The State v Seth Ujan Talil (2010) N4082

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 July 2010
• Citation: (2010) N4082
• Docket Number: CR NO 1295 OF 2006
• Court: National Court
• Year: 2010
• Judgement Number: N4082

Full Title: CR NO 1295 OF 2006; The State v Seth Ujan Talil (2010) N4082

National Court: Cannings J

Judgment Delivered: 22 July 2010

N4082

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1295 OF 2006

THE STATE

V

SETH UJAN TALIL

Madang: Cannings J

2010: 10, 11, 13 May, 22 July

VERDICT

CRIMINAL LAW – trial – wilful murder, two counts – Criminal Code, Section 299(1) – enabling or aiding others to commit the offences – whether offences committed in prosecution of a common purpose – Criminal Code, Sections 7, 8.

The accused was charged with two counts of wilful murder. It was not alleged that he actually killed the two deceased but that he aided others who did and is therefore deemed to have taken part in committing the offences and is guilty under Section 7(1)(b) of the Criminal Code. Furthermore, that he is deemed by Section 8 of the Criminal Code to have committed the offences as he was prosecuting a common purpose in conjunction with others and the offences committed were a probable consequence of the prosecution of that purpose.

Held:

(1) Two offences of wilful murder were committed at a gathering at which the accused was present.

(2) The accused did acts at that gathering for the purpose of enabling and aiding others to commit those offences; and he aided the persons who committed the offences. He is deemed by Section 7(1)(b) of the Criminal Code to have taken part in committing them.

(3) The accused formed a common intention to prosecute an unlawful purpose (attacking the two deceased persons and members of their group with the intention of killing them) in conjunction with a number of other people and in the prosecution of that purpose two offences of wilful murder were committed; and those offences were of such a nature that their commission was a probable consequence of the prosecution of the unlawful purpose. The accused is thus deemed by Section 8 of the Criminal Code to have committed wilful murder.

(4) The accused was accordingly convicted, by force of Sections 7(1)(b) and 8 of the Criminal Code, of two counts of wilful murder under Section 299(1) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Potosi (1973) No 730

The State v Nataemo Wanu [1977] PNGLR 152

TRIAL

This was the trial of an accused charged with two counts of wilful murder.

Counsel

A Kupmain, for the State

A Meten, for the accused

22 July, 2010

1. CANNINGS J: The accused, Seth Ujan Talil, is charged with the wilful murder of two brothers, Gunai Dodo and Gulali Dodo, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The State does not allege that the accused actually killed the two deceased but that he aided those who did and was acting with a common purpose in conjunction with them. The State relies on Sections 7 and 8 of the Criminal Code to argue that the accused should be deemed to have committed the offence of wilful murder in respect of each of the deceased.

ISSUES

2. The primary issues are:

1 Was the offence of wilful murder committed in relation to Gunai Dodo and/or Gulali Dodo?

2 Is the accused guilty under Section 7 of the Criminal Code?

3 Is the accused guilty under Section 8 of the Criminal Code?

1 WAS THE OFFENCE OF WILFUL MURDER COMMITTED IN RELATION TO GUNAI DODO AND/OR GULALI DODO?

3. It is necessary to address this issue first as the accused will only be liable under Sections 7 or 8 if an offence has actually been committed by someone. Determination of this issue requires:

· a summary of evidence for the State;

· a summary of evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of defence counsel’s submissions;

· an assessment of defence counsel’s submissions; and then

· a final determination of the issue under consideration.

EVIDENCE FOR THE STATE

4. Two witnesses gave evidence and their police witness statements were also admitted into evidence. The other significant evidence was a post-mortem report and related documents for each deceased, a medical report on the injuries received by one of the State witnesses and the accused’s record of interview.

5. The first witness was Salau Sorum. He comes from Gonoa village and is married with children. He said that the death of the two deceased stemmed from the death of a schoolgirl, Seron Ekeng, in 2005. He believes, after talking to medical staff involved in her treatment, that she committed suicide. However, a number of people suspected that sorcery was involved and two mediations were held at Gonoa which the alleged sorcerers, who included the two deceased, were required to attend.

