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State v Ivangai [2019] PGNC 445; N8207 (19 November 2019)

N8207

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1345 OF 2019

THE STATE

V

JUNIOR FELIX IVANGAI

Waigani: Koeget, J
2019: 14^th, 15^th, 18^th, 19^th November

CRIMINAL LAW- Indictable offence – Wilful Murder pursuant to section 299(1) of the Criminal Code Act – convicted after trial – accomplices sentenced by differently constituted court – same sentence to be imposed on the prisoner

Facts

On Monday 15^th December 2008, there was a confrontation between the deceased and the accused’s brother resulting in him receiving a stab wound.

On 19^th December 2008, the deceased with his wife and other members of the family gathered at Paul Paisafoe’s house at Inaoe village, Bereina in the Central Province. In the afternoon at about 2 o’clock the accused Junior Felix Ivangai in company of his brothers Joe Ivangai, Paul Ivangai, John Benny and sister Mary Ivangai went and attacked the deceased and family in Paul Paisafoe’s house. The family were taken by surprise and so all ran to the rear of the house to take cover as it has betel nuts and bananas growing. The deceased was surrounded by the accused and accomplices and attacked with spear, knives and sticks.

The State alleged that the deceased was speared on the right hand-side of the hips and as he struggled to remove the spear from his body, the accused Junior Felix Ivangai struck him on the head with a bush knife. The State alleges that the accused’s motive to attack the deceased was due to the altercation on 15^th December 2008 involving younger his brother and the deceased. When the accused struck the deceased on the head with the bush knife, he intended to kill the deceased and so his actions contravened section 299 (1) of the Criminal Code Act. The State invoked section 7 of the Code because the accused in company of his brothers and sister attacked the deceased. They allegedly aided each other in the commission of the offence.

The accused pleaded not guilty to the charge.

Case Cited

Manu Kovi -v- The State (2005) SC 789
State –v- Steven Loke Ume (2006) SC 836
Counsel

Mr. D. Mark & Mr J. Gubon, for the State
Mr. I. Pailaea, for the Accused

19^th November, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Wilful Murder pursuant to section 299 (1) of the Criminal Code Act chapter 262.
   

Trial

2. The State tendered the following documents by consent at the commencement of the trial:
   
   • - Record of interview between the police and the accused dated 24^th January 2017. (marked “Exhibit 1A”for the State – pidgin version, “Exhibit 1B” – English translation).
     
   • - Autopsy report on deceased dated 19^th December 2008 (marked “Exhibit 2” for the State).
     
   • - Medical certificate dated 29^th December 2008 (marked as “Exhibit 3” for the State).
     

Evidence for the Sate

Witness: Gaberina Ine’e

3. She is from Inaoae village in the Bereina district of the Central Province. Her father is from Inaoae village and the mother is from Inaoe village also in the Bereina district of the Central Province.
   
4. She married the deceased Henry Paisafoe from Angabanga (Inaoe) village in the Bereina district of the Central Province. In 2008 she lived with the deceased in his family house at Inaoae village.
   
5. On the afternoon of Friday 19^th December 2008 she was with the deceased in Paul Paisafoe’s house. The deceased and his brothers slept while she sat when people went into Paul Paisafoe’s premises armed with bush knives, spears and sticks. She screamed and said “you are sleeping, people are here”. The deceased and his brothers woke up but it was late as those people came in numbers and chased them to the rear of Paul Paisafoe’s house. As they ran to the betel nut garden at the rear of the house, she saw Joe Ivangai throw a hunting spear and struck the deceased on the hips. As the deceased struggled to remove the spear from his body, she saw the accused Junior Felix Ivangai strike the deceased on the head with a bush knife. Then Mary Ivangai also hit the deceased on the head with a stick used by Mekeo people for fighting.
   
6. As the deceased was falling down to the ground, she grabbed the deceased and Joe Ivangai kicked her in the stomach. She was beaten by Paul Ivangai soon after being kicked in the stomach. She shouted and told the assailants “do not run away, you killed my husband already”. She left the husband lying on the ground and sought assistance from her family members. She told her brothers of the incident and a brother named Allan Oae ran and lifted the deceased from the ground and carried him to the side of the road where he was put in a motor vehicle and taken to Inaoe sub health clinic. The staff at the clinic arranged for an ambulance so that the deceased was transported to Port Moresby General Hospital. He was admitted to the hospital and three days later died and the body was taken home for burial.
   

Motive for the attack on 19^th December 2008

7. On Monday 15^th December 2008, the deceased sent his younger sister to the store to buy food, cigarettes (spear) and soft drinks and as she was returning, a “spark-man” grabbed her breasts and she reported it to her brothers when she arrived at the house.
   
8. So the deceased went and approached the “spark-man” and both exchanged punches. The “spark-man” fell down to the ground and landed on the sharp point of a knife he carried in his trousers pocket. She went and assisted him to stand up and as he stood up, she saw a small knife fall out from his pocket so she took the knife and escorted him to his house. She knew the (“spark-man”) as he is her maternal uncle and younger brother of the accused. That incident led to the attack on the deceased.
   
9. She maintained that the accused in company of Joe Ivangai, Mary Ivangai, Paul Ivangai and John Benny attacked the deceased with bush knife. The accomplices were convicted by the National Court for the death of Henry Paisafoe on 19^th December 2008 and they are serving sentences at Bomana Corrective Institution Services.
   
10. In cross-examination she stated: “I saw with my own eyes, he took the bush knife and cut my husband on the head. I put my husband down on the ground, he lifted his head up and said to me: “tell them they killed me already”. So I said to them “you killed my husband already”.
    

Defence

Witness: Junior Felix Ivangai

11. He is from Inaoae village in the Bereina district of the Central Province. He is married with wife and children. His wife is from the Gulf Province. His first wife was from the Gulf Province and she is deceased. The children from that marriage reside with him at his village.
    
12. On 19^th December 2008 in the afternoon he was at his house in the village. He went to the garden at the rear of the house and cut a banana and carried it to the house. When he was under his house, he heard men, women and children shouting and screaming at a distance of 70-80 meters away so he ran to that location. He carried a bush knife and a stick as he ran to the location where people were screaming and shouting. As he approached the location he saw a man lying on the ground in a pool of blood between Paul Ivangai and Mary Ivangai so proceeded to use the stick he carried to push away Paul Ivangai and used the same stick to hit Mary Ivangai in the back. He used the stick to hit Paul Ivangai in the back and push him, Mary Ivangai, John Benny away.
    
13. As he pushed his brothers and sister away, the deceased wife arrived at the scene pushed him away and said “you killed my husband.”
    
14. He did not see who speared the deceased on the hip and cut him on the head with a bush knife as he was not present at the scene. He arrived at the scene sometime after the deceased was injured and was lying on the ground in a pool of blood.
    

Witness Joe Ivangai

15. He is from Inaoae village in the Bereina district of the Central Province but resides with wife and children in the neighbouring village of Iesubaipua.
    
16. On the morning of 19^th December 2008, he received a phone call from his younger brother Paul Ivangai informing him that the deceased was arguing with them. So he departed and went to Inaoae village to sort out the dispute.
    
17. At Inaoae village he proceeded to the deceased’s house when the deceased’s family members shouted at him. The deceased and his family members were armed with bush knives, hunting spears, bows and arrows as they surrounded him. So in self defence, he took a bush knife and at that instant the deceased charged at him with a hunting spear and jabbed him. The sharp pointed end of the spear struck him on the right hand near the armpit and so he raised his hand in the air with the bush knife and struck the deceased on the head while the spear was still stuck to his flesh and he held it with the left hand.
    
18. However, he changed that version and stated: “I took the spear out of my flesh and used it to spear the deceased in the back. Then I took the bush knife and struck the deceased on the head.” When the deceased lay on the ground in a pool of blood, his brothers and sister arrived at the scene so he did not inflict the injury on the head nor assisted or encouraged them to attack the deceased.
    

Analysis of Evidence

19. The State witness’ evidence is very clear and uncontradicted. The witness knew the deceased’s assailants as they are her maternal uncles and aunt and she had known them well before the 19^th of December, 2008. There was no dispute between herself and the maternal uncles and aunt prior to the 19^th of December 2008 so she had no reasons to give false evidence against the accused. She maintained that as she and the deceased ran to the rear of the house, Paul Ivangai threw a spear and it struck the deceased on the hip. As the deceased struggled to remove the spear from his body, the accused struck him on the head with a bush knife and she saw Mary Ivangai use a stick to hit the deceased on the head. She grabbed the deceased as he was falling down and at that instant Joe Ivangai kicked her in the stomach. She told the maternal uncles and aunt that they “killed her husband.” She is firm in her account that the accused and his brothers and sister attacked the deceased with spear, bush knife and sticks and inflicted the injuries resulting in the deceased’s admission to the Port Moresby General Hospital. The deceased died three days after admission to the hospital.
    
