N3555

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1147 OF 2007
(NO. 1)

THE STATE

V

ILAI BATE of VAKUTA, ALOTAU, MILNE BAY PROVINCE
Accused

Alotau: Davani .J
2008: 17th, 18th, 19th September

CRIMINAL LAW – Wilful murder – trial – no legal Defence – whom to believe – weighing of evidence – s.299 of Criminal Code Act

CRIMINAL LAW – Element of intention – not proven – conviction on alternative charge – manslaughter – s. 539 of Criminal Code Act

Facts

State alleged that the accused stabbed the deceased with a steel yam digging stick. Accused denied the charge claiming to be in his house with his parents and brother. However, the main State witness said in evidence that it was the accused who attacked him, then chased him for about 50m, using the steel yam stick as a weapon which he swung at the witness on 3 occasions and missed. State witness also recognized the accused as the man who fought him because he had been his neighbour for about 7 years. The State witness also said that it was that same steel yam digging stick which the accused swung at him, which missed him and struck the deceased on the head, causing serious injuries and instant death.

Issues

i.	In the absence of a legal Defence, how can the Court deal with the accused’s version of evidence?

ii.	Is the accused guilty of wilful murder?

Held

i.	The Court gave careful consideration to the accused and witnesses’ evidence and struck a balance between what is logical and more probable of human comprehension and what is illogical or plain fallacy.

ii.	The Court found the accused guilty of the alternative charge of manslaughter.

Cases cited:

Papua New Guinea Cases

State v Tu’Uo Ibru (1999) N1940
John Ben v The State [1977] PNGLR 115
State v Raphael Kuanande [1994] PNGLR 512
State v Kauva Kavau and Kamo Kauva (1996) N1523
State v Sapera Kaki CR 225 of 2000

Overseas Cases

Woolmington v DPP [1935] AC 462

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

VERDICT

19 September, 2008

1.	DAVANI .J: This matter proceeded to trial after Ilai Bate (the ‘accused’) pleaded not guilty to one count of wilful murder, charge laid under s.299 of the Criminal Code Act (‘CCA’). This provision reads;

"299. Wilful murder

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	A person who commits wilful murder shall be liable to be sentenced to death."

State’s allegations

2.	The State alleges that in the early hours of the morning on 5th May, 2007, Daniel Bate, the accused’s brother was assaulted and chased towards the direction of his house. Daniel Bate then called out for help and several people came to his aid, chasing those who had assaulted Daniel Bate. Then, the victim and others, one of whom had assaulted Daniel Bate, then got into a vehicle to drive out. The State alleges that this was when the accused, threw a crowbar he was holding, at one Trent Wesley (‘Deceased’). The crowbar struck the deceased on the left side of his head, protruding through to the right side. The State alleges that the deceased died as a result of this injury.

3.	The State alleges that the accused intended to cause the deceased’s death.

State’s evidence

4.	The State called one Michael Dulo, the person who was chasing Daniel Bate and who was later chased to a truck, where the accused then attacked him with a crowbar.

Defence

5.	The accused’s Defence is that he was never at the scene of the crime. He elected to give sworn evidence together with his mother and father. Their evidence is that the accused’s brother was beaten up by some people, after which his brother and the accused together with the accused’s parents, then took their brother and son, Daniel back to their house. The accused’s contentions are that he was not the one who wielded the crowbar that struck the deceased because he was never there.

Analysis of evidence and the law

6.	The State’s evidence is that it was the accused who struck the deceased with the crowbar. But the accused said he was never there. I will review the evidence for a determination as to what actually happened.

i.	Events leading up to the fatal "spearing"; Michael Dulo, the State’s witness, said that evening he was at a canteen buying some drinks, when the accused’s brother, Daniel Bate came up to him. He was swearing and being abusive. That was when Michael Dulo and him grappled and fought. They fought along Kirriwina Street, when others came in to aid Daniel Bate and chased Michael Dulo. He retreated by running back to the vehicle that he had parked in front of the canteen in which the deceased and two others were.

Michael Dulo said amongst the people who gave chase were the accused, his mother and brother.

ii.	The fatal "spearing"; Michael Dulo said whilst running back to his parked vehicle, he sometimes had to stand and fight with the accused. He said that was when the accused, whilst armed with a crowbar, swung at him, three times, which he had to duck to avoid.

