N4398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1426 OF 2010

STATE

V

KOLLIN KUNAI
Accused

Goroka: Ipang AJ
2011: August 17, 18 & 19 September

CRIMINAL LAW – Criminal Code Act – Murder – s.300 (1) (a) – trial – dispute which was to be solved peacefully – through mediation to be witnessed by community leaders turned out disastrous when fight started – from fists fight developed to stones throwing resulting in a death.

CRIMINAL LAW – Evidence – prior statement given inconsistent with evidence given at the trial – Credibility of witness in question – Case of David Kandakason v The State [1998] SC588 followed:

Cases Cited

David Kandakason v The State [1998] SC588
State v Ogadi Minjipa [1977] PNGLR 2963

Counsel

Mrs. Kuvi & Ms B.Gore, for the State
Mr. R. Kasito, for the Accused

DECISION ON VERDICT

19 September, 2011

1.	IPANG AJ: The accused pleaded not guilty to one count of murder under section 300(1) (a) of the Criminal Code Act. Trial was conducted on the 17 -19 of August, 2011. The visit to the crime site was done on the 23rd August, 2011.

Brief Facts

2.	 The brief facts of this case are as follows: The State alleged that on the 9th of May, 2010 at around 2:00pm at Kotuni village, relatives of Jacklyn Steven and Nason Papua gathered to hold a mediation. The mediation was in relation to Nason Papua impregnating Jacklyn. The State alleged that as they were about to start the mediation, Thomas Soso a relative from Jacklyn ran in to the crowd and started punching Nason Papua. The crowd then divided themselves in their group and fight ensued. 

3.	 During the fight the accused threw a stone which hit the deceased on his head causing serious injuries, he fell down, lost a lot of blood and was taken to the hospital but he died. The Post Mortem Report revealed that the deceased died from head and brain injuries and loss of blood.

4.	The accused has been indicted on one count of murder under s.300 (1) (a) of the Criminal Code Act. The section states

300	 Murder 

1.	Subject to the succeeding provision of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

a.	If the offender intended to do grevious bodily harm to the person killed or to some other person;

The Elements 

5	 The following are the elements of the offence of murder under s.300 (1) (a) of the Criminal Code Act.

•	A person (accused Kollen Kunai)
•	Who with intent to do grevious bodily harm to (Jonah Papua) 
•	Killed Jonah Papua.

Issue

6	 Whether or not accused Kollin Kunai killed the deceased Jonah Papua.

7	State tendered the following documentary evidence with consent;

1.	Record of Interview (ROI) in Pidgin original version dated 28th July, 2010 marked as Exhibit 1A;
2.	Record of Interview (ROI) in English translation dated 28th July, 2010 marked as Exhibit 2A;
3.	English statement of Investigator marked as 1B;
4.	English Statement of corroboration marked as 2B;
5.	Post Mortem Report by Dr. Kilagi Vanuga dated 9th May, 2010 marked as Exhibit '1C'and
6.	Death Certificate dated 14th May, 2010 marked as Exhibit 2C.

8	Apart from the documentary evidence tendered, the State called three (3) witnesses namely Nason Papua, Boina Mite and Ian Jack.

9	The first State witness Nason Papua told the court that he came to the court place to participate in the matter between him and Jacklyn Steven. At the mediation area, he saw two (2) Village Court Magistrates one from Kotuni and one from Gorohanota, Councilors, Church leaders and Community leaders were there.

10	When the mediation was about to commence the village court magistrate from Gorohanota called Nason Papua and Jacklyn. Both went and took their place in the mediation area. Just then Thomas Soso ran in to the mediation area and started punching and kicking him (Nason Papua). Nason said Jacklyn's father Steven ran in and said "cut them and kill them"

11	 When fighting was still going on Lilu Soso brought a knife and gave it to Hero Soso. Hero Soso cut Jonah Papua (deceased) with the knife just below his right eye. Deceased lost blood and they took him up the road, still stones were been thrown. At the fishpond, Jacklyn's people stopped throwing stones. 

12	 The State witness said Kollin Kunai took a short cut from the court place to his house and further arrived at the top of the mountain. He (Kollin) got a mumu stone and threw it at Jonah. The stone landed on the right side of Jonah's head and he (Jonah) fell down unconscious. Jonah lost blood and he was rushed to the hospital but died on the way.

13	The witness said there were no trees or anything between the mountains and where Jonah stood. The witness said there were some trees but there were on the side of the mountain. He also said from the court place towards the fishpond stones were been thrown however at the fish pond he was very close to the deceased (Jonah) when Kollin threw the stone and hit him (Jonah) on the head resulting in his death. The witness said this was the only time he (Jonah) was hit with a stone. He said the size of the stone is like his folded fist. He said after the accused Kollin threw the stone, he ran away. Witness said the incident occurred at around 2:00 'o' clock and he was able to see the accused properly as the weather was fine. He said he has no grudges against Kollin and his family prior to the incident.

14	The version of the evidence given by second State witness Boina Mite is nonetheless same as the evidence given by Nason Papua, the first State witness. He also said he was a metre away from the deceased when Kollin threw the stone and hit deceased Jonah. He said he could see Kollin clearly as there was nothing in between to stop him from seeing Kollin. He said it was not a fleeting glance as he saw Kollin a bit longer and was able to see him properly.

15	The third (3rd) State witness Ian Jack gave inconsistence statements. His prior statement given to the police (see exhibit 3A) was that and I quote, "I quickly crossed the river to the other side and looked back to see who were these men throwing stones". However, when giving evidence in court he said he was close to Jonah. During cross-examination he maintained he did not cross the river. In David Kandakason v The State [1998] SC588 the Supreme Court made it explicitly clear in the following words;

"Where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial the court must regard and treat that evidence unreliable and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the Judge can act. In other words, both the sworn testimony of the witness and his statement given out of court are discredited and both are no longer reliable evidence".

16. 	The third (3) State witness evidence is crucial as it goes to the important element of identification whether accused was the person who threw the stone. Applying the principal of prior inconsistent statement I can now rule that the evidence both prior and these given at the trial by witness Ian Jack is unreliable.

Defence Case

17	The only witness for the defence is the accused. The accused gave sworn evidence that he is the cousin brother of Jacklyn and he was mad at Nason impregnating her. He said when the fight initially started at the court place he was involved. However he said as the fight progressed further he said he was hit on his right eye with a stone and was unconscious and did not know how the fight ended. 

18	Defence evidence was that the accused gained consciousness at around 3:00pm that afternoon and did not know who carried him to his house, he did not know who was injured in the fight and that he learnt of Jonah's death a week later. The accused said his village is about 15 metres away from the deceased village and they share the same bus stop, trade stores with deceased's people.

COURT'S ANALYSIS 

19	A part from the principal issue that has been raised and that was whether or not the accused Kollin Kunai killed the deceased Jonah Papua, this Court needs to address the issue as to who should this court believe.

20	 On page 7 of Defence submission it was submitted that State witnesses Nason Papua and Boina Mite shared close relationship and therefore, their evidences contain elements of bias. This aspect of evidence was never put to these two State witnesses during State's case or during cross-examination. Even the accused's own evidence that he was hit by a stone and fell unconscious till 3:00pm that day was never put to State during State's case. This is contrary to the rule in Browne v Dunn Prentice DCJ in State v Ogadi Minjipa [1977] PNGLR 293 followed the rule in Browne v Dunn criticized concealing the defence case and not putting to State witness the version upon which the defence relies.

21	Even if the defence case was put to the State it will be still weak in that there are two (2) witnesses Nason Papua and Boina Mite whose evidence have not been discredited or tarnished during cross –examination and have identified the accused as the person who threw the stone which landed on deceased head and which has caused his death. Furthermore, defence really needs to call further witnesses to support their case given the challenge put up by the State.

22	 Given the above explanation, I am satisfied beyond reasonable doubt that the accused Kollin Kunai was the one who threw the stone which landed on the deceased head causing his death. I, therefore return a verdict of guilty as charged pursuant to s.300 (1) (a) of the Criminal Code Act, and I enter a conviction accordingly.

23	Verdict: Guilty as charged for murder (s.300 (1) (a) of the Criminal Code Act.

____________________________________
Acting Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused