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State v Moibamo (No.2) [2011] PGNC 74; N4344 (2 August 2011)

N4344


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


CR NO. 38 OF 2010


STATE


V


FAMUNDI BADI MOIBAMO (NO. 2)
Accused


Goroka: Ipang AJ
2011: 20th July& 2 August


CRIMINAL LAW – Wilful murder – trial – accused stabbed deceased and killed her – state relied on documentary evidence tendered to court by consent and evidence of key witness (eye witness).


CRIMINAL LAW – Practice and procedure – whether corroboration is required to confirm version of credible, impressive key witness and when is the corroboration, required and under what circumstances.


Cases Cited:
Papua New Guinea cases


R v Philip Ulel [1973] PNGLR 254
State v John Kasaipwaloa [1977] PNGLR 257
State v Minjipa [1977] PNGLR 293
State v Steven Torila & Bernard Okole (1980)
State v Amoko Amoko [1981] PNGLR 373
State v Simon Ganga [1994] PNGLR 323
State v Kidung [1996] PNGLR 355
State v Malepo (No.2) [1996] PNGLR 252
State v Kidung [1996] PNGLR 355
State v Ali Kei Paiya CR 478 of 2004
State v Kokara Fova CR 1494 of 2006


Overseas Cases Cited


Browne v Dunn (1893) 6 R 67 (HL)
DPP v Hester [1973] AC 296


Counsel


Mrs. V. Mauta, for the State

Mr. R. Kasito, for the Accused


DECISION ON VERDICT


20 July, 2011


  1. IPANG AJ: The accused Famund Badi Moibamo pleaded not guilty to one count of willful murder under section 299(1) of the Criminal Code Act, chapter 262.

Brief Facts


  1. The brief facts of the case are as follows: The State alleged that on the 13th of September 2009 at around 4.00 pm near the YWCA Hall in Goroka, the accused was walking along the road with the deceased Dorcas Pepeto, his wife. Both had an argument. The accused who had a long sharp knife in his possession, pulled the knife out and stabbed the deceased on her right (side) lower abdominal area.
  2. The deceased fell down on the ground and called out in pain. One Sailas Araupa who was walking along the road ran to her aid. Sailas asked the accused why he stabbed the deceased. The accused replied, "she misbehaved having affairs with other men, so I intend to kill her so I killed her." After saying this, the accused left the scene with the knife in his hand. Sailas was with the deceased at the road side. Sailas stopped a white double cab ute belonging to G4S Security firm and assisted the victim to the Goroka Base Hospital. However, the victim was confirmed dead on arrival. Sailas remained with the body till one of the deceased relatives came and Sailas left and reported the mater to the police. The accused was apprehended, arrested and charged.
  3. At the commencement of the State's case, the State through counsel Mauta tendered the following documentary evidence with consent from the defence counsel. The following were the documents tendered;
  4. A part from the three (3) documentary evidence tendered by consent in court, the State called one (1) witness namely Sailas Araupa. This witness gave sworn evidence in pidgin. He said on the 13 September, 2009 in the afternoon at around 4.00 pm, he was in Goroka town at the YWCA. He said he was walking down to the market when he saw a couple, a man and a lady were walking and arguing at the same time.
  5. The witness said the couple were walking on the right side of the road and were going towards North Goroka. Witness said he was walking on the left side of the road. The witness said the distance from where the couple were walking to where he was walking would be from where he (the witness) was sitting in the witness box to the entrance door to the court room number one (1). Both counsels have agreed that the distance is around five (5) metres.
  6. Witness Sailas said as he walked he saw the accused held the deceased on her left shoulder with his left hand. He said the accused then pulled the knife with his right hand and stabbed her and pulled out the knife again. The witness said the lady shouted out in pain and blood spilled out. He said he went to the aid of the lady. He said the lady slept on his lap and the blood poured out. The witness said he held the accused and asked him, why he stabbed the lady. He said the accused replied, "she had affairs with other men, so I intend to kill her so I killed her. She is my wife".
  7. The State witness said he does not know the lady but wanted to save her life. He said he saw the accused clearly. During the examination in chief, the witness was asked to look around inside the court room and to identify the person, who stabbed the lady on the 13th of September, 2009. The witness replied, "the man is in court", and he pointed directly to the accused person. The witness said he only knew of the accused person at the time of the commission of the alleged offence.
  8. State's counsel put to the witness, that he (the witness) had told the court, that when he (the witness) asked the accused why he stabbed the lady, the accused replied, "she (deceased) had affairs with other men so I wanted to kill her, so I killed." The witness said that's true. The witness also said that after the accused made that statement, he (the accused) got his knife and walked towards the town.
  9. State witness said in examination in chief that he then tried to find a vehicle and save the woman. Fortunately the Protect Security (G4S Security) vehicle came from North Goroka, and he (the witness) stopped the vehicle, put the lady on the vehicle and took her to the Goroka Base General Hospital. The witness said at the hospital, the doctors tried to save her but she died.

State witness Sailas Araupa during cross examination


  1. During the cross-examination by the defence counsel, the State witness was pressed with the language used by the couple (accused and the deceased) in their conversation. The State witness said he knew the couple were arguing as they were talking in Unggai dialect. He (witness) said he is from the Eastern Highlands Province and he could therefore quite easily recognize the Eastern Highlands languages. In this case he said he understood the Unggai language that was spoken.
  2. On been cross-examined on how the accused stabbed the lady, the State witness said the accused held the lady with his left hand. The witness said the accused held the lady on her right shoulder and stabbed her on the right side stomach. He, the witness said he saw the accused once at the scene of the offence. He said police never took him to identify the accused at the police station. He also told the court when questioned that he has no eye problem and he wasn't drunk. He said he can easily identify the accused person.
  3. During the time of the alleged offence he said that the victim (now deceased) did not attack the accused. The witness also said he did not see the lady (deceased) walking with another man. He (witness) also said he did not see the accused slip-off and also it was a sunny day. He also said he did not see the deceased fell on top of the accused. He said though the lady (deceased) took out a pocket knife, she did not use it to threaten the accused. The witness said the accused wasn't scared and so did not defend himself. Witness also said there was no scuffle between the accused and the deceased. He (witness) also told the court that the deceased did not cut the accused's fingers.
  4. The State closed its case after witness Sailas Araupa gave evidence. Defence counsel made a no case submission on the 14 July and on the 15 July, 2011 I delivered my ruling. I over-ruled the no case submission. Defence counsel sought adjournment and sought instruction from the accused whether to give a sworn statement, unsworn evidence or to remain silent. On return from the adjournment on the 20 July, 2011 counsel indicated to me that his client (the accused) decided to give an unsworn statement. The counsel informed the court that consequences of giving an unsworn statement has been put to his client and he understood. The defence counsel opens up the defence case and the accused gave his unsworn evidence.
  5. The accused said this trouble would not happen. She went around with four (4) men. I took her to the Village Court. Village Court Magistrates issued her summons but she disobeyed.
  6. She went with another man. Accused said this man came with her to the Goroka main market on Sunday, the 13th of September, 2009 at around 4.00pm. Accused said the man saw him and ran away into the main market.
  7. Accused said he argued with the deceased. She grabbed a pocket knife from her bilum. He said she stabbed him twice. He said she made first attempt to stab him but he avoided the knife. He said the second time, she attempted to stab him and she cut his fingers. Accused said he pulled out his knife. The third time, she wanted to stab him; accused said he slipped into a drain.
  8. The accused said the knife he had got the lady on her side. He said she got a small cut. She sat down on the ground and cried. Accused said he said sorry to her. He said he did not mean to kill her and left. Accused said he is sorry for what he did.

The Law


  1. The accused has been indicted on one count of willful murder pursuant to section 299(1) of the Criminal Code Act., Section 299 (1) which states;

"S. 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 willful murder.

(2) A person who commits willful murder shall be liable to be sentenced to death."
  1. The essential elements of the offence of willful murder which the prosecution bears to prove beyond reasonable doubt are;
  2. A part from the burden of proving the elements of the offence of willful murder, there are also two (2) possible defences raised by the defence which the prosecution need to disprove. These are defence of self-defence (s 269 of the Criminal Code Act) and defence of provocation (s 303 of the Criminal Code Act).
  3. Prior to going through the evidence presented by each party, it is necessary to group facts which are not disputed together and distinguished that to the facts which are in dispute. After doing so, I will work around to establish the disputed facts and apply them to the law, which include the case precedents.

Facts not in dispute


  1. These are facts which are agreed to and not disputed by both the State and the Defense.

Disputed facts


  1. These are facts which have been disagreed (disputed) by the State and Defence.

Issues


  1. Whether State has proven its case beyond reasonable doubt (all the elements of the offence of willful murder).
  2. Whether defence had substantiated its defences of "self defence" (s 269 of the Criminal Code Act) and "provocation" (under s 303 of the Criminal Code Act).
  3. Defence were first to present their submission on verdict. Basically, Mr. R. Kasito of counsel for the plaintiff submitted that the evidence adduced by State so far where the four (4) documentary evidence were tendered by consent – the Record of Interview (ROI) both Pidgin and English versions and statements of Sgt. Peter Kafare and Rex Dala plus the sworn evidence of Sailas Araupa, the Court should consider whether the State had proven its case beyond reasonable doubt.
  4. Secondly, the counsel also submitted that though the accused gave unsworn evidence, it still formed part of defence case or evidence by defence and court should give such weight to it. Counsel cited the case of R v Philip Ulel [1973] PNGLR 254 in which it was held that an unsworn statement though is evidence in the case, does not have the same weight as sworn evidence.
  5. In State v John Kasaipwaloa [1977] PNGLR 257 the Court stated that ... "the jury should take the prisoner's statement as primie facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence".
  6. In State v Ali Kei Paiya CR NO. 478 of 2004 Sawong, J expressed that,

"it is a trite that whilst a record of interview which is not contested in evidence, it is not of equal weight to the sworn evidence. A sworn evidence which has been tested or untested in cross-examination has far more weight than an unsworn statement. In the circumstances of this case, I give little weight to the record of interview. I am left thus with the sworn evidence of the accused."


  1. Defence counsel submitted that the State witness Sailas Araupa was not in a position to tell what prior actions occurred before the action in which he gave evidence on. Having said that, the counsel said the action by the woman of stabbing the accused occurred before he came upon them. Hence, counsel submitted that Sailas begun his version after the stabbing attack of the woman on the accused.
  2. The next phase of submission by defence counsel was that the accused's version of the woman attacking him with a pocket knife is corroborated by state witness that the woman had a pocket knife on her. Counsel submitted that this should raise a question as to why the woman had a pocket knife. Counsel said the State witness had denied seeing the woman attack the accused first because the event occurred before he happened to come on them.
  3. Defence counsel said the version of evidence given by the State witness Sailas is too vivid. Counsel said he described which hand the accused placed on which shoulder of the lady clearly. He said the witness described what happened and how he assisted. Counsel submitted that there were other people around and that a Protect Security vehicle assisted and that the accused had replied to his enquiry that the woman was having affairs and he had killed her. Counsel said yet there is no corroboration on the important aspects of the elements of the charge.
  4. This aspect of submission by the defence counsel on the issue of corroboration begs the question to be answered. Is corroboration required by law under the given situation explained by the counsel?
  5. There were other people there and also a Protect Security vehicle, these people were not called to corroborate the State witness. Generally or broadly speaking, corroboration or confirmation of or support for a witness's testimony, is in general not required. In other words, it is generally permissible for a criminal case to be established by the evidence of a sole witness. See DPP v Hester [1973] AC 296 and at pp. 324-326 Lord Diplock stated that the rule adopted in legal systems based upon the civil law that an accused could not be convicted on the testimony of a single witness never took root in the common law.
  6. Counsel further submitted that the woman was transported to Goroka Base General Hospital yet there are no medical reports in the form of post mortem report, certificate of death etc. to confirm the death or the cause of death. Counsel submitted that there are evidence from the State witness and accused that death occurred, what really cause the death – whether the woman bleed to death from the stab wound or whether the women died from some other causes was not before the Court to confirm.
  7. Counsel also submitted that the State did not call further evidence to corroborate the evidence of witness Sailas Araupa that the accused had said he intended to kill the woman.
  8. In State v Kevin Lomboi Waks (2008) N3542 Cannings, J raised issue with credibility of both the State and Defence witnesses (paragraphs 40, 41 & 43). Due to confusing and unreliable evidence given in court, the court on paragraphs 49 and 52 of the judgment stated:

"49. There are significant inconsistencies between the version of events in PatrickTalane's evidence and the evidence in the confessional statement of the accused:


"52. Patrick Talane was not a particularly impressive witness and the version of events he gave is quite difficult to believe, if not incredible. It was, in these circumstances, incumbent on the state to present some corroboration of his evidence. In fact, you would expect that the other person who was said to be present with Patrick Talane – Cosmos Boni would give evidence. But he did not. If he was not available a good explanation should have been provided to the Court. It is also reasonable to be expected that these would have been evidence forthcoming from other people who were present at the dance. Why did they not give evidence? This lack of corroboration makes the key witness's evidence even more difficult to believe."


