The State v Angaun Kakas, Kakalia Tulu, Sukulin Passomb and Kalain Kula

• Jurisdiction: Papua New Guinea
• Judge: Injia AJ
• Judgment Date: 28 March 1994
• Citation: [1994] PNGLR 20
• Court: National Court
• Year: 1994
• Judgement Number: N1217

National Court: Injia AJ

Judgment Delivered: 28 March 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ANGAUN KAKAS, KAKALIA TULU,

SUKULIN PASSOMB AND KALAIN KULA

Mount Hagen

Injia AJ

16 March 1994

19 March 1994

21 March 1994

23 March 1994

25 March 1994

28 March 1994

EVIDENCE — Identification — Alibi — False alibis help corroborate evidence of sole eye-witness.

CRIMINAL LAW — Sentence — Wilful murder — Tribal fight/payback killing — Common purpose — Criminal Code ss 7 and 8 — Mitigation — Sentenced to 10 to 15 years imprisonment, depending on involvement — Reduced six months for each one who pays immediate relatives of victim K3,000 in compensation — Criminal Law (Compensation) Act 1991.

Facts

The four accused, all armed with dangerous weapons, confronted and killed the deceased in retaliation for the death of their clansman, killed earlier in the day. The accused offered alibi defences.

Held

1. The deceased died at the hands of the four accused, contrary to s 299 of the Criminal Code.

2. All four accused acted in concert in the prosecution of a common purpose within s 7 (1) (c) and s 8 of the Code.

3. Each is sentenced in accordance with the severity of his respective involvement in the killing. Each can shorten his sentence six months by the payment of K3,000 compensation to relatives of the victim.

Cases Cited

Papalamnan v Nuakona (1973) No 771.

R v Tam (1973) No 766.

Counsel

J Kesan, for the State.

B Tabai, for the defendants.

28 March 1994

INJIA AJ: The four accused are jointly charged with the wilful murder of Kurai Kindi Kindi, contrary to s 299 of the Criminal Code Ch 262 (The Code).

It is alleged by the State that on 18 October 1993 the deceased was among other people who attended a peace gathering between two warring clans at Kanak village, which is situated just outside Laiagam township, Enga. The gathering developed into a fight between the two clans. In the fight, a man from the four accused's clan was killed. In retaliation, the four confronted the deceased on the road whilst he was returning to Laiagam Health Centre, where he was employed as an aid post orderly. They were armed with bows and arrows, spears, axe, and home-made guns. They surrounded the victim and shot him in his back with a home-made gun, then chopped him with an axe on his right side, and speared him on his left chest. The man died instantly. The State alleges that the four accused, in so attacking the deceased, intended to kill him or cause his death and thereby contravened s 299 of the Code.

The State called two eye-witnesses, Mrs Jenny Dion Aron and Mr Morris Isingi. In addition, the State tendered by consent Dr John Watt's medical report and four records of interview in respect of the four accused. At the end of the oral evidence, the Court visited the scene of the killing on Saturday 19 March 1994. At the scene, Mrs Aron and Mr Isingi pointed out the various positions given in evidence in Court.

The four accused all gave sworn evidence. Their defence was one of alibi. This defence was raised in their respective records of interview. In addition, Sukulin Passomb called Pastor Kulump Waita of Mamale Apostolic Church to support his alibi. Pastor Waita also gave evidence in support of Kalain Kula's alibi. Kakalia Tulu called Sgt Poko Itapu, who is the Station Commander at Laiagam Police Station, to support his alibi. Agaun Kakas and Kalain Kula did not call any witnesses of their own to support their respective alibi defences.

The trial of this matter was initially scheduled for one day. Instead, it took more than a week to cover the evidence. This was mainly because all witnesses in the case were questioned at length by both lawyers and to some extent by myself.

The issues to be decided are both factual and legal. In my view, the case can be decided on the facts. The factual issues mainly relate to identification of the four accused by the two State witnesses. If the quality of their identification evidence is good, then I can safely proceed to assess its value.

