State v Kinamur [2018] PGNC 254; N7373 (20 July 2018)

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CRIMINAL LAW – Trial on verdict for wilful murder – section 299 of the Criminal Code Act Chapter No 262 – whether killing was unlawful – whether killing was accidental – defence of accident - whether killing was intentional – whom to believe – considering sworn evidence - considering uncontested documentary evidence

The accused killed one Jeffery Atoi on 30 September 2017 at Inolo village, Duke of York in East New Britain. The accused used a bush knife and the deceased was cut on his neck and he died as a result of the said injury. The accused denied that he wilfully murdered the deceased. He raised a defence of accident.

State v. Kelly Minong (2016) N6271
State v. Goi Mubin [1990] PNGLR 99
State v. Benjamin Garo (1996) N1521
State v. Peter Raima [1993] PNGLR 230
Ilai Bate v. The State (2012) SC1216
State v. Jenny Dei (2011) N4231
State v. Mas Judah Binas (2007) N3118
State v. Wilson Num (2016) N6223
State v. Waiyake Komane John and Ors [1992] PNGLR 524

1. ANIS J: This was a trial on verdict. It was heard on the 24^th and 25^th of May 2018 at Kibil in Duke of York, East New Britain. Presentation of submission hearing was held in Kokopo on 7 June 2018. The accused was charged with wilful murder under section 299 of the Criminal Code Act Chapter No. 262 (CC Act).

EVAN KINAMUR of INOLO VILLAGE, DUKE OF YORK, EAST NEW BRITAIN PROVINCE stands charged that he on the 30^th day of September 2017 at Inolo village in Papua New Guinea wilfully murdered Jeffery Atoi.

On the 30^th of September 2017 between 6am and 7am the accused and the deceased Jeffery Atoi were at Inolo village, Duke of York Island. The accused confronted the deceased and had an argument with the deceased. The accused was standing in front of the deceased. The deceased was sitting on a memorial cement. His 5-year-old son was with him. The State alleges that in the course of their argument the accused raise his bush knife and struck the deceased on his neck. The deceased died at the scene. The State further alleges that when the accused cut the deceased, he intended to cause the death of the deceased. The charge is laid pursuant to s.299 of the Criminal Code.

5. The state called one (1) witness to testify. His name was John Malakai. The defence called two (2) witnesses to testify. The first witness called was the accused and the second witness called was his son Bruce Kinamur. Documentary evidence tendered by the State without objection or contest from the defence, were as follows:

Exhibit No.	Description	Date Filed
“P1”	Record of Interview, English and Pidgin versions	9/10/17
“P2”	Autopsy Report	22/10/17
“P3”	Affidavit of Dr David Pomat	31/01/18
“P4”	Corroborator’s Statement, Constable Justine Meniate	25/10/17
“P5”	Witness statement, Constable Polowei Niopan	undated

6. The exhibit evidence are valid. They are properly before the Court now for consideration together with the testimonies of the witnesses (see cases: State v. Kelly Minong (2016) N6271; State v. Goi Mubin [1990] PNGLR 99; State v. Benjamin Garo (1996) N1521; State v. Peter Raima [1993] PNGLR 230).

7. The main issue is whether the killing was accidental as claimed by the accused. Secondly, if it was not accidental killing, was the killing intentional? If it was not intentional, whether the accused may be liable for other prescribed offences under the CC Act.

8. Before I go on to look at the evidence, let me list down the elements of the offence wilful murder under section 299 of the CC Act (see cases: Ilai Bate v. The State (2012) SC1216 and State v. Jenny Dei (2011) N4231). They are:

10. The State’s only witness is John Malakai. He deposes as follows: He said that on that morning, he stood about 12 meters away from the deceased and the accused. He said that from there, he was able to see the accused and the deceased. He said the deceased was in a seated position on a memorial cement. He said the accused was standing in front and close to the deceased. He said he saw the accused used a big bush-knife, raised it and cut the deceased on his neck with a single blow whilst the deceased was still seated on the memorial cement. He said the deceased remained seated for a short while before he fell onto the ground. He said he did not hear the deceased swore or say anything to the accused before the deceased was attacked. He also said that the deceased did not try to confront or attack the accused before he was slayed.

