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State v Peter [2024] PGNC 332; N11002 (20 September 2024)

N11002

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 06 OF 2022

THE STATE

V

ANDY PETER

Waigani: Miviri J
2024 : 12^th , 19^th & 20^th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S299 (1) CCA – Trial – No Dispute Deceased Cut with Bush knife & Died Resulting – Wilful Murder – Who Caused the Cut with the Bush Knife Upon the Deceased – Broad Daylight Identification – Not A fleeting Glance – Good Lighting – Motive to Attack – Evidence of Injuries from Fight – Picked out of Public Store – Good Identification – Beyond All Reasonable Doubt Accused Identified – Guilty of Wilful Murder – Remanded for Sentence.

Facts
Accused cut the deceased intending to kill him and did kill him. He retaliated after he was beaten up in a fist fight with the deceased over half a bottle of beer.

Held
Intention to Kill and a killing undisputed.
Who killed and did intend to kill.
Good identification in good lighting at close quarters.
Accused picked out at a public Store.
Injuries from fight sourcing him out.
Good identification.
Accused perpetrator of Offence.
Guilty of Wilful Murder.

Cases Cited:
Beng, The State v [1976] PNGLR 471
Hagena v State [2017] PGSC 55; SC1659
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
James v State [2020] PGSC 39; SC1937
Kuanande, The State v [1994] PNGLR 512

Counsel:
L. Jack & J. Siminji, for the State
K. Watakapura, for the Defendant

VERDICT

20^th September 2024

1. MIVIRI J: This is now the verdict of Andy Peter of Tigibi Village in Tari, Hela Province charged that he on the 06^th June 2020 at 9-mile Settlement in National Capital District wilfully murdered Nelson Pitu.
   
2. He was indicted pursuant to Section 299 Wilful Murder, of the Criminal Code reading:
   
   • (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 sentenced to life imprisonment and is eligible for parole after 30 years.”
     
3. Accused entered a not guilty plea to the allegation that on the 06^th June 2020 about 4.00pm, he was drinking beer with others at 9-mile Quarry Settlement in the National Capital District. Nelson Pitu the deceased and his friends, Mark Steven Wia, John Timothy, and Masket Tore after having some beer in their relative’s yard were walking down the road. They ran out of beer and so walked down the main road trying to return to Waigani University of Papua New Guinea Campus.
   
4. As they made their way out, one of the Accused’s companions confronted Nelson Pitu and his friends and demanded Masket Tore to give him the half bottle of beer he was holding. Masket Tore refused to give it to him and the Accused accomplice slapped him on the face. A fight broke out as a result and Nelson Pitu and his friends chased the accused and his relatives into their yard.
   
5. Shortly after that the Accused and his relatives returned whilst armed with bush knives, sticks, and rocks. They attacked the deceased and his friends. They started fighting again with the deceased and his friends. At this time the Accused was armed with a bush knife, and he swung it at the deceased head. Who sustained a deep cut to the head. The two groups ceased fighting when they saw the deceased was badly injured. Police also arrived at the scene and dispersed the groups and controlled the situation. The deceased was rushed to the Port Moresby General hospital and treated at the Intensive care unit (ICU) but died later from primary brain injury due to an incision wound to the head. He intended to kill him and did kill him, thus contravening section 299 (1) of Wilful murder.
   
6. In its endeavour to prove its case the State tendered into evidence by consent the following evidence marked as exhibits. Exhibit P1 was the affidavit of Doctor Philip Golpak undated attaching his autopsy report exhibit P1(a) which evidence established that he is a medical Doctor registered under the Papua New Guinea Medical Registration Act. He held a bachelor’s degree in medicine and surgery and a master’s in medicine from the University of Papua New Guinea. And was a Specialist Pathologist for 20 years. And on the 12^th June 2020 at 12.40pm he was at the hospital with his normal duties and conducted the autopsy on the body of Nelson Pitu. The body had significant abnormal findings which included (a) Primary Brain Injury, and (b) Incision wound to the head. And he concluded that the death was due to the Primary Brain Injury due to the Incision wound to the head. To this regard he attached the autopsy report dated 12^th June 2020.
   
7. Coupled with exhibit P2 Statement of Kemos Kongga Policeman crime scene officer at the National Forensic Science Centre, he took the photographs 1, 2, and 3 of the deceased body. Photograph 4, 5, 6, and 7 showed the injuries to the head of the deceased exposed out by the postmortem operation internally. Photographs 8, 9, 10, 11, 12 showed the area where the attack took place. It is an area clear of any obstruction plain and the witnesses both position as they described would have had no problems in seeing what they both saw. The area is an open space unobstructed by any house and the like. All are at the sides and the people if standing in this would have been seen without any view being obstructed. There is clear open space with unobstructed view if the fight was taking place there.
   
8. Exhibit P3 and P4 were evidence by the corroborator Yaku Gwampom and Sergeant Nei Pige who was the Investigator and who conducted the record of interview Exhibit P5(a) pidgin original version dated the 04^th September 2020, translated into English Exhibit P5(b). There were no admissions in it. Nor was there any disclosure of the accused alibi witness, his supervisor at ID 24 trade store, Paul Kenny. It would have made more sense and credible to name him in the record of interview as the person he was with at the time of the fight. His name is not disclosed on the 04^th September 2020, three months after the killing. It was fresh and would have come out there instead of coming out at trial Tuesday 17^th September 2024 some four years after the killing.
   
9. Paul Kenny was called in defence on oath. He did not state any reason as to why the accused did not name him in his record of interview as one, he was with at the time of the killing. That is, he was working and not part taking in that allegation raised leading to the killing of the deceased. He was not an independent witness because he got close to the accused in the working relationship. Even to the extent of taking the accused and dropping him off at his house at Laloki egg farm. He also did not give evidence denying that the Accused had bruises injuries to his face as a result of the fight setting him out as one of the persons assaulted by the deceased with the two witnesses Mark Steven Wia and John Timothy in that fight. He does not give any specific reasons as to why it was different and distinct from any other days when the Accused attended work to set this particular day 06^th June 2020, out from the rest to be remembered for that fact, four (4) years later. He does not describe the clothes Accused wore on that day. Without the accused naming him in the record of interview as the person he was with on that day, 06^th June 2020, it does not advance the alibi any further to sway in favour of the accused case.
   
10. Its effect is that it is a false alibi concocted out of a conscious sense of guilt because both Mark Steven Wia and John Timothy see the Accused at 4.0 clock in the afternoon on that area photographs showing 8, 9, 10, 11, 12. It is a open space unobstructed and so the evidence of both witnesses of having seen the accused come with a bush knife and swing and chop Nelson Pitu on his head. Which injuries are shown out by the photographs set out above and the medical report set out above. John Timothy in cross examination by Defence counsel stated, “Nelson was very close, so I saw knife to his head. Because the road was narrow, and we were close to each other. Two fights with the Accused and the next day I recognized him. It was easy to recognize the Accused because his face and nose still with the injuries of the fight. Like I said I was not extremely drunk, so I recognized him. The third time was in the cell I recognize him. He was with others also in the cells.”
    
11. He reiterates this evidence in the defence exhibit D1, his statement tendered as prior inconsistent statement. It goes hand in hand with the evidence of Mark Steven Wia who says he boxed Andy Peter “who got a bush knife and cut Nelson Pitu. Because he lives at ID24. He was defeated in the first fight and came back armed with a bush knife tramontina long one K10.50 and swung the knife at Nelson. I was close I saw it because I faced him. He was two (2) meters and close.” I have observed this witness and do not doubt the veracity of his evidence as that was viewed from two meters apart at close quarters. There was no room to be doubtful. It was viewed at 4.00 clock in the afternoon in broad day light. And the witness saw the accused twice, in the first fight with fists and then when the accused returned the second time with a tramontina bush knife. It is the same evidence that is viewed from the angle where the witness John Timothy was.
    
12. In my view both gave a credible consistent account of what happened on that day 06^th June 2020. Each did not try to make up evidence. They both gave evidence of seeing the accused at very close quarters in that fight and in what he did. The photographs 8, 9, 10, 11, 12 of the scenes do not show any obstacle that could have affected the sight of the accused by the witnesses. I do not find any matter against the evidence of both witnesses. I find that both are witnesses of the truth and have told the truth as best as they could in how they each observed the fights and the demise of the deceased. Both saw the accused Andy Peter chop Nelson Pitu on the head with that bush knife causing the injuries that have been independently established by the medical report and evidence set out above. This evidence makes consistent their accounts of the injuries sustained. It is independent evidence that establishes what they saw of the demise of the deceased in the hands of the Accused with that bush knife. Because here the evidence of the witnesses is made in broad daylight in close quarters. It would be harmonious to read the test in Beng, The State v [1976] PNGLR 471. What the Accused did was observed in broad daylight, in very good lightening, at close quarters. Both their evidence meets the requirements of good credible identification set out and it leaves no option but to hold that the accused was seen by both witnesses doing what he did, chop Nelson Pitu on his head with a bush knife and kill him in that process.
    
13. Accused has been an inconsistent and incredible witness because of the observations that I have set out above relating in particular to his alibi. He does not name Paul Kenny cracking his alibi open, incredible, not worthy of belief. He has consciously tried to make out an alibi that is not there in the first place. His evidence is self-serving not corroborated by any independent and material evidence to point in his favour: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). That means he has given false and belated evidence disassociating himself from the truth to avoid the guilt that is glaring against his action. By that fact he corroborates the evidence of the two State witnesses. Because lies told consciously to avoid guilt has been held to amount to corroboration of the State account: John Jaminan v The State [1983] PNGLR 318. Here particularly the identification and the role that the accused played out in the offence. Because his identification is not in a fleeting glance, or he is masked in a dark corner or alley. He is in broad daylight at 4.0 clock in the afternoon in a clearing unobstructed by anything seen at two meters by the witness Mark Steven Wia to deliver that blow with the bush knife to the head of Nelson Pitu. Also seen similar by John Timothy.
    
14. Put alongside each other I would prefer truth that has been told by both state witnesses and reject the accused alibi and his case as holding no water, inconsistent, incredible not worthy of belief. Because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). It is not explained why the Accused does not immediately name Paul Kenny as person he was with on the 06^th June 2020. And therefore, not at the fight. There is simply no consistency and credibility. The alibi is without merit, and I reject it in law for the reasons set out above.
    
15. In the aggregate there is clear evidence of animosity by the Accused prior and leading up to the killing in conjunction with the others: James v State [2020] PGSC 39; SC1937 (24 April 2020). That is the only rational and only reasonable hypothesis that the Accused was seen actively involved upfront set determined to kill and did kill Nelson Pitu in as stated by both witnesses. First fight was with fists which the deceased and witnesses successfully won. But that was the animosity prompting accused to come the second time armed as he was and kill the deceased in the manner described. Intent is personal unto the accused, and maybe deduced from the totality of the evidence: Kuanande, The State v [1994] PNGLR 512. I find no reason not to follow in view of all set out above. He intended to kill and did kill the deceased.
    
16. I return a verdict of guilty of wilful murder on the Indictment dated the 12^th September 2024 in that Andy Peter of Tigibi village, Tari, Hela Province on the 06^th June 2020 at 9 mile Settlement National Capital District wilfully murdered Nelson Pitu contrary to section 299 (1) of the Criminal Code. He will be remanded to await sentence.
    

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant