The State v Esau Melka

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 29 November 2016
• Citation: (2016) N6611
• Court: National Court
• Year: 2016
• Judgement Number: N6611

Full : CR Nos 676, 677, 678, 679, 680, 681, 682, & 683 of 2014; The State v Esau Melka, Anthonu Melka, Pamel Pavon, Elias Kaina, Davai Satek, Luke Delly, Steven Delly & Micha Waipi (2016) N6611

National Court: Lenalia, J

Judgment Delivered: 29 November 2016

N6611

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS. 676, 677, 678, 679, 680, 681, 682, & 683 OF 2014

THE STATE

V

ESAU MELKA, ANTHONU MELKA, PAMEL PAVON, ELIAS KAINA,

DAVAI SATEK, LUKE DELLY, STEVEN DELLY & MICHA WAIPI

Kokopo: Lenalia, J

2016 : 2nd June, 4th -15th July,

: 2nd -5th & 19th August,

: 6th , 9th&21st Sept & 29th November

CRIMINAL LAW – Charge – Wilful murder – Pleas of not guilty – Trial – Criminal Code s.299.

CRIMINAL LAW – Wilful murder – Evidence on trial – Prosecution evidence alleges all accused participated in the killing – Defence evidence denies presence on the various scenes where the assaults were committed.

EVIDENCE – Identification –Sufficiency of identification evidence – Process of identification done in a number of locations – Identification by persons of nearby neighboring communities – Dangers inherent in identifying lose relatives – Weighing of identification evidence.

PRACTICE & PROCEDURE – Alibi Defence – Not accepted – No effect on ultimate onus of proof but may assist the prosecution case – On alibi evidence, care is required in weighing evidence by assessment of all evidence for the prosecution and defence.

Cases cited:

Alois Erebe & Taros Togete v The State (2011) SC1135

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

Gari Bonu Garitau & Rossana Bonu (1977) SC528

John Jaminan v The State (No.2) [1983] 318

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

Paulus Pawa v The State[1981] PNGLR 498

R v Namiropa Kopinbodi [1969-1970] PNGLR 194 at 200

The State v Tom Morris [1981]PNGLR 493

The State v Marety Ame Gaidi (2002) N2256

The State v Okata Talagahin(No.1) (2004) N2581

The State v Eki Kondi (No.1) (2004) N2542

The State v John Bosco (2004) N2777

Valii Rocky Mauri v The State (2000) SC668

Counsel:

Mr. L. Rangan, for State

Ms. J. M. Ainui, for all Accused

November 29th, 2016

1. LENALIA J: The eight co-accused are charged with one count of wilful murder contrary to s.299 of the Criminal Code. After they were formally arraigned, they all pleaded not guilty necessitating a long trial conducted intermittently from 2nd June 2016, until today (29.11.2016). The offence was committed on 3rd January 2015 at Rakada village, Rakada Ward on the Gazelle District E. N. B. Province.

Prosecution Evidence

2. The hearing of this trial commenced on 6th September 2016. A total of eleven (11) witnesses were called by the prosecution. Witness No.6 Leonard Waninara was withdrawn because the State Prosecutor submitted that because, there was no statement of that witness in the file, he should be withdrawn. No objection was taken by the defence counsel and the witness was withdrawn.

3. The prosecution evidence alleges that, on the above date, it was a Saturday between 12 midday and 1pm, the eight accused were amongst a large group of people which went searching for the victim now deceased Nicholas Minamar at Rakada village. The motive for this search and the eventual killing of the deceased is not so clear from the prosecution evidence but it was believed that, the victim used to cause trouble and even cut people in their communities. The State alleges that, when the co-accused came to Rakada village, they started to ask about where the victim was. After they found him, he was beaten up and was led away to the junction referred to in the evidence as ‘Palnalom’ where he was taken by a vehicle to Tomariga Police Barracks and later to Nonga hospital where he died.

Witness No.1Ludwig Kaile.

4. The first witness, Ludwig Kaile. He comes from Rakada village, Vunakapa Ward in the Gazelle District. He narrated to the Court what happened on Saturday 3rd January 2015. He was in his house with his uncle when they heard shouts and people swearing going up the main road. He ran up toward the main road and stood a little distance away and saw a group of people holding the victim on his hands and pulled or pushed him up the road. Asked in chief if he recognized any of the persons in the group that was leading the victim to the main road. He said, he identified Christopher Kalue, Peter Walagu, Junior Matatenge, Hubert Walagu, Elias, Steven Dely, Luke Dely, Micah Waipi and Davai Satek.

5. The distance from which he stood and saw the two pulling the victim’s hands was about four (4) meters. In the process of giving his evidence, the witness identified the eight accused right from the first accused to the last one. It is clear from this witness evidence in chief that, he did not see anyone assaulting the victim by the time the gang walked passed him. By then the victim had blood on the affected portions of his body and he only saw blood on the victim’s head, legs and hands. Asked if the wounds he saw looked like bush-knives wounds. He said, they look like knife wounds.

6. The witness confirmed in cross-examination that, there was a large group of people. Many of whom he did not identify and there was such noise that he could not hear what they were saying except for the words called out in the following terms,” we have captured your king, we have captured your king”. He also confirmed that Rakada/Ward shares the common boundary with Vunapaka/Ward and those villages where the co-accused come from are near his village.

Witness No.2 Ulia Takekel.

7. This witness also comes from Rakada village on the same Ward as that of the first witness. He said, this offence was committed on Saturday 3rd January 2015. He recalls that while he was in his house, he heard a loud noise and calling along the vehicular road. He walked out from the house and stood outside.

8. As he stood on the front of his house he saw Esau Melka, Anthony Melka, Pamel Paon, Elias Kaina, Dawai Satek, confronted him and asked him about where Nicholas Minamar was. He told them that, he was not with him and he could be in his house. They left him there and walked up in haste towards Nicholas Minamar’s house.

9. When they reached the victim’s house, they broke into his house and took two water containers and stole other properties. They left for the main road and when they met Nicholas Minamar (victim), they chased him and caught him and they assaulted him. He saw, Dawai Satek and Savenat Delly (he is not in court) had in their possession sticks and other objects which they used to hit the victim with. He also saw Anthony Melka assault the victim. He confirmed that he did not see the gang broke into the victim’s house, but when they came up the road, he saw them assaulting the victim. This witness also identified all the accused in court.

10. In cross-examination, Ulia was asked if he is related to the victim. He said, he is the elder brother of the deceased. It was put to the witness that because the victim was his biological brother, he would want to protect him. The witness said, it was hard to hear what the gang members were saying but those he identified were on the scene as he had named them.

11. Asked if those he named came to ask for the victim on his premises. He said, he was sitting around his house around about 11.30 am on the above date and those he named came up to his yard and confronted him asking for the victim.

12. Further asked, if after asking him, he did not go with the mob to the victim’s house. He said, he followed them at their back but he did not go with them to his brother’s house. Asked if he knew that, his brother (victim) had involved in serious allegations laid against him by the community the latest of which was, the wounding of another person. He denied knowing anything.

Witness No.3 Albert Pui

13. Albert Pui comes from Rakada village on Rakada/Ward. He said, he is aware of the incident on which the victim was killed for which the eight co-accused have been charged. He estimated the distance from his house to the house of Ludwig Kaile (1st witness) to be from this court room to the police station estimated to be 20-30 meters. He said, the first witness is his uncle. When he heard the great commotion, he ran to where Ludwig was standing and asked what was happening. Ludwig told him there was a big fight going on along the road.

14. This witness said, when they stood together with his uncle, he recognized the man who was being pulled up the road and named him as Nicholas Minamar. He said, by the time he saw the victim, he had already sustained injuries on his body and he saw blood. Asked in chief if he was with anyone in his house, he said, he was with his family since it was the week-end. Asked about the distance from his house to the victim’s house. He estimated the distance to be about 1 kilo-meter that is from Court premises to the Kokopo market.

15. Asked about the direction where the people were leading or pulling the victim to. He said, they were pulling him toward the main road. Asked about what time of the day was it. He...