The State v Selmon Amos (No.2)

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J.
• Judgment Date: 14 November 2012
• Citation: (2012) N5072
• Court: National Court
• Year: 2012
• Judgement Number: N5072

Full : CR.NOS. 692 of 2011; The State v Selmon Amos & Misialis Amos (No.2) (2012) N5072

National Court: Lenalia, J.

Judgment Delivered: 14 November 2012

N5072

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS. 692 OF 2011

THE STATE

-V-

SELMON AMOS & MISIALIS AMOS (NO.2)

Kokopo: Lenalia, J.

2011: 11th, 12th 13th, 14th, 17th 18th, 19th October & 3rd November.

2012: 8th, 18th October & 14th November.

CRIMINAL LAW – Three counts of Wilful Murder – Pleas of not guilty – Trial – Evidence on trial on allegations by the prosecution – Evidence of one eye witness – All other evidence circumstantial – Decision on verdict – Criminal Code Sections 299.

CRIMINAL LAW – Wilful Murder – State evidence on trial – Defence evidence – Consideration of whether there is sufficient evidence against the two accused – Whether guilt only rational inference open – Whether unsafe and dangerous to convict – Circumstantial evidence – Overall view of the case.

Cases cited:

Papua New Guinea Cases

The State-v-Paul Kundi Rape [1976] PNGLR 96

Roka Pep (No.2) [1983] PNGLR 287

SCR No.1 of 1980 Re s.22A of Police Offences Act and s.37(4) of the Constitution [1981] PNGLR 28

The State-v-Tom Morris [1981] PNGLR 493

SCA No.1A 1981 Re Motor Traffic Act [1982] PNGLR 122

The State-v-Misari Warun [1988-89] PNGLR 327

Allan Oa Koroka-v-The State [1988-89] PNGLR 131

Garitau Bonu & Rossana Bonu-v-The State (1997) SC.528

The State-v-Garitau Bonu & Rossana Bonu [1996] PNGLR.48

The State-v-Jacob Dugura Roy (2007) N3137

Overseas cases

Woolmington -v- DPP [1935] AC 462

Barca-v-The Queen (1975) 133 C.L.R 82

Lend Lease Development Pty Ltd-v-Zemlicka (1985) 3 N.S.W.L.R. 207

Counsel

M. L. Rangan, for the State

P. Kaluwin, for the two Accused

14th November, 2012

1. LENALIA, J: The two accused are charged with three (3) counts of wilful murder of three separate victims, an offence contrary to s.299 of the Criminal Code. The State say the offences were committed at Tokarkar Plantation mangrove near the Watah Light House near Tokua airport on 31st July 2008. The State alleged that because they acted in concert, they aided, procured and counseled each other to execute the triple murder. In law, principal offenders are caught by ss.7 & 8 of the Criminal Code.

The State’s Evidence

2. Eleven witnesses were called to testify on this trial. Some of them were vigorously cross-examined as to the prosecution allegations of the alleged wilful murder and the motives for the killing of the three deceased. The deceased named on the indictment are, Koli Sapau, Nelson Koli and Lomki Wanain. A number of those witnesses including the first witness were cross-examined by Mr. Kaluwin of counsel for the two accused. Except for the evidence by the first prosecution witness Kiliaon Kamlapar, the evidence of the remaining ten prosecution witnesses is all circumstantial in nature.

3. Evidence by the key witness, Kiliaon Kamlapar establishes that, on 30th July 2008, he came to Kokopo by boat from Kaboman village, located on West Coast of Namatanai, New Ireland Province. He came with other passengers for purposes of selling bags of cocoa beans at Agmark. The name of the boat they came on was ‘Fly Tulait’. After he and the others were dropped at Kokopo, they stayed back at Kokopo until the next day due to bad weather. While they were in Kokopo they sold their cocoa beans and after doing business in town, he walked back to Takubar Beach Resort where one of his brothers has a house and he lives there.

4. By 8 pm, he left his brother and the others at Takubar and walked back to Skowhegan Service Station to check for any boats going back to his village. At Skowhegan, he met Willie, John and Robert at the bus-stop. He did not give their other names. He stood at the back of Willie and heard him talking to someone by a mobile.

5. He said he heard Selmon asking Willie to go to Takubar to take the boys to kill Koli, Nelson and Lomki. He did not clarify in his evidence where the first accused is supposed to have spoken from or whether he heard him talking over from a mobile phone or whether he was there with him, Willie, John and Robert.

6. He left the bus-stop at Skowhegan with Willie and walked back to Takubar and sat near the boat at Takubar Beach Resort. They sat down for sometime then Willie left and he stayed away for a long time. They waited for him for a long time and he returned about 1 am in the morning. Kiliaon noticed that Willie had a factory made gun wrapped up in a laplap. He saw Willie handed over the gun to Joe Dicks. In the process of handling the gun, John and Willie invited this witness to follow them to see what they would do later during that day. The boat they were sitting on was ‘Las Peles’.

7. By then the time would have been about 5 am. As they were sitting and talking, three other boats came. He named one of them as ‘Sparrow Fly’. The Sparrow Fly slowed down while the other two continued in the direction heading towards Karawara Island on the Duke of York Islands and the main land. Joe then told those in the boat with him and the witness to follow the sparrow fly. They all sailed toward the light house near the airport at Tokua and the boat in which this witness was in, changed direction and sailed toward the mangroves area.

8. After they sailed off from Takubar, Joe Dicks was the skipper. Before reaching the mangrove swamps, Willie asked Kiliaon (witness) to skipper the boat. When Kiliaon took over they sailed in the direction between Karawara Island and the light house. From there, the other two boats that were ahead of them sailed in the direction of West Coast Namatanai.

9. When those two boats left the Sparrow Fly, they headed in the direction of the boat which was skippered by Kiliaon. When they caught up with Las Peles, those in that boat asked Joe Dicks for fuel or petrol. They were given some right near the mangrove swamps. It was there that Joe Dicks got the gun from within the boat and pointed it at Nelson and commanded him to skipper the boat into the mangrove swamps.

10. They then diverted from their direction toward the mangroves with the Las Peles boat coming after the Sparrow Fly. As they entered the edges of the mangroves, Willie asked Kiliaon to stop at a distance of fifteen metres which he did. While the boat was stationary, the witness saw Joe Dicks pointed the gun at Koli Sapau and short him at point blank range. He saw Koli fell down dead into the Sparrow Fly boat. Soon after that, he pointed the gun at Nelson Koli and also shot him. Lomki started to cry but Joe also shot him. They all fell into the boat.

11. The witness looked on and saw the first accused, Robert and Joe Dicks lifted up the three dead bodies and buried them in the swamps amongst the mangrove trees. Then after the three men were shot, Willie asked Kiliaon not to tell anyone about the killing and what he had just seen. The time then was about 4 pm. The witness was requested to sail up to Maren village on the Duke of York Island where the first accused was dropped off. This witness and Joe Dicks and the others headed back to Takubar. The other part of his evidence is not relevant to the circumstances of this trial.

12. As I have said at the beginning of this discussion, all other witnesses’ evidence is substantially circumstantial like for instance, the evidence of witness John Mannering is only relevant in so far as he met the two accused at Skowhegan on the night of 31st July 2008. His evidence also establish that, that day the sea was very rough and it was very windy. When he saw that there was a great wind, he stopped his son Pulangis from getting on the Sparrow Fly boat which was destined to King village, West Coast Namatanai. In that boat were the first accused, Koli Sapau, his son Nelson Sapau and Lomki Wanain.

13. The evidence by Japet Balaut is mostly circumstantial as well. His evidence relates to the time when the first accused was rescued at Maren village beach on Duke of York islands. He said he had been around with village boys and when he returned to his house, he wanted to chew betel nut. So he climbed a betel nut tree to pick a bunch of betel nut. While he was still up on the betel nut tree, his mother called out to him to climb down quickly to go out to the beach to look for someone calling out for help.

14. When he alighted, his mother told him where the distress calls were coming from. He then mobilized village boys to go out to the sea for a search. They sailed out in canoes and one group went to the right hand side of the village and the other to the left. He was the leader of the later group. When they heard the distress call, he called out and the first accused called his name out. They sailed close to him and rescued him. The time given by this witness would have been about between 5.30 pm to 6 pm.

15. It is clear from this witness evidence in chief and cross-examination that, when accused Selmon Amos came ashore to the beach at...