The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 November 2011
• Court: National Court
• Citation: (2011) N4457
• Docket Number: CR NO 597-600 of 2010
• Year: 2011
• Judgement Number: N4457

Full Title: CR NO 597-600 of 2010; The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457

National Court: Cannings J

Judgment Delivered: 22 November 2011

N4457

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 597-600 OF 2010

THE STATE

V

LOTIVI MAL, MOSES MAL,

EMMANUEL ONG & KATHRINE MAL

Madang: Cannings J

2011: 7, 8, 9, 10, 14, 15, 16, 17, 22 November

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether any of the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – whether any of the accused aided or assisted others who committed the offence or counselled others to commit it: Criminal Code, Section 7.

Four accused were charged with the wilful murder of a man, who had been attacked with weapons. The State’s case was that the first three accused killed the deceased during an altercation with him on a road near their village; and that the fourth accused instructed the other accused to kill him. There was direct evidence from several State witnesses as to the involvement of the accused in an incident in which the deceased was killed. The cause of death was not in issue. Each of the accused gave evidence of non-involvement.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

(2) The 3rd accused killed the deceased, unlawfully, and intended to cause his death and was therefore guilty of wilful murder.

(3) The 1st and 2nd accused did acts for the purpose of aiding the 3rd accused to commit the offence of wilful murder and each was deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing that offence and to be guilty of it.

(4) The 4th accused counselled other persons, including the 3rd accused, to commit the offence of wilful murder and is deemed under Section 7(1)(d) of the Criminal Code to have taken part in committing that offence and to be guilty of it.

Cases cited

The following cases are cited in the judgment:

The State v Abaya Ulas (2010) N4009)

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Jenny Dei (2011) N4231

The State v Melchior Kapus (2010) N4114

The State v Moses Nasres (2008) N3302

The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

The State v Raphael Kuanande [1994] PNGLR 512

TRIAL

This was the trial of four accused charged with one count of wilful murder.

Counsel

A Kupmain, for the State

M Mwawesi, for the accused

22 November, 2011

1. CANNINGS J: Each of the four accused is charged with the wilful murder of Daga Nanas, at Four Mile on the outskirts of Madang town, on Saturday 28 February 2009. The deceased was a local resident. The accused pleaded not guilty so a trial has been held. The State’s case is that the first three accused, Lotivi Mal, Moses Mal and Emmanuel Ong, killed the deceased during an altercation with him at a place known as Four Mile Junction in the late afternoon. The State alleges that the fourth accused, Kathrine Mal, instructed the other accused to kill the deceased, and took part under Section 7(1)(d) of the Criminal Code in committing offence, in that she counselled the other accused to commit the offence.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:

· The deceased was killed almost instantly at Four Mile Junction as the result of a fight between two groups of people who live nearby:

Ø the Sakel family who live at Yehelgum village, and people aligned with them including the deceased; and

Ø the accuseds’ family and people aligned with them, who live at Thalim village.

· The deceased, Daga Nanas, was aged in his 40s. He was a motor mechanic. He also lived at Thalim village but in a different area (a separate hamlet) on the opposite side of Yagaum Road to the Mal family.

· The two groups, which can be called the Sakel family and the Mal family, have a long-running dispute, which goes back several generations, over ownership of customary land in the area, and there has been simmering ill-will and occasionally fights between them over a long period.

· A leading figure in the Sakel family is State witness No 2, Kelly Sakel, aged in his 40s, who was present at the fight. His wife, Jacklyn Sakel, (State witness No 6) was also present, as was his son, Gill Sakel, aged 17 at the time (State witness No 3). The deceased, Daga Nanas, was Kelly Sakel’s brother-in-law. The deceased’s cousin Wetei Gumari (State witness No 4) was also present.

