N3279

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1767 OF 2003

THE STATE

-V-

TUKAL WANINARA (N0.2)

Kokopo: Lenalia J
2006: 5 December

CRIMINAL LAW – Wilful murder – Charge of – Not guilty plea – Trial – Evidence – Criminal Code s.299. . 

CRIMINAL LAW – Trial – Evidence – Elements of charge – Intent absent – Alternative verdict reached. 

Cases cited.

The State v Paul Kunidi Rape [1976] PNGLR 96
The State v Angela Kolis Towavik [1981] PNGLR 140
The State v Raphael Kuanande [1994] PNGLR 512

Counsels:

Mr. L. Rangan, for the State
Mr. J. Isaac, for the Accused

5 December, 2006

1. LENALIA, J: The accused pleaded not guilty to one count of wilful murder, an offence contrary to s.299 of the Criminal Code. A trial was conducted but it was interrupted by a number of adjournments on the application by the State lawyer on the basis that two key witnesses were not available. In fact two Summonses to Appear were issued for those two witnesses. Those two witnesses never turned up.

EVIDENCE

2. The brief facts of this case are that on 13 July 2003 at Vunadavai village, North Coast area of this Province, the victim in this case Wartoli Votoi Kolis was around with a number of friends in Robin Palaua’s house to cook some food. While they waited for the food to be cooked, they laid on the bed or platform to rest and told stories. 

3. The evidence is that the victim recalled that he had placed three bananas over the fire to be roasted and he walked over to the fire to turn the bananas over in case they were burnt. As he walked over to the fire place, the accused attacked him by using a long bush/knife.

4. The evidence by the State came from three statements which were tendered by consent. Those statements are for witnesses number 4, 6 and 7 (Exs. "A", "B" and "C"). The oral evidence came from Mr. Esekia Kaumat and Senior Police Constable David Tomur. Witness Esekia Kaumat did not actually see what occurred on the scene as he was a distance away. Esekia’s evidence is that, he was sitting down on the road junction with another person Tobby Sakius when the accused ran out to them from the track to the main road and passed them without saying good evening to them. 

5. He did not say anything to them. When he returned a few seconds later, Esekia offered him a smoke but the accused did not accept the offer and did not even say anything to this witness and Sakius. This witness said when the accused came to them, he had a long coconut basket and he had in his possession a long bushknife. He said while they were talking to the accused, they heard people crying. 

6. They then ran up to Robin’s house. On arrival, this witness said he saw the victim lying down with his intestines hanging outside his belly and the people were trying to push the intestines back into the victim’s stomach. 

7. In examination-in-chief and cross-examination, Esekia was asked if by the time the accused came and found him and his friend on the road junction, it was already dark. 

8. He answered by saying it was already dark. Further asked if there were any source of light. He answered by saying there were no lights however, there was moonlight and he could see that the knife was blood stained. According to this witness evidence, when he saw the bloody bushknife he knew straightaway that the accused might have caused some problem somewhere.

9. The second witness was Senior Constable David Tomur. He was the corroborator to the investigating officer in this case. His evidence is that, when the accused was interviewed, he told the investigating officer that, as he (accused) approached the victim, he swung his fist at the deceased. However, the deceased avoided the blow and with the weight of such blow, the bush/knife which was in his basket accidentally cut the victim on his abdomen. 

10. On the statements tendered made by or obtained from Eliakim Palangia, Kolis To Vue and Henry Akuila, these witnesses were not on the scene of the crime. In each of those statement, they say they were somewhere else that evening and when they heard the bad news and heard people crying on the scene, they all ran to the scene where they found out that the victim was lying down with his intestines being exposed and lying on the ground beside the deceased.

11. At the end of the prosecution case, Mr. Isaac of counsel for the accused made a submission of no case to answer. He made his submission on the basis of the principles enunciated in the case of The State v Paul Kundi Rape [1976] PNGLR 96. On 18th of October, I handed down my decision on which I ruled that there was a case for the accused to answer and called upon the accused to give evidence and call witnesses if he had any.

DEFENCE CASE

12. On 19th of October, the accused chose to give evidence from the dock. The defence evidence is much similar to that of the State in the sense that the description on the scene is similar in all aspects. However, the accused’s version of what occurred between him and the deceased is totally different from that of the prosecution. 

13. The accused’s evidence is that when he came upon the victim and those who were cooking near Robin Palaua’s house, the victim asked him (accused) who he was. The accused answered that he was Tukal Waninara. Then the victim jumped to his feet and swore in the ‘pisin’ language by saying ‘you kaikai kan blong mama blong you’ meaning you eat your mother’s vagina. This might have been highly provocative and insulting to the accused. 

14. After swearing, the accused’s version is that the victim then swung his bush/knife at him. He ducked to avoid the knife blow and at the same time tackled the victim down to the ground. Whist on the ground, the accused slept on top the victim. Then the victim overpowered the accused and turned him around and he in turn slept on the accused. After that, the accused said, he pulled out his bushknife and ran away. He later learnt that the victim was hurt and taken to the hospital.

ADDRESSES

15. Mr. Isaac of counsel for the accused addressed the court on the three elements of the charge and the nature of the evidence. He submitted that, the State has not proven the case to the required criminal standard of proof namely "proof beyond reasonable doubt". The elements of the charge of wilful murder are:

1. A killing must have been committed,
2. That such killing was unlawful, and
3. The accused must have had the intention to kill 
 the victim.

16. Counsel submitted that the essential element of the intention to kill has not been made out. The second part of the defence submission is that, their client acted in self-defence to defend himself from the victim. They further submitted that s.269 of the Criminal Code is a complete defence and their client should not be found guilty. 

17. Mr. Rangan of counsel for the State conceded to the defence submission that, there may not be an element of intention to kill but the court should exercise its powers under s.539 of the Code to make an alternative finding either for murder or manslaughter.

LAW

18. Under s.299 of the Criminal Code, one of the very essential elements to be proved is the "intent" or "intention" to kill. Looking at the evidence, there is evidence that, the death occurred because of the unlawful action by the accused. The defence argues that the accused may have acted on self-defence. That is to say that the accused did what he did because of fear of being attacked. The appropriate proviso in the Criminal Code is s.269. This Section states:

"269. Self-defence against unprovoked assault.

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) If—

 (a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

 (b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm."

19. The death of the deceased has been established. It is necessary now to consider the nature of the assault as to whether it was such as to cause reasonable apprehension of death or grievous bodily harm whether the accused then believed he could not preserve himself from death or grievous bodily harm except by using the force he applied: The State v Angela Kolis Towavik [1981] PNGLR140. 

20. The defence case has two different versions now. First in the record of interview, the accused told the police interviewing officer that, the deceased got angry with him and swore at him. The interviewing officer asked the accused in question 17 and the accused answered in the following manner:

"Q.17. You stated that Votoi got angry with you, when did that 
happen?

A.	He swore at me on Friday, and when I arrived at where they were, he jumped forward and swung his hand at me where I tried to avoid him and the knife in the basket penetrated into him. When the knife chopped Votoi the two boys and I ran away."

21. That piece of evidence is confirmed by the corroborating officer Police Constable David Tomur. This police officer was present during the record of interview when the accused was interviewed. 

22. The second version of the accused evidence is the more recent one on his oral testimony. In his evidence in court the accused said, when he came to where the boys were cooking, the victim called out to him and swung a bushknife at the accused. The accused ducked to avoid the knife blow from the victim and in that process the bush/knife in his long basket accidentally cut the victim. 

23. The accused himself contradicted himself in his sworn testimony and what he earlier revealed to the police during the process of the record of interview. I am minded to accept the version put in the record of interview which was confirmed by the investigating officer in his testimony. 

24.	Under s.299 of the Criminal Code, the element of intention to kill must be clearly proved beyond reasonable doubt. The element of intention to kill is absent from the evidence on this trial. As was stated in The State v Raphael Kuanande [1994] PNGLR 512, the element of intention is something that goes to the state of mind at the time the offence is committed. 

25. As well as that, the defence of provocation raised by the defence under s.269 of the Code does not hold any water. This court is empowered to make an alternative finding under s.539 of the Code which provides:

"539. Charge of murder or manslaughter.

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(2) On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(a) unlawfully doing grievous bodily harm to such other person; or

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

(c) unlawfully wounding such other person; or

(d) unlawfully assaulting such other person."

26. Having found that there being no evidence of the essential element of "intent" or intention to kill, I find the accused not guilty of the offence of wilful murder. I instead return a guilty verdict for the offence of murder under the terms of s.539 of the Criminal Code. I therefore find the accused guilty on the alternative charge of murder under s.300 of the Code.
________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for Accused