapping his hands and said: "Yumi mas holem taet tufala tedei nomo before ol photos ia oli richim vila mo sipos inid bae yumi must mekem wan samting long olgeta". He said the tension was high. He gave evidence that he was afraid of them and he run into the main road. He tried to contact Kisito Teilemb to save the photographs he had in his possession. When he saw Mr. Gratien clapping his hands, he saw Atol Kiliter, Theophile Kiliter, Gratien Maltape, Desire Urinmal, Jean Mark Yorley, Gideon Lesnawon, and Joses Sarisets on a bench under the mango tree. They talked as a group. He also said he heard Desire Urinmal, Gratien Maltape and Fernand Lapinmal talked and spoke strongly. Desire Urinmal said words to this effect "sipos yumi holem tufala naoia, bae yumi holem tufala sakem long road mo blood blong tufala imust ron hemia long Friday 2nd November 2012. He mentioned the name of Fernand Lapinmal who said words to the same effect. He said Chief Theophile Kiliter said words as he saw his mouth talking but he couldn't hear what he said.

He gave evidence of his running away into the bush and ended up at Walla Village and went to Jean Vincent Maltelur's house.

Mathias Urinmal and Luca Muluane were with him to Walla. They waited for Kisito Teilemb. When Kisito arrived he took him only. The two others stayed.

At that time he said he had the photos with him already and his intention was to protect the photos and the document. He explained that on 2nd November 2012, he received the photos when Timothy Maltok left them on the road at Tautu before he wrote down the statement of Mrs. Imak Maltok.

Kisito took him from Walla to Vao. They arrived at Vao at about 5.45PM o'clock. He was afraid of the Defendants. He said he stayed with Kisito at Vao for about 15 minutes and they came back and they arrived at Amelvet Atchin opposite the English school, then they got same kava. There, he saw Joses Sarisets. He said he was afraid of the Defendants he thought people would not see him in the truck as he knew some people searched him and would assault him to retrieve the documents he had in his possession. He said they both moved to Mae village to visit some of Kisito's family. There too they drunk kava and stayed must longer as Mae is not near the main road. They arrived at Mae at about 7.30 P.M. They left Mae and come to Norsup on their way they went to Alfred Nakamal at Tautu at 10.30PM-11.00 o'clock. There, they met the Defendants with the blue land cruser. Some of the Defendants crossed the road. He was afraid as he had the documents with him in Kisito's truck with the intention to save the documents from the Defendants at Lakatoro police. At Tautu, he saw Kammy Buktan, Luke Sarisets, Joses Sarisets, Jean Nawinmal and Gideon Lesnawon. Some of Defendants crossed the road to block the road. They asked him to stop. He was afraid. Gideon Lesnawon threw a bottle of tusker against Kisito's truck. So they speeded the truck to come to Lakatoro Police to save the documents they have in their possession. Defendants chased them with the blue land cruser. He said Kisito speeded the truck and defendants followed them behind with the blue land cruser. He thought this type of race happened only in the movies but he said he had experienced it in a real way that night.

He testified they arrived at Lakatoro Police compound and Kisito stopped his truck at the house of Police officer Justino Teilemb. The Defendants too stopped their truck next to Kisito's truk. The Defendants came out of their truck. Luke Sarisets came and assaulted him and told him to go inside the Defendants' truck. Kammy Buktan too came and assaulted him. He explained that Luke Sarisets came out of the truck and assaulted him on the right side of his face with his right hand. He pushed him to go inside the Defendants' truck. He explained Kammy Buktan who was driving the Defendants' truck assaulted him with his hands on his head (Gaston's) near his eyes. Then Kammy forced him to go into the Defendants' truck. At that time, he said Bae Luke Maltok kicked him on his backside with the stock shoes he was wearing at the time. Joses also assaulted him and forced him to go inside the defendants' truck.

He said he hold on strongly on Kisito Teilemb. He did not want to go with the Defendants. Police officer Justino Teilemb was there. He said he did not manage to escape. When the Defendants arrived they assaulted him. Police officer Justino Teilemb was at the door of his residence. When they pushed him inside the Blue Land Cruser truck, Kisito tried to hold and pull him back. The Defendants grabbed him out from the hands of Kisito Teilemb. They grabbed and pushed him inside the Truck. The witness stated he resisted by putting his leg on the body of the truck as he refused to go inside the blue truck. He testified that when the Defendants assaulted him, Justino walked toward the truck. He said when Justino arrived near the truck; the Defendants pushed him already inside the truck. He remembered that before he was pushed inside the truck, he was unconscious and Kisito poured water to wash his head and the Defendants pushed him in the Blue Truck. Justino tried to talk to the Defendants by saying words to the effect: "Yufala itekem hem igo mo yufala ino mo killim hem" This witness stated that before they left Lakatoro at 11PM-12AM on 2 November 2012, he was put in the middle of the Blue Truck between the driver Kammy Buktan and Luke Sarisets. Just after the Blue Truck left Constable Justino Teilemb's house, Kammy Buktan hit him with his elbow. They followed the road up to police station - Court house at Lakatoro and follow the road down. Then, they stopped the truck at the bridge of Aop, between Lakatoro and Norsup. Buktan stopped the truck and opened the door of the truck and tell others to kill him dead and threw his body in the river. He said Kammy meant it. There was an argument between Kammy and Luke Sarisets as Luke Sarisets said they can't do that as they just came out from Police compound. Then he said Kammy Buktan told him "lucky blong yu today" when they left Aop to Rano, Kammy Buktan assaulted him with his elbow until they arrived at the camp at Worlep. Worlep is the campsite of Don Steven Ken. When they arrived at the camp, the light of the truck was on. Luke Sarisets opened the door of the truck. The witness stated he remained inside the truck. Luke Sarisets pulled him out of the truck.

Then Desire Urinmal assaulted him with a torch light on the back of his neck. Kammy Buktan assaulted him again and blood came out of his body since the house of Constable Justino at Lakatoro. Blood came out from his mouth and nose. Bae Luke Maltok kicked him with his boots on his backside. Then Fernand Lapinmal assaulted him on his chest and jaw. He felt on the ground. Bae Luke Maltok punched him on his chest and on his jaw. Joses Sarisets and Gideon Lesnawon kicked him while he was lying on the ground. He was lying on the ground and felt painful.

Atol Kiliter took a bamboo inside the camp and wanted to spear him with it. Eric Lapinmal intervened in the camp and told the Defendants to stop. At the time, he said he heard Timothy Maltok called out and asked Defendants to stop their actions. Timothy said words to the effect: "sipos yufala i wantem killim hem ited, yufala ikillim mi nomo from se mi nao mi sendem hem mo askem hem blong writtem out statement blong wife blong mi about olgeta photos blong Don Ken we oli distributim long 29 October 2012".

The witness said he saw Eric Lapinmal put his hands up to stop the assaults and pulled the witness out of the ground. They asked Eric Lapinmal to carry him and placed him on a white chair.

The Defendants then began asking him questions about the photographs and the document. The photos were the photographs of Don Ken collected and distributed. The document was the statement he wrote for Mrs. Imak Timothy. They asked him where the photos and document were kept. They kept on asking the same photos and document for sometimes. He told them he had destroyed all the photos and document. They asked him to revoke all the statement he wrote for Mrs. Imak Maltok. They told him and forced him to revoke all the statement he made for Mrs. Imak by making another letter to say that there were no photos of Don Steven Ken distributed on 29 October 2012 and that there was no statement taken by him from Mrs. Imak. He agreed to do the letter after 6.00 am o'clock in the morning as a condition of his release by the Defendants at 3.00am o'clock in the early morning of 3 November 2012.

He confirmed that he agreed to do that. That was the only reason the Defendants released him. He testified that when they arrived at the camp, he saw Jean Mark Yorley, Ken Lesnawon, Atol Kiliter, Eric Lapinmal, Fernand Lapinmal, Josianne Urleless, Timothy Maltok, Desire Urinmal, Joses Sarisets, Gideon Lesnawon, Bae Luce Maltok and Jean Nawinmal. Kammy Buktan and Luke Sarisets were also present at the campsite with others.

He testified that at the time, he asked them twice as to who ordered them to take those actions against him. He said Atol Kiliter responded that "instructions come from brata Don Ken". The second time he asked, they said Don Ken. He also said he was put on a chair in the middle and the Defendants were surrounding him. Fernand Lapinmal told him "you save putum back six millions (6,000,000vt) we mifala spendem during elections. sapos six hundred (600) plus voters oli stap long place ia naoia bae oli putum you long koffin".

He said they asked him about the photographs and the documents he wrote for Imak Maltok. They told him to make a letter before 6.00am o'clock early morning. They said he must make that letter and sign the letter with the Defendants council of chiefs. He said he told them that he could not do that letter at 6.00am as they required him to do but he asked them to do that letter after 6.00am o'clock. He said the Defendants agreed and they release him. Then he said Kammy Buktan dropped him on the road near his house with Eric Lapinmal, Mrs Imak Maltok (who was just taken to the camp) and Nafa Boni.

He went straight away to his house. He said he was still bleeding from his mouth and nose. Mathias Urinmal was the first person he met and the next person he saw was his old father as they slept there. Mathias saw him and saw what happened to him as Mathias was also was the reason why he run away from his house and came and slept in his house at that time. He said he knew this because Mathias was with him when he was trying to escape from the Defendants when he got on the truck of Kisito Teilemb on the road at Walla before Kisito drove him to Vao. He said Mathias asked of what happened to him. Mathias helped him by using a T-Towel with warm water to clean up the injuries he received on his head. This was on Saturday 3 November 2012 after they dropped him off a 3.00am o'clock. It was then between 3.00 to 4.00am o'clock in the morning. This was the second time after Eric Lapinmal washed blood on his body and gave him water to drink. He said Mathias helped him cleared the blood on his body as there was still blood on his body. He left very painful and he got some panadol and slept to calm down the pain on his body. He said he closed his eyes for about one hour. He experienced pains on his body and got up again. This was Saturday morning. The members of his family to got up. They saw the injuries on his head, mouth and nose he received on his body. He said the members of his family felt bad and felt sorry for him as he managed to tell them about what happened to him. He said he told them of the facts of his taking away (kidnapping) by the Defendants from Lakatoro to Rano. People in the village started to know about the incidents and the injuries he sustained on his body as a result of his kidnapping and injuries he sustained in the camp. He testified there were tensions in the village. The people in his village were angry. People moved and come together at the head of a Nagai Tree. Tensions were very high. At the same time two police officers namely Maltok and Jack came and calmed down then tensions. The Leaders of the community also assisted the two (2) Police officers to calm down the tensions sot that he must to the law. He said they went to the Magistrate's Court and then they are now before the Supreme Court. He gave evidence that the camp was set close to neighbouring villages. There are houses surrounding the camp. People like next to the camp. He knew a woman (Josianne Urleless) who lives next the campsite.

On 5 November 2012, he wrote a letter to the Police. In that letter he said the Defendants agreed to release him after he said he agreed to make a letter to revoke what the Defendants wanted from him before they would release him. He sent that letter to the Police at Lakatoro. (Exhibit P3). He also gave evidence of a reconciliation ceremony occurring on 27 February 2013 at Timothy Maltok's house at Rano. On 27 February 2013, the Defendants came to the yard next to him (Timothy Maltok's) and performed a custom reconciliation ceremony for Timothy and himself. He said Defendants kidnapped Timothy Maltok before him on the same day. Defendants gave 30,000 vatu to Timothy Maltok with a pig. The pig was too small and they added 2,000 vatu on top with mats.

He gave evidence that the Defendants wanted to perform custom ceremony with him for him to withdraw the complaint he lodged to the police. He said he told the Defendants he refused their custom reconciliation as he could not destroy the process of a complaint he has already lodged. Gratien Maltape was one of the Defendants who approached him. He said Gratien Maltape sent Raymond Maltape with the group of the Defendants to see if they can reconcile with him for his kidnapping and assaults by them. He also said that on 5 March 2013 after they celebrated the Chief's day at Rano, Mr Gratien Maltape came to his house and talked to him about the issue of reconciliation. He said he told Gratien Maltape at that time that he cannot destroy the process. He said he cannot follow the process adopted by Timothy Maltok.

He gave specific account of an occurring on 7 April 2013, at about 4-5 o'clock pm; Mr. Gratien Maltape gave a letter to Mansen Urinmal (Gratien's driver) to give the letter to him at his house. He said when Mansen Urinmal arrived, he said, he was not a his house so Mansen Urinmal gave the letter to his brother Francisco Muluan to pass it on to him (witness). He arrived 10 minutes later and Francisco Muluan gave the letter. He read the letter the content is to the effect: "Long luk luk blong PSP Pati oli makem 1 agreement blong mi mas makem 1 reconciliation. Mo oli wantem blong pem sam fines wei oli wantem makem of 250,000 VT. Oli agree blong givim VT 100,000 first taem then VT 150,000 after mo hemia within 1 month". The letter said if agreed with the content of the letter he would sign it. He said he did not agree with the letter. He came straight away and gave the letter to police prosecution. He said the author of the said letter did not sign it. He specified that the agreement of reconciliation which was discussed will take place after the incidents of 2 November 2012 where some members of PSP Pati initiated to kidnap assault and threaten the witness following allegation of bribery made after the Parliamentary Elections of 30 October 2012. The Letter stated members of PSP came with good understanding to make arrangement with Gaston Muluan (witness) and Raymond Warisets for reconciliation to take place following the conditions.

- Maximum penalty charged VT 250,000 and 1 Pig
- 100,000 VT to be paid first with a pig
- 150,000 VT to be paid after within 1 month period

In the agreement letter, his name was mentioned with a space for his signature. The names of Chiefs and the Defendants were mentioned with spaces for them to sign. Names of Timothy Maltok were mentioned with a space for his signature as my chief represented and the names of Chiefs Rano Council of Chiefs.

He said again that he did not sign the letter because he believed that it was not appropriate for him to sign the letter. So he said he came at Lakatoro with the said letter and gave it to Police Prosecution.

In his evidence in chief, he said on 2 November 2012, after the Defendants asked him to make a letter to remove information he received from Mrs. Imak Maltok, the Defendants forced him to do the letter. He said on 3 November 2012, in the early morning as the Defendants told him in the camp, they would come and take the letter, he said, Chiefs Jean Mark Yorley and Henry Wosi (a member of Rano Council of Chiefs) came in his house to collect the letter. He said he did not make any letter. He said at that time the two (2) police officers assisted to calm down the tensions which were high. Police Officers asked Medical Registered Nurse Paulin Bahormal to examine him. He expressed his concerns that some of he Defendants are chiefs of the community in Rano and the chiefs and the pastors failed to maintain the value of respect in the traditional society in which they live. He said he testified to this court to give account of what happened to him on 2 November 2012.

Mr Muluan Gaston was subject to a lengthy cross examination by the Defence Counsel. Mr. Collin Leo. It was put to him and he confirmed his evidence that on 2 November 2012, he wrote down Mrs. Imak Maltok. He said he wrote down at the instruction of Mr. Timothy Maltok, the husband of Mrs. Imak Maltok and his Chief and he acted under his instructions. The witness confirmed the statement Exhibit (P1). He wrote the statement after he came back from Lakatoro while Timothy Maltok was at Tautu. It was about 11.00am - 12.00pm. It was put to him and he denied he prepared the statements before he came and asked Imak Maltok to sign it. He confirmed his evidence that he was with Imak Maltok in his kitchen. She told him of her stories and he wrote them down. He said he spent at least 30 minutes to write the statement and Imak Maltok signed it by putting her initial "I" in the presence of Jessica Maltok and him. He spent about 2-3 minutes and then he took the statement and left.

He was asked again and he said he wrote down the statement of Imak Maltok at the Instructions of her husband who is also his chief. He said he knew the statement is not his. It was put to him and he agreed before he took the statement of Imak Maltok, he spoke with someone on his mobile phone and the person he spoke with was Timothy Maltok who was at Tautu. He denied that the told Imak Maltok of talking to the police about her statement. He explained that Timothy Maltok told him that after the elections of 30 October 2012 there were allegations of corrupt practices and Timothy Maltok instructed him to prepare documents to lodge and election petition.

He confirmed the presence of Jessica Maltok at the time. It was put to him and he denied that on 2 November 2012, he gave the statement to the police straight away. He was asked and he said he knew that at that time the members of PSP wanted to retrieve the documents he obtained from Imak Maltok including the photographs.

It was put to him that the document was not his property but Imak's. He explained that Timothy Maltok asked him that once he got the statement of his wife Imak Maltok with him, then he must forward the statement to him. He said Timothy as a chief concerned that there were allegations of corrupt practices and Timothy instructed him to gather and collect evidence so that Timothy could give the information collected to Brown to lodge an election petition.

It was put to him and he confirmed that 2 November 2012, when he and Kisito came to the Police at Lakatoro, the police office was not opened as it was late night. They arrived at the house of Constable Justino Teilemb sometime at 11.00PM-12.00AM o'clock in the night. He confirmed also that at that time when they stopped at Justino's house he still got the documents and the photographs with him. The photo and the documents were securely kept in Kisito's truck at that time. He accepted and he confirmed that when he and Kisito stopped at Constable Justino's house, the Defendants truck also stopped next to Kisito's truck. He denied Justino said good night to them. It was put to him and he confirmed the Defendants asked for the documents and the photos when they assaulted him and then they concentrated on assaulting him and they forgot the documents and photos. He said when they asked for the document; Constable Justino was not near them. He said Justino was on his way toward the trucks. He denied that the Defendants told Constable Justino that they came to take the document from him. He said when Justino arrived, the first assault occurred already. He confirmed that before the Defendants took him away, Justine said words to his effect: "yufala itakem hem igo bae youfala ino makem one samting long hem" he said at the time he felt pain and he cried.

He was referred to his police statements of 8 November 2012 when he said after he recovered his consciousness then, he agrees to follow them. It was put to him and he denied he agreed to follow the Defendants because of Mr. Constable Justino told the Defendants. It was also put to him and he said he did not complain to the police to arrest the Defendants because Constable Justino is o one police officer. He could not resist the tension. He was the only police officer at the time while there was a group of Defendants. He was asked and he said the Defendants asked for the Documents and they assaulted him. The activities of assault happened so fast and he said can be within 2 minutes. It was put to him and he denied that Constable Justino instructed the Defendants before they took him away as at the time, the engine of the Defendants truck was already on. He confirmed the truck was in a speed move. He was asked and he denied to Defendants took him directly to Rano. He confirmed that the Defendants took him first to Aop before they took him to Rano. He confirmed he was seated in the middle between the driver of the Defendant's truck, Kammy Buktan and Luke Sarisets. He said when they took him in the truck, he was no longer unconscious; but he felt pain on his injuries.

He was asked and described the camp. The camp was in a community and houses surrounded it. There was stone at the entrance of the camp and the place where main activities took place, was clear and open. The camp was close to the sea at Rano village. He was asked and he said he saw Timothy at the camp but he did not know whether Timothy drunk kava. He confirmed his evidence that he did not move from the chair he sat on until they released him at 3.00AM o'clock. He was asked and he confirmed that when he was in the camp then the Defendants went and took Imak Maltok in the camp. He was asked and he said he knew Jean Tony but he did not know whether Jean Tony is the President of PSP Party. He also said he did not know whether Mrs. Imak Maltok was unhappy on how he took her statement. He said he did not know that Mrs. Imak told Mr. Jean Tony to take back her statements. He denied Jean Tony talked to him and asked him to give back the document. He said at the camp during that night, chiefs asked him about the documents. He was asked and he confirmed that he took the statement of Imak Maltok to be used as evidence in the election petition against Don Steven Ken.

He was also challenged about him not respecting Mrs. Imak; he responded that he was under his chief Timothy Maltok. His chief asked him to take the statement of Imak Maltok. He did that as his custom chief instructed him to do so. He accepted he was asked about the questioning and answers around table at the camp in respect to the photos and documents. He confirmed he said he destroyed the statement. He was asked and he denied he asked the Defendants "blong oli kilim down fire we hemi bin createm". He confirmed after he was released, Kammy Buktan took him on the truck with Timothy Maltok, Imak Maltok and Nafa Boni Maltok and other people and other people and dropped them off on the road near his house. He denied he went to look for Kava after the incidents. He denied him return to his house with a plastic of kava after these incidents. He found out Mathias spent the night at his house. He did not know whether Mathias Urinmal drunk kava. But he said Mathias heard him when he knocked at the door and Mathias opened the door. He said he was surprised to see Mathias as he expected his father to open the door. He denied that one of his sisters slept in the house with them. He said in that night just the three (3) of them (himself) his dad and Mathias.

He was asked and he accepted that Paulin Bahormal is a medical officer and is his cousin brother. Paulin Bahormal works as a nurse at Uripiv Clinic. He confirmed that the Medical Certificate he provided and issued by Nurse Paulin Bahormal bore the stamp of Norsup Hospital. He explained it was a weekend. Uripiv clinic is under Norsup Hospital Administration. He was challenged that he did not want to be examined by another nurse practitioner, but only by Paulin Bahormal he his cousin. The witness responded that on 3 November 2012, the two (2) police officers who were present at that time asked Nurse Paulin Bahormal to examine him for the injuries he sustained on his body. It was a weekend Paulin Bahormal was in the village - Police officers asked Paulin to examine him. It was put to him and he denied that Paulin gave him the medical certificate at the bush (cassis) behind the market house. He said Paulin Bahormal examined him in the village of Rano - there were at least 50 men present when the police officers instructed Paulin Bahormal to examine him. He was asked as to why he did not go personally to Norsup Hospital or go personally and asked for a medical report. He maintained that he was experiencing pains on his body; over 50 men were present at that time. Paulin was there - Police Officers were also there. Police Officers asked Paulin Bahormal to examine him.

He was referred to the agreement of reconciliation Exhibit (P4). It was put to him and he denied that he typed the agreement at Gratien Maltape's house. He responded that it was a big surprised to him. He confirmed his evidence that Gratien Maltape did the agreement and gave it to his driver (Graticien's) Mansen and Mansen gave the letter to his junior brother Francisco and Francisco gave letter to him 10 minutes after he arrived at the house.

In his re-examination, the witness clarified that Timothy Maltok is the President of the Council of Chiefs of Rano-Pinalum and Timothy Maltok instructed him to do what he did. He clarified also that when Constable Justino Teilemb arrived near the truck after the incidents of assaults which happened so quickly happened already and Justino just came in the scene. Gaston Muluane is a powerful and trustworthy witness.

Kisito Teilemb is the next prosecution witness. He gave evidence to the effect that he is from Vao village. He lives at Norsup as his wife works at that hospital. He is a former teacher, former councilor of Malampa Province and a Former Member of Parliament. He lost the parliamentary elections of 30 October 2012 and he is now a farmer. He was taken to 1 November 2012, on that date; he was at his house his mobile phone rang. He said Timothy Maltok rang him. He said Timothy Maltok told him to go and get some documents he (Timothy) had so that they will be used to lodge an Election Petition. He said Timothy told him to hurry because otherwise another group of people will take the documents in question. So, he said he was in a hurry. He said he drove his truck to Walla-Rano. He picked up Gaston Muluane and Timothy and they went to Vao. At Vao, they drunk kava in his camp, then, Timothy displayed the photographs and documents obtained from Timothy wife. He said Timothy told them that they have information that MP "ino save pass". Then they returned from Vao. They arrived at Atchin. Timothy went off there. He and Gaston Muluane came back to Walla Rano and he returned back to Norsup.

He was then taken to 2 November 2012. On that date, this witness stated that Gaston Muluane contacted him on the phone. Gaston informed him to go and take him with the photos and the document because the other group searched for those documents and photos and if they got them, they will destroyed them so the witness said he drove his truck and picked up Gaston at Walla at the house of Jean Vincent. He drove Gaston to Vao. He and Gaston were at Vao for a short time about 30 minutes. They came back from Vao with the intention to come to Norsup. On their way they came to Mae. They spent some time at Mae so that others would not know where they were. Time was about 10.00PM o'clock in the night. Then from Mae, they came to his house at Norsup. Then Gaston suggested to him that they went for a shell of Kava at Alfred's Nakamal. When they arrived at that Nakamal, he said Gaston tapped his shoulder and said look, the other group was there. Then he saw Don Ken's truck on the side of the road. He saw a man walking with a bottle of Tusker and walked in the road for the truck to give way to him. He did not recognize the man. There was then a tension existed. He decided not to stop his truck he forced his way out. He said if he stopped his truck he thought there would be a big problem because people from the Vao village were also near to Nakamal. He thought to avoid a problem, he thought about the Police Station at Lakatoro to secure the documents they have in their possession. So he speeded his truck. The members of the other group now one now in the court as Defendants tried to block his truck. He said he accelerated the speed of this truck. The speed was estimated show 80 Km/hour. He said when he arrived at Lakatoro; he applied the horns of his truck to attract attention. He said he drove his truck and stopped it at the house of his brother Constable Justino Teilemb. Less than 1 minute later MP Don Ken's truck stopped next to his truck. He expected that Police would come. Defendants attempted to take away Gaston. Gaston held tiredly the handle of the truck from inside. He saw the Defendants moved Gaston from his truck. So he opened the door of this truck and went outside and holds on Gaston. He saw the Defendants assaulted Gaston. He said there were plenty of them who assaulted Gaston. "olsem ol onets" (like hornets).

He said he could not hold on Gaston as the Defendants were too many and over powered him. The Defendants assaulted and kicked the body of Gaston. He recognized Kammy and he recognized another (in court he pointed to Luke Sarisets). He gave detailed account of this observation. He saw the Defendants assaulted Gaston and took Gaston away from the hand of the Police man who also arrived. He said the Defendants did not respect the Police Officer. They were plenty of them. He said they assaulted and kicked the body of Gaston. Gaston was unconscious. He took water from his truck and poured water on Gaston's head. There were more than two (2) people. When he talked to the Defendants, police officer Justino Teilemb came. He saw the Defendants held Gaston in the air to push him in their truck. Then he said Constable Justino told them "youfala i takem hem youfala ino killim hem". He also said that when the Defendants assaulted, kicked and punched Gaston Muluane, the Defendants said they will take him with them but he will die at Warlep. He was asked if he observed anything on Gaston's body. He responded that it was difficult because it happened so quickly.

He gave evidence that after the Defendants took Gaston Muluane away in their truck; he told his brother police officer that the documents and photos were in his truck. They took Gaston but the documents remained in the police compound. He said he took the documents and gave them to Constable Justino to pass on to the Police Head at Lakatoro. He finally said he asked police officers at Lakatoro to be at Rano in the morning to ensure that no further problem occurring.

He further stated that the document were photographs of MP Don Ken with names of people written on the back with dates. Document exhibit (P1) was shown to him and he confirmed and there were lots of copies. Kisito Teilemb was cross-examined. He confirmed that the Defendants chased them because of the photographs. He was asked and he answered it was 12.00AM o'clock of mid night. He drove to police station to secure the documents they had in their possession. He confirmed his evidence that when they arrived, then Justino just walked toward them. He confirmed when he stopped his truck and then the Defendants stopped their truck next to his. Problem started and so he said he could say when Constable Justino arrived. He said when he poured water on Gaston's head that night; he thought officer Justino was present. He was asked whether the first question that the Defendants asked was about the where about of the documents. He did not hear. Something happened so quickly. He confirmed he heard officer Justino told the Defendants to take Gaston but not to kill him. He also said the daughter of Constable Justino was also present that night. He was asked whether Imak's statement was at that time in the truck. He responded that he recalled he saw a note pad with writing on it. He confirmed he speeded his truck for security reason to avoid any fight between Defendants and others. He confirmed when he stopped his truck, the Defendants also stopped theirs. They pulled on Gaston. Gaston hanged on the handle of the truck from inside. He went on Gaston side of the door held on Gaston but he could not. The Defendants overpowered him. He was asked and he confirmed that they hold on the documents to use as evidence in Court. He was asked and he said he was aware Mr. Imak Maltok and Timothy Maltok withdraw their statements in the Election Petitions. He was asked and he denied he gave the medical report to his wife to sign as he did not know. Kisito is a truthful and reliable witness.

Justino Teilemb is the third prosecution witness. He gave evidence to the following effect. He is a Police Constable. He resides at the head quarters of Police station at Lakatoro. He worked as a Police Officer for 27 years since 1986. He was taken to 2 November 2012, on that date; he was at Lakatoro from 10.00-11.00PM o'clock. He testified that between 11.00PM and 12.00AM o'clock, he observed an incident occurring at his house at Lakatoro. On that night, he said at about 11.00 - 12.00 o'clock he sat underneath a mango tree. He heard a noise of truck speeding. He said to himself - this truck was very speed. He got up toward the place the door of his house. Then he realized that the light of the truck directed itself to the single quarter of Police behind his house. He stood at his door then he heard the horns of the truck. He saw the truck of former MP Kisito coming up. He watched it and saw the truck of MP Don Ken followed it behind. He said the two (2) trucks followed each other. Kisito stopped his truck at the head of a Mango tree at my house and Don Ken's truck stopped next to it. He left the door of this house. He walked slowly toward the trucks because he thought they were drunk. He did not know that there were differences between them. He saw Kammy Buktan assaulted Gaston Muluan who stood up next to Kisito Teilemb. He was taken by surprise and said: "Eh fuck wanem here!" He realized there was a problem. He hurried up. He saw Kammy Buktan and Don pulled out Gaston Muluan from the hands of the Former MP Kisito and they both dragged Gaston down to MP Don Ken's truck. He said he saw Kammy and Don who is Don Ken's brother. He called Don as the name he called that person when they were together in Vila. He said the person he called Don is the man wearing white T-Shirt in Court (on record) this witness identified Luke Sarisets). He knows Kammy Buktan and identified him in Court. He testified that when the Defendants dragged Gaston to the other truck, he pushed his hand and held the collar of Gaston's Shirt to hold him tight. He could not because they were (2) of them against him. They pushed Gaston inside the truck and Don sat on the right side door and Kammy sat at driving seat. Before they took off, because he tried to hold on Gaston but he could not he said he told the two (2) in the forehead of the truck that: "yufala igo yufala ino mo killem hem". Then when they left about 20 metters from Sergeant's David Bong's house, he heard Gaston crying out again. He said he told Former MP Kisito; "Listened to this, I just told them not to assault him anymore, but they assaulted him again" He said Kisito took some documents from his truck and gave them to him. Kisito informed him that he and Gaston Muluane came to secure these documents and Gaston left them in the truck. He took the documents and put them in his house until early morning next day he gave the document to his boss, inspector Thierry Alick.

He was taken back to the scene of the incident; he said there were five (5) persons. The other three (3) were standing near the rear of the truck. He did not know them. It was about 11.00-12.00 o'clock and he was the only police officer at that time in his house. He gave detailed account of the fact that when the two (2) Defendants dragged Gaston Muluane tried to resist his taking away by holding on strongly on the handle of the truck of the Defendants but Gaston could not resist much longer. They pushed in and left.

Justino Teilemb was cross-examined. He was asked and he categorically denied that the Defendants asked him about anything. He denied that the Defendants told him they will take Gaston to Rano to explain the documents. He was challenged as to why he did not arrest the Defendants. He answered that he assessed the situation and to this understanding of his duty as a police officer at that time of the night. There were five (5) persons on the other side. He must think about his own safety before he arrested the defendants. He confirmed he had Kava at the early part of the night. The 3 others persons he saw with the 2 others were standing at the back of the truck. He was asked and he confirmed his evidence that he told: "youfala i takem hem igo yufala inomo killim hem". It was put to him, he denied the Defendants talking about the documents. Justino Teilemb is an honest and truthfully witness.

Deborah is the next prosecution witness. She is 14 year old girl. At her request, the court permitted her to sit with her mother when she gave her oral testimony. She is a year 9 student at Norsup College. She said she came to tell the court about what happened at their house. She understood what is right and what is wrong. She understood that is the right thing for her to tell the court about what she saw. She remembered the night of 2 November 2012. She was at their house at Lakatoro. It was a Saturday. About 11.00PM - 12.00AM, she was still awakening. She said she heard the noises of 2 trucks. One truck chased the other coming up at the police station. She said she followed her daddy outside. She saw the 2 trucks stopped next to each other at their house near the Kitchen. She followed her father outside and stood at the forehead of the kitchen. She saw Don Steven Ken's men came and pulled and took away Gaston Muluane into their truck. She saw Gaston tried to hold on former MP Kisito but others forced him and pulled him into their truck. She also saw they assaulted and pushed him in the truck.

She also heard that Gaston cried out after they took him in their truck when they arrived at the house of police officer David Bong. She did not recognize any of the Defendants. She never saw them before. She recognized their truck to be MP Don Ken's truck. When the Defendants arrived, she was outside. Deborah confirmed her evidence in chief when she was cross-examine she made a statement to the police she confirmed she had the intention to testify. She confirmed she stood up on the forehead of the kitchen with her dad. She followed her dad outside. She confirmed she sought the persons who dragged Gaston into the truck. She did not know the persons. She did not see Kisito pouring water on Gaston's head. The incident happened so quickly. She confirmed she heard her father talking to the persons who took away Gaston not to assault him anymore then the truck left. She denied that the persons who came did not ask for any paper or photos to her dad. She did not recall they asked Gaston about any papers or photos. She could not see any blood on Gaston at that time of the night because it was dark. Deborah is a trustworthy and creditworthy witness. She was consistent in her evidence through out her trial testimony.

Josiane Urleless is the second last prosecution witness. She is from Rano-Warlep village. She is a house wife. She is married. She was taken to 2 November 2012 she was at her house on that date. She gave evidence that on 2 November 2012, she went fishing with her mother in law very late about 10.00-11.00PM o'clock. She said it was full moon light. They returned from the sea about 11.30PM - 12.00AM o'clock at night. They stayed at the house. Her husband came back from nakamal. Her mother in law went to sleep in her house. She said good night to her and her mother in law left. Then she got up and went into the big house to sleep. She went inside and opened the saucepan. She took some food and ate. Her husband sat at the door smoking. She told her husband to finish his smoking as she had to close the door because her husband drunk too much kava. She said she heard the noise of the truck speeding and went straight into the camp site of MP Don Ken. She heard lots of noise and the talking saying in her language "outside" "outside". She said she told her husband, maybe these people were drunk. Her husband told her that they were just talking. Then she said the people talked and started louder in the language: "go outside" "go outside" she took the torch light she ran fast to go to the camp. She saw her husband was behind her. She said she saw they forced a man to get out of the truck. She did not yet recognize the man inside the truck. She said she got in the camp. She saw Kammy hitting the man inside the truck with his elbow and said "you go outside" she said she saw "papa" Luke Sarisets opened the door of the truck and told the man who was still inside the truck "brata you come outside - bae yumi stretem - go nomo outside bae oli no save killim you".

When they moved him outside the truck, at the same time too, she saw "papa" Desire assaulted the between his head and neck with torch light. She said Desire wiped the man two (2) times with the torch light. The man cried out "Ah woh" and then bent his head. Then Kammy came and assaulted the man on his face. She said she saw "papa" Bae Luce kicked the man when he fell on the ground with his safety shoes on the back of the man. She saw Fernand Lapinmal assaulted the man on his chest and hit the man under his jaw. The man felt on the ground in front of the truck. When the man was lying on the ground, she saw Gideon Lesnawon and Joses Sarisets both kicked the man and assaulted him.

Then she said she tapped the shoulder of Jean Mark Yorley (she called him "papa") and asked him who was the man who cried out and lay on the ground. She said Jean Mark Yorley did not respond to her query. She said she tapped his shoulder again and asked him of who was the man lying on the ground. At that time, the light of the truck were on. She said "papa" Jean Mark Yorley responded to her and said he is Gaston Muluane who was being assaulted.

Then she said when Jean Mark answered her, she saw Eric Lapinmal and Timothy Maltok came inside the camp. She said Eric run into the camp pushed them out and Eric Lapinmal placed his two (2) legs over the body of Gaston Muluane to protect him from further assault. She specified that Eric Lapinmal blocked Gideon and Joses who continued assaulting Gaston Muluane. Erick pulled Gaston away and tried to help him to stand on his own feet. Gaston could not stand properly. Then she saw Timothy who stood up and said "Stop. Stop" she said Timothy held his two hands up and said "Stop. Stop." When Timothy said "Stop -Stop," she said Timothy said no to Atol Kiliter who pulled out a bamboo and wanted to spear Gaston Muluane with it.

Timothy said "sipos yufala iwantem yufala ikilim mi nomo from se mi nao mi sendem Gaston blong hemi go luk wife blong mi long house". ("If you wanted you killed me only because I was the one who sent Gaston to go and see my wife at the House"). Then she said Eric held "uncle" Gaston and took him behind at the where Gaston will be judged. She said it was in the camp area. Eric took Gaston and put him on a white chair. Then she said "papa" Desire and Kenson Lesnawon both assaulted Gaston again. Then Eric Lapinmal talked to both of them and said: "youfala ikilim hem finish long way, youfala ikam kilim hem back again long place ia" Youfala iwantem wanem". Then she said Eric kicked the chair and the chair flied away and got behind but in front of Kenson's house. When she arrived the chair was already set she said they put "uncle" Gaston on a different chair. When they started to talk, Eric pulled a chair and sat down in the middle of "uncle" Timothy and "uncle" Gaston, she said she observed they took 1 solar - 1 green one and they hanged it on the copper roof. She observed that they judged "uncle" Gaston; he blocked his face and looked down.

At that time, she was sitting front of Gideon Lesnawon and she watched them. She was sitting not far from them. She was less than 1 meter from Eric, Timothy and Gaston. She said when Gaston put his face down, then Eric Lapinmal asked Gaston "uncle traem luk face blong yu" then she saw Eric held Gaston's head up and she said everyone including her saw blood from Gaston's mouth, nose and face. She showed the right side of her face when she testified. She said Eric lifted up Gaston's shirt and whipped out blood of "uncle" Gaston. She said when they sat down, "papa" "chief" Jean Mark Yorley who judged Gaston by asking him about the papers. She said Jean Mark Yorley asked Gaston about the papers he took with him. She said "uncle" Gaston answered that the paper that he got from Imak, was just a draft exercise "brouillon" he had destroyed them already on the road. She said "papa" "chief" Jean Mark Yorley please "uncle" Gaston and said "brata please sipos you holem paper ia wetem you naoia - please mi please long you blong yu givim back long mifala before 6.00AM o'clock long tumorow morning. Gaston answered - no. He had already destroyed the papers.

Then she testified that Fernand Lapinmal pointed Gaston with his finger and said: "uncle lucky blong yu we six hundred (600) vota oli no stap naoia - sipos oli stap wetem yumi naoia - mi sorry tumas bae you go long coffin". ("You are lucky uncle the 600 voters are not now with us if they are with us now - He felt sorry for you they will put in a coffin"). She said Fernand Lapinmal talked loudly to Gaston and said "can you put back the money they spent during the campaign? Did he know the amount they spend was six million (VT 6,000,000). Could he (Gaston) put back the money? Gaston did not respond - he remained quiet. Chief Jean Mark Yorley asked Gaston about the papers again to Gaston whether they were with him "uncle" Gaston answered - no - they were not with him. She said "papa" "chief" Jean Mark Yorley asked "uncle" Gaston if he agreed to make a letter to say that the papers they were asking him about were not true. "Uncle" Gaston did not respond to him. He asked Gaston again to make a letter to say that "paper ia hemi no true". She said then, "uncle" Gaston answered him and said - yes. She confirmed the time they arrived at the camp was about 11.00PM - 12.00AM o'clock. When "uncle" Gaston accepted, then "papa" "chief" Jean Mark Yorley told Gaston to make the letter in the night. She said "uncle" Gaston said -No. He will write the letter in the morning because he felt pains on his body. She saw Gaston tapped Eric's shoulder and asked Eric's to hold his neck. Eric held his neck. Gaston asked him water to drink and Eric gave water to Gaston and Gaston drunk the water.

She said her husband called her and she went home with him. She said she went out before Gaston went to his house. She could hear the noise of truck transporting Gaston back to his house that night. This was after 12.00AM o'clock. It might be 2.00AM o'clock. She recalled she saw Jean Mark Yorley, Kammy Buktan, Desire Urinmal, Fernand Lapinmal, Joses Sarisets, Gideon Lesnawon, Eric Lapinmal, Ken Lesnawon, Atol Kiliter and Timothy Maltok. She confirmed she saw these persons when the truck was stopped there and they were assaulted Gaston. She said she knew these persons because they are members of her close family. She repeated her relationship with them. "Papa Luke, papa Kenson, papa Jean Mark, papa Atol oli stret uncle blong papa blong mi" she said they are her close relatives. They live in the same place and they know each other. She said Gaston lives far away from her. Gaston is not a close relative to her. Witness Josinanne Urleless was cross-examined. It was put to her and she denied she had any land disputes with the Defendants. She was asked if on 2 November 2012, she was pregnant. She confirmed she was 7 months pregnant at the time of the incident. She said she delivered her baby in January 2013. She was challenged if she ran fast to the camp with her heavy belly. She answered the camp was set next to her yard. She was asked she confirmed that when the truck arrived, she mentioned the assaults - she accepted they happened for a short period about 5 minutes. She denied a short time as she said they sat down for a quite a long time. She said "mama" Imak came in the camp when the assaults ended already. She denied whether the people at the camp drink Kava. She said she went at the camp during the assaults and at the judging time. She was asked if she saw Timothy Maltok. She responded that she saw Timothy Maltok at the camp. She said she did not know whether Timothy or any other drunk kava that night at the camp but she saw Timothy followed Eric Lapinmal in the camp on the night of 2 November 2012.

She was asked she said Gaston was not fastened as he sit on a chair but he was forced by the Defendants to give a paper before tomorrow morning. She confirmed her evidence that she saw the Defendants forced Gaston to come out of the truck. She was standing next to Jean Mark Yorley but he did not notice her. She tapped his shoulder to ask the name of the man and he said Gaston Muluane. It was put to her and she denied that it was dark. She said at that time it was big moon light, the lights of the truck were on. Desire Urinmal also held his torch light at that time.

It was put to her that as she was 7 months pregnant, she could not run fast to observe the assaults at the camp as she described. She responded that before the assaults, she was fishing in the sea with her mother in law. She did not feel that her body painful. She was just walking fast to the next yard where Don Ken's yard is set. It was put to her that because she was 7 months pregnant, she was under pressure and her evidence was not true. She responded that she was honest in her evidence in court. She saw and she heard what she said in her evidence. She also specified that "chief" "papa" Jean Mark Yorley saw her at the camp that night and he answered to her query when she talked to him. She was asked and she confirmed that when she was at the camp, Gaston never moved out of the chair until Eric Lapinmal gave him water. She said she went back home. She was asked and she confirmed her evidence that at the round table, Gaston sat there. She sat there behind less than 2 meter. She sat at the door of Gideon Lessnawon's house. When she left her house to the camp, Gaston was still in the truck. She confirmed her evidence that "papa" Luke Sarisets opened the door of the truck for him to come out. She arrived two minutes before they forced Gaston to come out from the truck.

Josianne Urleless was consistent through out her testimony. She gave detailed account of her observation at the camp that night. Her evidence was not challenged. She is a forceful and truthful witness.

Paulin Bahormal is the last Prosecution witness. He is from Walla. He is a registered nurse for 27 years. He works as a nurse at Uripiv Clinic dispensary and lives there during his service week. During week-end he returns to Walla to spend the weekend with his family.

He gave evidence that Friday 2 November 2012, he returned to Walla village to spend the weekend with his family as he was on his own at Uripiv. His wife is a teacher at Pinalum and every weekend they both return to Walla-Rano. Saturday 3 November 2012, he was in his village of Walla. On that Saturday, he was in his house. He was informed by Timothy Maltok who is the President of Council of Chiefs about 9.00AM o'clock in the morning that he must go Rano to examine two persons. The driver of his truck took him and dropped him at Gaston Muluane's House, Gaston and Timothy was not there. A group of people stayed at a nakamal. He approached the group in the nakamal. He said there was a big tension because of the incidents which had occurred. He stayed there with the group. Then he was to examine two persons. Police Officers were present. He said he referred to examine the two patients as they are members of his family. Then he said the police officers told him that he did not come to as a member of the family at that time but because he is a nurse he came to examine the two (2) patients and filed a medical report. He said after the police gave him the right to do the examination, he went back to Francisco's House, he asked for plain paper with a pen and he proceeded to examine the patients.

He was asked about how he did his examination of the body of Gaston. He answered - there are two (2) ways to do that. He saw the body of Gaston - He said the two sides of his face were swollen up. There were black marks on his face. There was small blood in his right eye. Blood coagulated in the nose. Minor lips swollen - when he opened Gaston's mouth, he saw his gums were blackened between the teeth as assault occurred as of Saturday already, he said - Gaston's neck was swollen up. The second way is by touching the body or pulping the body with his hands. When he touched his body, Gaston felt pains on his belly; his jaws (left and right) were painful. His paddock was painful. This was his physical examination of the victim. He said as a result of injuries - There were black marks, rips were painful they could not occurred without a fight. He was given a paper and a pen. He wrote down his medical report containing his findings in French language. The content is as follows:-

"Je soussigné M Bahormal Paulin, infirmier en charge de la clinique d'Uripiv, certifie avoir consulte Mr Gaston Muluane a Walarano vers 11h05mn. Ce dernier a été battu, a reçu des coups par des individus. Il a eu des signes et symptômes selon son état. Il a les joues gonfles, les petits lèvres, les cotes douloureux au toucher et les fesses aussi. Il a eu du sang entre les dents, du nez et du cote de l'œil droit".

Translated - (I, the undersigned Bahormal Paulin, nurse in charge of the clinic of Uripiv, examined, Mr. Gaston Muluane on the 3 of November 2012, certify that the latter was assaulted, received punches from some individuals. There were signs and symptoms as per his appearance. His jaws were swollen - his minor lips also - his rips were painful when pulping was applied on them and his paddock too was painful. There was blood between his teeth, in the nose and in the right eye).

He said he did the medical examination on 3 November 2012. He signed the medical certificate on 3rd November 2012 and it was stamped with Norsup Hospital's stamp because clinics such as Uripiv, Walla, Rano, Unmet and Atchin do not have stamps. He prepared the medical certificate, signed it and gave it to Gaston which was dated 3 November 2012, bearing Norsup Hospital stamp and is exhibited and marked (P.5).

In his cross-examination, he said he served as a Nurse at Uripiv clinic in 2008. He confirmed he returned to Walla on Friday 2 November 2012, to spend the week end with his family. It was put to him and he denied that Gaston called him when he was at Uripiv. He was asked and he confirmed that Gaston Muluane is his cousin brother as their mothers are sisters. It was put to him and he said that was a week end, the clinic did not operate in the week end except for emergency only. It was put to him and he replied that in the case of Gaston, the emergency existed because the patient wanted to put his case to the court. If the patient waited until Monday then parts of the body which were swollen-up could not back to normal so he said the police officers gave him right to examine Gaston. He confirms his evidence that when he was asked to examine the victims, he refused to do so. It was suggested to him and he denied that the police officers forced him to examine Gaston and provide a medical report.

He was asked again and he clarified that he refused in the first place to consult the injuries on the body of Gaston to avoid any perceived conflict of interest as Gaston is his cousin brother. But he confirmed again his evidence that the police officers asked him to examine Gaston and make a medical report as a medical officer but not as a member of his family. He was not aware police officers investigated this case to come to court. He was asked and he confirmed that Gaston had never asked him for a medical report. He confirmed he examined Gaston, made a medical report of his findings and signed the report on 3rd November 2012. The report must be brought to Norsup hospital for stamping. He was asked and he confirmed his evidence that he did his report based on his examination of Gaston and findings after he obtained the back ground history of what happened to Gaston from Gaston.

He was asked and he said he made the report on the week end and on Monday the report was signed. It was suggested to him and he denied that he gave the report to Gaston behind the market house in the bush (cassis). He was and he confirmed that he examine the body of Gaston. Gaston's face was swollen and Gaston's paddock reddish. He prescribed panadols, Ibuprofen (relief pain) and body and muscles). He gave the tablets to Gaston on the next day. Sunday 4 November 2012. He was asked and he mentioned the names of the two (2) police officers present at Rano on 3rd November, namely Christian and Jacky.

Finally, he was asked again that he said he refused to examine Gaston in the first place because he knew there is a conflict of interest. He answered - Yes.

Paulin Bahormal is an experienced nurse. His testimony is consistent through out. He is creditworthy witness and his evidence can be relied upon.

That is end of the prosecution evidence. I now go to the evidence of the defence.

Each and all Defendants are required to put forward their defence at the end of the prosecution case. The rights of the Defendants under section 88 of the CPC (Cap. 136) were read, explained and understood by each of them. Following Defendants elect to exercise their rights to remain silent:

1. Gratien Maltape, 2. Theophile Kiliter, 3. Fernand Lapinmal, 4. Ken Lesnawon, 5. Bae Luce Maltok, 6. Jean Mark Yorley, 7. Atol Kiliter, 8. Joses Sarisets, 9. Jean Nawinmal, 10. Gideon Lesnawon.

The Defence called 10 witnesses which include following three Defendants who decide to give evidence in the witness box themselves (Luke Sarisets, Kammy Buktan and Desire Urinmal).

Luke Sarisets is the first defence witness. He gave evidence to the following effect. He is 42 years old and is a farmer. He is a strong member of PSP party. On 2nd November 2012, he drunk kava at Alfred Nakamal at Tautu; it was about 11.00PM- 12.00AM o'clock. He said he and others were aware that Jean Tony informed Kammy Buktan by mobile phone of a threatening occurring at the house of Mrs. Imak Maltok, a member of PSP. He gave evidence that Jean Tony instructed them through Kammy Buktan that they must take the document which was in the possession of Gaston Muluane back. This witness emphasized that Jean Tony told Kammy by mobile phone that they must take the document which was in the possession of Gaston because Mrs. Imak Maltok is a member of PSP Executive Committee. They drunk kava and they came to road to return to Rano at the camp. Then, he said he saw Kisito's truck was in full speed with high beam coming and wanting to spear him with his truck. He felt on behind twice. He gave to explanation that Kisito might be was in full speed. He said they followed Kisito's truck. Kisito was accelerated the speed of his truck. They followed them behind. He said when Kisito's truck wanted to spear him; they knew Gaston Muluane was inside that truck so the threatening documents referred to by Jean Tone were also inside that truck. So they followed that truck and they arrived at and stopped at Justino's house at Lakatoro. They stopped next to Kisito's truck at Justino's house. When they arrived, he saw Gaston, Kisito and Justino walked in front of that truck. He opened the door of the truck and he asked Kisito why he wanted t spear him with his truck. He said he asked Kisito twice. Then he said he asked Gaston about the documents he prepared and Mrs. Imak Maltok signed. He said Gaston answered and said there was no document. There was nothing. Then, he said Kammy came and talked to Justino because he is a government officer. He said Kammy talked to Justino and informed him that they came to take some documents which Gaston prepared and forced Imak to sign them.

Then he said Justino answered and said "Fuck yufala itekem man ia igo daon - yufala istretem issue ia" then he said Justino also said "yufala tekem hem igo - yufala istretem document ia". Then he said to his understanding, they could go with Gaston and he said he told to the other defendants that they could go and they left.

He said he opened the door of the truck and he got in. Gaston came in and sat close to the window. Kammy Buktan got on the driver seat and they left. He said he did not recall of anything happening during their way to Rano because they drunk kava. He said they run and when they got to Pinalum, Gaston said he would go to the camp to sort out the issue of document. He said he and Kammy were doing the talking when they arrived at the camp - He mentioned to chairs of PSP and the People drank kava there. Timothy Maltok was at the camp. He said he told Gaston that Timothy was there. He said he opened the door and Gaston went to Timothy. He said he did not see anything happened because when Gaston went to Timothy, he said he told Kammy to drop him to his house and Kammy dropped him to his house.

Luke Sarisets was cross-examined. He admitted he was in the truck driven by Kammy Buktan to Lakatoro. On the night of 2 November 2012, he said he was in that night with Kammy Buktan, Joses Sarisets, Gideon Lesnawon and Bae Luke Maltok. He denied they dropped any one after the nakamal. When they were on the road, they saw Kisito's truck coming with full light. He said he jumped out of the road before the truck hit him. He was challenged on his evidence he saw Kisito's truck coming and he wanted to stop the truck. He was then asked how he knows Gaston was in the truck with Kisito. He took some time to answer to this question. Then he said he thought Gaston was in the truck. In some part of his answers to this question he said Jean Tony informed Kammy of the threatening document and that Jean Tony said Gaston was with Kisito in the truck. Later on when he was asked whether any part of telephone conversation Jean Tony had weather Jean Tony said that Gaston was with Kisito in the truck. This witness answered -No they did not say that.

This witness asked counsel to repeat the same question put to him on several occasions. He was asked and he accepted that he knew that Gaston had in his possession a document that might be used in court against the elections of MP Don Ken. He also accepted that Gaston would not give the document intended to be used in court against the elections of Mr. Don Ken. He accepted also that Gaston would not come close to them and Gaston must hide himself from them. He was also challenged with his evidence in chief that Gaston wrote the paper before he obtained Mrs. Imak signature. He accepted that on that night he got the information from Jean Tony that Gaston had in his possession document he wrote it down from Mr. Imak that they must retrieve that document.

Then, he was asked again and he denied that when they drunk kava they thought about removing the document from Gaston. He was asked again and he said he did not know. He asked for the question to be repeated more than once. Then he answered -Yes.

