The State v Keko Aparo, Keko Aparo, Hengene Arabe, Kubuna Haio, Kawasoba Para, Manga Tindipu and Andane Akwia (1981) N333

• Jurisdiction: Papua New Guinea
• Judge: Kaputin AJ
• Judgment Date: 21 October 1981
• Court: National Court
• Citation: (1981) N333
• Year: 1981
• Judgement Number: N333

Full Title: The State v Keko Aparo, Keko Aparo, Hengene Arabe, Kubuna Haio, Kawasoba Para, Manga Tindipu and Andane Akwia (1981) N333

National Court: Kaputin AJ

Judgment Delivered: 21 October 1981

1 Criminal law—wilful murder—principal offenders—aid and abet—common purpose—offer of reward for payback killing

2 Criminal law—evidence—credibility—undermined by changing story—which version to accept—objective test—tested against evidence as a whole before the Court—evidence given at trial rejected—record of interview preferred—whether relevant if does not include admission or confession—"confession" discussed—witness evidence

3 Criminal law—practice and procedure—guilty pleas—pleas of 3 accused noted pending trial of 3 who pleaded not guilty

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Kaputin AJ: The six accused stand charged upon the same indictment that they on or about 21 February 1981 in Papua New Guinea wilfully murdered one DENNIS VOSIVAN, and are tried together.

The trial began at Kieta where a number of witnesses were called to give their evidence and then transferred to Hutjena where the remaining witnesses gave their testimonies. The trial was there and then concluded.

Upon arraignment at Kieta three of the six accused, namely HENGENE ARABE, KUBUNA HAIO and MANGA TINIDIPU, pleaded guilty and the other three pleaded not guilty. The State prosecutor Mr Eke Kariko then decided to proceed with the pleas. I indicated to Mr Kariko and the defence counsel Mr David Lightfoot, that I could only deal with the three pleas as I would have to disqualify myself from hearing the trial of the other three. However, I also put to the defence counsel that if he considered that the three accused pleading guilty had defences at law, then Mr Lightfoot would have to make application under s575 of the Criminal Code for pleas of not guilty to be entered on their behalf. This is a right accorded to them by law which is still open to them. Mr Lightfoot replied that he would not make any application on their behalf because upon arraignment I had explicitly put the elements of the charge to each one of them and they had clearly understood them and each had pleaded guilty to it. I then asked both counsel what they proposed to do. They sought adjournment to consider their respective positions When the hearing resumed they advised the Court that they both agreed that the trial of the three accused, KEKO APARO, KAWASOBA PARA and ANDANE AKWIA, should proceed. In the meantime they submitted that I should merely NOTE the pleas of the other three accused. And that after the trial those three would then be dealt with where I should proceed to read their committal depositions to decide whether to accept their pleas. I agreed to take that course. The trial then commenced at Kieta on October 13th and resumed at Hutjena on October 20th, 1981.

The reasons for judgment I now deliver. The three accused KEKO APARO, KAWASOBA PARA and ANDANE AKWIA stand trial on a charge of wilful murder in contravention of s304 of the Criminal Code Act 1974 (as amended). The section reads:

"Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder."

S309 prescribes the penalty for it, which is imprisonment with hard labour for life as the maximum sentence.

The background of the case is that the three accused plus others who were involved in the incident, come from the Tari area of the Southern Highlands Province. They were recruited to the North Solomons to work as labourers on coconut plantations there. In 1980 one of their tribesmen died and was alleged to have been killed by some people from Buka. They gathered their numbers together, who were working in the plantations in the area, and used the strength of that group to demand compensation from the Buka people through the District Co–ordinator at Tinputz. They held a number of meetings prior to the 21st February, 1981 when the Buka man Dennis Vosivan, who is the subject of the present charge, was killed. The incident took place at Tinputz in the North Solomons Province.

The State alleges that the accused persons are parties to the crime under s7 of the Criminal Code Act 1974, and that at the time they were acting in prosecution of a common purpose under s8 of the Code. These provisions read as follows:

"7.—PRINCIPAL OFFENDERS.

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

(a) every person who actually does the act or makes the omission which constitutes the offence; or

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; or

(c) every person who aids another person in committing the offence; or

(d) any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission."

"8. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE.

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

I now deal with the evidence against each of the three accused on trial. I shall consider the case against the accused KEKO APARO first. The prosecution alleges that the accused person is a party to the offence by virtue of s7(c) as a person who aids and abets another person in committing the offence. The prosecution's case consists of evidence contained in two statements by the accused which are admitted into evidence. The first one (Exhibit 3) was taken on the 21st February, 1981 and the second one which is in the form of a record of interview (Exhibit 4) was dated the 25th February, 1981. The other evidence of some substance comes from the evidence of an accomplice Tindini Kelekele.

I observed the appearance and demeanour of the accused closely throughout the proceedings and as a witness in his own case. I have no hesitation at all to hold that he is a liar. Among other things, he has shifted his story to a certain extent in his evidence to the Court. His defence counsel conceded this diversion but claimed that his evidence in Court is the truth and not his previous statements to the police. The defence asked, why should he tell the police about the truth in the first place? Of course he is not obliged to tell the police the truth of the matter. However, he is naturally raising question as to his credibility by changing his story at the last minute. Nevertheless where there are however inconsistencies in the accused's evidence, it is a question of fact whether or not his previous story or his latest one is reasonably consistent with the truth, so as to be accepted. It involves an objective test and to be examined against the evidence before the Court as a whole.

Another related claim by the defence is that records of interview are not sworn evidence. True they are not, however once an accused has acknowledged and adopted his record of interview by his signature and conduct to be true and correct, especially if the content of what he says amounts to certain admissions of the truth, it would require cogent evidence on his part to say later that what is said in his record of interview is false. When an accused gives his story in the record of interview, which is usually just after the alleged crime has taken place, he normally gives it when he is facing a moment of truth and in some cases when there are no extraneous factors affecting his mind yet at that stage to tell lies.

As I have found the witness Keko not to be a witness of truth, I reject his evidence given in Court. I prefer the statements which he told the police to the evidence given at the end of a long trial some months later: R v Sapulo–Masuve (1973) No732 per Frost SPJ (as he was then) at 6. True, even if he has changed his evidence at the trial, there is no reason why...