The State v Upano Manake (No 1) (2006) N3386

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 20 October 2006
• Citation: (2006) N3386
• Docket Number: CR NO. 1187 OF 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3386

Full Title: CR NO. 1187 OF 2006; The State v Upano Manake (No 1) (2006) N3386

National Court: Kandakasi, J

Judgment Delivered: 20 October 2006

N3386

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1187 OF 2006

THE STATE

-V-

UPANO MANAKE

(N0. 1)

Kerema: Kandakasi, J.

2006: 17, 18 and 20 October

DECISION ON VERDICT

CRIMINAL LAW- Verdict – Wilful murder charges – Death by drowning – Both deceased hands tied with barbed wire to their backs - Most facts not in issue except for accused involvement and commission of the offence – State establishing a prima facie case against accused - Accused claiming forced by gang he had no dealing with to join in commission of pre-planned armed hold up – Accused had opportunity to escape but did not – Accused failure to report to police or other community leaders - No evidence of direct and continuing threat – Accused account lacking credibility – Verdict of guilty returned.

EVIDENCE – Acceptance or rejection of evidence dependant on credibility of witnesses and their evidence – Logic and commonsense do play major part in acceptance or rejection of evidence – State evidence found credible – State’s evidence accepted - Defence evidence inconsistent with logic and commonsense - Defence evidence rejected.

Papua New Guinea Cases Cited:

The State v. Cosmos Kutau Kitawal & Anor (No.1) (15/05/02) N2266.

The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.

Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.

Paulus Pawa v. The State [1981] PNGLR 498.

Vaii Rocky Maury v The State (20/07/01) SC668.

The State v Ben Noel & 2 Ors. (31/05/02) N2253.

Regina v. William Taupa Tovarula & Ors [1973] PNGLR 140.

The State v Paul Maima Yogol and Dama Teiye (21/05/04) N2583

The State v. James Gatana and 3 Ors (19/04/01) N2127

Overseas Cases Cited:

R. v. Coney (1882) 8 Q.B.D. 534.

Counsels:

Mr. D. Mark, for the State.

Mr. P. Kapi, for the Prisoner.

20 October, 2006

1. KANDAKASI J: On the 17th of this instant, you pleaded not guilty to two counts of wilful murder contrary to Section 299 of the Criminal Code. In a bid to establish the charge against you, the State tendered into evidence a number of documents, which included your record of interview with the police. The State also called JE who gave a sworn testimony against you. In your defence, you gave a sworn testimony as well.

Undisputed Facts

2. Most of the facts are not in issue and they in essence constitute the State’s case. The State’s case is this. A group of two boys Hebex and Nanu Mahia with two girls, N and J E (“the Kerema group”) from Kerema left Kerema and were heading for Lae on foot from Mamuro after getting there by dinghy from Kerema on 21 September 2005 through the mountains of Kanabea. After walking for a couple of days, the group arrived at Kanabea. On the 4th of October, the group continued its journey but this time joined by a Jacob Mark at Kanabea as the group’s guide or escort. Whilst on the way near the Taure River, a gang of 5 armed men held up the Kerema group, stole their belongings, raped the girls, tied the hands of the boys as well as the girls and threw them into the Taure River. The girls managed to free themselves and swam ashore to safety. The boys however, drowned and died as their hands were tied at the back with barbed wires. One of the boys’ bodies was found by a search party about a week later. The body of the other Mahia boy has not been found.

Claims of the Parties

3. The State’s claim is that you were part of the armed gang and was an active participant in the commission of the offences that were committed against the Kerema group. You admit to being there with the armed gang. However, you claim that the armed gang forced you to be part of them by threats against you. The trial that took place on the 17th was to enable the Court to determine whether you were a free and willing participant or someone forced to be part of the armed gang.

Evidence

(i) State

4. The State’s evidence from JE starts with, the Kerema group heading for Lae through the Kanabea mountains. On 21 September 2005, the group caught a dinghy and went to Mamuro. From there, they walked to Kanabea, reaching Kanabea on 3 October 2005. In the afternoon of that day, Hebex Mahia met a man, later became known as Jacob Mark, who decided to take the Kerema group to Lae.

5. The next day, being the 4 October 2005, the Kerema group with Jacob Mark who became the group’s escort and guide led the way. On the way, they got to a junction of two tracks, one leading in the left and the other leading in the right direction. Initially, Jacob Mark directed the Kerema group to follow the right track but after following it for some time, he told them that it was not the correct track and directed them to return and take the left track. Jacob Mark then left the Kerema group to follow behind and he went right ahead, to check out a river, the Taure River. When the Kerema group got to the river, they saw Jacob Mark sitting on a graveyard. The group joined him for a rest and proceeded to have their lunch as it was also lunch time by then.

6. After having their lunch, the Kerema group saw a track and asked to find a canoe to cross the river to the other side but Jacob Mark told them that, that track led to a garden and if they took it, they might be attacked. Nanu Mahia then said he could walk down and swim across the river and find them a canoe. Then all of a sudden, a group of five men armed with bows and arrows and bush knives confronted the Kerema group and surround them. The armed gang ordered the Kerema group not to move or do anything and threatened to kill them if they did. Jacob Mark quickly joined the armed gang and took away the Kerema group’s bags. NE, begged the armed gang for mercy and pleaded with them to take only the bags, but the armed gang did not heed that plea. The armed gang proceeded to tie Nanu and Hebex’s hands at their backs with barbed wires. Thereafter, the armed gang separated the Kerema group into girls from the boys. They then took the girls into the bush and each of the 6 armed men including Jacob Mark took turns in raping them. Four of the gangsters went first living two of the armed gang members behind with the Mahia brothers.

7. The State’s only eye witness stated that you were part of the armed gang and was one of them that raped her and her sister. She went on to say that, after she and her sister were raped, the gang took them to the place where the Mahia brothers were left behind. Under examination in chief, this witness said you were one of the two men that were left behind with the Mahia brothers. However, under cross-examination, she said you were one of the 4 men that returned with her and her sister after the acts of rape. She explained that her earlier evidence was meant to say that you were one of the assailants that were there at the scene after the rape of her and her sister.

8. The State’s witness continued to testify by saying, on return to the scene where they were initially held up, she asked one of the gangsters, a Kaukesa, who appeared to be the ring leader, what happened to the two boys. Kaukesa’s response was I pushed them into Taure River, which was by then fast flowing. The witness then told the gang to tie hers and her sister’s hands as well and throw them into the river so that she and her sister could die with the Mahia brothers. The gang obliged by tying their hands with vines with their hands in front. Thereafter, the gang pushed them into the Taure River. Fortunately however, the girls managed to get their hands freed and swam ashore to safety. They then found their way to Kanabea station, more specifically to a policeman’s house and report what had happened to them. About a week later, a police search party found one of the Mahia brothers’ decomposed body floating amongst some logs at the foot of the Taure River. The body of the other Mahia son has not been found and recovered.

Your Evidence

9. In your defence, you gave a sworn oral testimony. You testified that, on the relevant date, 4 October 2005, you left your village Hu’yu in Kotidanga, Gulf Province, for your uncle’s place. On the way, you met 4 men, namely, Kaukesa Seras, Raymond Thomas, Martin Joe and Frank Michael, who were all armed with bows and arrows and bush knives. These boys tricked you into following them to the Taure River to cook some food. As you went along with them, they told you that they planned to execute an armed hold up plan against two boys and two girls from the coast. You were unhappy with that and said to them that they should have informed you of their plans at the time when they first met you. If they did, you would have declined going with them. They told you to shut up and threatened to kill you and asked you to cooperate with them. You feared for your life and just followed the gang’s orders.

10. Soon the gang came upon the Kerema group at a cemetery close to the Taure River. Jacob Mark was with the Kerema Group. The gang that you went with took the Kerema group with surprise...