· A leading figure in the Mal family is the 4th accused, Kathrine Mal, who at the time of the incident was aged 41. The 1st accused, Lotivi Mal, and the 2nd accused, Moses Mal, are her nephews. Lotivi and Moses are brothers. Their mother is Kathrine’s elder sister Lydia Mal. The 3rd accused, Emmanuel Ong, is Kathrine’s son. Lotivi, Moses and Emmanuel were aged 20, 21 and 23 respectively at the time of the incident.

· Other members of the Mal family who feature in the evidence include Kathrine’s brothers Onen Mal and Seth Mal, her sister Tamar Mal (defence witness No 9), her nephew Keith Mal and her cousins Steven Kolau and Gilbert Eliah (defence witness No 8).

· Four Mile Junction is 7 km south of Madang town on the Bruce Jephcott (Madang-Lae) Highway, at the corner of Ten Mile Road, consisting of a large area of bitumen.

· A walking track leads from one edge of the Junction up a small mountain to Yehelgum, and 10 metres from the edge of the Junction there was at the time a small market stall. It was at the front of that stall that the fight took place.

· Close to the Junction are the two villages where the disputing groups reside:

Ø Yehelgum village, which is on a small mountain 100 metres from the Junction, where the Sakel family lives;

Ø Thalim village, which is a short distance along Yagaum Road, which joins Ten Mile (Mawan) Road 50 metres from the Bruce Jephcott Highway, where the Mal family lives.

· The Four Mile Market is situated on the Highway, 200 metres from the Junction in the direction of Madang town.

· On the day of the incident, shortly before the Market closed, there was a verbal argument and scuffle between Mathew Sakel and Keith Mal. The argument related to an earlier incident in which Keith Mal was injured by Kelly Sakel. The argument did not escalate into a fight at the Market but the tension it created contributed to the fight that broke out shortly afterwards at the Junction.

· The Market closed and a big crowd walked along the Highway towards the Junction.

· Half way between the Market and the Junction, as the crowd walked along the Highway, there was an altercation between:

Ø 1st accused, Lotivi Mal; and

Ø Jacklyn Sakel and Sogi Martin.

· Before the fight started a heated verbal exchange took place between:

Ø Kelly Sakel; and

Ø members of the Mal family.

· Kelly Sakel placed a piece of wood on the road at the Junction, dividing the two groups, saying ‘there should be a fair fight, with no weapons’.

· The fight at the Junction broke out at about 5.00 pm. Each group threw stones at the other. It was a big fight which involved lots of people on each side.

· Kathrine drove her vehicle, a green Ford single-cab utility, from town, having been phoned by the 2nd accused, Moses Mal, and arrived at the Junction at about 5.00 pm. With Kathrine were her friend Angela Bugatar (defence witness No 5), who was in the cabin, and a young woman with whom she was at that time engaged in business, Julie Kum (State witness No 13), and her two brothers, who were on the back of the utility.

· Kathrine turned the vehicle in a circle, alighted from the vehicle and shouted at those present. (The time that she arrived – whether before, during or after the fight – and what she shouted are contentious issues.)

· The deceased received, at least, the following injuries in the fight:

Ø compound fracture of mandible (lower jaw) with missing teeth (two incisors);

Ø compound fracture of maxilla (upper jaw) with missing teeth (four incisors);

Ø penetrating knife wound to the left side of the chin, with exit wound at left upper lip;

Ø superficial, 10 cm long, scalp laceration;

Ø 4 cm long right supra-orbital laceration;

Ø collapsed lung, due to tooth in right main bronchus.

· The cause of death was asphyxiation brought about by the compound facial fractures, which led to airway obstruction.

· Eyewitness accounts of what happened before, during and after the fight, were given by three main groups of witnesses, none of whom can be regarded as independent:

Ø Those who are members of or aligned with the Sakel family: State witness Nos 1 Mathew Sakel, 2 Kelly Sakel, 3 Gill Sakel, 4 Wetei Gumari, 5 Sogi Martin, 6 Jacklyn...