He was asked and he accepted that the reason for chasing Kisito's truck was because Kisito wanted to spear him with the truck. Then he was challenged as to the reason for following Kisito's truck. He answered that the reason was because Kisito wanted to spear him with his truck and he added that when they arrived at Lakatoro, they saw Gaston and asked him about the document.

He denied he assaulted Gaston at Justino's house at Lakatoro. He denied that Kammy Buktan, Joses Sarisets, Gideon Lesnawon, Bae Luce Maltok forced Gaston to go in the truck. He denied that they assaulted Gaston and removed Gaston from Justino's yard at Lakatoro.

He said time was about 11.00PM o'clock. He was asked he replied that when they arrived at Lakatoro they did not take Kisito. He was asked to confirm and he confirmed that when they took Gaston Muluane, Kisito Teilemb did not follow them. He was also asked and he confirmed that they came to retrieve document from Gaston. He was then asked to confirm whether the documents referred to were the document or letter of Imak which was prepared by Gaston and photos of Don Ken bearing name of written at the back. He answered -Yes- they came to retrieve those documents. He said when they left Lakatoro that night; they did not take the documents with them. He was asked as to why they come to retrieve documents but then they took Gaston instead. He responded Gaston told them there were no documents and Justino authorized them to take Gaston.

He also accepted when asked that they have an opportunity to solve the problem of document when they were at Lakatoro that night. He said on their way to Rano, they went to Aop. He confirmed that all of them were into the truck and went back to Rano. He denied they stopped at Aop. He denied that Kammy Buktan threatened Gaston to kill him and throw his body under the bridge/river.

He said when they arrived at the camp at Worlep, following people were already there: Desire Urinmal, Fernand Lapinmal, Ken Lesnawon, Atol Kiliter, Jean Mark Yorley, and Timothy Maltok. He denied Gaston was seating in the middle between Kammy and him in the truck from Lakatoro to Rano. He denied Kammy assaulted Gaston in the camp. He said they arrived about 12.00AM o'clock. He was asked and he denied that when they arrived at the camp, they asked Gaston about the document. He denied he saw Eric Lapinmal at the camp that night. He denied that they asked Gaston to make a letter to revoke what he wrote in the statement of Imak Maltok.

Luke Sarisets is not a trustworthy and a reliable witness. This witness took lots of time to answer to questions. On many occasions he asked for the questions to be repeated and after the questions were repeated he took time to answer. Despite taking time, the answers given by him were full of inconsistencies.

Kammy Buktan is the next Defence witness. He is 32 years old. He is from Pinalum. He is a member of executive committee of PSP. Mrs. Imak Maltok is his auntie. Jean Tony is the President of the executive committee of PSP and he relates to him.

He gave evidence that on 2 November 2012, he drove others to Alfred Nakamal and had kava there. It was about 10.00-11.00PM o'clock. He had a shell of Kava and he got back to his truck. Jean Tony rang him and informed him that Gaston had in his possession a document and Gaston was with Kisito Teilemb in his truck. Jean Tony instructed them to retrieve the document from Gaston because Gaston threatened Imak Maltok to sign the said document. He felt bad about the manner Gaston dealt with his auntie. He was in the truck when Kisito and Gaston arrived. He was already in the truck. He said others run close to the truck and Kisito's truck had just missed Luke Sarisets. Kisito's truck had its high beams on. He said he put his truck on high beams as well. He saw Gaston Muluane blocking his eyes in Kisito's truck. He drove and followed Kisito's truck to take out a document he said his auntie had signed. Kisito speeded his truck. He followed him behind. They arrived at Justino's house and stopped the truck. He said, Luke Sarisets approached Kisito's and asked why he wanted to spear him with his truck, he called on Gaston and asked 3 times about the documents he made his auntie signed. Gaston told him he did not have any paper with him. At the time, he said Justino swore and told them to take Gaston and sort out the issue. Then he said he got into the truck, Luke Sarisets followed him and Gaston came inside the truck and they left. He drove the truck, Luke Sarisets was sitting in the middle, and Gaston Muluane sat on the other side near the window. He denied he made any threats to anyone.

At the camp when they arrive, Gaston opened the door and went to his chief Timothy Maltok in the camp. He said Luke Sarisets told him to drive him home. He dropped Sarisets off to his house. He went back and got Mrs. Imak and her son Nafa Boni. He was in the truck. Then he dropped Imak, Gaston, Timothy, Nafa Boni, and Desire Urinmal at Desire's road at the end of the round table.

Under cross-examination, Kammy Buktan said the following. He was asked and he confirmed that Jean Tony called him on the phone and told him that Gaston had in his possession written statement that Imak had signed. He confirmed he said he felt bad about what Gaston did to his auntie. He confirmed he is a member of PSP Executive Committee and a supporter of the PSP and he drove the PSP truck. He said Tony rang him because he is a member of the PSP Executive Committee and Imak Maltok is his auntie. He confirmed Jean Tony called him and told to retrieve the document from Gaston - so he accepted he wanted to retrieve the document to ensure that his members of Parliament would not be affected. He denied he was ready to do anything at that time. He was in the truck to ensure that when Kisito truck arrived he could see. He said he was waiting for them in the truck. He accepted that he was angry and he must take Gaston. He accepted again when put to him that it was his intention he must hold on Gaston the same night. He accepted he waited for Kisito's truck to stop that truck. When Kisito's truck arrived, others ran toward the truck. He accepted he speeded his truck behind Kisito's truck that night. He accepted that he had the thought of taking the document out from Gaston and to do whatever he could. He accepted that he would do whatever to avoid spoiling the name of their Member of Parliament. He was then asked that because he was ready to do whatever to save the good name of his Member of Parliament, his first action was he assaulted Gaston, he denied that. He denied he assaulted Gaston.

It was put to him and he accepted that before they took Gaston to the camp, he was still angry with him. He was then asked that at Aop he stopped the truck because he was too angry to Gaston and he threatened to kill Gaston and threw his body in the water - and he denied.

He agreed that on 2 November 2012, people living in the area of Lakatoro, at 11.00PM o'clock, were still woken up. They came for the documents. They come with a good spirit to take the document from Gaston. Gaston said there was no document. It was then put to him that they should go and leave Gaston at Justino's house. He responded that Justino told them to take Gaston with them. He was asked and he confirmed that it was Jean Tony who sends them to retrieve the document but not Justino. It was also put to him and he agreed that if they came with a good spirit so when Gaston said he did not have the document, they could leave and Gaston could be transported on Kisito's truck. He said Gaston told them to go and solve the problem at the camp. He denied Kisito and Gaston knew the Defendants were searching for them. He confirmed Kisito and Gaston speeded their truck because of the document in Gaston possession. He confirmed that the Defendants wanted the documents in Gaston's possession. He also agrees that Gaston was hiding from in the camp. He was then confronted as to why he said Gaston told them to go and sort the issue of document in the camp. He answered because Luke Sarisets told Gaston that Timothy Maltok, his chief, was already in the camp. He was then asked about Gaston's chief was Timothy Maltok who authorized Gaston to take the statement of Mrs. Imak Maltok. He confirmed they brought Gaston directly to PSP camp.

He denied assaulting Gaston in the camp. He denied others assaulted Gaston in the camp. He denied Eric Lapinmal came inside the camp and stopped them assaulting Gaston. He denied Eric Lapinmal whipped out blood from Gaston's body. He denied the saw Desire Urinmal assaulted Gaston with a torch light. He denied he was in the camp when they put Gaston on a chair as he was gone. He denied he was part of the group of the Defendants who asked questions to Gaston about the whereabouts of the documents. He said he was not with them on the table. He said he was not there when Gaston was asked to write a letter to revoke the statement he made for Imak. He accepted that they arrived at Worlep camp at between 12.00AM-1.00AM o'clock. It was put to him and he denied that when he dropped off Gaston, Gaston went out and looked for kava. He was asked and he answered that on 2 November 2012, at from 12.00PM to 3.00PM. He was at Jerusalem village. He dropped off some passengers. He admitted he drove Gratien Maltape to Jerusalem. Gratien went to see the members of PSP. They were under a mango tree. He was in the truck. He admitted they talked about the document as Gaston threatened Imak to sign the document. He denied they planned to hold on Gaston, assaulted him and retrieve the document he had in his possession. He admitted that he got the information about the document between 4-5PM when Gratien Maltape told him about. He was remanded that previously he said that he first heard about the document when Jean Tony told him by phone. He denied there was a plan. He said he was the only one to know as other defendants in the truck did not know. So he confirmed that between 4-5PM o'clock on 2 November 2012, he was at Jerusalem village. He admitted he was with a group of Defendants when Jean Tony phoned to him that night. He drove the truck to Justino's house. He stopped his truck at the camp. He was asked and he admitted he dropped back Gaston in the early morning of 2.00AM-3.00AM o'clock at Rano. Then he was asked whether they took Gaston from Lakatoro to Worlep Camp whether they did it by orders of chiefs or court. He answered they came to retrieve the documents only. They did not act on the order of any one. This witness is not a reliable witness.

Desire Urinmal is the next Defence witness. He is 50 years of age. He lives at Rano village. He is a gardener. On 2 November 2012, he was at the camp with the PSP committee. At 7.00PM they drank kava. At 11.00PM-12AM o'clock, when the land cruser stopped at the time he said Gaston Muluane walked to a table with a chair that were there already. Gaston came and said good night to them. He said they said good night to him. They shook Gaston's hands with Chief Timothy Maltok. Then chief asked him about the document. He said Chief Timothy and Chief Jean Mark Yorley asked Gaston about the document. Gaston said he did not know about the document. Chief Timothy Maltok asked driver Kammy to get Mrs. Imak Maltok, Kammy went and got Imak and her son Nafa Boni. Imak gave her version of the facts. Imak said Gaston went to her house and forced her to sign a document or a letter. Gaston spoke on the phone with someone. Imak said she heard the name of police and Gaston asked her to sign. Gaston took the document and left. Gaston did not read the document to Imak Maltok for her to understand. Imak was afraid and went to see the President of the Executive Committee of the Party, Jean Tony. Imak was afraid and cried to Jean Tony and told him of what Gaston did to her. This witness said, Gaston apologized on the table at that time. The table forgave him for what he did. He explained by the table he means all the members of the PSP Executive Committee. He said Gaston asked the committee to help calming down "faea we hemi laetem" Gaston was told "you wan yet bae yu kilim daon faea ia". He said the meeting was held to sort out the issue of the document Gaston forced Imak to sign. This witness said they felt bad because Imak is a member of PSP executive committee. Imak is his cousin sister. Gaston is his cousin. He was referred to Exhibit (P.3) - letter Gaston said on 2 November 2012, he was assaulted and forced to sign a document. He said Gaston lied to the court in this letter.

He was invited to continue with his evidence after Imak Maltok put before the table her version; he volunteered some evidence that on 2 November 2012, that night, he did not see Eric Lapinmal and Josianne Urleless. He said Eric Lapinmal house was far away from the cam. He gave a distance between the court house and Litzlitz wharf. Josianne Urleless house was on top of the hill about 150meters from the camp.

He went back to the invitation of defence counsel to give evidence after Imak Maltok gave her version of the story of the document. He said the chiefs and the committee agreed that the next day in the morning, there will be a public meeting to his place with Gaston. He said at that time, Gaston agreed to sort out the dispute. He said Chief Timothy asked the driver of land cruser to take Gaston and others back to their home. He said they shook hands before they get in the truck. In the truck, there were Kammy Buktan, (driver), Mrs. Imak Maltok, Timothy Maltok, Nafa Boni, Gaston, Timothy Maltok, and himself (Desire Urinmal). The truck dropped them at the gate of his house. He said Gaston told Timothy to look for kava. It was 12.45AM, he said. The next day, in the morning, chief Gratien and others came to sort out the matter. When they came to see Gaston, the agreement of yesterday was for a reconciliation to sort out the issue of document. He referred to a ceremony of peace which took place at Timothy's place and Timothy did it on behalf of Gaston as Gaston's chief. He said there were VT50.000, 20 Mats, 2 bag of rice (27.500kg), 1 Pig with 2000VT. He said he confirmed that there was a ceremony taking place on 28 November 2012. Timothy did that ceremony to Mrs. Imak Maltok.

Timothy was cross-examined. He is a member of PSP and a member of the Executive Committee of PSP. He said on 2 November 2012, he was at his house. He knew about the document later on. He was asked about whereabouts of his house. He said his house was near the house of the President of the PSP, chief Timothy and Gaston. He was asked whether the members of PSP met at Jerusalem between 4-5PM. He said at that time, chiefs were there, they wanted to sort out the issue caused by Gaston. Gaston ran away. They wanted to sort out the false document that Gaston did. He was asked as to how he knew this. He did not answer. He said he was at his house. He asked for the question to be repeated. He took time to answer. He hesitated he asked for the question to be repeat it. He accepted that the member of PSP met at Jerusalem. He said on 2 November 2012, he was at the camp at 11.00PM-12.00AM. He did drink kava. Others did. It was put to him that he was first aware that of the meeting at Jerusalem at 4-5PM. He denied and said chief talked about the issue. It was put to him; he stayed with them for them to drink kava. He denied he stayed that night waiting for others to bring Gaston to the camp. He denied that they planned to deal with Gaston at Worlep camp.

He accepted Fernand Lapinmal, Ken Lesnawon, Jean Mark Yorley, Atol Kiliter, were at camp. Bae Luce Maltok, Luke Sarisets, Kammy Buktan and Joses Sarisets were not at the camp. He was asked and he said he saw Kammy drove the Land cruser in the camp. He was asked and he said when the truck stopped inside the camp he saw Gaston, Luke Sarisets, Joses Sarisets, Bae Luce Maltok. It was put to him; he denied he assaulted Gaston with a torch light. He denied that Fernand Lapinmal assaulted Gaston his chest and jaw causing Gaston to fell on the ground. He denied Gideon Lesnawon and Sarisets kicking Gaston when Gaston was lying on the ground. He denied Eric Lapinmal was not there at that time. He denied Eric Lapinmal protected Gaston when Kammy, Joses, Gideon and Fernand assaulted him.

It was put to him and he denied that they told Gaston to write a letter to revoke the statement he wrote for Imak Maltok. He denied that they put Gaston on the chair and forced him to write a letter to revoke the statement he made for Imak. He denied there was blood on the body of Gaston that night in the camp. He denied that Gaston asked them pleased them to release him. It was put to him and he denied that Gaston agreed to make a revocation letter in the morning. He denied that after that Gaston agreed to make the letter, he was released. He denied that Timothy Maltok is a member of PSP party but his wife and children are member of PSP. He was asked and he said he did not know that Timothy Maltok went to Vila in November 2012 to lodge an Election Petition. However, when asked whether as a member of the PSP Executive Committee any issue which might affect or challenge the election of MP Don Ken, he would know. He said -Yes. He was asked again whether he was aware of an Election Petition filed in November 2012 against the election of his MP Don Ken, he responded that when they talked about something in Vila. He did not know. He was asked against and he answered if you talked about Don Ken, he said he would not answer. He only knew about the paper written by Gaston. He was shown Exhibit (P.2). He denied the content by saying this not the will of Imak.

It was put to him and he denied that Josianne Urleless house was 20 metres from the camp. He asked about a reconciliation he mentioned on the next day on 3 November 2012, he was then asked as to why the police came at Rano on that date from 8.00AM to 10.00AM o'clock. He said because of a dispute between Gaston and Jean Tony and it was already solved. He was asked that Gaston has never told the court that he has a problem with Jean Tony but Gaston has a problem with you, the Defendants. He denied and said Gaston had a problem with Jean Tony. He denied that police came at Rano on 3 November 2012 at 8.00AM o'clock because of assaults taking place at Lakatoro and force on Gaston to make a letter. He was referred to the reconciliation he mentioned earlier and he said it was for clearing the faces of the members of community. It was put to him and he denied that the reconciliation was done because a party did something to another. He was asked again and he said the reconciliation was done because of the document made by Gaston. When he was asked as to why police were at Rano he replied because Gaston did not attend the reconciliation. He was challenged about his evidence on reconciliation in his previous evidence he said Timothy did the reconciliation on behalf of Gaston. Then he said they (defendants) paid fines so he was asked why they pay the fines to the chief. When asked as to what others give to him, Timothy and others. He said they did not give anything to him.

He denied the reconciliation was done by him and the defendants and the members of PSP to pay fines to Gaston and Timothy because of the assaults on them. This witness is not a trustworthy witness and his evidence cannot be reliable.

Marcella Malapa is the next Defence Witness. She gave evidence that she works at Norsup Hospital for 23 years. She collects fees and look after the paper work. She was told to come and witness for the Defendants. She said she was told that she used a stamp of Norsup Hospital to stamp a medical certificate. She as referred to certificate Exhibit (P.5). She said she did not see a report like that. She did not stamp it on 5 November 2012, she was at Norsup Hospital. She explained the procedure. She must receive the form from the police which was brought by the patient. The patient must go to nurse practitioner to be examined and the patient told his story of the incident to the Nurse to write down on the paper form. A medical report was attached to that form when the doctor or nurse practitioner filled in the form then she would stamp it and issue a receipt; a copy is made for the file and the original was sent to the police. She said she did not any copy of this document in her file.

She said medical certificate was issued by doctors and nurse practitioners. She was cross examined. She said she is not a nurse. She works at the administration. She accepted she was not always in her office. She identified the stamp on the certificate. It was for Norsup hospital. She denied there was a theft of stamp at the hospital. The stamp is in her office. She said Gratien Maltape told her to come. She did not think about testifying. She accepted all clinic or dispensary on Malekula depend on Norsup Hospital. She said dispensary of Rano or Uripiv do not have stamp. She agreed that whoever wrote a medical certificate must take it Norsup Hospital for stamping. She said she did not see Paulin Bahormal when it was put to her that she lied. She was asked that she was not called to testify to tell the truth to the court but because Gratien told her to come and she answered -Yes because of the case of the stamp.

She accepted that the only way for them to stamp a document is to bring it to Norsup Hospital as they do not have any stamp. She said the defendants are closely related to her she is also a member of PSP. Don Ken relates to her. This witness is a trustworthy witness but all her testimony cannot be reliable as the issue of the stamp is not essential taking to the fact that registered nurses have the right to issue medical certificate but for the stamp.

Goennalla Lesiness is the next Defence witness. She is the registered nurse, working at Walla/Rano dispensary. In her clinic she can issue a sick leave. She says he has no right to write a medical report in her clinic. Her clinic is a dispensary only doctors and nurse practitioners can issue a medical report. If a patient sustained injuries she visited the patient and referred to patient to Norsup Hospital. She knows Paulin Bahormal. She is the registered nurse at Uripiv dispensary. She said she could not make a medical report she is not a nurse practitioner. She said she can made sick leave because there is a ready made stamp there. She was asked if she can issue a medical report in a bush/nakamal- she said she will issue medical certificate only in the clinic.

She was cross-examined - she accepted that if she was in the bush and person there was an emergency, she will assist. She will examine the person or she will examine the person or she will make consultation on the person. She accepted bruises can only last for 24 hours. On 2 November 2012, she heard there was a fight. She heard Gaston had been assaulted by the members of PSP. She did not know Paulin Bahormal examined Gaston. She accepted that only reason for the paper to be sent at Norsup Hospital was for stamp to be used on paper as the stamp was at Norsup hospital. She was given Exhibit (P.5) she said it was a simple consultation and provides medications. Some part of the evidence of witness Goennalla Lesiness is reliable other part is not reliable.

Mrs. Imak Maltok is another Defence witness. Imak Maltok gave evidence to the following effect. She is more than 40 years of age. She is a gardener. She is a member of the Executive Committee of the PSP since 2008. On 2 November 2012, at about 11.00AM - 12.00PM she was at home at Rano. Her house is next to Gaston Muluane's. Her house is on the next side of the road about 15-20 meters from Gaston's house. On that date, Gaston talked on the phone and came to her yard. Gaston told her he just returned from Airport. He accompanied her husband to Vila. But before Gaston came, Joselito Mulane came and told her that her husband Timothy Maltok was at Tautu. When Gaston came, she said, he forced her to go inside the kitchen. She went with Gaston in her kitchen. Gaston asked her if Don Ken gave money to the people whose names were written on the back of the photograph including this witness. She answered: "No gat hemi no pem mifala". Then she said Gaston took a letter with him. He had already written the letter before he came to her house. Exhibit (P.2) was referred to. She said Gaston asked her to sign the letter. She said she was afraid. She did not want to go to court. She said Gaston told her to hurry up as the police will ring him soon about the letter. She said Gaston asked her to sign the letter as the police will phone him soon so that he could inform the police about.

She was afraid because Gaston used the name of the Police. There was no pen. Gaston sent Jessica to get a pen. Jessica, her daughter, got a pen and Jessica witnessed her signing the paper. She identified her signature on Exhibit (P.2) "I" she felt bad. Gaston left with the paper. She was afraid on going to court. So she went to Jean Tony, the President of the Executive Committee of the PSP.

She said she told Jean Tony she had signed a paper. She was afraid of going to court. She told Jean Tony to ask Gaston to give back the paper. She added that Gaston mentioned about the photographs and the writing on the back of the photos. She said she explained what she knew. She felt bad about what happened and she told Jean Tony of her feelings.

She said Jean Tony was angry and took the photographs and she returned to her house. He husband was not at the house. She said attended school to class 6 level. On 2 November 2012, at 11.00PM-12.00AM midnight, she said she and son Nafa Boni were taken to the camp at Worlep. At the camp, she said they talked about the document Gaston made her signed. They asked questioned to her and Gaston about the document. She said Gaston admitted he came and did something to her yard. Gaston said he had already, burnt the papers. She said they said they will make peace before they went home. Then when she was asked whether she referred to the ceremony, she said no they said they will sort out the issue. Then they returned home. She describes Gaston's appearance. She said Gaston walked normally and sat on a chair. She saw Gaston as she sat behind. Gaston was alright.

Then she said they dropped off herself, Nafa Boni, Timothy and Gaston. She said Timothy and Gaston went for Kava. Imak was cross-examined. She confirmed she signed a letter. It was put to her and she said she signed the paper Gaston had written at his house before he brought to her for signature. She confirmed she signed the document.

She was asked whether his lawyer assisted her with a statement on 22 April 2013. She agreed. She was asked if she has different signatures. She explained she signed with her initial "I" because she did not know what was in the letter. She was asked and she said she told Gaston that she never came to court. She said "Mi harem se mi salem mi finis - Mi cross long hem - Mi talem vinis mi no wantem pass long court so wanem ia tedei ia Gaston....? She was asked and she accepted that she was angry with Gaston that is why she gave evidence against him today. She agreed Gaston made lots of mistakes on the paper and then he crossed them out. She accepted there was time for Gaston to write the letter properly before she signed. She was asked and she denied that Gaston wrote down her statement in the kitchen. She asked she said Gaston forced her to sign the letter. She denied Gaston assaulted her before she signed. She denied Gaston holding a knife. She said Gaston lifted up his voice. She was then challenged and finally she admitted Gaston talked to her and asked for the photographs. She admitted Gaston did not force her. She was asked and she said on 29th October 2012, Gratien Maltape came to see her at her yard and gave her husband card.

She added she took the photos on 27 October 2012. She took the photos to share with her families. She said their President gave them the photos for them to see the names on the photos. She was asked and she denied she took the photos to write down the names on it.

There was a photo Exhibit (P.1) with her name on the back. She accepted and said Timothy and Gaston took the photos in her house. She did not know. At the time, voting was over. It was put to her and she denied that the photos were given by Don Ken to her to distribute to her family and to write their names to receive benefits after the election.

She was asked whether the photographs were in her house. She answered "ating" wan icome stilim photos narawan ikam makem threats long mi". She accepted that sometime after the elections of 30 October 2012, her husband Timothy Maltok went to Port-Vila. She was asked if Timothy went to Port Vila to file and election petition. She said she did not know. She added "tufala iwantem se Don Ken i foldaon long chair blong hem". It was put to her that when they took the photos, Timothy sent Gaston to take your statement. She answered "ating" from hemi toktok blong tufala". She said Gaston and Timothy took the photos on 1 November 2012. The she accepted the PSP members found out with the letter. It was put to her that the members of PSP committee were angry against Gaston and Timothy. She said Timothy was already at Tautu. Gaston only came back. She said on 2 November 2012, Timothy and Gaston took the photos to Kisito at Vao. They told Kisito that they took the photographs in her bag at her house. The following reflects her evidence:

Q: Long 4.00-5.00PM o'clock ol memba blong committee blong PSP oli faenem out finish.

Q: Sometime about 9.00PM long night oli faenem Timothy long Nakamal oli kilim hem smol

She said Jean Mark Yorley and Fernand Lapinmal questioned Gaston and Timothy and asked them to give back the paper. Gaston and Timothy said they have burnt the paper already. She confirmed that Gaston agreed to write a letter to say that what was in her statement is not true. She confirmed there was reconciliation at her house. She could not remember the date. February 2013 was suggested and she agreed. She was present at that time of reconciliation. She said "olgeta group blong mifala ia oli come" referring to the Defendants. They performed the reconciliation ceremony to her husband Timothy Maltok. She confirmed that the reconciliation ceremony was performed by the Defendants.

She was asked and she confirmed that the Defendants performed the reconciliation because they assaulted he two (Gaston and Timothy). She was also asked and she confirmed that they gave pig, mats and money, but she added "be man ia Gaston ino wantem". She was also asked and she confirmed that her husband Timothy Maltok asked the Defendants to forgive him. She was asked she did not recall that Desire and others when Kammy Buktan drove them back to their house that night of 2 November 2012.

Jessica Maltok is the next Defence witness. She is 23 years old. She attended College de Santo. She was asked as to why she came to court. She did not answer. She was referred to 2 November 2012 - where was she. She said she was at the house of their parents. Gaston came to their house - he called her mother and asked to talk to her in the kitchen. She was outside. Gaston and her mother talked in the kitchen and Gaston called on her to get a pen. She took a pen and Gaston told her to witness her mother to sign a document. Gaston gave the pen to her mother and she signed the document. Gaston returned to his yard. She was asked about a document she signed on 26 November 2012 - Exhibit (D.1). She recalled her father Timothy Maltok took her to sign the document with Gaston Muluane. They come to the Office of Magistrate's Court at Lakatoro. Her Father and Gaston told her to hold the bible and signed the document. She did not know what was in the statement. When they come to the Court, they told her that she would sign a paper to witness her mother who signed a document.

She was cross-examine she was asked and she said her mother was a member of PSP. It was put to her and she accepted that she signed the document following the instructions of father Timothy. She was asked and she said her father did not ask her to sign a document until they arrive at the court she said her father told her to sign the document as it was simple only. Father Gaston made sign the paper. She signed to following the will of her father and Gaston. She said her mother was not happy with that. She was referred to a statement she signed in April 2013 and she said she recalled. She did sign the document (Exhibit P6) on 22 April 2013. The statement talked about how Gaston came to their house on 2 November 2012. She accepted she signed the first statement (26 November 2012) following the instructions of her father. She accepted also that she signed the second statement (22 April 2013) following the instruction of her mother. She explained herself that because her father and mother lied to her in the first place so he lied when she took oath. She confirmed that on 2 November 2012, Joselito came to their house first and Gaston came later on. She was asked about the reconciliation of 27 February 2013 and she could not recall as she said she might be in the gardens. She is not a credible witness and her evidence cannot be relied upon.

Mathias Urinmal is the next Defence Witness. He is 37 year old. A gardener, he said he came to court to tell the court about the lies of Gaston of Muluane what he told him and of what he saw. On 2 November 2012, he said he was with Gaston Muluane. At that time, elections were just over. They talked about what happened. At 9.00PM on that date he was at Gaston's house. They had kava. Gaston was not with them. Earlier on 2 November 2012 at about 3.00-4.00PM o'clock, he said he was at Helen and Joseph Combe's house. He said he went there because in the morning, Gaston told him that he will right a false statement and gave it Imak Maltok to sign. On the same date at about 11.00PM-12.00PM o'clock, he said he was at Gaston's house after Gaston said he will write a false statement for Imak to sign.

He said Gaston asked for paper to write and then he wrote a statement and gave it to him and he read it. He said Gaston asked him how it looks like. He said he didn't say anything because he said he saw Gaston had made a mistake. The he said Gaston told him to stay there. Gaston took the paper and then returned with the paper. He said Gaston told him that he was lucky the old woman did not know how to read and write.

He said at 12.00PM, he and Gaston went to Jerusalem village. They arrived at 1.00PM. They met Jean Tony Maltok and his son Malcere. He said Jean Tony uttered abusive words to Gaston and asked Gaston why he forced Imak to sign a document. He said, Jean Tony told Gaston "you no save se mi gat weight - yu wait mi sendem ol members blong PSP Pati naoia bae oli come from you". (Did you know that I have weight - you wait there I sent the members of PSP Party to come for you). He said they went to Helen house. He said he saw Gaston holding a different paper again for Helen to sign. He said Gaston and Steven forced Helen Combe to sign a document. He said the chief of PSP Party arrived. Chief Fernand asked Gaston to go and sort out the document issue with them at Jerusalem, then he said he saw Gaston Muluane ran away with the documents. Steven Combe followed him. They went through the bush. He said he went back to Gaston's house they drunk kava in a nakamal near Gaston's house. He said he was drunk with the kava. Two persons helped him and put him in Gaston's house. He got his kava about 6.30PM and at 1.00AM in the morning, he was surprised that Gaston knocked and called him. He came and opened the door, he saw Gaston hold a plastic of Kava. He said Gaston body was normal. Gaston was not sick. Nothing happened to him. He said he covered himself with Gaston with the same blanket.

On 3 November 2012, they go up he said Gaston told him to go to see Eras Malcom, Jean Tony's brother. They went to Gaston's Nakamal. He said Gaston and others talked and he said he was surprised to see some politician came. Then he said Gaston's brother Urbain sent him to get some banana. He said he took some banana. He said Louis Urleles told Gaston that they got a photograph of Gaston to use in court. He said Louis Urleless made a photograph of Gaston. He said Gaston placed a hand over his head and when he ate the banana in his mouth. He used the banana in his mouth to increase the size of mouth as if they wore swollen up and the photograph was taken.

He said on 4 November 2012, Gaston phoned Paulin a lot of time. He said because Paulin is his cousin, he told Paulin, the nurse of Uripiv to prepare a Medical certificate for him. He said Gaston told him to give him the certificate behind Philina store behind the bush of cassis area. He said they went on a vehicle and Gaston asked Paulin whether he got the medical report. Then he said Gaston told Paulin that there was no stamp on the certificate. He said Paulin told Gaston that he will send Gaston to Norsup Hospital.

He was cross-examined. He confirmed he followed Gaston full day on 2 November 2012. He was asked as to how then he ended up giving evidence for the defence if he has followed Gaston all that day. He answered the defendants found out that he spent the full day with Gaston and they asked him to testify and tell the court about some truths and he said he accepted. He confirmed he got some kava. He was drunk of kava. Two people held him and put him in Gaston's house. It was put to him how Gaston would know that he were sleeping in his house? He responded "ating bae mi talem se ating hemi must save". It was put to him that he drunk kava. He slept in Gaston's house, Gaston did not know. How he could maintain that when Gaston arrived Gaston knocked on the door and called him (witness) by his name. He answered: "mi no save". He was asked and he said his house is closer to the nakamal. He was taken after the kava drink to Gaston's house because they were family. It was put to him that the reason he did not sleep to his was because he was afraid of the defendants. He answered "yu talem tingting blong yu nomo". It was again put to him and he said no.

He was challenged on his evidence that he saw Gaston writing a paper for Imak to sign and he said Gaston had a pen at that time. He was asked why Imak and Jessica testified that Gaston asked Jessica to get pen. He could not provide a satisfaction answer. It was put to him that he lied under oath. He answered if he lied, the court will prove that. He was challenge on his evidence that he saw Gaston had a different paper for Helen Combe to sign. He did not provide a satisfactory answer as he said "mi no luk but mi stap think nomo ia".

He was challenge about his evidence that Louis Urleless got a photograph of Gaston while Gaston mouth was full of banana as if his was swollen. It was put to this witness that he evidence is about the swollen face, not swollen mouth. He answered Gaston place his hand on his head. It was put to him that he lied in court under oath. It was put to him that he claimed that Gaston pictured his mouth full of banana why police officers came at Rano village? He answered he did not know the reason. He was asked whether the police came he confirmed the police came. It was put to him why many people came to Gaston's yard. He said he did not know. He was asked and he confirmed lots of people came. Mathias Urinmal is not a credible and reliable witness. He is not a truthful witness.

Jean Marie Lapinmal is the second last Defence witness. He gave evidence to the following effect. He is from Rano, Worlep village. He is 36 year old. He said he will give evidence of an incident which took place at the camp at Worlep on 2 November 2012. He was in the village in the day and evening. He was at the camp and drunken kava in the night when the truck-Blue Land cruser arrived at the camp. The truck came inside the camp. He was in his house which is 7-8 meters from the camp. He saw Gaston opened the door of the truck. He said he saw three (3) men come in the camp. They hold 1 plastic of kava and Gaston shook hands with them. Gaston went to Timothy Maltok, his chief and sat down. They talked. But Gaston and Timothy talked about the document that Imak signed. He said they did not take it as a big issue. He said they just let them story about. When Gaston said he did not sign the document, they sent Kammy (the driver) to get Imak Maltok at the camp with Nafa Boni. When Imak came at the camp, she confirmed that Timothy and Gaston made the document. He said Imak pointed her finger to Gaston and Timothy. Then, he said Gaston admitted he made the letter. After he said Gaston said he squeezed the letter already, he said Gaston said if the members of PSP Committee can make another letter to destroy (revoke) the former letter.

Then he said Jean Mark Yorley told Gaston to follow another process to correct what he did. He said Gaston asked if they can help him to: "kilim down faea ia". He said Jean Mark said "No yu nomo yu mas makem". He said Gaston asked for water and they showed him water in a tank "la citerne" and they gave Gaston a glass and Gaston got water in the glass and drink it. He said Gaston asked to go to the toilet and the witness said he gave Gaston a torch light and showed him a toilet as chief responsible. He said he did not see many people. He was with his son. He and his son shook hands with Gaston before they left.

Jean Marie Lapinmal was cross-examined. Jean Marie Lapinmal accepted that on Monday 20 May 2013, the first of their trial, he did not know that he was going to testify. On Tuesday 21 May he did not know that he would testify. He was then asked "who then asked you to testify?" He answered: "mi follem wanem Judge italem se yumi save faenem some evidence".

A: Monday or Tuesday because in responsible long camp. So mi come blong testify.

He was asked and he said on Monday 20 May 2013 he was in the area of the court but outside. He was asked on Tuesday 21 May he said Tuesday he came in but he was not present. He was challenged and was asked that there were man who saw him in court when Gaston gave evidence. He answered it was not true. He was asked a witness must be an independent person - he agreed. Then he was asked:

Q: Why you come long court long Monday 20 May mo Tuesday 21 May 2013. You no save yet se bae yu testify?

On his cross-examination, this witness most answers are: "Mi no save" or "Mi no gat answer long question".

Witness Jean Marie Lapinmal is not a credible and a reliable witness. He is not an independent witness.

Timothy Maltok is the last Defence witness. He is from Rano village. Aged 62, he is a gardener. He gave evidence to this effect. On 1 November 2012, he was in his village. Elections were just over. People waited for the results. He said he went and had a meeting with a committee of "Green Party" Then he met with Gaston and Steven Combe. Gaston is his cousin. He said he went to his house and searched for photographs and found photographs in his wife's bag. He gave the photos to Gaston. They rang Kisito Teilemb. Kisito came and took him and Gaston to Vao. He said at Vao, Kisito saw the photos and said they did not prove anything. The person who had the photos must make a statement about the photos. They came back. He was dropped off at Atchin.

