The State v Yakoto Imbuni, Bokom Tambai, Yokole Kanja, Masolyau Pikali and Yaupati Pindau [1997] PNGLR 400

• Jurisdiction: Papua New Guinea
• Judge: Akuram J
• Judgment Date: 14 March 1997
• Court: National Court
• Citation: [1997] PNGLR 400
• Year: 1997
• Judgement Number: N1558

Full Title: The State v Yakoto Imbuni, Bokom Tambai, Yokole Kanja, Masolyau Pikali and Yaupati Pindau [1997] PNGLR 400

National Court: Akuram J

Judgment Delivered: 14 March 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1129, 1130, 1131 & 1132 OF 1995

STATE

V

YAKOTO IMBUNI, BOKOM TAMBAI (ESCAPE), YOKOLE KANJA (ESCAPE AFTER CONVICTION), MASOLYAU PIKALI, YAUPATI PINDAU

Goroka & Mount Hagen

Akuram J

4 November 1996

29 November 1996

20 December 1996

7 February 1997

14 March 1997

CRIMINAL LAW — Evidence — identification — persons not known before incident — caution on dangers inherent in acting upon.

CRIMINAL LAW — Evidence — Community handing in suspect — not mere conjecture — development of underlying law — weight to be placed.

CRIMINAL LAW — Evidence — Alibi defences — accuseds' evidence not believed — Alibis — false.

CRIMINAL LAW — Wilful Murder — Sentence — prisoner convicted but absent during sentencing — absence does not invalidate sentence/judgment.

CRIMINAL LAW — Sentence — Allocutus not administered — prisoner represented by Counsel — failure does not invalidate sentence/judgment.

CRIMINAL LAW — Wilful Murder — Sentence — life sentence — meaning — during the natural life of a person — Corrective Institution Act, 1959; Corrective Institution Act, Ch. 63; Correctional Services Act, No. 6 of 1995 — discussed;

CRIMINAL LAW — Wilful Murder — trial — convicted — Sentence — appropriateness.

All 4 accuseds, in company with others, armed with dangerous weapons, blocked the road, shot at and chopped the deceaseds in retaliation for the death of their clansman, a student of UNTECH in Lae. The accuseds offered alibi defences.

Held

1. The three deceaseds died at the hands of the four accuseds and others, Contrary to section 299 of the Criminal Code.

2. All four accuseds in company with others acted in concert in the prosecution of a common purpose within sections 7 and 8 of the Code.

3. After conviction prisoner escaped and absented himself before being administered allocutus and sentenced, does not invalidate sentence or judgment.

4. Court should place weight to the fact that Community leaders and people handing in suspects and not treat it as a mere conjecture supported by proper evidence.

5. Parliament in enacting Correctional Services Act, 1995, had intended that life sentence is "sentence during the natural life of a person and not to be commuted to a determinate number of years, nor remission to be considered".

6. An appropriate sentence in this case, taking into account the meaning of death and life sentences and the factual circumstances and considering section 19 of the code, a sentence of life sentence is warranted.

Cases Cited

John Beng v The State [1977] PNGLR 115

R v Raymond Turnbull & Ors [1976] 63 Cr. App. R. 132

George Kalupai v The State [1995] SC 492 (Unreported)

The State v Buka Pepekon & Ors [1995] (Unreported) dated 19th May (1995)

The State v Anis Noki [1993] PNGLR 426

The State v Kakas [1994] PNGLR 20

Tabe v The State [1983] PNGLR 10

Biwa Geta v The State [1988-89] PNGLR 153

Moses Aikaba v Tami [1971-72] PNGLR,155

State v Quati [1990] PNGLR 57

The State v Steven Luke Uma & Ors (Unreported) [1996] CR 686 of 1996 dated 6th February 1997

Public Prosecutor v Keru & Moro [1985] PNGLR 78

The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510

R v IU Ketapi [1971-72] PNGLR 44

R v Lokalyo Neak [1977] N632 dated 21st July 1971

Hure Hane v The State [1984] PNGLR 105

Regina v Peter Ivoro [1971-72] P&NGLR 374

The State v Ian Napoleon Seteb [1996] N1473 dated 31st October 1996

Goli Golu v The State [1979] PNGLR 653

Statutes Cited

Constitution SS. 35, 37 (3) & (4), Schedule 21.3, 2.2 (1), 2.3 and 2.4

Criminal Code Act, Ch. 262, SS. 7, 8, 19, 299, 571, 593 & 596

Corrective Institution Act, 1959

Corrective Institution Act, Chapter 63

Correctional Services Act, No. 6 of 1995

Counsel

Mr Kumo for the State

Mr Aipe for the Accuseds

23 December 1996

AKURAM J: The accuseds are each and severally charged that on the 20th of January, 1995 at Weimala Village, Wabag, Enga Province, in common purpose, they:

1. Wilfully murdered Leo Kende, a male person;

2. Wilfully murdered Geofrey Kende, a male person; and

3. Wilfully murdered Lau Kende, a female person,

Contrary to s. 299 of the CCA. Chapter 262.

BRIEF FACTS

State alleged that on Friday 20/1/95 at about 10 am the late Leo Kende and Lau Kende and their son Geofrey Kende and other relatives were on the way to Lae from Wabag in a Ford Utility vehicle driven by Leo Kende. They drove passed a double lane bridge and after passing it saw logs across the road blocking the road. They drove past the logs and drove to some distance away from a cemetery where a Unitech student was killed and buried. There they came across a human road block and people holding axes, knives and guns.

Late Leo Kende tried to make a U-turn to return to Wabag. A shot was fired at him. He was injured and couldn't drive any further. He was approached by accuseds' and others. Deceased was shot through the head with a gun and also his wife. Their son was dragged some distance and axed to death. During the time of killing there was use of knives, axes and guns on the body of Lau Kende, Leo Kende & Geofrey Kende. All accuseds surrendered to police. Accused Bokom Tambai had escaped and Warrant of Arrest issued. All accuseds pleaded not guilty.

The evidence of witnesses is discussed, where relevant, below.

REASONS FOR DECISION

This trial took a total of almost three weeks and two days. There are about five hundred pages of hand written evidence in five note books. I have summarised them into about 70 pages.

The Counsels' submissions also has about 60 pages of both typed and hand written.

The accuseds are charged that they in common purpose wilfully murdered one Leo Kende, Lau Kende and Geofrey Kende. They were also charged with attempted murder of another person which is still pending.

I have focused my attention, inter alia, when summarising the evidence on the incidents between 10 am to 11 am that day. I also looked at the evidence in relation to Yapoko Imobuni & Masolyau Pikali from the double bridge to their houses and the distance from double bridge to Birip and Akom.

I have also concluded at the end of each of their (4 accuseds') evidence of whether I believe or do not believe them and also of their alibi evidence. I did the same for the State witnesses. My conclusions were that I do not believe the accuseds evidence but I do believe the evidence of the State witnesses.

However, the evidence has raised four issues which I will discuss below. These are the issues of identification at the scene and at the Police Station ID parade; the issue of surrendering or being given to police by elders and members of the Community where the accuseds come from; and the issue of alibi evidence, coupled with the hand written note.

1. Alibi Evidence

I will dispose of the alibi evidence first. All I can say is that I did not believe the evidence of alibi witnesses for the reasons I gave at end of each of summaries of their evidence. The main reason being that the note written to Paul Kain clearly showed that this story of alibi was fabricated.

Apart from Yakole Kanja, the other three accuseds produced alibi witnesses. First I did not believe the accuseds own stories and secondly I did not believe their witnesses' stories due to a lot of inconsistencies which I pointed out in my summary of each witnesses' evidence which I do not wish to repeat. I will therefore not go through their evidence again.

2. The Handwritten Note By Yaupati Pindau To Paul Kain

This note is very impressive in that it advises the witness (Paul Kain) that the two witnesses who already gave evidence were very good. It also informs the witness that he is not to reveal the real names of the writer (Yaupati Pindau) and that of Masolyau Pikali whose real names were Kopilyo (writer) and Naopaege Lapele. He than advised the witness to say that police took some names and came and asked for those named or anybody to take their place to give themselves up to the police. And that police will release them after about 3 or 4 days of being in custody.

This piece of advice to this witness has put into grave doubt about the truthfulness or honesty of their evidence in relation to their story. The least I can say is that it is all fabricated evidence by the defence. I therefore do not believe that the police had provided names by themselves but the names were provided with the assistance from the Witness Paul Kain and other leaders in the Community. However, it is a normally held fear by villagers in the Highlands that when such an incident as in this case take place, they expect police to raid villages but not in all cases. I also do not believe the defence evidence that police made promises that whoever gives himself to police will be returned in three or four day's time. This view goes counter to the usual police...