Much of the identification evidence from the two State witnesses relates to personal identification of the four accused in broad daylight. They also say that, because they previously knew the four accused, their identification was made easier. As to the reliance to be placed on personal identification of the four accused, I would recite the six factors set out in Chalmers, Weisbrot, and Andrew Criminal Law and Practice of Papua New Guinea, 2d edn (Law Book Co Ltd 1985) at page 231.

"Where evidence of identity is given by a witness whose previous knowledge has not made him familiar with the appearance of the accused and where he has been shown the accused alone as a suspect and has on that occasion first identified him, the conviction of the accused is not safe unless his identity is further proved by other evidence. Per Prentice, J. Paul Papalamnan v Samson Nuakona (1973) No. 771.

The reliance to be placed on personal identification will depend upon a number of factors, including inter alia;

(1) the impression left by the eyewitness as to his reliability and accuracy;

(2) the existence of a motive for giving false testimony as to the identity of the offender (s);

(3) the circumstances in which the person to be identified has been observed;

(4) the circumstances in which the eyewitness finds himself when making the observation;

(5) the existence or otherwise of the evidence of other witnesses confirming or contradicting the evidence of the original eyewitness;

(6) the existence or otherwise of other evidence, direct or circumstantial, of facts or circumstances independently proved. R v Uno Tam and Marau U'U (1973) No. 766"

In the instant case, I do not think it is necessary to set out in detail the evidence of both sides. I intend to decide the case on a number of findings of facts and inferences which I draw from proven facts. I will refer to the evidence which supports those proven facts or inferences where necessary.

UNDISPUTED FACTS

Sometime between 10 am and 12 pm on 18 October 1993, there was a peace gathering near Wanepop Catholic Mission between two warring clans, namely the Andamali and Tamburan clans of the Kulipu tribe. This gathering was a big event. People from neighbouring clans came to see the peace gathering. A government party comprising of the Assistant Secretary at Laiagam, Mr Solo; Laiagam Local Government Council President, Mr Kabilo; the Laiagam Police Station Commander, Sgt Poko Itapu; and other policemen and other members of what is called the Operation Mekim Save Committee gathered at Laiagam and departed for the gathering at about 10 am in a Toyota Stout vehicle hired by Mr Solo. Among this government party was the accused, Kakalia Tulu, who was then the clerk for the Laiagam Village Court. His job was to write out the "preventive order" and issue it to the two clans upon the successful negotiation and conclusion of the peace settlement.

Other interested people, including public servants in Laiagam, also went to the gathering. Among them was the deceased, Mr Isingi, who was a security guard at the health centre, and Mrs Aron, whose husband worked as a "doctor" at the health centre.

The deceased, Mrs Aron, and Mr Isingi all come from Kilo clan. Their clan was not involved in the war raging between the Andamali and Tamburan clans of the Kulipu tribe. It seems they just went to witness the peace gathering out of common interest or concern for the welfare of the two clans.

The four accused come from Mamale village. Although they come from different clans, they come from the Pyain tribe, whose main village is Mamale. Their tribe or clan were not involved in the fight between Andamali and Tamburan clans. Their clan was also not at war with the tribe of the deceased, Mrs Aron, or Mr Isingi. Thus, Kakalia Tulu had nothing to fear in going to the gathering as a key figure in the peace negotiations.

The distance between Mamale and Wanepop is about 5 km. Situated in between is Laiagam township. Laiagam Health Centre and Laiagam Village Court are located within, or in the immediate vicinity of, Laiagam township.

The scene of the killing is near Kanak village, which is also situated between Mamale and Wanepop. This village belongs to the Pyapilya clan. The Pyapilya clan was not involved in the war between Andamali and Tamburan clans.

The impression I get from the four accused is that Mamale is a long way from Wanepop and all the other places in between which I had mentioned above. In my view, having visited the scene for myself and driven from Wanepop to Mamale, I accept Sgt Itapu's evidence as to the distances. Mamale is clearly within walking distance from Wanepop. It is about 5 km. Both places are easily accessible by road. Mamale is situated just next to Mamale High School, also known as Laiagam High School. It is situated on the other side of the Lagaip river and just next to the main Laiagam — Porgera highway. Laiagam township is only about 1 km from...