20. The accused denies assaulting the deceased with a bush knife, aiding or encouraging, the accomplices to commit the crime. He arrived at the scene after his brothers and sister had attacked and inflicted the wounds on the deceased. He assisted to move his brothers and sister away from the scene.

I accept the evidence of State witness Gaberina Ine’e as the truth of what happened leading to the injuries sustained by the deceased. She was present when the deceased was speared on the hip by Joe Ivangai and as the deceased struggled to remove the spear, the accused struck him on the head with a bush knife. Although she was emotional when she gave evidence of how she held the deceased husband at the crucial instance, she maintained that the accused used the bush knife to inflict injury on the deceased’s head.

21. At Iesubaipua village, the others were arrested by policemen from Bereina station and taken to Dowa police detachment were they were placed in the cells.
    
22. The accused stated he went to his mother’s village in the Gulf Province with his wives and children. He stayed six years in his mother’s village then returned home as Chinese companies were doing work on his customary land. He was arrested by the police at Angabanga market. He was not arrested by the police with Joe Ivangai, Mary Ivangai and John Berry because he, fled Bereina and went to reside in his mother’s village in the Gulf Province. It was difficult to locate him at the mother’s village. There is no evidence that he made a feast and invited the deceased’s family including widow Gaberina Ine’e as a sign in Mekeo custom of restoration of peace and harmony between the disputing parties. So he gave false evidence to avoid conviction by the Court for the murder of the deceased.
    
23. I reject the entire evidence of the witness Joe Ivangai as he is an accomplice and a convicted person, and he gave incredible and unbelievable evidence to save his brother from conviction by the Court.
    

Verdict

24. All the elements of the offence are established by the testimony of the witness Gaberina Ine’e and the State has proven its case against the accused beyond reasonable doubt. So the accused is found guilty as charged.
    

LAW

25. “Section 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 another person, is guilty of wilful murder.
      
    • (2) A person who commits wilful murder shall be liable to be sentenced to death.”
      

ISSUE

26. What is the appropriate sentence the court should impose upon him?
    

PERSONAL PARTICULARS

27. The prisoner was 28 years of age when he committed the offence but now is 39 years old. He is a subsistence gardener and resides with his children from the first marriage in the village in Bereina District of the Central Province. The second wife resides in her village in the Gulf Province with their two children.
    

AGGRAVATING FACTORS

28. This was a mob attack on the deceased who was unarmed. The prisoner used a bush knife to inflict the injury on the head and the deceased bled profusely as he lay on the ground at the scene. A life is lost and cannot be resurrected. Such offence is prevalent in the country.
    

MITIGATION FACTORS

29. The prisoner is a first time offender. He is a subsistence gardener and lived in the village all his life. He has been in custody for 4 months and 1 week awaiting disposal of the case.
    

SENTENCE

30. The prisoner in company of his brothers and sister attacked the deceased at his brother’s house in the village with bush knives, sticks and spear on the afternoon of 19^th of December, 2008. The attack was in revenge for their younger brother purportedly attacked and injured by the deceased four days earlier on 15^th December, 2008.
    
31. The prisoner and accomplices attacked the deceased viciously with weapons and sticks and inflicted serious injuries resulting in his death.
    
32. The deceased was a young man in his 20’s and recently married to the State witness Gaberina Ine’e. The widow a young woman in her 20’s became emotional when she recall how she tried to save her husband and the parting words he uttered to her. The deceased’s life journey with Gaberina Ine’e was prematurely terminated when he died due to the injuries received during the attack.
    
33. The accomplices were sentenced by differently constituted court and are serving sentences at Bomana Corrective Institution Services.
    
34. The prisoner will receive similar sentence as those imposed on the accomplices.
    
35. So the prisoner is sentenced to be imprisoned for a period of 20 years in hard labour. The pre-trial custodial period is deducted and he is to serve the balance of 19 years 4 months and 3 weeks at Bomana Corrective Institution Services.
    

ORDER

(1) The prisoner’s bail of K2,000.00 is to be refunded to him forthwith.

Accordingly ordered.

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