The State v Selmon Amos (No.3)

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J.
• Judgment Date: 14 December 2012
• Citation: (2012) N5073
• Court: National Court
• Year: 2012
• Judgement Number: N5073

Full : CR.NOS. 692 of 2011; The State v Selmon Amos & Misialis Amos (No.3) (2012) N5073

National Court: Lenalia, J.

Judgment Delivered: 14 December 2012

N5073

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS. 692 OF 2011

THE STATE

V

SELMON AMOS & MISIALIS AMOS (NO.3).

Kokopo: Lenalia, J.

2012: 8th, 18th October &

14th, 26th November

& 14th December

CRIMINAL LAW – three counts of wilful murder – sentence after finding of guilty to a triple murder on the seashore of Tokarkar plantation-Tokua airport – criminal code section 299

CRIMINAL LAW – wilful murder – three counts – sentence – sentencing tariffs – killing on the high-seas becoming prevalent – deterrent sentences called for

CRIMINAL PROCEDURE – appropriate sentence – maximum penalty reserved for the worst type cases – legislature has not prescribed types of wilful murder cases that warrants death penalty – no universal sentencing principle can be applied in wilful murder cases – each wilful murder case is determined on its own merits – court’s consideration of aggravating factors and extenuating circumstances – on the current case, special aggravating circumstances far outweigh mitigating circumstances – maximum penalty imposed – death.

Cases cited:

Goli Golu-v-The State [1979] PNGLR, 653

Avia Aihi (No.3) -v- The State [1982] PNGLR. 92

Ure Hane -v- The State [1984] PNGLR 105

The State-v-Ombusu (Unreported National Court Judgment of 17th February 1995

Ombusu-v-The State [1996] PNGLR. 335

Manu Kovi-v-The State (2005) SC 789

State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997

Steven Loke Ume & Ors-vv-The State (2006) SC836

The State-v-Arua Maraga Hariki (2003) N2332

The State-v-Ben Simakot Simbu (N0.2) (2004) N2548

The State-v-Mark Poroli (2004) N2655

The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381

The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010

The State-v-Seth Ujan Talil (17.11.2010) N4159

The State-v-Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment

The State-v-Wilson Okore, (6.2.2009) CR No.584 of 2006

The State-v-Peter Wirundi (2010) N3994

Tony Imunu Api-v-The State (29.08.01) SC684

Counsel

Mr. L. Rangan, for the State

Mr. P. Kaluwin, for the two Accused

14th December, 2012

1. LENALIA, J: On 14th of last month, the two accused were found guilty of a triple wilful charge under s.299 of the Criminal Code. The offence was committed at the seashore of Tokarkar Plantation at the Western end of the Tokua airport mangrove swamps, Kokopo District, East New Britain Province. The offence took place in the morning of 31st July 2008. There were three separate victims namely Koli Sapau, Nelson Koli and Lomki Wanain. The State alleged that because they acted in concert, they aided, procured and counseled each other to execute the triple murder.

2. The brief summary of the evidence upon which the two accused were found guilty is that, the three deceased named on the indictment (Koli Sapau, Nelson Koli and Lomki Wanain) were passengers on a banana boat which was reported to have capsized and sank at sea between the sea waters of Duke of York Islands and West Coast of Namatanai in New Ireland Province. A total of eleven witnesses were called including Kiliaon Kamlapar whom the Court accepted his evidence as an eye witness to the killing of the three deceased. The evidence of the other ten witnesses was purely circumstantial in nature.

3. The States evidence established that the two accused acted in concert with three other boys (who had not been arrested) to kill the three deceased. It was established that witness Kamlapar was with the first accused at Skowhegan Service station where he heard the first accused speaking to someone on a mobile planning how to execute the killing of the three deceased.

4. While at Skowhegan, Kiliaon met Willie, John and Robert. John was referred to by the key witness as “John Biket”. Kiliaon stood behind the first prisoner and heard him asking Willie to go to Takubar to take the boys to kill Koli, Nelson and Lomki. The next day when the three deceased and the first accused left on the boat “Sparrow Fly” for West Coast of Namatanai, the prosecution evidence established that those three persons spent the night at Takubar Beach Resort area with the key witness in a house of one of Kiliaon’s relatives.

5. When the Sparrow Fly boat left Skowhegan beach it sailed toward the passage way between Duke of York Islands and Kapkap plantation point, that is the point near the Tokua airport. When it reached Takubar Beach Resort area, it slowed down and diverted to the beach at the beach resort. It did that purposely to warn John Biket (aka Bighead), Robert and Willie. The key witness and those three others got on another boat, “Las Peles” and they followed the Sparrow Fly and on the way between Kakap point and Karawara Island, they reached the Sparrow Fly. Kiliaon’s evidence is that, the first prisoner did not know that, he was on the Las Peles boat.

6. Under the guise of requesting for assistance, the Las Peles boat skipper requested for petrol because they did not have enough. Just before they diverted towards the swamps, Kiliaon Kamlapar was asked to skipper the Las Peles boat so he took control of skipping Las Peles. Before taking control of that boat, he was asked to wear a mask in case, the first accused should identify him. So they diverted towards the mangroves near the north-western end of Tokua airport. When they got to the mangrove swamps with the Las Peles boat coming after the Sparrow Fly they stopped the two boats and floated for some seconds negotiating through the passage to go in.

7. 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 fall 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.

8. The witness looked on and saw the first accused, Robert and Joe Dicks lift 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 first prisoner then made his way into the sea and called out under the guise of seeking help by calling out at about 6.30 pm where he was rescued by villagers who mounted help by forming two teams. One went to the right hand side of Maren village while the other sailed by canoes to the left.

9. The one that sailed to the left recued the first accused the prisoner Selmon Amos. This prisoner told the villagers at Maren village that, the boat they were in capsized and three persons were either drifting on the sea or had been drowned. Something interesting about the two boats is that, those were never produced or at least have them available for the court to view. As well, the key to the Sparrow Fly boat was produced and tendered in Court as an exhibit. (See Ex. “F”) (For the findings of facts, see the decision on verdict dated 14th November 2012 at paragraph 88 at pages 19 to 20).

10. One of the findings of facts found by this Court is the issue of how the key to the Sparrow Fly boat get into the hands of witness Kiliaon Kamlapar. (See the decision on verdict dated 14th November 2012 at pages 19 to 20 paragraph 88). On the basis of the evidence adduced by the prosecution and the defence, the court found the two accused guilty on the charges of wilful murder as they conspired procured and planned the killing of the three deceased in terms of Section 7 and 8 of the Criminal Code.

11. In law, principal offenders caught by ss.7 & 8 of the Criminal Code can be sentenced to terms of penalty as principal offenders. The offence of wilful murder is defined by s.299 of the Criminal Code as follows:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

12. The State invoked ss.7 & 8 of the Criminal Code in relation to parties to offences and offences committed in the prosecution of some common purposes. Section 7 of the Criminal Code defines participation in offences in the following terms:

“(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with...