Alois Erebebe & Taros Togote v The State (2011) SC1135

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kariko J, Kassman J
• Judgment Date: 02 December 2011
• Citation: (2011) SC1135
• Docket Number: SCRA NO 70 OF 2003
• Court: Supreme Court
• Year: 2011
• Judgement Number: SC1135

Full Title: SCRA NO 70 OF 2003; Alois Erebebe & Taros Togote v The State (2011) SC1135

Supreme Court: Cannings J, Kariko J, Kassman J

Judgment Delivered: 2 December 2011

SC1135

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 70 OF 2003

ALOIS EREBEBE & TAROS TOGOTE

Appellants

V

THE STATE

Respondent

Waigani: Cannings J, Kariko J, Kassman J

2011: 24 October, 2 December

CRIMINAL LAW – identification evidence – alleged inconsistencies in evidence of State witnesses – alibi evidence – conviction under Criminal Code, Section 7 (principal offenders) – whether appeal against conviction on nine counts of wilful murder ought to be upheld.

The appellants were convicted after trial of nine counts of wilful murder. The trial judge relied on the identification evidence of three State witnesses, which put the appellants at or in the vicinity of the crime scene, and in the case of the second appellant, on admissions made in a police interview of his involvement in a plan to kill one of the deceased. The trial judge rejected alibi evidence regarding the first appellant and concluded that he was directly involved in the incident in which the deceased were killed and in regard to the second appellant found that he took part in the plan to kill the first deceased and was in the vicinity of the incident in which the deceased were killed, thereby providing encouragement to those who directly killed the deceased, and being guilty by virtue of Section 7 of the Criminal Code. The appellants appealed against their conviction on six grounds relating to alleged errors of the trial judge in upholding the identification evidence of the State, rejecting the alibi evidence of the first appellant and convicting the appellants under Section 7 of the Criminal Code.

Held:

(1) The trial judge correctly applied the principles in the leading case John Beng v The State [1977] PNGLR 115 when accepting the identification evidence.

(2) The trial judge correctly applied the principles in the leading case John Jaminan v The State (No 2) [1983] PNGLR 318 when rejecting the alibi evidence.

(3) The trial judge correctly applied Section 7 of the Criminal Code in finding that, though it was not proven that either of the appellants killed any of the deceased, each was guilty under Criminal Code, Section 7.

(4) None of the grounds of appeal was upheld and the appeal was entirely dismissed.

Cases cited

The following cases are cited in the judgment:

Agiru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (No 2) [1983] PNGLR 318

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Stanley Poke v The State (2010) SC1055

The State v Alwyn Wani (2010) N3968

The State v John Badi Woli and Pengas Rakom [1978] PNGLR 51

The State v Kevin Peteru (2011) N4233)

The State v Thomas Lui (2004) N2706

APPEAL

This was an appeal against conviction for nine counts of wilful murder.

Counsel

L Siminji, for the appellants

J Kesan, for the respondent

2 December, 2011

1. BY THE COURT: This is an appeal against the conviction by the National Court at Goroka constituted by Justice Batari of the appellants, Alois Erebebe and Taros Togote, of nine counts of wilful murder. The appellants also appealed against their sentences of life imprisonment but abandoned that part of the appeal at the commencement of the hearing. Also set down for hearing was a cross-appeal by the Public Prosecutor against the sentences. We have adjourned the hearing of that cross-appeal pending our decision on the appeal against conviction.

THE TRIAL

2. The appellants were convicted for their involvement in the killing of nine people in the ambush of a vehicle being driven by Jerry Malamamo along a road at Mohuveto in the Bena-Bena area of Eastern Highlands Province on Sunday 21 November 1999. Mr Malamamo was shot dead along with four other adults, Sopuhe Iyaue, Lainame Apaihe Lope, Malamamo Soboe and Malamamo Alilipae. Four children who were also on the vehicle were killed by being cut and stabbed with knives: Junior Jerry Malamamo, Zeena Jerry, Bata Jerry and Kenuwe Ekebae.

3. Four State witnesses gave oral evidence and three of them testified that they were passengers on the vehicle. The first State witness was Mr Malamamo’s wife who identified the first appellant, Alois Erebebe, as being one of a number of gunmen. She did not say that she saw him firing any shots but she identified him as being near the vehicle armed with an M16 immediately after the ambush and said that she struggled with him at one stage as he searched the glove-box compartment of the vehicle for her husband’s pistol, before making her escape into the bush. The second State witness was a younger brother of Mr Malamamo who said that he was seated on the tray of the vehicle, behind the off-sider. When the vehicle was fired upon he ducked and laid low and escaped by rolling into a drain. He stood up and saw the chest and face of the first appellant, Alois Erebebe. The third State witness was a woman who said that she was seated behind the driver. She ducked when the vehicle and the driver and some of the passengers were hit with rapid gun fire. She escaped into the bush. She identified the second appellant, Taros Togote, as being in the vicinity, holding a knife. The fourth State witness was the police investigator, Inspector Jim Namora, then the head of Goroka CID, who gave evidence of the circumstances of the arrest of the appellants, their police interviews and other aspects of the police investigation. Other evidence relied on by the State was tendered by consent: post-mortem reports, a sketch plan of the crime scene, the records of interview, a military camouflage uniform and a military notebook belonging to the first appellant (who was at the time of the incident a member of the Papua New Guinea Defence Force, holding the rank of Major), a sick leave application and a police investigation report.

4. For the defence both appellants gave evidence. The first appellant, Alois Erebebe, raised an alibi: he was at Kainantu watching a touch rugby grand final. Three witnesses gave evidence in support of the alibi. The second appellant, Taros Togote, admitted to his attendance at a meeting in the village on the morning of the incident at which it was agreed that the deceased, Jerry Malamamo, who was rumoured to have spent K40,000.00 acquiring hire-powered firearms to use in a tribal fight against the appellants’ tribe, had to be ‘stopped’, but denied being involved in the ambush and said that he was on the other side of the mountain and did not see or hear any guns being fired.

5. As to the first appellant, the trial judge accepted the identification evidence of the wife and the younger brother of Mr Malamamo, both of whom were regarded as convincing in their testimony. By contrast the alibi witnesses were not convincing, and the first appellant himself gave an unconvincing account of his presence at Kainantu. Also relevant was evidence as to his attempting to catch a flight out of Goroka to Port Moresby on Tuesday 23 November. In addition there was evidence that his father had been killed by Mr Malamamo’s lain a couple of years before the incident, thus giving him a motive for wanting to kill Mr Malamamo and members of his lain. Diary notes in his field notebook suggested he had a strong interest in the tribal warfare and was prepared to fund his side’s operations. His Honour found that there was overwhelming evidence that he was involved in the killings and that it was likely that he was one of the gunmen who intentionally killed Mr Malamamo and the other adults who died from gunshot wounds. There was also an intention to kill the four children who were killed by being cut on the head. His Honour concluded that even if the first appellant did not kill any of the deceased, his presence at the scene armed with a high-powered firearm showed that he shared a common intention with the others present to kill the deceased, and that he aided and encouraged them to do so. He was therefore convicted of nine counts of wilful murder.

6. As to the second appellant, Taros Togote, the trial judge noted that there were admissions in his record of interview that he was at a meeting in the village on the morning of the incident at which it was planned to set up an ambush and to kill Mr Malamamo and others with guns and knives and that he was assigned a location, armed with a homemade gun and a bullet. The identification evidence of the third State witness put him right at the scene. The second appellant’s sworn evidence that he was alone some distance away on the other side of the mountain was dismissed as not convincing. Though there was no evidence that he fired any shots his presence was an intentional act of encouragement and acquiescence sufficient to make him a principal offender under Section 7 of the Criminal Code in respect of the nine offences of wilful murder that were committed.

GROUNDS OF APPEAL

7. There are six grounds...