He went to Tautu. Before he got out at Tautu, he said he told to Joselito Muluane that he will sort out a business at Tautu, and then he will be going to Vila. Gaston asked the photos. He gave the photos to Gaston and he stayed at Tautu. He said his son rang him more than once and told him that his mother cried because Gaston threatened her at her house. He said a person to get some yams at Unmet village. He said his son rang him about and asked him to go back in the village. He said he went back to Rano and arrived at 8.00PM o'clock. At the camp, he saw PSP members were there. They talked to him about the photos. He said he told them Gaston had them. He said when they took Gaston to the camp, he drunk kava. Gaston walked and came to him in the camp. They talked angrily to Gaston because of the document. He asked my wife to sign. When Gaston said he destroyed the document already, they got his wife Imak in the camp. He said his wife said Gaston forced her to sign the document. Gaston asked if they can help sort out the "fine" and they refused - and asked Gaston to do that. When they left the camp, he and Gaston went to drink kava at nakamal "last flight" they got two (2) shells of kava each and returned.

On 3 November 2012, he said he went to the church at 6.00AM o'clock. After church, he met Gaston at Enas nakamal. Then police officers arrive. He said Urbain send Mathias to get some banana to eat. Police gave the right to Paulin to make medical certificate. He said Louis Urleless took some pictures. Gaston had banana in his mouth and blocked his head with his hand. This witness gave evidence about Gaston, Louis and Kisito drank kava at Mae with effect to shorten the life of Don Ken. He gave evidence of how they got the medical certificate stamped by Gaston and Antoine Telukluk, the nurse working at Norsup Hospital. He gave evidence of how they got back to the hospital and got the stamp on the other medical certificate by Nurse Antoine Telukluk. He said Paulin wrote his medical report. He gave evidence that on 7 November 2012, he got a ticket to fly to Port Vila. In Vila, he stayed with his daughter. He said Browny filed and election petition. He returned to his village on 24th November 2012. He gave evidence that on his return he could no longer stay in his house. His wife Imak wanted to cut him with a bush knife

He said he thought about the reconciliation. He planned for reconciliation. He said Gaston agreed with him. On 28 November 2012, reconciliation took place at his house. He could not refuse to receive the members of PSP. They gave 1 pig, 5 mats and 50,000VT. He took 30,000VT with 5 yams and 6 mats to clean to face. He said finally that his wife told him, if he did not reconcile he must live with Gaston or she will cut him with a bush knife.

He was cross-examined - He denied he went to Vila to file an election petition in November 2012, against Don Ken. He said the election petition was for Kisito and Gaston. He did not know why he went to Vila. He challenged what he and Kisito did on 2 November 2012 and after, his answers were similar in that Gaston did it or Gaston is responsible for it.

It was put to him that when he gave evidence of the reconciliation that it was swap reconciliation, Desire Urinmal gave evidence that they gave something to Timothy but Timothy did not give anything and he did not respond.

Witness Timothy Maltok is not a credible and reliable witness as he has some specific motive to testify: he was put under pressure to reconcile or live with Gaston or be cut with a bush knife. He had reconciled with the defendants and he had obtained forgiveness from them and his wife Mrs. Imak Maltok.

I have listened, recorded the evidence of the prosecution and Defence witnesses. I have observed the demeanor of each witness. I have assessed the evidence at the end of the trial. The following are the facts as found and accepted by the court.

"Je soussigné Mr Bahormal Paulin, infirmier en charge de la clinique d'Uripiv certifie avoir consulte Mr Gaston Muluane a Walarano vers 11h05mn. Ce dernier a reçu des coups de pieds de plusieurs hommes durant le 02/11/12 a Lakatoro puis a Worlep/Rano. Gaston a reçu des coups de poings sur la figure et sur le nez, les lèvres supérieures enflées du aux coups reçus, et il y a du sang qui coulait durant la nuit. Ce dernier a reçu des coups de torche derrière la nuque. Il ne peut dormir a cause des douleurs lombaires et musculaires et nécessite des calmants.

Remèdes données au village
- Pandol 2cps si besoin
-Cold sponge pour...et musculaires

[Translated... (To the extent of relevancy) - (I, the undersigned Bahormal Paulin, nurse in charge of the clinic of Uripiv, certify that I have examined Mr Gaston Muluane at Walarano at about 11.05 Hours. The latter has received kicks from several men on 2 November 2012 at Lakatoro and at Worlep/Rano. Gaston Muluane has received punches on his face and on the nose. His upper lips were swollen due to the assaults he received, and there was blood coming out of his body during the night. The latter was assaulted with a torch light behind his neck. He could not sleep due to the pains on his body and muscles and he needed painkillers.

I have had opportunity to read the submissions of the prosecution and defence Counsel. I take them into consideration in my reasoning of the law to apply to the facts as found and accepted by the court.

I accept that the Court of Appeal judgment in Kilman-v-The Public Prosecutor [1997] 1 VUCA 9 is the guideline judgment where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. The relevant part of it is reproduced as follows:

"The doctrine of common purpose which we consider formed the basis of the reasoning of the trial judge has recently been considered by the High Court of Australia in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108; 130 ALR 26. The High Court, in a joint judgment, said at CLR 113-114; ALR 29-30:

Therine of c of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a commiminal design. Such a venture may be described as a joint criminal enterprise. Those terms erms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission: see Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission: cf R v Lowery and King [No 2] [1972] VicRp 63; [1972] VR 560 at 560, per Smith J.

nly that, but, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture: Mansell and Herbert's Case (1556) 2 Dyer 128b [73 ER 279]; Ashton's Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski [1899] ArgusLawRp 25; (1899) 24 VLR 687; R v Kalinowski [1930] NSWStRp 89; 1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose: see R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ."

It is sufficient to make one of the parties sharing the common purpose guilty of an offence committed by another of the parties sharing the common purpose that the offence must have been foreseen as a possincident of the common unlawunlawful enterprise: see Chan Wing-Siu v The Queen [1984] UKPC 27; [1985] AC 168 and Hui Chi-Ming v The Queen [1992] 1 AC 34 at 49-51.

Those of the appellants who did not go to the State House may not have known precisely how the President would be persuaded to come to the airport. However they knew that the contingent of members who were too the State House were in b in battle dress and were armed. It was open to the trial judge to hold - indeed the evidence is not really open to any other interpretation - that force would be used if necessary to seize the President to enable the plan to be carried into effect. The plan, unless it were to run the risk of failure, must have assumed that such force as was necessary would be used. The obvious inference from the evidence is that those members who were despatched to the State House had a specific task which formed the essential first step in Operation Thunderbolt.

r the purposes oses of s 105(b) of the Penal Code, it is not necessary for the prosecution to prove that actual physical force was applied to the victim. It is cient that there be a threat of the application of force. Wce. We agree with the statement of Downing J in Public Prosecutor v Walter Kota and Others (1993) 2 Van. LR 661 at 664 where his Lordship said: "The use of the word 'force' in s 105(b) in my view clearly refers not only to physical force, but coercion and the threats of force".

If, as a matter of fact, in carrying out the plan the VMF members who were assigned to collect the President from the State House actually used or a threat of force which caused the President to accompany them against his will, all thll the participants in the plan were guilty of the offence, as the use of force or the threat of force was within the contemplation of the joint enterprise.

In our opithon the convictions for kidnapping can also be upheld against each of the appellants upon a different basis. If it is accepted that the crime of kidnapping occurred when the President was removed against his will from one place to another, Samson Kilman and John Tokole were guilty of the offence when they removed the President from his front door. Ruben Hanghang was guilty of the offence when he participated in the removal of the President from the gate of the State House to the airport. Peter Moses, Marsden Garae, Danstan Huri and Philip Kalmasei (on the assumption that he was not proved to be at the State House gate) became guilty of the offence when at the airport they participated in the removal of the President from the airport to Malekula. A conviction on this footing would be within the particulars of the offence as charged."

The defence submitted that the decision in Kilman v The Public Prosecutor [1997] 1 VUCA, in respect to the offence of kidnapping, must be distinguished from the present case given that the purported kidnapping in the present case germaned from the unlawful conduct of Mr. Gaston Muluane in the manner in which he forced and threatened Mrs. Imak Maltok to sign a document.

The Court rejects this submission as it is not sound in law. First, Mr. Muluane is not charged with any criminal offence; he is the complainant in the present criminal trial proceeding. Second, the conduct of Mr. Muluane as alleged is not a defence or a justification for the defendants to commit crimes.

The defence submitted further that Mr. Muluane run away with the documents which belonged to Mrs. Imak, a member of PSP committee, with a clear devised plan with his close associates to use the documents as evidence in court against the interest of Mrs. Imak Maltok and PSP committee and so Mr. Muluane is still obliged in law to explain his actions to Mrs. Imak and the committee of PSP, the whereabouts of the statements given the elections season in which the defendants enjoyed.

The court must reject this submission also for the same reasons as provided above. In addition, the court observes that what the defence counsel advanced as defence for the defendants in the trial and in his submissions is not positive defence to the offences charged in the Information. They might be defence in election petitions challenges but not a positive defence of the criminal offences alleged in the Information.

The defence submitted that the reason why Constable Justino Teilemb did not arrest the defendants that night on 2 November 2012 was because he did not consider the seriousness of the matter in question and that is why Constable Justino told the defendants words to the following general effect: "Yufala karem hem I go down sortem out issue taon long Worlep."

The court cannot accept this submission as it is contrary to the evidence. Constable Justino was challenged in his evidence in cross-examination as to why he did not arrest the defendants that night. He testified to the effect that he had assessed the situation. He was the only police officer that night. Before he decided to arrest the defendants, he must first think about his own security. There were a group of defendants that night and he was the only police officer at that time. He did not arrest them. Further, Constable Justino testified that he held the collar of the shirt of Gaston Muluane when he arrived at the defendants' truck to prevent the defendants from taking Mr. Gaston away in their truck. But Kammy Buktan and the defendant he had identified as Don (on court record, he had identified Luke Sarisets) pulled out Gaston from him as they were two of them against him alone. Finally, even if the version of fact as put by the defence is accepted, Constable Justino would have no right in law to allow or permit the defendants to take away Gaston against Gaston's will and without lawful justification of doing so.

The defence further submitted that the prosecution failed to prove the elements of assault against all defendants charged for offences of assault in counts 2, 4 & 6 of the Information given that: -there was no evidence of physical assault on Mr. Gaston; there was no independent medical report in place to show the assault and/ or any temporary damage on the body of Mr. Gaston Muluane as Nurse Paulin Bahormal was canvassed with conflict of interests and there is no urgency required for the medical report to be made.

First, there is overwhelming evidence from the prosecution witnesses that Gaston Muluane was assaulted by named defendants in counts 2, 4 & 6. The court does not accept the general denials as a positive defence for assault as charged against the named defendants. The assaults on Mr. Gaston Muluane on 2 November 2012 and 3 November 2012 were confirmed by the defence witnesses. Mrs. Imak Maltok in her cross-examination admitted that the defendants had performed a custom ceremony at her house on 28 November 2012 to her husband (Timothy Maltok) and Gaston Muluane because the defendants had assaulted them because of the papers but: "Man ia- Gaston ino wantem" she added. Nurse Goennalla Lesiness confirmed in her cross examination that she heard Mr. Gaston Muluane was assaulted by the Members of PSP party on 2 November 2012 but she did not know that Paulin Bahormal did examine Gaston.

Second, the evidence which is accepted is that on 3 November 2012, in the morning, police officers arrived at Rano village. There were tensions from the people of the village after they heard of what happened to Mr.Gaston Muluane. Police officers calmed down the tensions with the assistance of the leaders of the village. Police officers arrived in the morning as a direct consequence of what happened to Mr. Gaston at Lakatoro. It is rational to so infer as Kisito Teilemb said in his evidence that he told the police to be at Rano in the early morning of 3 November 2012. Constable Justino Teilemb said he gave the documents to the local head of police at Lakatoro, Senior Inspector Thierry Alick in the morning. Third, the fact which is accepted is that Nurse Paulin Bahormal is a Nurse Practitioner and he works at Uripiv clinic. He went to his village at Walla on Friday 2 November to spend the weekend with his family in the village. Timothy Maltok phoned Nurse Paulin Bahormal in the morning of 3 November 2012 to go to Rano village and examine the body of Gaston Muluane. Once he was at Rano, he saw a group of people there. He was asked to examine the body of Gaston Muluane and issue a medical report. Nurse Paulin Bahormal refused to do so as he said Gaston Muluane is his cousin and there is an apprehension of conflict of interest which could arise. Police officers asked him to examine the body of Gaston not as a member of his family but as a nurse. Nurse Bahormal then accepted and examined Gaston and issued a medical certificate in French language on 3 November 2012. The medical certificate was signed but it was not stamped as he has no stamp with him. He also said that the clinics on Malekula do not have own stamps and this includes Uripiv clinic. They rely on Norsup Hospital stamp. In the circumstance of this case, the court accepts the content of the "certificat medical" issued by Nurse Bahormal on 3 November 2012 as a professionally executed one and the court relies on it as a medical report in this trial. Further, on the evidence as accepted, it was stamped at Norsup hospital by one Antoine Telukluk who is a registered nurse working at Norsup Hospital. Antoine Telukluk is authorized to take and use the stamp of Norsup Hospital as a Registered Nurse. There is no need for this nurse to steal the stamp as Timothy Maltok would want the court to believe. Further, defence witness Timothy Maltock confirmed that the police officers have asked Nurse Bahormal to examine the body of Gaston and issue a medical report.

Finally, it is accepted as a fact that there was urgency to examine the injuries on the body of Gaston and provide a medical report as the swollen part of the face and black marks on the body is likely to disappear after 24 hours. The court rejects the other defence versions of evidence as not truthful.

The defence submitted that the defendants had never confined Mr. Gaston Muluane. The court found and accepted evidence that the defendants confined Mr. Gaston Muluane in the circumstance as described in this case. The court therefore rejects this submission.

The defence submitted that the prosecution failed to prove on the criminal required standard all elements of the offence of riot. The court accepts that the prosecution fails to prove all essential elements of the offence of riot as charged against the defendants. But the Court found and accepted that the prosecution has proved all essential elements of the offence of unlawful assembly which is a (complete) lesser offence than riot.

The defence submitted that there is no evidence which established the offence of extortion. This submission is rejected as there is accepted evidence to the contrary.

The court accepts the following prosecution submissions which reinforce the prosecution case:-

First, witness Mathias Urinmal testified that he was with Gaston on the night before 2 November 2012 and assisted Gaston to work on the document he said they will use against Don Steven Ken. It is rational to infer that after Mathias accompanied Gaston in Gaston's run away with the statement and photographs to Walla village and after Gaston left with Kisito, Mathias on his return to Rano must have been afraid of the Defendants that were the reason of him spending the night at Gaston's house.

Second, the prosecution says that there was no force applied on Mrs. Imak by Gaston to obtain the statement, however, the Defence case that Gaston forced Imak to sign a document reinforces the prosecution case in the sense that the defendants have a motive to kidnap, assault and confine Gaston Muluane in order to retrieve the statement of Mrs. Imak and the photographs of Don Steven Ken distributed before the elections to avoid any legal challenge to the election of Don Steven Ken.

Third, there are inherent inconsistencies in the evidence of the Defence witnesses. Following are examples of such inconsistencies:-

The court accepts the prosecution submissions that no reasonable court would rely on the above inconsistencies of evidence as they were in conflict with each others. It is also accepted that the defence theory of the case was that the defence diverted the court's attention from the facts and the evidence. The court accepts that the version of fact as to what happened between 2-3 November 2012, was that the defendants assaulted, kidnapped, confined and extorted Gaston Muluane by using force, violence and threats of violence. On the evidence, the only way for Gaston to be released from them was to succumb to their demand by giving his consent in the circumstances of force, violence and threats of violence.

1. Offence of Riot- contrary to sections 68(3) & 70 of the Penal Code Act as charged in count 1.

The following elements of the offence of riot are to be proved by the prosecution before any or each and all defendants charged in count 1could be convicted:-

The following is an extract of facts which show that the prosecution has proved beyond reasonable doubt element 1 of this offence:

On 2 November 2012, Gaston Muluane with Steven Combe and Mathias Urinmal decided to go to Jerusalem village in the afternoon as they got information that one Helen Combe had also received the same kind of photographs of Steven Ken on 29 October before the elections. Jerusalem village is inside Rano Village. It is about 500 meters from Gaston's house. On 2 November 2012, on his way to Jerusalem village Gaston realized that some people searched for him. He saw a group of people assembled together at Jerusalem underneath a mango three.

It is a fact that on 2 November 2012, after Gaston left her house, Mrs. Imak Maltok realized that she had signed a document that will challenge the election of Don Steven Ken; she felt bad about her actions; she went to see Jean Tony, the President of the Executive Committee of PSP Party. She told him about what she did and the circumstances under which she signed the statement and the missing photographs from her bag in her house.

This let up to the assembly of the members of PSP and the executive committee at Jerusalem on 2 November 2012, at about 4.00PM-5.00PM to find ways as to how to retrieve the photographs and the document signed by Mrs. Imak Maltok which threatened the elections of Don Steven Ken.

On 2 November 2012, Gaston Muluane knew the people so assembled were searching for the photographs and statement signed by Mrs Imak Maltok. Kammy Buktan drove people to the assembly at Jerusalem.The persons so assembled uttered abusive words. They spoke loudly and angrily. Persons so assembled referred to Gaston Muluane and Timothy Maltok. Gratien Maltape clapping his hands said: "Yumi mas holem taet tufala tedei nomo before ol photos ia oli richim Vila mo sipos inid bae yumi mas mekem wan samting long tufala". There was tension. It was high. Gaston was afraid of the persons so assembled. They talked and acted as a group. Desire Urinmal said words to the effect: "sipos yumi holem tufala naoia, bae yumi sakem tufala long road mo blood blong tufala imust ron hemia long Friday 2 November 2012". Gaston was afraid that the Defendants assaulted him because of the document and photographs he has in his possession.

Fernand Lapinmal said words to the like effect. Theophile Kiliter said words as Gaston saw his mouth was talking but he could not hear what he said as he (Gaston) was running away with the document and the photographs on the main road when he run away to Walla. At the assembly, he saw Gratien Maltape, Atol Kiliter, Desire Urinmal, Jean Mark Yorley, Gideon Lesnawon, Joses Sarisets, Fernand Lapinmal and Kammy Buktan were present.

On this second element, the prosecution has to prove on criminal standard of beyond reasonable doubt either 2(a) or 2(b) (i) or 2 (b) (ii). The following extract of facts establishes that the prosecution has proved 2 (a) and also 2(b) (i).

On 2 November 2012, Gaston Muluane knew the people so assembled were searching for the photographs and statement signed by Mrs. Imak Maltok. Kammy Buktan who drove the Blue Land Cruser of Don Steven Ken, drove people to the assembly at Jerusalem.The persons so assembled uttered abusive words. They spoke loudly and angrily. Persons so assembled referred to Gaston Muluane and Timothy Maltok. Gratien Maltape clapping his hands said: "Yumi mas holem taet tufala tedei nomo before ol photos ia oli richim vila mo sipos inid bae yumi mas mekem wan samting long tufala". There was tension. It was high. Gaston was afraid of the persons so assembled. They talked and acted as a group. Desire Urinmal said words to the effect: "sipos yumi holem tufala naoia, bae yumi tufala sakem long road mo blood blong tufala imust ron hemia long Friday 2 November 2012". Gaston was afraid that the Defendants assaulted him because of the document and photographs he has in his possession.

On the over whole evidence, there is evidence that the defendants begun to execute the purpose for which they assembled but there was no evidence of the terror of the public to the satisfaction of the court beyond reasonable doubt.

The prosecution has failed to prove all essential elements of the offence of riot beyond reasonable doubt.

However, I consider the provisions of section 109 of the Criminal Procedure Code (CPC) Act [Cap. 136] which provides:

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constituted a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it."

Applying section 109 of the CPC [Cap 136] and since the defendants were charged with the offence of riot consisting of several particulars, a combination of elements 1 and 2 above constituted unlawful assembly as a complete lesser offence, contrary to ss68(1) and 69 of Penal Code, and such a combination of elements 1 and 2 is proved beyond reasonable doubt against following defendants:- Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon.

2. Offence of assault- contrary to section 107(b) of Penal Code as charged in count 2

The prosecution has to prove the following elements beyond reasonable doubt before the court can convict each and all defendants charged in count 2:

There is overwhelming evidence that the prosecution has proved beyond reasonable doubt each and all three above essential elements of the offence of assault charged in count 2 against following defendants: Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Desire Urinmal, Kammy Buktan, Jean Nawinmal and Gideon Josiah Lesnawon.

Gaston and Kisito arrived at Mae at about 7.30 P.M. They left Mae and come to Norsup on their way they went to Alfred Nakamal at Tautu at 10.30PM-11.00 o'clock. There, they met the Defendants with the blue land cruser. Some of the Defendants crossed the road. He was afraid as he had the documents with him in Kisito's truck with the intention to save the documents from the Defendants at Lakatoro police. At Tautu, he saw Kammy Buktan, Luke Sarisets, Joses Sarisets, Jean Nawinmal and Gideon Lesnawon. Some of Defendants crossed the road to block the road. They asked him to stop. He was afraid. Gideon Lesnawon threw a bottle against the truck driven by Kisito. So they speeded the truck to come to Lakatoro Police to save the documents they have in their possession. Defendants chased them with the blue land cruser. He said Kisito speeded the truck and defendants followed them behind with the blue land cruser.

The Defendants came out of their truck. Luke Sarisets came and assaulted him and told him to go inside the Defendants' truck. Kammy Buktan too came and assaulted him. He explained that Luke Sarisets came out of the truck and assaulted him on the right side of his face with his right hand. He pushed him to go inside the Defendants' truck. He explained Kammy Buktan who was driving the Defendants' truck assaulted him with his hands on his head (Gaston's) near his eyes. Then Kammy forced him to go into the Defendants' truck. At that time, he said Bae Luke Maltok kicked him on his backside with the stock shoes he was wearing at the time. Joses also assaulted him and forced him to go inside the defendants' truck.

Atol Kiliter took a bamboo inside the camp and wanted to spear him with it. Eric Lapinmal intervened in the camp and told the Defendants to stop.

He saw the Defendants assaulted Gaston. He said there were plenty of them who assaulted Gaston. "olsem ol honets" (like horns).

He also said that when the Defendants assaulted, kicked and punched Gaston Muluane, the Defendants said they will take him with them but he will die at Warlep. He was asked if he observed anything on Gaston's body. He responded that it was difficult because it happened so quickly.

He walked slowly toward the trucks because he thought they were drunk. He did not know that there were differences between them. He saw Kammy Buktan assaulted Gaston Muluan who stood up next to Kisito Teilemb. He was taken by surprise and said: "Eh fuck wanem here!" He realized there was a problem. He hurried up. He saw Kammy Buktan and Don pulled out Gaston Muluan from the hands of the Former MP Kisito and they both dragged Gaston down to MP Don Ken's truck. He said he saw Kammy and Don who is Don Ken's brother. He called Don as the name he called that person when they were together in Vila. He said the person he called Don is the man wearing white T-Shirt in Court (on record) this witness identified Luke Sarisets). He knows Kammy Buktan and identified him in Court. He testified that when the Defendants dragged Gaston to the other truck, he pushed his hand and held the collar of Gaston's Shirt to hold him tight. He could not because they were (2) of them against him. They pushed Gaston inside the truck and Don sat on the right side door and Kammy sat at driving seat.

Deborah remembered the night of 2 November 2012. She was at their house at Lakatoro. It was a Saturday. About 11.00PM - 12.00AM, she was still awakening. She said she heard the noises of 2 trucks. One truck chased the other coming up at the police station. She said she followed her daddy outside. She saw the 2 trucks stopped next to each other at their house near the Kitchen. She followed her father outside and stood at the forehead of the kitchen. She saw Don Steven Ken's men came and pulled and took away Gaston Muluane into their truck. She saw Gaston tried to hold on former MP Kisito but others forced him and pulled him into their truck. She also saw they assaulted and pushed him in the truck.

There was evidence of blood coming out from Gaston's mouth and nose (Gaston Muluane, Josianne Urleless). The medical report of Registered Nurse Paulin Bahormal provided the details of injuries or damages Gaston Muluane had sustained as a result of the assaults (Exhibit P5).

The prosecution has proved the offence of intentional assault, contrary tos107(b) of Penal Code against following Defendants:- Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Desire Urinmal, Kammy Buktan, Jean Nawinmal and Gideon Josiah Lesnawon.

3. Offence of kidnapping- contrary to section 105 (b) Penal Code Act in count 3.

The prosecution must prove the following elements before any or all defendants charged of the offence of kidnapping could be convicted:

There is overwhelming evidence that the defendants took Gaston Mukuane in the vehicle of MP Don Steven Ken driven by Kammy Buktan at Constable Justino's house at Lakatoro on 2 November 2012 at about 12.00 am o'clock (Evidence of Gaston, Kisito, Justino and Deborah) and Gaston and Josianne Urleless confirmed that the defendants took him to MP Don Steven Ken's camp at Rano-Worlep village. This is not disputed by the defendants. This element is proved beyond reasonable doubt.

The prosecution has proved this element beyond reasonable doubt on the evidence found and accepted by the court. What follows is an extract of evidence which establishes the proof of this element:

At Tautu, Gaston saw Kammy Buktan, Luke Sarisets, Joses Sarisets, Jean Nawinmal and Gideon Lesnawon. Some of Defendants crossed the road to block the road. They asked him to stop. He was afraid. Gideon Lesnawon threw a bottle against Kisito's truck. So Kisito speeded his truck to come to Lakatoro Police to save the documents they have in their possession. Defendants chased them with the blue land cruser. He said Kisito speeded the truck and defendants followed them behind with the blue land cruser.

Kisito said he could not hold on Gaston as the Defendants were too many and over powered him. The Defendants assaulted and kicked the body of Gaston. He recognized Kammy and he recognized another (in court he pointed to Luke Sarisets). He gave detailed account of this observation. He saw the Defendants assaulted Gaston and took Gaston away from the hand of the Police man who also arrived. He said the Defendants did not respect the Police Officer. They were plenty of them. He said they assaulted and kicked the body of Gaston. Gaston was unconscious. He took water from his truck and poured water on Gaston's head.

Ksito also said that when the Defendants assaulted, kicked and punched Gaston Muluane, the Defendants said they will take him with them but he will die at Warlep. He was asked if he observed anything on Gaston's body. He responded that it was difficult because it happened so quickly.

Constable Justino walked slowly toward the trucks because he thought they were drunk. He did not know that there were differences between them. He saw Kammy Buktan assaulted Gaston Muluan who stood up next to Kisito Teilemb. He was taken by surprise and said: "Eh fuck wanem here!" He realized there was a problem. He hurried up. He saw Kammy Buktan and Don pulled out Gaston Muluan from the hands of the Former MP Kisito and they both dragged Gaston down to MP Don Ken's truck. Constable Justino said he saw Kammy and Don who is Don Ken's brother. He called Don as the name he called that person when they were together in Vila. He said the person he called Don is the man wearing white T-Shirt in Court (on record he identified Luke Sarisets). He knows Kammy Buktan and identified him in Court. He testified that when the Defendants dragged Gaston to the other truck, he pushed his hand and held the collar of Gaston's Shirt to hold him tight. He said he could not because they pulled Gaston out of him. They pushed Gaston inside the truck and Don sat on the right side door and Kammy sat at driving seat.

The courts finds and accepts the evidence of the complainant Gaston Muluane that on 2 November 2012, at the house of constable Justino Teilemb at about 11.00PM-12.00AM o'clock, Luke Sarisets came out of the truck, assaulted him and told Him to go inside the Defendants blue land cruser. Luke Sarisets assaulted him on the right side of his face with his right hand and pushed him to go inside the blue land cruser. It is also a fact that Kammy Buktan assaulted him with his hands on his head near his eyes and forced him (Gaston) to go into the Blue Land cruser. Bae Luke Maltok kicked him on his back side with the stock shoes he was wearing at the time. Joses also assaulted him and forced him to go inside the blue land cruser.

It is an accepted fact that the Defendants took Gaston away or transported Gaston inside the Blue Land Cruser driven by Kammy Buktan with the other defendants from Lakatoro to Rano Worlep. On 2 November 2012, after 12.00AM o'clock, Gaston refused to go with the Defendants. It is a fact that Gaston resisted his taking away by the defendants by holding the handle of Kisito's truck from inside. It is a fact Gaston was pulled and pushed into the truck. It is a fact that Kisito held on Gaston to resist the taking away or transportation of Gaston away. It is a fact that Gaston resisted his taking away on his transportation by the defendants against his consent or will by putting his leg outside the body of the Blue Land Cruser. It is a fact that Constable Teilemb Justino held on Gaston on the collar of his shirt but was over powered by the defendants that night of 2 November 2012. The court accepts this version of the evidence. Deborah's evidence confirmed that Gaston resisted his taking away by the defendants.

The prosecution has proved this element of the offence of kidnapping beyond reasonable doubt.

Gaston was taken away by the defendants from Lakatoro to Rano-Worlep by force without his consent on the following motive:

On 2 November 2012, after Gaston obtained Mrs. Imak Maltok's statement and signature, Mrs. Imak Maltok realized that she had signed a document that will challenge the election of Don Steven Ken; she felt bad about her actions; she went to see Jean Tony, the President of the Executive Committee of PSP Party. She told him about what she did and the circumstances under which she signed the statement and the missing photographs from her bag in her house.

This let up to the assembly of the members of PSP and its executive members at Jerusalem on 2 November 2012 at about 4.00PM-5.00PM to find ways as to how to retrieve the photographs and the document in the possession of Gaston and which threatened the election of Don Steven Ken. The defendants assembled and concerted together to retrieve the documents by committing criminal offences which included the taking away of the complainant and his confinement in the camp. That was part of their common purpose. Kammy Buktan admitted that they did not have any order or permission from anyone to take Gaston Muluane away from Lakatoro to Rano-Worlep camp. They did not have any warrant or order from a court of law. The defendants intended or attempted to use what Constable Justino Teilemb told them after they forcefully dragged the complainant in their truck as a justification or permission for the carrying away of the complainant on 2 November 2012 that night. Any police officer in any town or any rural area or island of Vanuatu including Constable Justino Teilemb has no right or power to permit the taking away of a person from a place to another without the consent of that person and without lawful justification.

Apart from other defendants charged in count 3 who were actively involved, Jean Nawinmal was seen at Tautu with other defendants before they chased the complainant in Kisito's truck to Lakatoro on the night of 2 November 2012. It is rational to infer that he was with other defendants at Lakatoro in the Blue Land Cruser which transported Gaston from Lakatoro to Rano-Worlep that night. Desire Urinmal was at Jerusalem on 2 November 2012 between 4.00 Pm-5.00PM o'clock with other defendants. He is one of the executive members of PSP. He was one of the principle defendants in the shaping of the common purpose with other defendants when he said: "Sipos yumi holem tufala naoia, bae yumi sakem tufala long road mo blood blong tufala bae i must ron heima long Friday 2 November 2012". Desire was also present with others at the camp. He assaulted Gaston Muluane twice with a torch light. Desire Urinmal is a secondary party to the kidnapping of Gaston Muluane.

On the over whole evidence and applying the guideline judgment of the Court of Appeal in Kilman -v- The Public Prosecutor [1997] VUCA 9, the prosecution has proved each and all essential elements of the offence of kidnapping beyond reasonable doubt against the following defendants: Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Kammy Buktan, Gideon Josiah Lesnawon, Jean Nawinmal and Desire Urinmal.

4. Offence of Intentional Assault- contrary to section 107 (b) Penal Code Act charged in count 4

The prosecution has to prove the elements of this offence which are similar to the elements identified in count 2, save that Kammy Buktan is the only defendant charged under this count.

On the evidence, the prosecution has proved the elements of this offence against defendant Kammy Buktan on the required criminal standard of proof of beyond reasonable doubt. The following extract of evidence establishes this:

The court accepts the evidence of Gaston that Kammy Buktan assaulted him with his elbow just after the Defendants took him away. This is consistent with the evidence of Gaston as he was forced to sit in the front seat in the middle between Kammy Buktan the driver and Luke Sarisets who sat at the window side of the truck. Justino, Kisito and Deborah heard Gaston cried out just after they arrived about 20 meters next to the house of police officer David Bong. Kammy Buktan assaulted him on other occasions on their way to Rano-Worlep camp. Reference is also made to medical report (Exhibit P5).

The prosecution has proved beyond reasonable the offence of intentional assault, contrary to s107 (b) of Penal Code against defendant Kammy Buktan.

5. Offence of Threats To Kill- contrary to section 115 Penal Code Act charged in count 5.

1. Defendant Kammy Buktan caused the complainant (Gaston) to receive oral threats to kill him.

On the evidence and on the guideline judgment of the Court of Appeal in the case of Walker v Public Prosecutor [2007] VUCA 12; Criminal Appeal Case 06 of 2007(24 August 2007), the prosecution has proved each and all the three essential elements of this offence on the standard of beyond reasonable doubt. The following extract of the evidence establishes this:-

Kammy Buktan drove the Blue Land Cruser and stopped the truck at the bridge of Aop (between Lakatoro and Norsup airport). Kammy opened the door of the truck and came outside. Kammy told Gaston that they were going to kill him and threw his body inside the river under the bridge. Gaston said Kammy meant what he said. Gaston knew that Kammy threatened to kill him (Gaston) as the threatening words were uttered to him directly in the middle of that night of 2 November 2012. He was the only one in the truck with the defendants after what happened to him at Lakatoro just few minutes ago. Gaston said when Kammy threatened to kill him, Luke Sarisets reacted and told Kammy and others not to do that as they had just taken Gaston from the police at Lakatoro. Kammy told Gaston he was a lucky man.

Kammy Buktan confirmed he felt bad about what Gaston did to his auntie. He confirmed he is a member of PSP Executive Committee and a supporter of the PSP and he drove the PSP truck. He said Tony rang him because he is a member of the PSP Executive Committee and Imak Maltok is his auntie. He confirmed Jean Tony called him and told to retrieve the document from Gaston - so he accepted he wanted to retrieve the document to ensure that his members of Parliament would not be affected.

He accepted that he was angry and he must take Gaston. He accepted again when put to him that it was his intention he must hold on Gaston the same night. He accepted he waited for Kisito's truck to stop that truck. When Kisito's truck arrived, others ran toward the truck. He accepted he speeded his truck behind Kisito's truck that night. He accepted that he had the thought of taking the document out from Gaston and to do whatever he could. He accepted that he would do whatever to avoid spoiling the name of his Member of Parliament. It is rational to infer that based on the above facts, Kammy Buktan threatened to kill the complainant to save his Member of Parliament seat in Parliament.

On 2 November 2012, Gaston Muluane knew the people so assembled were searching for the photographs and statement signed by Mrs. Imak Maltok. Kammy Buktan drove people to the assembly at Jerusalem.The persons so assembled uttered abusive words. They spoke loudly and angrily. Persons so assembled referred to Gaston Muluane and Timothy Maltok. Gratien Maltape clapping his hands said: "Yumi mas holem taet tufala tedei nomo before ol photos ia oli richim Vila mo sipos inid bae yumi mas mekem wan samting long tufala". There was tension. It was high. Gaston was afraid of the persons so assembled. They talked and acted as a group. Desire Urinmal said words to the effect: "sipos yumi holem tufala naoia, bae yumi sakem tufala long road mo blood blong tufala imust ron hemia long Friday 2 November 2012". Gaston was afraid that the Defendants would assault him because of the document and photographs he has in his possession.

The prosecution has proved beyond reasonable the offence of threats to kill, contrary to s115 of Penal Code against Kammy Buktan.

6. Offence of Intentional Assault- contrary to section 107 (b) Penal Code Act charged in count 6.

The prosecution must prove on the criminal standard of proof of beyond reasonable doubt, the same elements as identified in counts 2 and 4 but against the following defendants: Kammy Buktan, Bae Luke Maltok and Fernand Lapinmal.

