The State v William Lare, Camilus Markus, Alwinus Emil, Nathan Thomas, Alphonse Lare, Nerius Kuang Jnr, Nathaniel Kenmi, Joshua Bruno, Kaluban Caspar, Paskalis Lare, Brian Bure, Boniface Raphael, Berry Bruno And Jonah Bruno (No 2) (2019) N7909

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 15 July 2019
• Court: National Court
• Citation: (2019) N7909
• Docket Number: CR Nos. 1043, 1044, 1045, 1048, 1050, 1051, 1053, 1054, 1055, 1056, 1060, 1061, 1062 and 1063 OF 2016
• Year: 2019
• Judgement Number: N7909

Full Title: CR Nos. 1043, 1044, 1045, 1048, 1050, 1051, 1053, 1054, 1055, 1056, 1060, 1061, 1062 and 1063 OF 2016; The State v William Lare, Camilus Markus, Alwinus Emil, Nathan Thomas, Alphonse Lare, Nerius Kuang Jnr, Nathaniel Kenmi, Joshua Bruno, Kaluban Caspar, Paskalis Lare, Brian Bure, Boniface Raphael, Berry Bruno And Jonah Bruno (No 2) (2019) N7909

National Court: Anis J

Judgment Delivered: 15 July 2019

N7909

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1043, 1044, 1045, 1048, 1050, 1051, 1053, 1054, 1055, 1056, 1060, 1061, 1062 and 1063 OF 2016

THE STATE

V

WILLIAM LARE, CAMILUS MARKUS, ALWINUS EMIL, NATHAN THOMAS, ALPHONSE LARE, NERIUS KUANG JNR, NATHANIEL KENMI, JOSHUA BRUNO, KALUBAN CASPAR, PASKALIS LARE, BRIAN BURE, BONIFACE RAPHAEL, BERRY BRUNO and JONAH BRUNO

(No 2)

Kokopo: Anis J

2019: 10 & 15 May, 19 June, 15 July

CRIMINAL LAW – wilful murder – section 299 – Criminal Code Act Chapter No. 262 - confessions in statements and records of interviews – whether evidence obtained followed due process - whether more or less weight should be given to confessions obtained in records of interviews and in the statements of some of the co-accused – identification – whether witnesses evidence identify all, some or none of the accused – circumstantial evidence – whether the evidence were such that there were no other reasonable hypothesis to be drawn except that the 14 co-accused had wilfully murdered the two deceased – sections 7 & 8 of the Criminal Code – whether the 14 co-accused were principal offenders – whether the 14 co-accused had common intentions to carry out unlawful purposes or acts and in so doing they also committed wilful murders which were the probable consequences of their common intentions

Cases Cited:

Papua New Guinea Cases

State v. William Lare and 17 Ors (2019) N7851

State v. Joe Ngotngot (2016) N6306

State v. James Paru (2017) SC1632

State v Kelly Minong (2016) N6271

John Beng v The State [1977] PNGLR 115

Paulus Pawa v. The State [1981] PNGLR 498

State v. Cosmos Kutau Kitawal & or (No. 1) N2266

State v. Tom Morris [1980] PNGLR 493

Overseas Cases

Barca v. The Queen [1975] 133 CLR 82

Counsel:

Ms J. Batil with counsel assisting Ms Omena, for the State

Mr E. Paisat, for the Fourteen Accused

VERDICT

15th July, 2019

1. ANIS J: This matter was trialled in May and June of 2019. On 15 May 2019, the defence closed its case. Presentation of submissions proceeded on 12 and 19 June 2019. I reserved my decision on verdict to 1:30pm on 3 July 2019. My decision was not ready and the matter was further adjourned to today at 1:30pm.

2. This is my ruling.

BACKGROUND

3. The matter commenced like this. On 4 April 2019, the State presented 3 separate indictments against 18 co-accused. The names of the 4 co-accused who were subsequently discharged from this proceeding were Francis Suang, Blasius John, Bart Talcicius and James Oscar. The 3 indictments are summarised as follows:

Indictment No. 1: 2 counts of wilful murder of Bernard Mursing and Ereman Kle against each of the then 18 co-accused;

Indictment No. 2: 1 count of attempted to unlawfully kill one Patrick Tentau against each of the 18-co accused; and

Indictment No. 3: 9 counts of wilfully and unlawfully setting fire upon houses that belonged to 9 families, that is, against each of the 18 co-accused.

4. The State opted to trial the first indictment, that is, for the alleged wilful murder of Bernard Mursing and Ereman Kle (the 2 deceased). The charges in the first indictment were brought under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code). The State has indicated that it will pursue the remaining 2 indictments at a later date before a separate Court. This trial therefore proceeded dealing only with the first indictment.

5. At the close of the prosecution’s case, the defence made a no case to answer application. On 10 May 2019, I handed down my ruling. The application was partially granted in that co-accused Francis Suang, Blasius John, Bart Talcicius and James Oscar were found to have no case to answer to, and they were discharged from the charges of wilful murder. The decision was published on 10 May 2019 as State v. William Lare and 17 Ors (2019) N7851.

6. After the said ruling, the defence counsel requested time to seek instructions from his clients. When the matter returned on 15 May 2019, the defence counsel informed the Court that the 14 remaining co-accused have decided to exercise their rights to remain silent, and the defence closed its case. The matter was adjourned to 12 June 2019 for presentation of submissions on verdict. The defence counsel was not ready then, so it was further adjourned to 19 June 2019. When the matter returned, the defence counsel asked for more time. The application was declined. The Court then heard and received submissions from the parties. I received written submissions from the State. As for the defence, despite sufficient time being given, counsel did not prepare and file any written submissions.

INDICTMENT

7. The 14 co-accused come from Merai and Urai villages, in Pomio District of East New Britain. In relation to the first count, they, and I quote in part, stand charged that each and severally, on the 20th day of January 2016, at Mak Village, Sinivit LLG, Pomio District, East New Britain Province in Papua New Guinea, wilfully murdered BERNARD MURSING. In relation to the second count, again, the 14 co-accused, stand charged that each and severally, on the 20th day of January 2016, at Mak Village, Sinivit LLG, Pomio District, East New Britain Province in Papua New Guinea, wilfully murdered EREMAN KLE.

8. The brief facts that support the 2 counts of wilful murder read, and I quote in part:

1. On Wednesday the 20th of January 2016, between 4am and 8am the accused persons namely, William Lare, Alwinus Emil, Alphonse Lare, Paskalis Lare, Camilus Markus, Francis Suang, Nathan Thomas, Bart Talsisius, James Oscar, Brian Bure, Boniface Raphael, Berry Bruno, Jonah Bruno, Nerius Kuang Jr, Blasius John, Nathaniel Kenmi, Joshua Bruno and Kaluban Casper who are from Merai and Urai Villages were seen at Mak and Sumsum Villages in the Sinivit LLG, Pomio, East New Britain Province.

2. It is alleged that on that date, place and time, the accused persons, attacked, the Sulka people living at Mak Village in the Sinivit LLG, Pomio District, killing two men namely Bernard Mursing and Ereman Kle.

3. The accused persons were armed with stones, sling shots, bush knives, axes and sticks. They were seen kicking the door open to Bernard Mursing’s house and attacking him by chopping him to death.

4. The accused persons then left Mak Village and went to the neighbouring Sumsum Village. When they came back, they attacked some boys in a boy-house, and killed Ereman Kle by chopping him to death.

5. The State alleges that the actions of the accused persons contravene section 299 of the Criminal Code in that they each and severally wilfully murdered Bernard Mursing and Ereman Kle.

6. The State invokes section 7 of the Criminal Code in that the accused persons aided and abetted each other in the commission of the crime.

7. The State further invokes section 8 of the Criminal Code in that the accused persons had formed a common intention to attack the people of Sulka and destroy their properties and in the prosecution of that unlawful purpose they killed Bernard Mursing and Ereman Kle.

EVIDENCE

9. The State called a total of 9 witnesses and tendered, without objection, a total of 32 exhibits. The 14 co-accused have exercised their rights to remain silent, and tendered, without objection, 1 exhibit.

ISSUES

10. The issues that arise are as follows. Firstly, whether the State has established beyond reasonable doubt that the 14 co-accused were present at the crime scenes at the material time with the group of people that attacked Mak village in the morning of 20 January 2016. The next issue is whether the circumstantial evidence prove beyond reasonable doubt that the 14 co-accused participated in the killing of the 2 deceased. And the third issue is whether the 14 co-accused unlawfully and intentionally killed the 2 deceased.

COMMON GROUND

11. The parties are at common ground on the following. Firstly, that on the morning of 20 January 2016, a group of men from the 2 villages, namely, Merai and Urai, attacked the people of Mak and Sumsum villages, which are located in the Sinivit LLG of Pomio District of East New Britain.

12. The parties are also at common ground that on that day and morning, the 2 deceased were killed by their attackers at Mak village. The causes of their deaths are also not in issue, that is, they each died of loss of blood after they both sustained severe cuts to their bodies that morning during the attack at Mak village by the Merai and Urai people.

CONFESSIONAL STATEMENTS/ADMISSIONS

13. I prefer to address confessional statements and admissions made by some of the co-accused. At the outset, the State tendered without objection 14 records of interviews of the 14 co-accused. And of the 14, 6 appear to contain admissions. The State has also...