6. The first mediation was on 10 December 2005 but was not properly conducted as the five suspects were not given a chance to say anything. The proceedings were stopped and arrangements made for another mediation.

7. On the day of the second mediation, 19 January 2006, he went with the suspects to Madang town police station to pass on legal advice received from Narokobi Lawyers. The accused’s mother, Anilo Ujan Talil, was also there. They met with Snr Sgt Frank Kikoli who told them that the second mediation would go ahead later that day. They were then driven to Gonoa and arrived there between 2.00 and 3.00 pm. The Madang Police Station Commander, Jim Namora, was there, with other police and local community officials. An announcement was made about the purpose of the mediation and one of the community leaders, Peter Baki, sought an explanation as to why the suspects were late. The explanation was provided that the suspects were at the police station. Anilo spoke on behalf of them but was told that that was not a good excuse. The crowd became agitated and the accused shouted “Kill her too!” – referring to his mother. The witness was five metres away from the accused when he heard him say that. Peter Baki was angry that the suspects had involved lawyers. Then the young men, including the accused, who had been at the back of the mediation area, started moving forward towards the suspects who were sitting at the front surrounded by the crowd. The young men had weapons including knives and sticks. The accused had a bush knife.

8. He saw a man from Karkar, Dumu, stab Gunai Dodo on his shoulders. He saw another man, Loko, pick up a piece of wood, and swing at him (the witness), shouting ‘He’s one of them. Kill him too!” He had asthma at the time and feared for his life so he ran to the road and waved down a truck belonging to the Jant Company, and he went straight to the police station, saw Snr Sgt Kikoli and told him what had happened.

9. In cross-examination he identified a witness statement which he had given to the police soon after the incident. He acknowledged that some of the things in his oral evidence were not in the police statement. He cannot remember when he made the police statement. Asked as to who the accused was referring to when he shouted “Kill her too!”, he said the accused was only referring to his mother. He did not hear the accused shout those words in relation to either of the deceased. He did not see the accused strike either of the deceased but he believes that the accused was involved in killing them.

10. The second State witness was Kadin Gunai. He is the first deceased Gunai Dodo’s son and the second deceased Gulali Dodo’s nephew. He is from Gonoa and was 22 years old when his father and uncle were killed. He was one of the group of five alleged sorcerers suspected of killing the schoolgirl, Seron, who died in late 2005. The other suspects were his father and uncle and his brother, Mainau Gunai, and his cousin-brother, Kenei Jeje.

11. There was an initial attempt at mediation at Gonoa on 10 December 2005 but the suspects were chased away by a group which included the accused and others he named as Guyur and Rodney.

12. He was present at the second mediation, also at Gonoa, on 19 January 2006. He and his father, uncle and brothers attended as they had been asked to attend. The crowd was not happy with him and his group as they had come late and it was not long before the accused and Guyur and Rodney and others moved in, armed with bushknives. The accused raced towards him (the witness) and chopped him on the head and as he lifted his hand to defend himself, on his hand (which is now useless). He still bears the scars on his head.

13. In cross-examination he explained that the deceased schoolgirl, Seron, was from Gonoa. He is not related to the accused. He identified a witness statement which he had given to the police soon after the incident. He acknowledged that some of the things in his oral evidence were not in the police statement.

14. The post-mortem reports and related documents were prepared by Dr Steven Toraso, Government Medical Officer, at Modilon General Hospital.

15. As to Gunai Dodo, Dr Toraso reported that the deceased was aged in his 40s, with a height of 165 cm and weight of 62 kg. The cause of death was “haemorrhagic shock” due to “multiple knife and axe wounds”. Significant, abnormal findings were:

Sustained deep knife wound to right lower jaw, slashing through to the mandible, fracturing it and exposing severed large neck vessels. Deep wound to right forearm. Open fracture to ulna/radius and severed vessels.

Axe...