On the evidence, the prosecution has proved each and all the three elements of this offence on the required criminal standard. The following extract of evidence establishes this:-

The defendants took Gaston from Lakatoro to Rano-Worlep camp. They arrived at Rano Worlep after 12.00AM o'clock mid-night. Other Defendants waited for the Blue Land Cruser which transported Gaston at the campsite that night. At the campsite, Gaston refused to get out of the truck. Luke Sarisets and Kammy forced Gaston to come outside the truck. Gaston resisted. Kammy assaulted Gaston with his elbow to force him to get out of the truck. The Defendants pulled Gaston out of the truck. It is a fact that Desire Urinmal assaulted Gaston with a torch light on the back of his neck twice. Kammy Buktan assaulted him again on his face. Blood came out of his body from his mouth and nose. Fernand Lapinmal assaulted Gaston on his chest and under his jaw causing Gaston to fall on the ground. Bae Luke Maltok kicked him with his safety boots when he was lying on the ground.

On 2 November 2012, Gaston Muluane knew the people so assembled were searching for the photographs and statement signed by Mrs. Imak Maltok. Kammy Buktan who drove the Blue Land Cruser of Don Steven Ken, drove people to the assembly at Jerusalem. The persons so assembled uttered abusive words. They spoke loudly and angrily. Persons so assembled referred to Gaston Muluane and Timothy Maltok. Gratien Maltape clapping his hands said: "Yumi mas holem taet tufala tedei nomo before ol photos ia oli richim Vila mo sipos inid bae yumi mas mekem wan samting long tufala". There was tension. It was high. Gaston was afraid of the persons so assembled. They talked and acted as a group. Desire Urinmal said words to the effect: "sipos yumi holem tufala naoia, bae yumi sakem tufala long road mo blood blong tufala imust ron hemia long Friday 2 November 2012". Gaston was afraid that the Defendants would assault him because of the document and photographs he has in his possession.

The medical report of Nurse Paulin Bahormal (Exhibit P5) confirmed the injuries/damages the complainant sustained as a result of the assaults.

The prosecution has proved on the criminal required standard the offence of intentional assault against following Defendants:- Kammy Buktan, Bae Luke Maltok and Fernand Lapinmal.

7. Offence of False Imprisonment- contrary to section 118 of Penal Code Act in count 7.

The prosecution must prove on the required criminal standard the following elements of this offence:-

On the evidence, the prosecution has proved each and all of the three elements of this offence beyond reasonable doubt against the above named defendants charged in count 7. The following extract of evidence as found and accepted by the court establishes this:-

The defendants took Gaston from Lakatoro to Rano Worlep. They arrived at Rano Worlep after 12.00AM o'clock mid-night. Other Defendants waited for the Blue Land Cruser which transported Gaston at the campsite that night. At the campsite, Gaston refused to get out of the truck. Luke Sarisets and Kammy forced Gaston to come outside the truck. Gaston resisted. Kammy assaulted Gaston with his elbow to force him to get out of the truck. The Defendants pulled Gaston out of the truck. It is an accepted fact that Desire Urinmal assaulted Gaston with a torch light on the back of his neck. Kammy Buktan assaulted him again on his face. Blood came out of his body from his mouth and nose. Fernand Lapinmal assaulted Gaston on his chest and under his jaw causing Gaston to fall on the ground. Bae Luke Maltok kicked him with his safety boots when he was lying on the ground. Gideon Josiah Lesnawon and Joses Sarisets both kicked him while on the ground.

It is accepted that when Atol Kiliter took a bamboo to spear Gaston with it, Eric Lapinmal and Timothy Maltok entered the camp and stopped the defendants from further assaulting the complainant. Eric Lapinmal stopped the defendants by putting his legs over Gaston's body to protect him from further assaults on his body. Eric Lapinmal pulled Gaston away from Gideon and Joses who continued to assault him. Timothy Maltok lifted his two hands up and asked the defendants to stop assaulting the complainant. Timothy told the defendants to stop assaulting Gaston and if they wanted they would assault him (Timothy) instead as he was responsible for sending Gaston to take statement from his wife, Mrs. Imak Maltok.

Eric Lapinmal assisted Gaston to lift him up as Gaston had difficulty to stand up by himself. Eric assisted Gaston to sit on a white chair. It is a fact that still Desire Urinmal and Kenson Lesnawon assaulted Gaston while he was put on a chair. It is a fact Eric Lapinmal was not happy with the two defendants as he talked angrily to both of them and kicked a chair causing the chair to fly from where it was in the camp to the front of the house of Kenson. The assaults on the body of the complainant stopped.

He said they asked him about the photographs and the documents he wrote for Imak Maltok. They told him to mak a letter before 6.00am o'clock early morning. They said he must make that letter and sign the letter with the Defendants council of chiefs. He said he told them that he could not do that letter at 6.00am as they required him to do but he asked them to do that letter after 6.00am o'clock. He said the Defendants agreed and they release him.

Gaston was kept in the camp. He was put on a white chair in the middle of the defendants. He was surrounded by the Defendants in the camp when Jean Mark Yorley questioned him about the document he obtained from Imak Maltok and the photographs and how to retrieve them. Gaston blocked his face and looked down when he was questioned as blood coming out from his mouth and nose. He responded that he had destroyed the papers. Jean Mark Yorley questioned him repeatedly about the same documents and he said he had destroyed them. Gaston was asked to give the documents back to them at 6.00 am o'clock in the morning. Gaston said he cannot because he had destroyed them already.

Fernand Lapinmal intervened by pointing his finger to Gaston and told him words to the like effect that if the six hundred (600) voters were present, Gaston would be in the coffin. Fernand asked Gaston as to whether and how Gaston will refund the amount of vatu 6,000,000 they spent during the elections campaigns. Gaston did not respond. He remained quiet.

Jean Mark Yorley continued questioning Gaston about the papers and Gaston responded he had destroyed them.

Worlep camp is the political camp of the PSP party, its members and supporters. It is near the sea at Rano- Worlep. There was no fencing around it. There were stones assembled at the entrance of the camp from the seaside. The camp was set in the middle of houses. Gaston was not a PSP member or a supporter. Gaston's house was far away from worlep camp. He was transported by force in the camp from Lakatoro to Rano-Worlep camp. He was assaulted by the defendants who were members and supporters of the PSP party in the camp. He was put on a chair in the middle of the camp to be questioned about the statement he obtained from Imak Maltok and the photographs of Don Steven Ken he got from Timothy Maltok as there were names of voters written behind the photos as identity of voters who voted for Don Steven Ken and for reward after voting. It is accepted that he agreed to write the letter to rescind the initial letter because that was the only way the defendants would release him. He stated he believed that what the defendants wanted was the document he had in his possession. That was the very common purpose of the defendants that night. All the more so when the complainant told them that he did no longer have the document with him or that he had destroyed the document already. It is rational to infer on these facts that under no circumstances would the complainant have been able to freely leave the camp in the presence of the defendants. The only way he would have been able to leave was to overpower the crowd of the defendants before him in the camp. It is rational to say that it was not possible for him to leave voluntarily or on his own accord. He was simply restricted to leave the camp voluntarily or of his own accord. The defendants confined the complainant in the camp until he agreed to make the letter they required of him, then, the defendants released him.
The defendants have no lawful authority to confine the complainant against his will. Kammy Buktan confirmed in cross-examination that all the defendants were not acting under any lawful authority.

When the defendants arrived at the camp with Gaston, he saw Jean Mark Yorley, Ken Lesnawon, Atol Kiliter, Eric Lapinmal, Fernand Lapinmal, Josianne Urleless, Timothy Maltok, Desire Urinmal, Joses Sarisets, Gideon Lesnawon, Bae Luce Maltok and Jean Nawinmal. Kammy Buktan and Luke Sarisets were also present at the campsite with others.

The prosecution has proved the offence of false imprisonment, contrary to s118 of Penal Code on the required criminal standard against following Defendants:- Desire Urinmal, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon.

8. Offence of Extortion- contrary to section 138 (f) of Penal Code Act charged in count 8.

(a) threaten expressly or impliedly to make about any person, living or dead, any accusation or disclosure of any offence, or moral misconduct, whether the accusation or disclosure is true or not;

(b) threaten expressly or impliedly that any person shall make any such accusation or disclosure about any person living or dead;

(d) send or cause to be sent to any person any document containing any such threat;

(e) by any such means compel or attempt to compel any person to sign, execute,make,accept, endorse, alter, or destroy the whole or part of any valuable security, or to write, impress, or affix any name or seal upon any document in order that it may afterwards be used as a valuable security;

(f) by any such means induce or compel or attempt to induce or compel any person to do any act against his will, other than an act which it is his legal duty to do, or not to do any lawful act." (Underlined are my own emphases).

By perusing the language of s138, there is a need to get a sense and meaning of the expression "extort or gain" as an element of the offence charged in count 8 of the Information. I note that there are similarities in the wording of s138 of Vanuatu Penal Code Act and s238 of New Zealand Crimes Act 1961 Pre-2003 Amendments. The High Court and the Court of Appeal of New Zealand dealt with this question in R v Cargill [1995] 2 NZLR 765 which was upheld in R v Cargill [1995] 3 NZLR 263. I adopt and adapt the relevant parts of these judgments as my own when I give meaning to the words of s138 of Penal Code. The words "extort" and "gain" are to be read disjunctively, and they must be given their normal meaning. The primary meaning of "extort" in The Oxford English Dictionary (2nd ed) is "To wrest or wring (something) from a person." In its general sense, it connotes the obtaining of something by means of force or intimidation. Entitlement to the "anything" on the part of a defendant, or lack of entitlement to it on the part of the complainant (victim), is irrelevant. The word "extort" denotes conduct of certain character.

Again the primary meaning of "gain" used as a verb is to obtain or secure. On an ordinary use of language, to get anything that one does not presently have, is to gain that thing and all that need be shown is that the defendant was trying to obtain something he or she did not currently have. The question for the court is therefore whether the defendant has sought to acquire or obtain something at the expense of another by threats of kinds proscribed by s138 of Penal Code.

The essence of the offence is in the use of the threats, since Parliament has forbidden the use of such means to acquire something.

As to the means rea element of "with intent to extort or gain anything", the question is whether s138 requires a dishonest intention or whether a determination to extort or gain is sufficient, even if a defendant believes that his or her demand and the threat are justified. To my mind, the intent ingredient in s138 of Penal Code does not require or allow consideration of honesty or dishonesty of purpose and the section is satisfied where the accused person makes a threat (along with the demand) intending to do so. Had Parliament intended s138 to include a dishonest purpose element it could readily have said so by an express statement to that effect. This is not such a case.

In the present case, upon enquiry from the court at the beginning of the trial, Mr. Simcha Blessing, the Prosecuting Counsel, informed the Court that the allegations in count 8 of the Information were based under the limb of the charge (extort) but not under the limb (gain) of s138.

Section 138 (f) is concerned with any of the means of (threats) or (intimidation) described in (a) to (e) when it is used by a person to induce or compel or attempt to induce or compel another person to do an act against his or her will. The basic facts that the prosecution must prove are:

What follows is an extract of facts adduced in the evidence and accepted by the Court in respect to the above named elements:-

Eric Lapinmal assisted Gaston to lift him up as Gaston had difficulty to stand up by himself. The defendants intended to question Mr. Gaston Muluane on the whereabouts of the statement he had obtained from Mrs. Imak Maltok and the Photographs of Don Steven Ken (bearing the names of persons behind each photo which it were alleged were distributed on 29 October 2012 before the elections of 30 October 2012), the complainant had in his possession. Eric assisted Gaston to sit on a white chair. After the complainant was put on a chair for questioning and before being questioned by the defendants in the camp, Desire Urinmal and Kenson Lesnawon assaulted him on the chair. Eric Lapinmal was not happy with the two defendants as he talked angrily to both of them and kicked angrily a chair causing the chair to fly from where it was in the camp to the front of the house of Mr. Kenson.

Gaston was kept in the camp. He was put on a chair for questioning. He was assaulted. Jean Mark Yorley questioned Gaston about the document he obtained from Imak Maltok and the photographs. Gaston blocked his face and looked down when he was questioned as blood coming out from his mouth and nose. He responded that he had destroyed the papers. Jean Mark Yorley questioned him repeatedly about the same documents and he said he had destroyed them. Gaston was asked to give the documents back to the defendants by 6.00am o'clock in the morning. Gaston responded he could not because he had destroyed them already.

Fernand Lapinmal intervened by pointing his finger on Gaston and told him words to the like effect that if the six hundred (600) voters were present, Gaston would be in the coffin. Fernand asked Gaston as to whether and how could Gaston refund the amount of vatu 6,000,000 they spent during the elections campaigns. Gaston did not respond. He remained quiet.

Jean Mark Yorley continued questioning Gaston about the papers. Gaston responded he had destroyed them. Jean Mark Yorley asked Gaston to make a letter to say that the content of the statement he had obtained from Imak Maltok and the photographs were not true. Gaston did not respond. Jean Mark Yorley asked again Gaston to make a letter to say that the statement of Imak and the Photographs were not true and he asked the complainant to make that letter and give it to them by 6.00am in the morning.

Then Gaston Muluane agreed to make the letter. He agreed to make the letter to rescind the initial statement because that was the only way the defendants would release him. He stated he believed that what the defendants wanted was the documents he had in his possession. He had agreed to make the letter at 8.00 am o'clock as he had experienced lots of pains on his body. After he agreed to make the letter, the defendants released him and drove him back to the road next to his house. Time was about 2.00am- 3.00am o'clock in the morning of 3 November 2012. In the morning, Jean Mark Yorley and others came to the complainant's house to get the letter. Mr. Gaston Muluane did not make the letter and decided not to make it. He wrote a letter to the police on 5 November 2012 (Exhibit P3).

On the evidence, the Court found that there are factual base of threats and/ or intimidation by the defendants inducing or compelling the complainant to consent to write a letter (to rescind the content of a statement he had obtained from Mrs Imak Maltok and to deny that the photographs of Don Steven Ken were distributed before the elections of 30 October 2012). On the facts, the consent is obtained by threats and or intimidation of violence. The act that the complainant did against his will is to agree to write the letter in the circumstances as found.

Also on evidence, there are factual base of threats and/or intimidation of violence by the defendants attempting to induce or compel the complainant to write the letter referred to above in the circumstances as found(Gaston Muluane did not write the said letter but he wrote to the police instead).

When the defendants arrived at the camp with Gaston, Gaston saw Jean Mark Yorley, Ken Lesnawon, Atol Kiliter, Eric Lapinmal, Fernand Lapinmal, Josianne Urleless, Timothy Maltok, Desire Urinmal, Joses Sarisets, Gideon Lesnawon, Bae Luce Maltok and Jean Nawinmal. Kammy Buktan and Luke Sarisets were also present at the campsite with others.

The prosecution has proved the two elements of this offence beyond reasonable doubt against following defendants:-

Desire Urinmal, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon.

All following defendants:- Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luce Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawenmal and Gideon Josiah Lesnawon are found not guilty of Riot, contrary to ss.68(3) and 70 Penal Code Act (as charged in count 1) and are discharged of the offence of riot accordingly.

But each and all of them (Desire Urinmal, Gratien Maltape, Theophile Kiliter, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawenmal, and Gideon Josiah Lesnawon) are found guilty of unlawful assembly, contrary to ss. 68(1) and 69 of Penal Code and are convicted of that offence as a complete lesser offence (than riot) pursuant to s109 of the Criminal Procedure Code Act [Cap 136].

Defendants:- Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Desire Urinmal, Kammy Buktan, Jean Nawinmal and Gideon Josiah Lesnawon, are found guilty of the offence of assault, contrary to s107(b) of Penal Code(as charged in count 2) and are convicted of that offence accordingly.

Defendants:- Luke Sarisets, Joses Sarisets, Bae Luke Maltok, Kammy Buktan, Gideon Josiah Lesnawon, Jean Nawinmal and Desire Urinmal are found guilty of the offence of kidnapping, contrary to s105(b) of Penal Code (as charged in count 3) and are convicted of that offence accordingly.

Defendant Kammy Buktan is found guilty of the offence of intentional assault, contrary to s107 (b) of Penal Code (as charged in count 4) and is convicted of that offence accordingly.

Defendant Kammy Buktan is found guilty of the offence of threats to kill, contrary tos115 of Penal Code (as charged in count 5) and is convicted of that offence accordingly.

Defendants Kammy Buktan, Bae Luke Maltok and Fernand Lapinmal are found guilty of the offence of intentional assault, contrary to s 107(b) of Penal Code (as charged in count 6) and are convicted of that offence accordingly.

Defendants: - Desire Urinmal, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon are found guilty of the offence of false imprisonment, contrary to s118 of Penal Code (as charged in count 7) and are convicted of that offence accordingly.

Defendants:- Defendants: - Desire Urinmal, Fernand Lapinmal, Ken Lesnawon, Bae Luke Maltok, Luke Sarisets, Jean Mark Yorley, Atol Kiliter, Kammy Buktan, Joses Sarisets, Jean Nawinmal and Gideon Josiah Lesnawon are found guilty of the offence of extortion, contrary to s138 of Penal Code (as charged in count 8) and are convicted of that offence accordingly.

9. APPLICATION UNDER SECTION 29 OF THE CRIMINAL PROCEDURE CODE ACT (CAP. 136) BY THE PROSECUTION.

The prosecution applies and enters nulli prosequi under s 29 of the CPC [Cap 136] in respect to some of the defendants charged with offences in the Information as a result of which:-

Following Defendants are discharged of the offences of Intentional Assault and Kidnapping charged in counts 2 & 3:-

Defendants Gratien Maltape and Theophile Kiliter are discharged of the offences of False Imprisonment and Extortion as charged in Counts 7 and 8.

Supreme Court of Vanuatu

Public Prosecutor v Urinmal [2013] VUSC 101; Criminal Case 01-13 (1 June 2013)