  1. This distinction between Kevin Lomboi Wak's case (Supra) and the present case is that in Kevin Lomboi Wak's case (Supra) the evidence produce before the court were confusing and unreliable. The witness was not an impressive witness. Coupled with how the police investigator conducted their investigation. Refer to paragraphs 53 & 54 of the judgment.
  2. How can therefore the Kevin Lomboi Waks case (Supra) be compared to the present case. In the present case apart from the documentary evidences tendered by the State with consent from the Defence Council emphasized on the need for corroboration of Sailas Araupa's evidence. Counsel did not provide any statutory bases for such corroboration. Only the Kevin Lombo Wak's case (Supra). In Kevin Lombo Waks' case (Supra) evidence adduced by State and also by the Defence was unreliable and confusing. Especially the State witnesses and so the court said in paragraph 56; "There are too many question marks surrounding the evidence of the State witness to say who was actually responsible, There are too many gaps in the police investigation to warrant a finding as to who directly killed Joe Mafereka".
  3. The Kevin Lombo Waks'case (Supra) is not a reflection of the situation and circumstances in the present case. The only issue that surfaced was the issue of corroboration of sailas Araupa's evidence but I have addressed the issue earlier in this judgment.
  4. In State v Kokara Fova CR 1494 of 2006, Sevua J (as he then was) said that;

"in a criminal trial, it is not safe to rely on suspicion and what the trial judge thinks. The court must be guided by the evidence adduced in a case to make a finding of guilt."


His Honour continued on and said;


"in the present case, I have already adverted to some issues or observations I have made which the only eye witness, Bawu Kiwudi, has not fully explained and clarified. It is my view that those issues do raise doubts in my mind. I find that Bawu Kiwidu did not lie on oath. I accept that he and Utupi saw what had occurred near the river on the 14 February, 2006. And I think his evidence is credible. But he did not fully explain to the satisfaction of the Court the matters I have raised in my observation."


  1. His Honour then made this remark;

"those matters, if satisfactorily explained, would have removed the doubts in my mind and clear the way for a finding that he accused did willfully murder Balute Teine. As it is, I am unable to make that finding for the reasons I have stated."


  1. What has the State witness Sailas Araupa not fully explained and clarified?
  2. Sailas Araupa told the Court what he saw and heard. The following questions were some of the questions put to this witness and the following answers were given;

Q. Deceased attacked the accused?

A. No.

Q. Deceased was walking with another man?

A. No.

Q. Accused slipped during confrontation?

A. No, it was a sunny day – no rain.

Q. Deceased fell on top of the accused?

A. No.

Q. Deceased took out a pocket knife?

A. Yes.

Q. Deceased attacked the accused?

A. No.

Q. Deceased armed with a pocket knife and accused was scared?

A. No.

Q. Accused took knife to defend himself?

A. No.

Q. There was a scaffold?

A. No, struggle.

Q. Lady fell on top of the accused and got herself stabbed?

A. No.

Q. Deceased cut accused's fingers?

A. No.

Q. You asked accused why he did that and the accused said, "she went with other men so I want to kill her." That's not true?