11. For the defence, I firstly refer to the accused. He said as follows: He said that on that morning of 30September 2017, between 6am and 7am, he woke up early to have his shower at the beach to go to Kokopo to work. He said at that point, he heard the deceased shouting out to him. He said he heard the deceased swearing at him. He said he said nothing in response. After that, he said that he took out his basket, his bush-knife and his towel, and he walked out to the beach to bath. After that, he said he walked back to his house. He said he stood at his kitchen door and told his family to prepare breakfast. He said as he was talking, the deceased came into his yard and sat down on a memorial cement. He said from there, the deceased called out to him and swore at him. He said he then walked to where the deceased was sitting. He said he had with him his basket, bush-knife and towel. He said he tapped the deceased on his back and told the deceased that he had no grudges against him. He said he told the deceased that if the deceased had any grudges against him, that he should wait until after he finishes from his work on that day and in the afternoon, to discuss. He said the deceased swore at him in response. He said he saw the deceased’s 5 year old child crying nearby. He said he used his towel to wipe off the mucus and tears from the child’s face. He said he offered his hand out to the deceased and at the same time told the deceased to wait until he returns from work in the afternoon. He said the deceased refused to shake his hands. He said the deceased instead swore at him and told him to clear off the land. He said that deceased told him that the land which the accused was residing on was his land and that he must leave. He said he told the deceased in reply that his mother was the first born and that the deceased was supposed to respect him as his elder. He said the deceased swore at him in response. He said just then, he heard his son called out to him so he turned around and was about to walk back. He said the deceased swore at him at that point. He said that when he heard the swearing, he mind was not settled. He said he was surprised when his son called out or shouted out to him to warn him of the deceased whom he said was about to attack him from behind. He said that in fear or surprise, he quickly reacted by swinging his hands from left to right as he quickly turned to face the deceased. He said that that was how the deceased received the cut to the right side of his neck. He said immediately before he reacted, he was holding his basket and the bush-knife on his left hand and his towel on his right hand. He said that after the deceased was cut, he saw the deceased holding onto his neck as he sat down on the memorial cement. He said he was shocked and later tried to assist him but he died.

12. The defence second witness Bruce Kinamur is the son of the accused. He said that he could recall the incident. He said that at the material time, he was standing on the veranda of their house at Warbak at Inolo village. He said this was after he had heard an argument coming from outside the house. He said the distance was about 5 meters, that is, from where he was standing to where the deceased and his father where at. He said he looked and saw his father tapping onto the back of the deceased in an attempt to talk to him. He said the deceased swore at his father in response. He said he called out to his father to hurry up so that they could catch a boat and travel to Kokopo. He said just then, the deceased stood up and swore at his father. He said the deceased, at that instant, also wanted to swing his hand at his father. He said his father at that time was holding a towel on his right hand and his basket and bush-knife on his left hand. He said when the deceased swung his hand, his father turned and raised his hands to block him. He said his father had his back to the deceased when he swung his left hand. He said that that was when the bush-knife cut the deceased. He said the deceased then sat down and held onto his neck. He said blood started to drip down from his neck which was when the deceased fell to the ground.

13. The question of whether the accused killed the deceased was not contested. Evidence adduced from the accused himself and his son confirm that the deceased was killed at the material time, date and place by the accused using a bush-knife whereupon the deceased died directly from the single cut wound to his right neck.

14. Was the killing unlawful? The accused has relied on the defence of accident. The defence is provided for under section 24(1)(b) of the CC Act. It reads in part, Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for.....(b) an event that occurs by accident.

15. In my view, the defence has sufficiently, by way of evidence, raised the defence of accident. I refer to the witness testimonies of the accused and witness Bruce Kinamur. These evidence, if accepted at their highest point (i.e., without regard to inconsistencies or without them being tested in cross-examinations), would establish a defence of accident. So, with that sufficiency in place, the State is now required to negate the defence if it is to sustain the charge of wilful murder (see also cases: State v. Mas Judah Binas (2007) N3118 at pp 123; State v. Wilson Num (2016) N6223 at pp 46 &47).

16. So I now turn my attention to the evidence as tested in Court. I have assessed the testimonies of all the witnesses, that is, both by the State and the defence. Was this an accidental killing, I ask myself. My answer to that is, “no, the killing was not accidental.” State witness Mr Malakai’s testimony, in my view, was cogent, consistent and unshaken in cross-examination. Mr Malakai, from 12 meters away in the morning of 30 September 2017, was able to clearly see how the crime had unfolded. I refer to what he has stated as I have summarised above in my judgment.

17. As for the accused, I find his demeanour in Court to be unsatisfactory. I also find that he tried to say many things in the witness box that were favourable to him only or that made him look good, and in doing so, I find that he also said things that were not recorded in the record of interview and he also said things that appeared completely new. Let me explain. In regard to the record of interview evidence, that is, Exhibit P1, the accused did not contest nor was he asked questions to challenge what he had told the police. In the record of interview, the accused agreed when questioned that he and other men from the village had gotten drunk the previous evening on Friday; that they later went to the door steps of the deceased’s house and shouted out the words “nana, nana, mama tinpilai”. The accused, however, did not speak of this in his sworn evidence. According to the record of interview, the accused said that in the morning of 30 September 2017, he carried his basket and his bush-knife and approached the deceased at the memorial cement (refer to questions and answers, 15 to 22 in Exhibit P1). In his sworn evidence, the accused added on new facts, that is, the part where he said that he went on to take a bath and later spoke to his family from the kitchen door before he approached the deceased. The accused also added a new fact into his sworn evidence which was that when he approached the deceased, he said he was also carrying a towel. He did not state these in his record of interview (refer to question 23 in Exhibit P1). The accused also did not try to explain the changes of these accounts to the Court when he had that opportunity. Another crucial inconsistency is this. In his record of interview, the accused agreed that it was he that had approached the deceased and that it was he that had argued with the deceased (refer to question and answer 24). But in the accused’s sworn evidence to the Court, he spent more than half of his total time telling the Court how calm, polite, respectful and considerate he was and that it was the deceased that had started the argument; that he said that it was the deceased who kept swearing at him. The accused did not at any one time tell the Court under oath that it was he that had argued with the deceased or that he had argued with the deceased at some point at that time. Lastly, in the record of interview, the accused agreed that people came soon after the incident to try to save the deceased but that it was too late. And when he asked the people about the deceased, they told him that the deceased had died. However, in his sworn evidence to the Court, the accused makes no mention of this nor did he try to explain his reasons when he had that opportunity in Court.

18. At trial, the accused was asked to demonstrate in Court how the accident occurred. The accused, in my view, gave a good demonstration. He said he had his back to the deceased. He said he had his bush-knife and his basket on his left hand and his towel on his right hand. He said the bush-knife was about a meter in length and his basket 40cm. He said when he heard the shout from his son Bruce Kinamur, he swung very quickly, horizontally and in a clock-wise direction, his left hand that had the bush-knife and the basket. The accused made a sudden and almost an 80 degrees turn. He said that was how he had accidently cut the deceased on his neck.

19. I am not at all convinced with the explanation. Again, I say so because I believe the account as recalled by Mr Malakai. But there is also a further and independent evidence that strengthens my view. I refer to the autopsy or medical report. In my view, the said report corroborates Mr Malakai’s testimony. Not only that but it also disproves the accident claim by the defence. The report is marked as Exhibit P2. The report states that the wound was a gaping wound which was caused by a single blow from an object that matches with a bush-knife. It says that the wound’s measurement was 10 cm in length across the right antero-lateral neck region and 5 cm deep. When I consider both the length and the depth of the wound, it is obvious it would have been caused by a force that was strong or forceful. In my view, the account as recalled by State witness Mr Malakai would have caused such an injury to the neck of the deceased.

20. I do not give any credit to the testimony of Bruce Kinamur. In his evidence, he repeats most of what the accused had told the Court. I do not find him as a credible witness. I observed that he appeared tense and did not give his evidence easily to the Court. I also find that he has a motive for not telling the truth. He told the Court in cross-examination that he felt sorry for his father who was in prison and that he would do his best to assist him (i.e., the accused) with his case.

21. In conclusion, I find that the State has negated the defence of accident. I also find that the State has established beyond reasonable doubt the second element which is that the killing was unlawful.

23. The answer to that in my view, is proven through the sworn testimony of the State witness Mr Malakai. Evidence from both sides confirm that both the accused and the deceased had disputes over land in their village. I find as a fact that the accused did try to confront the deceased the previous evening as he has admitted to the police in the record of interview. I find that upon seeing the deceased in the morning on the next day, the accused approached the deceased carrying with him a bush-knife. I find as a fact that the deceased was seated when an argument started. I find as a fact that the accused at a close range swung his bush-knife with a single blow to the right neck area of the deceased. I find that the deceased died soon after as a direct result of the said cut to his neck.

24. I find that the State has established beyond reasonable doubt that the accused had intended to kill the deceased, and he killed him. I also note that by the finding of intent, it shall also disclaim the defence of accident (see case: State v. Waiyake Komane John and Ors [1992] PNGLR 524).

25. I find that the State has established to my satisfaction, that is, beyond reasonable doubt all the elements of the offence of wilful murder under section 299 of the CC Act.

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

National Court of Papua New Guinea

State v Kinamur [2018] PGNC 254; N7373 (20 July 2018)