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State v Pakua [2019] PGNC 162; N7875 (21 May 2019)

N7875

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1131 OF 2017

THE STATE

V

AUGUSTINE FREDRICK PAKUA

Kimbe: Miviri J
2019: 15^th, 16^th, 17^th &20^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death undisputed – intent to kill – identification of accused – eye witness evidence – credibility of – no notice of alibi – evidence in defence – unsworn statement from Dock – weight to be attached – alibi falseness – effect of – rejection of defence case – acceptance of State case – guilty of wilful murder

Facts
Accused was part of a group that attacked and cut up the deceased who died from heavy blood loss as a result

Held
Death undisputed
Intent to kill
Identification of accused
Guilty of wilful murder

Cases Cited
The State v John Jaminan [1983] PNGLR 318
The State v Kassman [2004] PGSC 9; SC759
Phillips Boike Ulel [1973] PNGLR 254
The State v John Beng [1977] PNGLR 115
The State v Pawa [1981] PNGLR 498

Counsel:

E. Kave & M. Tamate, for the State
D. Kari, for the Accused

VERDICT

21^st May, 2019

1. MIVIRI J: After trial this is now the verdict of the accused who allegedly killed the deceased.
   

Charge

2. He is charged pursuant to Section 299 (1) of the Criminal Code Act of Wilful Murder which reads;
   
   • (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.
3. The Prosecution must satisfy that the killing of Stanley Luaina was unlawful. There was an intention to cause his death. That the person who is author of the killing is the accused. All must be established beyond all reasonable doubt.
   

Facts

4. It is alleged that on the 19^th of March 2017 about 12.00midday Accused was at Tamba block Mosa with several other persons armed with various weapons they went to the house of the deceased to search for him. There they confronted him with his wife and four children. The deceased became fearful and fled from the house. Along the way they broke up and separated. The Accused and accomplices kept pursuing the deceased to the boundary separating Tamba and Mosa blocks where they cut him up multiple times with bush knives and spear. He sustained multiple cuts on his back and succumbed to the attack dying of severe blood loss. Accused intended to kill him and aided and abetted the others to kill him.
   
5. He denied so a trial was run with the state calling sworn evidence to prove the allegation. It was undisputed that Stanley Luaina was confronted on Sunday 19^th of March 2017 about 12.00 midday at Tamba block Mosa at his house with his wife and four children by a crowd of men armed with bush knives, stock knives, spears, stones and sticks. That he was chased out of his house with his wife and four children. Along the way they became separated and he was pursued alone by some of those in the crowd to a location where he was repeatedly cut on the back with bush knives and a knife made into a spear. He sustained multiple and serious injuries set out by the post mortem examination report Exhibit S6 (B) attached to Doctor Ketalu’s medical affidavit Exhibit S6 (A) of the Kimbe General Hospital summarized as multiple knife wounds to the left leg including compound fracture of the bone there, a very large cut on the left shoulder, the right lower back, the right shoulder, right clavicle region, right arm medial aspect and the right chest cavity. He had entry wound on the right chest, 8^th rib was fractured, 10^th was dislocated collection in the pleural cavity and the lung was collapsed and laceration seen on it. The left chest the 9^th rib was dislocated and the lung was contused. The five photographs exhibit 7(A) to 7(E) show this extreme and gruesome sight after the assailants had completed what they set out to do upon the deceased. In particular exhibit 7(D) and 7(E) show the cuts crisscrossing the entire back of the deceased. The medical certificate of death exhibit S6(C) by Doctor Ketalu set the cause of death as right pneumothorax right penetrating chest injury.
   
6. By this evidence Stanley Luaina died an unnatural death. This evidence also establishes that whoever inflicted the injuries upon him intended that he should die. The injuries are repeated on the back. It would appear that he was facing away possibly running away and therefore sustaining the injuries confined to his back almost the entire back is riddled its entire length and breadth crisscrossed with serious open cuts. There are no defensive wounds either on the hands or the frontal part of his body. This would be consistent with the other evidence of the chase by the other members of the Luaina family on record. His death came about immediately after he was pursued by this group of men armed as described set out above. It is therefore safe to return from this evidence that Stanley Luaina was unlawfully killed. And that whoever killed him intended to kill him.
   

Issue

7. Who is the person or persons responsible for the death of Stanley Luaina?
   

Prosecution case

8. To lead evidence on this issue the first state witness on oath was June Salaniet Stanley wife of Stanley Luaina the deceased originally from East New Britain resident with him and their four children Keycie, Joshua, Grace, and Eli. On that Sunday 19^th March, 2017 at about 12 midday, they were getting ready to cook when a crowd came from Section 5 and 7 armed with bush knives, stock knives, spear, stones and sticks came to their house. It was over a drunk person who had held up their boy and fought with him and wanted to take his bicycle. The boy was sent that Saturday to pick up some items including food that had come from Rabaul. He came back so that Sunday they came and chased her, the deceased with their four children from their house. They fled in fear and along the way separated in their haste to escape. She went and hid in the bushes the deceased was pursued she did not see to where he was chased. She did not recognize anyone in the crowd. She came out not knowing where to go to look for her husband and child. As she did she got a telephone call from their long time neighbour one Cletus from Sepik who directed her where to look for the deceased and to find him if he was still breathing or dead. The people have hit him he must be still breathing or dead. She found the body at Larien village where he was dead there with cuts all over his body. He was lying on his back. She called the CID to where the body was and took it to the Morgue.
   
9. In February and March this year 2019 the accused Augustine was ringing her from Jail and told her she must not be present with her two children and the court will be dismissed and he will come out. That she would go to jail for some year and would pay money. She got afraid and thought whether to comply or not to compy with what he said. As a result we stayed away from Tamba at Ruango. When he did not communicate any more my sister told me and we returned to Tamba. My number must have been given to him by one Siras because they are related and wantoks. I know the accused mother we are friends his father is a Doctor. And the family live at Section 5.
   
10. The second witness was Michael Maru or Maru Michael aged 22 years old from East Sepik Province a grade 12 Student. He said his story was in his statement given to Police. He did not make any qualification or exceptions to his story there and then. It was tendered through him as state exhibit S1. There were no serious objections raised by defence who merely contended the right to cross examine on it. He identified his signature confirming his statement of the 20^th April 2017. He was a grade 10D student at Kimbe Secondary School. Prior to that he did some schooling in Rabaul completed his primary school at Tamba Primary and then went onto Kimbe secondary school. He was 19 years old resident at Block 461 section 5 Tamba Mosa West New Britain. It belonged to Maria his mother’s sister. On the 19^th March 2017 together with Pelington her son she gave them an errand to Mosa village to collect money owed for the sale of chicken by another aunty. Both took their bicycles each and were on their way there along a short cut. They were taken aback, stopped their bicycles and observed three men cutting up a man lying on the ground. Both were 15 meters from where this was happening. The man was lying flat on his stomach on the ground. “He identified the three men as Tamai Nombri, Wisini Gigmai and Augustine Pakua. Timai Nombri was using a spear knife spearing the man with it. Wisini Gigmai was using a hook knife and Augustine Pakua was using a grass knife cutting the man on the ground. The frightening and shocking actions by the three made us speed off the scene and away into Mosa village. Arriving at Mosa village we did not tell anyone there but went straight to our aunt’s house, we got the dinau money and left again. On our return from Mosa village we did not follow the road or track we first followed and saw the three men cutting up the dead man, but instead headed another way and ended up at Mosa main market where we followed the main road back to section 5. The frightening and shocking actions of the three men cutting up a man in front of us traumatize us. Up until now I am afraid to reveal what I saw to anybody until now.”
    
11. The next witness was Pelington Ani from Sepik Yangoru aged 20 years old in Tamba Primary School grade 8. He responded that he could not recall the 19^th March 2017. But said that the reason he was in court was within his statement on paper. His primary recollection was the same as Maru Michael. Both were on their bicycles through a short cut to Mosa village to get money for chicken sale by his mother to an aunty who lived there. He did not know what had happened earlier on. But together with Michael Maru they were at Tuape’s block and were surprised to see three men cutting up a man with knives. “Both of us stopped our bicycles and observed them. We were about 15 meters away from where they were cutting the man. The three men I saw cutting up a man who then lying flat on his stomach on the ground. The three men I saw was Tamai Nombri. Augustine Pakua and Wisini Gigmai. Tamai Nombri was spearing the man on the ground with a spear knife; Augustine Pakua was with a grass knife cutting up the man and Wisini Gigmai with a hook knife doing the same. The three suspects did not see where we were. After seeing what happened we both continued our way to our aunty at Mosa village and got what we have been sent to collect. After collecting the credit money we return not following the route we first followed but drove through Mosa palms and arrived at Mosa market then to our block. The whole actions by the three men have traumatized us till today. ” He also identified his signature and the story he made to the police in it. Again his statement was tendered into evidence marked exhibit S2 defence did not object but reserved right to cross examine him. The date on it was 20^th April 2017. He was 19 years old grade 6 student at Tamba Primary School. And was resident at section 5 block number 461 since born. And knew people who lived around there.
    
12. The next state witness was Joshua Stanley 15 years old in grade 6 son of the deceased. Together with his parents they live at section 2 Tamba. His evidence was similar in all material particulars with his mother June Salaniet Stanley regarding events of the 19^th March 2017 when armed men chased them all from their house. Together with 3 sisters’ mother and father they were getting ready to cook when a group of men from section 8 and 5 Tamba armed came and chased them. He did not recognize them. He ran together with his parents and then separated. He ran away, crossed the river to Mosa village. But was called by their next door neighbour who they knew them for a long time Cletus to his house where he hid him in his kitchen there. He saw Augustine Pakua come to Cletus from the holes within and asked him to drink water. He knew him as he stayed there for a long time. He was holding a bush knife and a spear and was happy talking. He was about the same distance from counsel to the witness box a distance of 3 to 4 meters. He said check boss man if he is still alive save him if he is dead and call the police. He pointed out Augustine Pakua the accused in court as the person he saw on that day, who also went and broke and entered our house and got my bicycle and other things. He was in the group of men. That at this time his sister Keycie Stanley was with him and both observed this together.
    
13. In cross examination by defence counsel he denied that Augustine Pakua had gone to church and was not in the group. He explained further that the walls of the kitchen were made of betel nut palm tree split and were old so were broken and there were holes from which he could see what he observed. The roof was thatched sago palm leaves. He was firm that the only person talking amongst the group was Augustine and not the other men.
    
14. The next state witness was Keycie Stanley 16 years old from Vunadavai East New Britain elder sister of Joshua Stanley, daughter of the deceased Stanley Luaina and June Salaniet Stanley. Her evidence was the same as her mother and brother that on the 19^th March 2017 they were at their house ready to cook when the house was surrounded by armed men. Some were at the front and some were at the back. We saw that and ran away. I ran to the side of the bush but Cletus a relative took me and hid me in his kitchen. I know him as we live together. He also brought Joshua my brother inside and together we saw this. Augustine Pakua walked up and asked Cletus for water. Cletus gave him a 2 litre container and he drank. Then he said go and see the boss man if he is still breathing save him if not call the police. He was about the same distance as from the box to the table about 3 meters when I saw him. He was holding a bush knife and a spear. Cletus family his wife Julie and children was with him outside. Daddy had died so I started crying. Augustine was talking with happiness to Cletus and then walked off.
    
15. In cross examination it was put to her that she did not see Augustine Pakua as he had gone to church. She said it was not true she saw him there. There was no church at section 2 and 5 but at the Community. It was the Catholic Church. She said she knew him at Tamba and used to see him there. He was the same person in court.
    

Unsworn statement of Accused

16. In defence Augustine Fredrick Pakua gave an unsworn statement from the dock. He said he was taken into custody for a broken windscreen of the bus. At the station he was informed that he was taken in because of the wilful murder case at Tamba. He denied the offence to Police. He was shown the statements of the witnesses and was arrested and locked up at the Buluma Cells. Whilst up at the jail June the wife of the deceased told his family that the statement is not hers including her children. I got her number from my uncle and called her to confirm that. And asked her why she made these false stories against me and put my name in that story. She said her in-laws forced her to make that story as their father had died together with her children. And she gave her true story she said my husband died. I did not see who killed him. And her two kids said they only heard voice and did not see the person who was talking to Cletus. I told her to tell the truth in court. She said she would not otherwise she would urinate there if she did. She said she would argue with her brother following a plan with him so that she would run away with the kids. I did not tell her to do this. This matter involves the community and I do not know how it arose. I do not know about the death and where it happened. I do not know the two persons Tamai Nombri and Gigmai Wisini. That is the truth as I know it.
    

Record on interview

17. In the record of interview originally in pidgin Exhibit S5 (A) and the English translation Exhibit S5 (B), the accused denied the offence maintaining that he was at home during that day. This was the defence case closed.
    
18. A view was taken of the scene where deceased and family were set upon at the house including the chase leading to where individual witnesses, June Salaniet Stanley was when she hid received the call and went to locate the deceased husband. Then of the two older children Joshua and Keycie Stanley and their observation of the accused and distance. A drive around was made to the scene where the body was finally found by June Salaniet Stanley following call of Cletus. This was not the initial scene where witnessed by Michael Maru and Pelington Ani. It would appear that the body was moved from where it was initially killed to where the wife discovered. The conversation of Cletus and the accused did make sense in the discovery of the body.
    

Assessment of Evidence

19. Accused was at home at the time of the offence which is the evidence in his record of interview dated 30^th May 2017 with his parents both not called to support. It remains unsubstantiated and there is no consistency with his evidence in court. Defence Counsel cross examined Joshua Stanley and Keycie Stanley that the accused had gone to church and was not in the group. Both witnesses denied and confirmed both saw him. Also heard what he said and his mood too. This is an alibi with no notice filed in accordance with the criminal practise rules Order 4 Division 2 to be led. What it comes down to is the accused could not be at and with his parents at home and also at the church. He cannot be at two places one and at the same time. No motive has been disclosed by evidence against the credibility of both brother and Sister Joshua and Keycie. Accused has tried to create that he was in another location. He has not gone into evidence it means the alibi is not established it is false. His false alibi corroborates the identification made by the prosecution witnesses’ brother and Sister Joshua and Keycie Stanley John Jaminan v The State [1983] PNGLR 318 (29 September 1983). It is safe to hold that the accused did meet and speak to Cletus particulars set out above. He was not guessing but actually took part and was conveying recounting the details by that knowledge hence discovery of the deceased by the wife June.
    
20. This consistency rolls into the evidence of Michael Maru and Pelington Ani. Both did see the accused so set his name to police leading to arrest. That is what happened both witnesses are educated one in grade 12 now was in grade 10D Kimbe Secondary School then and the other in Tamba Primary School grade 6. Both witnesses live at section 5 where also the accused lived. Both have endorsed and adopted the initial statement to police as their evidence without qualification. They qualified upon cross examination firstly in respect of the distance from 15 meters to 100 meters and 70 to 80. This qualification would make identification naming of the persons difficult. Without names police would not arrest. What is probable is what is contained in their individual statements tendered and marked as exhibits set out above. That is consistent as 20^th April 2017 the dates of both statements are just over a month after 19^th March 2017. Events would be fresh and room for mistakes oversight would be minimal. Force undue threats pressure to give evidence would be minimal police would not pick up both witnesses without their willingness to come forward and give their statement as they did. It would defy common sense given that what both witnessed was not seen by anyone else other than them both. The truth is what they initially volunteered to Police. Both their evidence in court on cross examination does not bear in the light of all set out above. What has come out is tailoring of the evidence to suit outcome favourable to the accused well known to both as all live at section 5. Both witnesses it appeared wanted to short cut their evidence to the statement and not to elaborate.
    
21. Accused has not led evidence from his relatives to whom June Salaniet Stanley spoke to that she was retracking her evidence and that of her two children Joshua and Keycie against him. His evidence is unsworn whereas hers is sworn. The preferred version and the evidence tested is her evidence not his: Kassman v The State [2004] PGSC 9; SC759 (20 August 2004) approving applying R v Phillips Boike Ulel [1973] PNGLR 254. Because what he has done in his unsworn statement is give the impression that he never ever threatened June Salaniet Stanley in her story but to ask her to tell the truth. Her evidence makes sense she has lost her husband the deceased in the chase with their children. She would not be in any position to know exactly where he is let alone the children. But she is directed by Cletus her neighbour who calls her to a particular location who directed her where to look for the deceased and to find him if he was still breathing or dead. The people have hit him he must be still breathing or dead. This is the evidence from Joshua and Keycie Stanley of the conversation between the accused and Cletus. Both these witnesses observed him at 3 to 4 meters holding a bush knife and a spear as he talked. It is corroboration that the information relayed to June Salaniet Stanley is from this conversation. Cletus is a neighbour who has saved both children and now gives the information relayed by the conversation with the accused to June Salaniet Stanley who finds her husband dead with serious injuries on his back as a result. They are apart from each other but the ring of truth is there regardless of distance leading to the discovery and recovery of the body of the deceased.
    
22. If these were the only evidence for the state there would be lingering doubts because from where the body is discovered to where the accused converses with Cletus is not close. But the evidence is that Michael Maru and Pelington Ani both see the accused Augustine Pakua with a grass knife cutting the deceased as he lay flat on the ground on his stomach. He was with two others named as Tamai Nombri was spearing the man on the ground with a spear knife. And Wisini Gigmai was using a hook knife cutting the man. There is consistency in the observations made. It is from 15 meters and both witnesses are not peddling their bicycles but have come to a stop to make the observations that they set out. That is in accordance with common sense given the terrain and location where the chase takes place. The details in the statement are much too detailed to get from a speeding witness on bicycle.
    

Law on identification

23. The law on identification is set out in the case of John Beng v The State [1977] PNGLR 115. The correctness of the identification made of the accused by Michael Maru and Pelington Ani are challenged by the defence. Given the observations set out above this is not a case of a fleeting glance of a masked hood made under difficult lighting conditions or setting. I accept the evidence of these two witnesses as affirmed on oath exhibits in evidence for the reasons I set out above. To accept the evidence on cross examination would be parting with reality as it is known given the reasons I set out above. Both witnesses are intelligent witnesses educated and no doubt have now realized the impact of their evidence upon a fellow resident over time now 2 years since 20^th April 2017. The witnesses and the accused know each other well as all live at section 5. Identification is not a mistake because it is independently corroborated in the way I have set out above, particularly with the false alibi of the accused. I warn myself that close friends have mistaken in their haste to identify. The facts and circumstances here do not depict that because the quality of the evidence identifying by the exhibits before the court do not leave any doubt other than that the accused was positively identified as one of the principle assailants out of three of the deceased. This was broad daylight midday at 15 meters of a well known person Augustine Pakua who also lived at the section 5 with the witnesses. He was positively identified. The quality was very good. Because without which he would not have been arrested leading to this matter now.
    
24. I accept the submission by State counsel for the reason set out above and reject the submission by defence for the reasons set out. Even if the matter was to be considered circumstantially given what has been set out above there would be no other reasonable hypothesis other than the guilt of the accused: Pawa v The State [1981] PNGLR 498 (27 November 1981).
    

Findings of Fact

25. I find as a fact that the accused Augustine Pakua was identified as one of the three assailants of Stanley Luaina on the 19^th March 2017 at Tamba. He was cutting the deceased with a grass knife on the back as he lay on the ground.
    
26. I find as a fact that he unlawfully killed Stanley Luaina intending to kill him and did kill him.
    
27. I find him guilty of Wilful Murder of Stanley Luaina on the 19^th March, 2017 at Tamba pursuant to Section 299 of the Criminal Code Act.
    

Orders Accordingly

__________________________________________________________________Office of the Public Prosecutor : Lawyer for the State

Office of the Public Solicitor : Lawyer for the Defendant