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State v Luana [2016] PGNC 324; N6541 (5 August 2016)

N6541

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1270 OF 2015

THE STATE

V

PATRICK LUANA

Kokopo: Lenalia, J.
2016: 21^st, 22^nd, 25^th, 26^th, 27^th&5^thAugust

CRIMINAL LAW– Attempted Murder – Plea of not guilty – Trial – Evidence on trial on attempted murder – Criminal Code Sections 304.

CRIMINAL LAW – Attempted Murder – State evidence on trial – Defence counsel makes submission of “no case to answer” – No case submission upheld on one count of murder.

Cases cited.

R v Kopi Kami [1965-1966] PNGLR 73.
The State v Wanaepa Warara [1977] PNGLR 458
The State v James Pah [1985] PNGLR 188
The State v Michael Raymond Martin and Another (1989) N742
The State v Henry Judah Les (2005) N2950

Counsel:
Mr. L. J. Rangan, for the Accused
Mr. M. Peter, for the Accused

5^th August, 2016

1. LENALIA J: The accused is charged with one count of attempted murder pursuant to s.304 of the Criminal Code. On arraignment he pleaded not guilty.

2. Before the two witnesses were called, the following documents were tendered by consent of the defence counsel.

➢ statement by arresting officer Sgt. Aiyofa Farege, Ex. “1”.
➢ statement of the corroborator Philip Matapu, Ex. “2”
➢ record of interview, Pidgin Ex. “3” & “3A” English translation.
➢ medical report, Ex. “4”.
➢ statement of Gabby Tobo, Ex. “5” & “5A” Pidgin & English
➢ statement by John Ole, Ex. “6” & “6A” ... ..
➢ statement of Maria Tabun, Ex. “7” & “7A” ... ..
➢ statement of Christine Henry, Ex. “8” & “8A” ..
➢ statement of Lukas Malana, Ex. “9” & “9A”... ..

3. Three witnesses were called. The victim Wariri Conrad gave evidence in chief and cross-examination that on 5^th April 2015, he and his two friends Tobata Tatamai and Thomas Paul were consuming alcoholic home brew in their friend Leo Christopher’s house at Vunalaka village. Then at night between 8pm and 9pm in the evening, he and Ephraim Papan left. As they were walking up, they met Michael Luana’s driver. He named the driver as Raymond.

4. According to Conrad, as they walked up to the front of Thomas Tiriau’s house, they met other persons cracking jokes and one of them was eating as this witness walked up, the accused asked Conrad if he could get this witness’s boom/box to his house to listen to music.

5. Conrad thought that because, the accused and his accomplices were so drunk, he did not want to release his boom/box to anyone. He told the accused that, it was not possible because, he wanted to go to his house as soon as possible. While they were talking, some men assaulted his friend Ephraim Papan. When the accused saw his accomplices assaulting Ephraim, he pushed the victim down to a nearby drain.

6. As the victim was trying to get up, the accused punched him then the accused line chased him right to the entrance of their house where his auntie held on to his shoulder. The accused’s uncle came to the entrance of their house and shouted. Conrad asked, why did they come to the premises and in the course of them arguing, they moved to the front of a store, where the accused again assaulted him.

7. In answer to questions in examination in chief as to what happened next. The victim said, Christopher cut his right hand with a bush-knife. He showed his affected hand which palm had been totally cut off. He said, the accused also cut his other hand and a few others joined and a person by the name of Richard wanted to cut the victim’s leg, but he moved his legs backward quickly to avoid the knife blow. Another person, he named as Blasius came and cut his head. After he was cut a number of times, he was unconscious and he was brought to the hospital.

8. Asked in chief if there was any light at the area where he was cut. He said, there was no light but there was moon light. He said, the accused is related to him as an uncle.

9. In cross-examination, the witness confirmed there were two fights. The first one was at John Tiriau’s place. He confirmed that, around there it was really rowdy and drunkards were swearing in pidgin “kaikai kan” (eat vagina). He also confirmed that, the first fight was in front of Christopher’s house. He was asked about the time he and his friends started drinking at Christopher’s house. He said, it was about 3pm. He confirmed they were drinking home brew until they left Christopher’s house. Asked if he knew if there was a second fight and what happened. The witnesses said, he did not know about that fight.

10. The second witness, Ephraim Papan gave similar evidence as the victim that after him and the victim had been to Vunalaka about 8pm they came back and on their way, they met Raymond and he talked to him while the victim (Conrad) walked passed him and Raymond. While talking, the victim asked the accused for the boom/box. This witness was carrying the b/b machine. To his surprise, Torot came and assaulted him and took the b/b away from him. The others joined the fight and they assaulted him. According to this witness, he did not see the fight during which the complainant’s hand was cut.

11. This witness statement was tendered as inconsistent statement without objection see Ex. “D” & “D1”. In that statement Ephraim said that, he had in his possession a small knife and after he was punched to the bitumen on the road, while lying down, he held that knife up and it cut Thomas Piriau’s hand. In cross-examination, he denied cutting Thomas Piriau’s hand.

12. The last witness was Andrew Irima. This witness in chief said, he did not see the fight but the person he named as Ulrik Tabun came to their house and told him that, Wariri and Ephraim had been assaulted so he ran down the road with Bernadette Lukas to see what had happened. As they were going down the road, Jeffery assaulted Bernadette and when he saw Andrew, he came on him and hit him down to the road. While lying down, he saw a number of persons joined in the fight. He named some of them as Patrick, Torot, Silva, Eddie, Blasius and Leo.

13. Asked in cross-examination about what happened on the scene. He was asked what happened when the accused was in possession of the bush-knife. The witness answered that, the accused cut the bitumen and rubbed it along the road. Asked why he did not tell the interviewing officer about that bit of his story as it does not appear on his statement date 10^th April 2015. The witness said, he told this part of his story to the police but the person who took his statement did not include it in his statement. At this stage, Mr. Rangan interjected and raised the question if the arresting officer who was outside the Court room could be called to rectify what the accused was saying. Mr. Peter objected to such application. The Court accepted the objection because, that would be totally outside the criminal procedures and the criminal practice rules. His statement was tendered as a prior inconsistent statement. (See Ex. “D1” & “D2” for the defence).

14. Mr. Rangan then closed the State’s case.

15. After closure of the prosecution case, Mr. Peter of counsel for the accused moved to make a submission of “no case to answer”. The court heard counsels’ submission on 27^th of last month and this matter is recalled today for the ruling on the no case submission.

Submission of “No Case to Answer”

16. When a submission of “no case to answer” is made, the question for the court to consider is whether on the evidence as it stands, “could the accused be lawfully convicted”. At this stage of this trial it does not involve the issue usually considered at the end of both the prosecution and defence cases which question is “ought the accused to be convicted”? The State v Paul Kundi Rape [1976] PNGLR 96, see also The State v Roke Pep (No.2) [1983] PNGLR 287.

17. Mr. Peter’s argument on this application is that, the charge is one of attempted murder and the prosecution ought to prove the essential element of having an intention to kill the victim. Counsel argued that, if the prosecution relied on section 7 and 8 of the Criminal Code, there is no evidence to show if the accused was on the scene of the crime which took place on the second fight. Counsel referred to a number of cases one of which is an Australia case of R v Philip and Lawrence [1967] Qd R 237 in which the Court there decided that to create liability under s.8 of their Criminal Code, the prosecution must establish three main factors which I shall shortly refer to a little later.

18. Mr. Rangan replied that, the prosecution evidence is clear that, the accused attempted to kill the victim as the accused was on the scene of the attempted killing. He submitted that the accused was together with accomplices and he was one of those who attacked the victim Conrad Wariri and he asked the court to find that there is a case for the accused to answer and to get a better perspective of the whole case, the court has to hear the defence side of their story. Counsel further argued that, there is evidence that, this was a group attack and the accused and his accomplices were on the scene and the accused was seen on the scene of the attempted killing.

19. A common intention to prosecute an unlawful purpose, and the offence was committed in the prosecution of an unlawful prupose and thirdly that, the offence committed must be a probable consequence of prosecuting that unlawful purpose.

Law

20. The defendant is charged with one count of attempted murder contrary to s.304 of the Criminal Code. This section states:

“304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act,

or omits to do any act that it is his duty to do, the act or

omission being of such a nature as to be likely to endanger

human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

21. On the indictment there are no alternative charges. In order for the court to find the accused guilty on the charge of attempted murder, the prosecution must prove that, the accused had the intention to cause the death of the victim Conrad Wariri: The State v James Pah [1985] PNGLR 188.

22. I concede with the defence counsel that in order for the court to find that there is a case for their client to answer, the prosecution must prove at this stage that, the accused intended to kill the victim. The prosecution concedes to that proposition. However Mr. Rangan argued that, the accused’s action demonstrated the element of intention to kill and when the accused was on the scene being drunk and he used a bush-knife to cut off the victim’s right he is caught by sections 7 and 8 of the Criminal Code. Counsel asked the court to find that there is a case for the accused to answer.

23. It is established law that, where an accused had commenced execution of his intention “by means adapted to its fulfillment” and manifested his intention by doing an overt act or some overt acts, he is guilty of attempted murder: R v Kopi Kami [1965-1966] PNGLR 73. Further in the case of R v Bena Forepe [1965-1966] PNGLR 329, it was said that, in a charge of attempting to kill, the prosecution has the obligation to prove an intention to kill.

24. The Criminal Code in s.4defines attempts to commit offences in the following terms:

“Attempts to commit offences.

(1) When a person, intending to commit an offence—

(a) begins to put his intention into execution by means adapted to its fulfillment; and
(b) manifests his intention by some overt act,

but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment whether—

(a) the offender does all that is necessary on his part for completing the commission of the offence; or

(b) the complete fulfillment of his intention is prevented by circumstances independent of his will; or

(c) he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to
the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence.”

25. Subsection (1) (a)&(b) of the above section say that an accused must have commenced the execution of his or her intention and such “execution” must be manifested by “some overt” acts. Case law authorities draw a distinction between mere acts of preparation and actually doing tangible acts or beginning to commit overt acts as seen from the definition of attempts in the above section: R v Kopi Kami (supra).

26. On the instant case, there is contradictory evidence, by the complainant who said, the person by the name of Christopher cut his right hand. Supposing the accused acted together with his accomplices, there is no evidence to show if the accused had acted to fulfill his intention to such an extent as to commit the attempted murder. In order for the court to find that, there is a case for the accused to answer, the prosecution must have shown in their evidence that, the accused must have put his intention into execution by means adopted to fulfill his intention.

27. The two prosecution witnesses were not on the scene of the crime. There is contradiction in their evidence. The court accepts the defence submission that, the last two prosecution witnesses’ evidence is inconsistent with what they told the police.

28. The court has read the affidavits tendered by consent. Most of those witnesses were not on the scene. I refer to the case of The State v Michael Raymond Martin and Another (1989) N742, the two accused were charged with one count of attempted murder. The Court found there was no intention to kill but found them guilty of assault causing grievous bodily harm. I come back to the issue of whether the accused had any intention to kill the victim. This stage of this trial is not a ruling on the verdict, but looking at the evidence as it stands, the issue or questions that usually arise in submission of “no case to answer” is arises is “could the accused be lawfully convicted” on the evidence as it stand? I answer this question in the negative and find that there is no case to answer.

29. This case is dismissed and the defendant is discharged.
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The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused.