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State v Joseph [1997] PGNC 64; N1582 (23 May 1997)

Unreported National Court Decisions

N1582

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1644 OF 1996
THE STATE
V
KALAPUS JOSEPH

Mendi

Lenalia AJ
19-21 May 1997
23 May 1997

CRIMINAL LAW - Wilful Murder - Not guilty plea - Trial - Criminal Code S. 299 - (Ch. No. 262)

CRIMINAL LAW - Wilful Murder - Trial - Evidence - Credibility of witnesses - Evidence unsafe and unsatisfactory

The accused was charged for wilful murder of the deceased. The dispute seemed to have arisen from the first State’s witness and the deceased stealing the accused’s step-father’s pig worth K120.00. Village elders got the 1st State’s witness pig worth K300.00 to replace that of the accused’s step father’s. It was from this that the first State witness and the deceased sought to recover their pig that the deceased met his death.

Held:

(1) Where the victim was alleged to have been shot by the accused in presence of only one state witness, and where the defence evidence shows that it was more probable that the deceased died as the result of only state witness careless handling of the home-made gun, it becomes the question of credibility of witnesses as which party should the Court believe.

(2) It could be unsafe and unsatisfactory to accept evidence of a State witness who could also be indicted as an accomplice.

Cases Cited:

The following cases are cited in the judgement:

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Roka Pep (No. 2) [1983] PNGLR 287

The State v Amoko Amoko [1981] PNGLR 373

Abi Do and Another v The State [1992] PNGLR 388

Counsel:

J Kesan for the State

B Aipe for the Accused

23 May 1997

LENALIA AJ: In this matter Karapus Joseph of Lamami village in Kagua has been charged that on 13th of August, 1996 at Lamami village he wilfully murdered one Karika Aipu a male person contravening S. 299 of the Criminal Code. The accused pleaded not guilty and the trial was conducted for three days.

Sworn evidence of the first State’s witness Yapa Waku is that at about 9 am on the 13th of August 1996, he and the deceased left their village (Pawayamo) to attend a marriage ceremony at Uma village also in Kagua. This witness is the only eye witness and the defence in their case even implicated this witness to be an accomplice. To go to Uma village, they had to travel through the main road to Purupari village the home of the accused. On their way Yapa and the deceased did not meet anybody.

As they turned into the bush track they saw three persons standing on the hill overlooking the tea plantation. By the time they walked past the accused village it must have been about 10.30 am. He alleges that unknown to him and the deceased, the accused and several others had set up an ambush to wait for this witness.and the victim. They walked past a sharp corner turning right, the victim heard somebody spoke on the side of the road. As he turned the accused shot the victim at close range. The victim died instantly. The first witness then fled for his life back the way they had come.

The description of distances given by this witness was that the deceased was about -3 metres away from him. That on the side of the track were over-grown tea trees but the accused was on the clear place who could be clearly seen. The victim was about 1-1/2 metres away from the accused and that the victim was shot at close range. The medical report confirms the view that the deceased was shot at close range.

There was also evidence by the second State witness Sii Lambaini a Village Court Magistrate that he walked past the accused village at about 9 am and saw four (4) young man manufacturing two home-made guns. Another home-made gun looked pretty old and this witness rebuked them strongly against having in possession or even manufacturing home-made guns. By the time this witness walked past the accused village he did not see the accused. He left as soon as he had spoken to those young men. He also wanted to attend the marriage ceremony at Uma Village then to his Village Court area for a joint sitting.

At the conclusion of the State’s case Mr Aipe for the accused applied to make a submission of “no case to answer”. He cited to the Court the cases of The State v Delga Puri and Another [1982] PNGLR 393 and The State v Roka Pep (No. 2) [1983] PNGLR 287 to support the proposition that the evidence adduced by the State did not support essential element of the charge and thus I should make a ruling in favour of the “no case submission”. After hearing Mr Kesan in reply, I ruled there was a case for the accused to answer: The State v Paul Kundi Rape [1976] PNGLR 96 and The State v Roka Pep (No. 2) [1983] PNGLR 287.

The defence put by the accused is contained in his own evidence, that of Pena Tekaka and the accused’s step-father Pamba Tendepo. The defence version is that in the morning on the date in issue, the accused was alone in his village near the Church. Both the State and defence’s evidence show that the accused is a Pastor of PNG Bible Church in his area. Apart from him the only minors with him was his son and a small girl. The accused evidence reveals that there was no planned ambush as alleged by the State as nobody knew about the deceased and the first state witness coming that way. Secondly, that the track where the deceased was shot is not a vehicular road nor is it used publicly as it only leads to the accused’s step-father’s house and his piggery. That this track only ends at the accused’s step-father’s house.

While the accused was around his village with the two minors the first State witness (hereinafter referred to by his name Yapa Waku) Yapa Waku and the deceased came. The deceased and Yapa Waka started arguing about the pig that was taken the day before the shooting and given to the accused’s step-father to replace his pig that was stolen two weeks earlier by Yapa Waku and the deceased. the accused’s description of the deceased and Yapa Waku is that their faces were both painted with mud and the two had two home-made guns and two aces slit into their belts on their sides. They also had leaves covering their heads.

During the course of this argument, Yapa Waku is supposed to have informed the accused that the pig given to the accused’s step-father belonged to him (Yapa Waku) and they were coming to take it back. The accused said he pleaded with them not to take the pig away because it would escalate the existing problem between them and the accused’s line. Yapa Waku and the deceased took no notice of the accused’s pleadings and the two proceeded towards the accused’s step-father’s piggery may be with the hope of repossessing of Yapa Waku’s pig.

The accused although frightened followed the deceased and Yapa still pleading with them encouraging them that it was not proper to do what the two were planning to do. The accused kept at a distance at the back of Yapa and the deceased while Yapa Waku was ahead of the deceased. As they came to a sharp corner where there is a drain, Yapa and the deceased crossed it got to the other side while the accused was still behind the drain, Yapa Waku warned the accused that if he crossed the drain, he would be shot. When this warning was being given Yapa Waku stood still and pulled the spring of this home-made gun. In the meanwhile the deceased tripped on a tea stump and fell. It is alleged by the accused that, it was there that the victim was shot accidentally by Yapa Waku who was trying to shoot at the accused. That soon after the shooting Yapa fled for his life.

Witness Pena Tekaka was a passenger in a Tipper Dump truck owned by the Kagua Local Government Council which came by the accused village first at the time when the accused was talking to Yapa Waku and the deceased. This witness evidence - confirms portions of the accused’s evidence. He corroborates the accused’s evidence that when the council truck came, it stopped at the accused village for a short time.

Within that brief stop, he over-heard the accused, Yapa Waku and the deceased having an argument over a pig. He also confirms that when they stopped, there was no body around the village. His evidence corroborates that of the accused that the deceased and Yapa Waku were in possession of an home-made gun each and that they also had axes. That their faces were covered with mud with leaves around their heads.

The driver took off again because he was frightened of Yapa and the deceased having guns in their possession. The vehicle did not go far, in fact the witness said it went to off-load gravel at a distance as from here to the banks. That would be approximately three hundred metres away from where they were stopped to where they off-loaded the sand gravel. His evidence is that after they had dropped the sand gravel, while still at the place where the gravel was off-loaded he heard one gun blast. This is consistent with the evidence given by the accused but at the same time inconsistent with the State’s version that there were about three or more shots fired.

As soon as they heard the gun blast, they took off and on their way, they met one of the two men they had seen earlier running so fast as he could. Then they proceeded to the accused’s village where they stopped again because the accused stopped them and told them that the driver should immediately report the shooting of the deceased to the police. The accused then said that Yapa Waku accidentally shot the deceased while trying to shoot the accused.

Witness Pamba Tendepo also the last witness is the accused’s step-father. The only relevance of his evidence is that, he confirmed that he was called to the scene about between 11 am and 12 noon. On arrival at the scene, he observed the body of the deceased. It may also be inferred from his evidence that there was no premeditated ambush as alleged by the State.

The medical report tendered by consent shows that the wound was located on the base of the neck on the right side. It extended downwards into the right chest cavity smashing the first rib and extended “medially to the cervical vertebral column”. The report also confirms evidence both by the State and the defence that the victim was shot at close range.

In closing the defence case, Mr Aipe invited the Court to carefully analyse the State evidence and that of the defence. He submitted that as the evidence stands it would be dangerous, unsafe and unsatisfactory to convict the accused. He cited the case of The State v Amoko Amoko [1981] PNGLR 373 to support the view that Yapa Waku is an accomplice and the Court must warn itself of the dangers of convicting the accused upon uncorroborated evidence of Yapa Waku alone. That case defines who is an accomplice and says that an accomplice is a person who could be charged on the same indictment with the principle offender.

Mr Kesan briefly replied that he adopted his submission in reply to the “no case submission” and apply it to his final submission. His view is that there is clear evidence by the State that the accused was responsible for the death of the deceased and that I should therefore find the accused guilty.

Apparently there were three persons on the scene, Yapa Waku, the deceased and the accused. That simply means that the shooting of the deceased is between either the accused or Yapa Waku. I must agree with Mr Kesan that the issue is the credibility of the two eye witnesses. Apart from the question of whom to believe, a number of other issues arise.

First the medical report, shows that the wound penetrated from the neck downwards into the chest cavity. This is suggestive of the possibility of being short from an elevation. If I were to accept the defence version and the explanation given by the accused that the victim tripped then fell, it would seem most consistent with the medical report. It would mean that at some stages of the process of falling, the deceased was hit by a gun shot. Either that or even he was already lying on the ground when he was shot.

The second view is that if I were to accept the State’s evidence that the accused aimed at the deceased at a level positioning it would be inconsistent with the medical report unless the accused stood on higher ground. The evidence clearly shows that, the accused shot the victim at level grounds. This might as it would seem rule out the possibility of the accused being responsible.

By looking at other pieces of evidence such as the number of shots fired on the scene, the State evidence is that three or more shots could have been fired, one at the deceased and the others at Yapa Waku which unfortunately missed him. Evidence given by witness Pena Tekaka reveals that there was only one shot fired. Obviously he was the most closest witness on the scene apart from the accused and the first witness. This witness was the most impressive witness of all the witness. I do not think he had any reasons to lie to the Court. His village is some 15-20 kilometres away from that of the accused and I do not think he would have lied to gain anything.

The State’s evidence is that a number of shots were fired. One by the accused at the deceased and another one or two at the first State witness. Witness Pena Tekaka for the defence gave evidence that he heard one gun blast. This confirms the accused evidence that at the time of shooting, he had no gun and the only shot fired was from Yapa Waku’s home-made gun. Tekaka’s evidence also corroborates that of the accused that, Yapa Waku and the deceased were carrying two home-made guns and they had painted their faces in mud. This piece of evidence matches well the accused evidence.

The medical report is more consistent with the accused’s version of the deceased falling then was accidentally shot by the first state witness. I cannot therefore accept the State’s version that the victim was shot at a level aiming position as it would mean the wound would have penetrated on the base of the neck on the right side with the possibility of going out through almost on the left side of the neck. the accused and Yapa Waku were the only two persons who saw which one of them shot the deceased. In a case where it is also most probable as in this case that Yapa Waku could have been responsible it is difficult to determine the guilt of an accused.

I hold therefore that it would be dangerous, unsafe and unsatisfactory to find the accused guilty. I acquit the accused and discharge him accordingly.

Lawyer for the State: The Public Prosecutor

Lawyer for the Accused: The Public Solicitor