A. True, he said that.

Q. Did others hear that?

A. Yes.

Re – Examination


Q. Who did you see stab the lady?

A. Witness pointed to the accused.

Q. After deceased was stabbed, she fell at your feet?

A. Yes.

Q. You saw the accused stabbed the women?

A. Yes.

Q. Accused held her on her left shoulder with his left hand and stabbed her with his knife on his right hand?

A. Yes.

Q. Both were arguing in Unggai language?

A. Yes.

Q. You asked accused why he stabbed the deceased?

A. Yes.

Q. Accused replied she went with other men and I stabbed her?

A. Yes.


  1. Can the evidence given by the State witness Sailas Araupa be trusted, relied upon or be given more weight?
  2. The state witness Sailas Araupa gave sworn evidence in court. During cross-examination he gave straight answers to the questions. He did not fumble with the answers he gave. There was not in anyway or through his evidence, he gave selected answers. He was a straight-shooter and he gave answers without hesitation.
  3. He does not know the accused personally nor have prior knowledge of the accused so as the deceased. His neutrality can not be questioned. He told the court that he went to the aid of the lady because he wanted to help save her life. He is a total stranger to both the accused and the lady (deceased). Other people were around but none tried to assist the deceased. This witness did not get scared of the deceased's blood pouring on him and the HIV-Aids related issues. His character displayed is more likened to that of the parable of the Good Samaritan in the Bible. In Luke 10:30-34 Jesus told the story that, "there was once a man who was going down from Jerusalem to Jericho when robbers attacked him stripped him, and beat him up, leaving him half dead. It so happened that a priest was going down the road but when he saw the man, he walked past on the other side. In the same way a Levite also cam along, went over and looked at the man, and then walked pass on the other side. But a Samaritan who was travelling that way came upon the man, and when he saw him, his heart was filled with pity. He went over to him, poured oil and wine on his wounds and bandaged them; then he put the man on his own animal and took him to an inn, where he took care of him."
  4. The facts as we know in the present case, the witness said as he walked he saw the accused hold the deceased on her left shoulder with his left hand. Accused pulled the knife out with his right hand and stabbed the deceased on her right lower abdominal area and pulled out the knife. He said the lady shouted and the blood spilled out. The witness went to the aid of the lady. He said the lady laid on his lap. Blood poured out. Witness said he held the accused and asked why he stabbed her with the knife. Witness said the accused replied, "she had affairs with other men, so I intend to kill her so I killed her. She is my wife."
  5. Witness said after the accused made that statement he got his knife and walked towards the town. He (witness) said he tried to find a vehicle to save the woman. The Protect Security vehicle, a double cab ute came, witness stopped it, put the deceased on the vehicle and took her to the Goroka Base General Hospital. At the hospital, doctors tried to save her but she died.
  6. During the cross-examination his (witness) evidence was not shaken, discredited or tainted. He was forthright and maintained consistency all through till he concluded his evidence. Unlike the witness in State v Kevin Lomboi Waks (supra) and State v Kokara Fova (supra).

Intention


  1. Whether the accused had intended to willfully murder the deceased? Intention is one of the elements which the State bears the ultimate burden to prove it beyond reasonable doubt.
  2. Defence contended that State had not produced evidence beyond reasonable doubt on whether the accused had an intention to cause the death of the deceased. Defence counsel submitted that State witness Silas Araupa said the accused stabbed the deceased once on her right side of the stomach. He (witness) said this was done after an argument. After the stabbing, the accused said he wanted to kill the woman because she was having affairs with other men. The accused then left.
  3. Defence version was that the accused slipped off and the knife got stuck on the women's side and it was a small cut and not a deep cut. The accused said the woman sat and cried and he took off. Accused said he did not mean to kill her. Defence counsel referred to the record of interview, pidgin version; "Q.36 – Yu gat toktok long mekim antap long dispela? Ans. Em meri bilong mi ia, na mi ino minim long kilim long dispela taim. Mi bungim em wantaim arapela man na mitupela kros longen mi bin kilim em." (The English version would be; "Q. 36 – Have you got anything to say? Ans; at that time I did not mean to murder but I met her with another man and as the result we started the argument that resulted in the incident." Again in "Q. 20 – what was your intention to do that to her (Dorcas) at the time 13/09/09? Ans: She is my wife and a mother but failed to listen and change her bad behavior." Then again "Q. 16 – There is evidence here that at the time, you had an argument with her (deceased) on the way. As a result you did stab her with a knife and she fell down on the ground. What would you say? Ans: At the time I met her with another man and tried to attack him with the knife but he escaped so I stab her." The question as to the type of weapon used, this question was asked; "Q. 21 – what type of knife did you use to stab her (Dorcas) at the time? Ans. A long and sharp knife (as Rambo knife)."
  4. In State v Raphael Kuanande [1994] PNGLR 512 at p. 514 Injia AJ (as he then was) stated that;

"Intention is a matter which goes to the state of mind of the accused at the time 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."


  1. Applying what Injia AJ (as he then was) said in Kuanande's case (supra) to the present case would reveal the following:-

"Evidence in court through documentary evidence revealed that the accused and deceased are husband and wife. Due to marriage problem the wife (deceased) and their child, 15 years old left the accused to stay with the deceased relatives. Deceased was staying with her relatives in her village until she met her fate on the 13 September, 2009. The accused was living in his own village at the time of the offence.


Basically, their marriage problem is that the accused said the deceased was having affairs with other men. After question 16 was asked and answers were given, the Q. 17 was put to the accused. Q. 17 who is that man that you met him at the time? Ans. This is the man I believe use to take my wife around. Q. 18 – How do you know that? Ans: They are from the same village and they have been friends and going around together. Q. 19 – have you talk to the Village Court or try to settle this matter? Ans: Three times we tried to settle this matter with the Village Court but failed."


  1. So prior to the offence which took place on the 13th September, 2009, it was not all that good for the accused. Accused has marital problems in which the wife was said to have had affairs with other men. Coupled with stress that the wife (deceased) left the accused to live in her village with her relatives. And the fact that the accused alleged in Q. 18, the question asked and the answer given (supra) would mean added pressure on the accused.
  2. So on the 13 September, 2009, the accused as answered Q. 16 in that, "at the time I met her with another man and tried to attack him with the knife but he escaped so I did stab her." Now right after the stabbing when asked by Sailas Araupa for what reason he (accused) did the stabbing, the accused replied, "she (deceased) had affairs with other men, so I intend to kill her, so I killed her." Right after saying this, the accused held his knife in his right hand and went towards the town.
  3. If one follows the facts properly, it will be like, the accused set out his mission and went about completing his mission. Just took off right after he accomplished his mission.
  4. If we refer back to the parable of the Good Samaritan in Luke 10:30-34 (supra) the accused's conduct would be likened to that of the robbers who attacked the man, stripped him, beat him up and leaving him half dead. In this case, the accused came, met up with the deceased, robbed her of her life and left. State witness Sailas Araupa's character would be likened to that of the Good Samaritan.

Accused's unsworn statement


  1. The accused elected to give unsworn statement. The following were the unsworn statement he gave. He said the trouble would not have happened. She went around with four (4) men. Accused said he took her to the village court and magistrates issued summons, she disobeyed. She went with another man. This man came with her to the market on Sunday 13 September, 2009.
  2. Accused said the man saw him and ran away into the main market. Accused said he argued with the deceased, she (deceased) grabbed a pocket knife from her bilum and stabbed him. Accused said she stabbed him twice. He said her first attempt missed him and the second attempt, she cut his fingers. Accused said she would have taken his life so he pulled the knife. He said she made the third attempt to stab him and he slipped in to the drain. He said the knife he had got her on her side. She got a small cut and she sat and cried. Accused said he did not mean to kill her and he left. He said he is sorry for what he did.
  3. Prior to making some observations on the issue of unsworn statement, the statement that the deceased tried to stab him three (3) times was not raised or put to the State witness Sailas Araupa during the cross-examination. State counsel has raised objection to this effect. This aspect of evidence were never put to the state witness in cross-examination and therefore is a clear breach of the rule in Brown v Dunn (1893) 6 R 67 (HL). Basically, the rule in Brown v Dunn (supra) has it that the party intending to rely on a particular version of facts must put to the witness(s) in cross-examination so they are given the opportunity to explain their version of the facts. The defence counsel did not do this therefore he can not ask the court to believe what he has failed to put to the State witness in cross-examination. See also State v Minjipa [1977] PNGLR 293, State v Simon Ganga [1994] PNGLR 323 and State v Kokara Fova CR 1494 of 2006.
  4. Now let me revert back to the issue of the unsworn statement and the weight to be attached to it. State counsel submitted that the law is clear with what a tribunal of fact should do in placing how much weight to be given to such statements when in competition with sworn testimonies.
  5. This was what was stated in State v Amoko Amoko [1981] PNGLR 373. The court held that when an accused person has given an unsworn statement from the dock, that statement should be considered but less weight has to be attached to it. Pratt, J (as he then was) expressed this in the following words;

"He (the accused) has not given evidence in this Court but has made a statement from the dock denying any complicity in the Break and Enter and any complicity in the burying of the items on the following day. That of course is not on Oath and therefore does not carry a great of weight. Nevertheless, it is material, which I must take in to account when I asses and weigh all the evidence."


  1. Refer also to the case of State v John Kasaipwaloa (supra) and State v Kindung [1996] PNGLR 355 which discuss this principle in more detail. However, the Supreme Court in Jimmy Ono v State SC 698 made this (critical) observation;

"In your case, you presented no sworn evidence to rebut the sworn evidence against you. You were only prepared to given an unsworn statement. Whilst that is your right to do so and that no inference of guilt can be drawn against you because of that, it means you were left with sworn evidence against you without any rebuttal from you. You were unable to present any reason to compel the trial judge not to accept the sworn evidence against you."


  1. Applying the principle in State v Amoko Amoko (supra), State v John Kasaipwoloa (supra), Jimmy Ono's case and State v Kindung (supra) to this present case, it means now that though the accused's unsworn statement still forms part of defence evidence, this Court will place "little weight" on this unsworn statement. The underlying reason is that the accused's unsworn statement was not subjected to the "test" of cross-examination.

Recap of all the issues


  1. In the Record of Interview (ROI) dated the 29th of September, 2009 both the original Pidgin version and the translated English version, the accused had admitted killing the deceased Dorcas Pepeto on the 13th of September, 2009. The Courts in this jurisdiction have held that a confession alone is sufficient to support a conviction; see State –v- Malepo (No.2) [1996] PNGLR 252, I am also satisfied that confessional statement in the ROI is evidence of self incrimination against the Accused. The court in State –v- Steven Torila & Benedict Okole (1980) N216 held that a confession is "primie facie" evidence of the incriminatory matters unequivocally admitted to therein.
  2. There is another aspect of this case which I wish to raise here. In the Record of Interview (ROI) dated 29th September, 2009 especially in:-

"Q.16 There is evidence here that at the time, you had an argument with her (deceased) on the way. As a result you did stab her with a knife and she fell down on the ground. What would you say? Answer: At the time I mat her with another man and tried to attack him with the knife but he escaped so I stab her". Q.21 –What type of knife did you use to stab her (Dorcas) at the time? Answer: A long and sharp knife (as Rambo Knife).


A1. The above questions and answers given in the ROI revealed that the accused admitted to stabbing the deceased Dorcas Pepeto.


A2. During Cross –examination Defence Counsel put to the State witness Q: Lady fell on top of the accused and got herself stabbed?


A3. The unsworn statement of the accused was that, he slipped in to the drain, the knife that he held, got her on her side. She got a small cut and she sat and cried.


  1. There are three (3) inconsistent statements made on different stages as observed above. Perhaps a better understanding or meaning of the word "stab" would be more appropriate. The Oxford Advance Learners Dictionary of current English, Fourth Edition Oxford Unversity Press 1989 the word "stab "to mean pierce or a weapon push (a knife, etc ...) in to ... This definition fits in well in situations described in A1 and A3. But all the three (3) statements do not mean the same thing. They are different from each other.

Issue on the element of "intention"


  1. I have made in depth observation on this issue on paragraph 50, 51,52,53,54,55,56,57 & 58 of this judgment. I have evaluated the evidence and have come to establish there was element of "intention" present at that time this offence was committed.

Issue of Unsworn Statement


  1. The issue of Unsworn Statement was fully discussed in paragraph 59,60,62,63,64 & 65 of this judgment. After careful analysis, I ruled that the accused's Unsworn Statement was not subjected to the "test" of cross- examination so that truth of the statement be revealed or denied.

Final Analysis


  1. Because of my findings, ruling and reasons given I am satisfied beyond reasonable doubt on the evidence before me that the accused Famund Badi Moibamo did willfully and unlawfully kill one Dorcas Pepeto on the 13th September, 2009. I return a verdict of guilty as charged and enter conviction against him. In doing so, I rejected the defence of "Self –defence (S.269 of the Criminal Code Act) and defence of provocation (S.303 of the Criminal Code Act).

______________________________
Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Accused

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