Michael Dulo said as they were outnumbered, he called out to the boys to get into the vehicle. They all got into the vehicle when he saw the accused throw or swing the crowbar at them. He said he managed to push one of the occupants down which the crowbar missed. He could not do the same to the deceased, who received the full force of the blow in his head.

iii.	Accused’s involvement in the fight; The accused maintains that he was never at the scene of the fight or never gave chase to Michael Dulo all the way to Michael Dulo’s vehicle. He said he left when his mother called out to him to help his brother who was lying on the ground after the scuffle with Michael Dulo.

iv.	Identification or recognition; Michael Dulo said he recognized the accused because he used to reside for 7 years on the same street as the accused. He said that night the canteen lights and the street lights were on so he could see who his attackers were.

The accused however said there were no street lights on that night. Neither party have brought independent evidence on the existence or not of street lights that night. So whom can I believe? It means that I must then have recourse to the law of identification. The principles on the law of identification is well established in this jurisdiction, more particularly the case John Beng v The State [1977] PNGLR 115 where Kearney. J held that recognition is not the same as identification although the weight to be granted to it depends on the length and degree of prior acquaintance. In that case, Kearney. J developed the principles to be taken into account when assessing the accuracy of witnesses’ evidence;

"What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime…position of the parties, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification."

Although there are dangers inherent in identification evidence, I also remind myself that recognition is more reliable than identification of a stranger (State v Kauva Lavau and Kamo Kauva (1996) N 1523 but mistakes in recognition of even close relatives and friends can be made (John Beng v the State (supra)).

v.	Accused’s parents’ evidence; Generally, both of them say their son, the accused, was assisting them take their other son into their house so he could not have been the deceased’s attacker because he was not at the scene of the crime.

vi.	Who "speared" the deceased Trent Wesley?; Although Michael Dulo is adamant that he recognized the accused as being the wielder of the crowbar that inflicted the fatal blow, the accused maintains that he was with his parents when that occurred. His parents maintain the same story.

First, no doubt this is a case that rests very much on whom the Court should believe. It is also a case of the weighing up of evidence and drawing inferences where necessary.

For the State, Michael Dulo is the only witness and also the person who was actually involved in the fight. Before I make conclusions on his evidence in relation to identification or recognition of the accused, I will review the accused’s parents’ evidence, who were the accused’s only witnesses.

They say Michael Dulo chased their son Daniel Bate, assaulted him and he fell to the ground. Then, Daniel Bate called out for help which prompted his parents and the accused to come out of their house. They said at that point, Daniel Bate was exchanging punches with Michael Dulo when his mother heard Daniel Bate call out to them for help. The accused said his dad and him helped his brother into the house. He said his mother was not with them. However, in her evidence, the accused’s mother, Priscilla Bate said she assisted her son into the house also. That is an inconsistency in their evidence.

vii.	The crowbar, the weapon used to attack the deceased is a long steel rod, of about 2 metres in length. It is shaped like a mini spade at one end, which end is used to dig the soil, to plant. The deceased was struck by the other end. It was tendered into Court and marked as an exhibit. The evidence from the accused and his parents is that this tool is owned by a lot of Trobriand Islanders and used to dig up the soil to plant yams. However, their evidence is that although they own one, they do not keep it at home, preferring to "hide" it in the garden, although they would take other gardening tools home like spades, knives, shovels, etc. They also say that if they had to, they would transport the tools in a taxi. Why would they keep the crowbar out of their house, amongst all their other tools? Is it to tell the Court that on that fateful night, the crowbar could not have been at their house? It is odd that they would single out the crowbar only from all their gardening tools. And what is most perplexing is that they have not said why they do that.

As for the vehicle, a question was asked by the State’s Counsel as to how they transported their tools to their garden at Butulega, several kilometres away. The accused’s mother said they did not have a vehicle. However, later in cross-examination on another issue, she said her son had gone driving in their taxi. That is an inconsistency.

Another fact most obvious is that this is the first time the accused and his witnesses have told this story to the Court, more particularly the accused. If this was what had happened, the accused in all likelihood would have told the Police during the Record of Interview. He however remained silent throughout. The accused’s Record of Interview with the Police was tendered into Court by consent and marked as an exhibit.

But the truth is always not so easy to find and the Court has to do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension and what is illogical or plain fallacy. This is why there is an added safety valve in criminal law, which requires that the Court must be satisfied beyond reasonable doubt of the guilt of the accused before it can commit. And where there is any doubt, the Court must give the benefit of the doubt to the accused. (re: Woolmington v DPP [1935] AC 462 and State v Tu’Uo Ibru (1999) N 1940, 20th October, 1999; The State v Sapera Kaki CR 225 of 2000 dated 31st August, 2001).

The accused’s parents’ evidence cannot be believed.

viii.	Michael Dulo’s evidence; He is the State’s only witness. He told his story succinctly and with no hesitation. The accused and his witnesses have not told the Court why Michael Dulo would come to Court and make such serious allegations against the accused. Apart from that, the deceased is the local parliamentarian’s son, so again, why would he make these allegations against the accused.

ix.	The good evidence is also that Michael Dulo had received threats and was also asked by the accused to go and see him and his family. Michael Dulo told him that he could not change anything in the statements he had given to the Police.

Intention; Defence’s evidence on the attack upon the victim by the accused was non-existent. In fact the accused maintained throughout that he was never at the scene of the attack upon the deceased. So I will rely very much on Michael Dulo’s evidence when forming my conclusions on the element of intention.

The element of intention is aptly described by Injia. AJ (as he then was), in the State v Raphael Kuanande [1994] PNGLR 512 at 514 where he said;

"Intention is a matter which goes to the State of mind of the accused when he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence."

In this case, the evidence is that the accused chased Michael Dulo up to the vehicle the deceased was in. He swung the crowbar at Michael Dulo. It so happened that when he swung the crowbar at Michael Dulo, Michael Dulo ducked, then pushed down the person next to him but the next person, was not so lucky, getting struck with such force that the steel rod protruded into the skull, to the other side.

7.	The circumstances are such that the accused did not exhibit any intention to kill the deceased.

Conclusion

8.	After review of the evidence, I make the following conclusions;

1.	The accused’s parents are not truthful witnesses as there are too many inconsistencies in their evidence, they are very evasive and calculating in their answers, providing answers that will best suit their line of defence;

2.	The accused is known to Michael Dulo because Michael Dulo had lived on the same street as the accused for about 7 years;

3.	That when Michael Dulo saw the accused, he immediately recognized him as his former neighbour. It was a case of recognition rather than identification. Even if there were no street lights, it was a moonlit night and immediately when Michael Dulo saw him, he knew who it was. Also, they were fighting for about 50 metres before they reached Michael Dulo’s vehicle, so the chances of Michael Dulo making a mistake is not there because the accused was always within his sights for the next 20 minutes to ½ an hour or even more. I find that Michael Dulo recognized the accused when he saw him and for the next ½ hour to an hour, when they were fighting;

4.	That there were also street lights that night;

5.	That the accused fought with Michael Dulo then chased him to his parked vehicle, armed at the same time with the crowbar;

6.	That the accused swung the crowbar at Michael Dulo which missed him and hit the deceased;

7.	That the deceased died as a result of the blow to his head, his injuries being described as a primary brain injury due to a depressed skull fracture;

8.	That the accused did not intend to kill the deceased.

9.	The alternative available to the Court is to convict him of the other alternatives as provided under s. 539 of the CCA.

10.	Can he be convicted of murder? The evidence shows that he was attacking Michael Dulo, oblivious of the fact that there could have been others in the vehicle. I find therefore that he did not intend to do grievous bodily harm to the deceased. Unlike wilful murder, which is a deliberate, intentional killing of the person killed, this is a case that does not involve provocation or where there was an intention to do grievous bodily harm to the deceased. It was not a killing done in the course of an unlawful purpose. Any killing, unless authorized, justified or excused by law, is manslaughter, however accidental or unintentional may have been the accused’s actions. The accused killed the deceased under the circumstances described, which is not wilful murder or murder, but is manslaughter.

11.	I therefore find the accused guilty of manslaughter and convict him of that offence.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused