State v Gende [1997] PGNC 159; N1678 (10 December 1997)

Unreported National Court Decisions

N1678

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1292 OF 1996
STATE
V
MICHAEL GENDE

Goroka

Sawong J
11-13 November 1997
17-18 November 1997
20 November 1997

Counsel

C. Ashton-Lewis, for the State

S. Ulge, for the Accused

20 November 1997

SAWONG J: The accused was charged with one count of wilful murder, an offence contrary to S 299 of the Code. He pleaded not guilty and a trial was conducted.

The State’s evidence consisted of some documentary evidence which were tendered by consent and some oral sworn evidence. The accused gave sworn oral evidence. The court also visited the scene of the incident.

The documentary evidence consisted of the Record of Interview between the accused and the police investigating officer (Exhibits S 2(a) & (b), the Post Mortem Report dated (Exhibit S), the Medical Certificate of Death (Exhibit S), and the accused s103 statement in the committal court.

The oral evidence was given by Ruth Robert, Kathy Lowis, Carol Lowis, Jim Mondo, Kovo Sivi, and Leslie Thomas and Dambe Lowis.

Before I deal with the evidence, it is necessary to state the relevant and applicable principles of law.

It is quite clear that the state’s case is quite clearly based on circumstantial evidence, for there is no direct eye witness evidence. In other words, none of the state’s eye witness in fact saw the accused stabbed his wife. No one saw him murder her. The state says, in general that it was the accused. But the accused denies he was responsible and says that it was someone else. In these circumstances, it is necessary to set out some relevant and applicable principles of law.

The first legal principle is that the State bears the onus of proving beyond reasonable doubt each and every element of an offence. In this case it is incumbent upon to the state to prove beyond reasonable doubt each and every element of the crime of wilful murder.

The second is that when a case against an accused person rests substantially upon circumstantial evidence, there should be an acquittal unless all the circumstances are such as to be in consistent with any reasonable hypothesis other than the guilty the accused. Pawa v State [1981] PNGLR 498

I wish to briefly go through the evidence of each of the witness in a summary form.

Ruth Robert gave evidence of meeting the accused at abut 6 o’clock in the evening on that Saturday whilst she was with the deceased at the Kefamo Bridge. There after, they all walked to Dambe Lowis’ compound. They all entered the compound. According to this witness, upon entering the compound, they all went to Dambe’s yard where the accused was introduced to Dambe’s wife carol and his daughter, Kathy. He shook hands with both of them and he was then taken into Dambe’s house where he shook hands with Dambe. After all this, they all went to Kathy’s house. Ruth and Kathy went inside Kathy’s house where Kathy made fire and the accused and his wife stood outside the house. Soon after, this witness left Kathy’s house and went to Dambe’s house, leaving behind the deceased, the accused and Kathy.

She went to Dambe’s house and stayed inside the house with Carol. However, she came out again and stood at the door of that house and she saw a man come to the gate. She saw the three, Moke, Michael and Kathy going to the gates and she followed and the four of them went to the gate. This man stood outside the gate called for Kathy, and said that a car was waiting to take Kathy to the dance. Kathy did not wanted to go and she told that man that she didn’t want to go. After that they all went back to the two houses. She left them to go into Dambe’s house and the others went to Kathy’s house.

She went into Dambe’s house and she and Carol then sat in the living room. As they were sitting, she heard someone rattling the gate. Carol then went out to check the gate and to see who was at the gate. She heard Carol talking to that person at the gate and then she heard Carol walking past her house on her way to Kathy’s kunai house. There she heard Carol telling Kathy that some men were waiting for her at the gate. After that Carol came back into the house and told her husband Dambe that his daughters were going to give him trouble. The witness enquired of Carol what she meant, but Carol didn’t reply. They then sat and as they sat inside, the witness says she heard people walking to the gate. Shortly thereafter, she heard some people walking past Dambe’s house and heard those people arguing.

She said that Michael was assaulting Moke and Moke was calling out, “Michael lusim mi, lusim mi” she said that as the couple fought outside the door of Dambe’s house she could hear them clearly.

She told Carol that they should go out and stop the fight, but Carol told her not to as she, Carol told her that Michael might have some ill feelings. Ruth Robert did not go out to investigate, but she heard the couple fighting towards Kathy’s kunai house. Then she heard Moke calling out, “Michael em knife ia, lusim, lusim” and then she heard Moke calling, “aio knife, aio knife.”

Ruth Robert then gets her small kerosine lamp, (Exhibit 5) and went out of Dambe’s house. She came out onto the grass, as it was dark, she hold up the lamp high and pointed towards the direction where deceased had called out. When she held up the lamp she saw the accused standing next to Moke. Moke was lying on the grass. She was standing about 4 to 5 metres away from where the accused and Moke were and he was facing towards her and the main gate. She was quite certain that that man she saw standing next to the deceased was none other than the accused.

Kathy Lowis’s evidence relating to the events prior to the alleged fighting between the accused and his wife is similar to the evidence given by Ruth Robert.

She too says that after the Dambe family, including Moke and Ruth ate the mumu that had been prepared, Ruth and Moke went to the 5 mile market to buy betelnut. She stayed back at the house. She also says that Moke and Ruth returned later, about 7 pm, with the accused and came into the yard. She met the accused, shook hands with him, took the accused to meet and greet Mr Dambe and his wife, after which they all came out.

As they were sitting outside, a boy, by the name of Kingston called out to her. Then the three of them, Kathy, Moke and the accused went to the gate. There Kingston told Kathy about a waiting vehicle, as she had wanted to go to a dance, but Kathy decline and the three of them then returned to the house. The three of them came out of the house and Moke went and bought some betelnut and the three of them chewed betelnut. Ruth joined them.

The four of them stayed together for a while and then Ruth left the three of them and returned to her house. A short while later, Carol came and told Kathy that her (Kathy’s) friends were waiting for her at the gate. She did not go out. However, Michael and Moke rushed out of the house and went to the gate. She then says that she heard Moke and the accused fighting. As they were fighting, she heard Moke calling out - “knife ia, knife ia,” and saying “Michael lusim, lusim”. She said she heard the screams and wanted to come out but she was afraid that she might be stabbed, so she remained inside her house. She only came out when Ruth and Carol came out with lamps and when there were many people. According to her, Leslie came afterwards, when his father open the gate for him. She too confirms that when she went to speak to Kingston at the gate with Ruth, Moke and the accused, the main gate was locked.

In so far as Carol Lowis’s evidence is concerned, her evidence is also similar to the evidence of Ruth and Kathy of the sequents of events that occurred prior to the fateful event that evening. The relevant part of her evidence of the events of that evening is also consistent with the evidence of Ruth and Kathy.

So far as is relevant, she says she was already in the yard when Moke, Kathy and the accused arrived. It was already dark. After the accused shook hands with her and her husband, he went inside. After a while she heard a man calling out from outside the gate calling for Kathy. She didn’t see who the man was, and she didn’t go close to the gate as it was night. She came and told Kathy that her friends were calling her from the gate and then she went into her house and stayed there. Whilst inside her house, she had the radio tuned on and did not hear a lot of things, but she heard someone calling, “Aia knife”.

Her evidence after that is consistent with Ruth’s evidence; for Ruth went out first with a little lamp and she followed her. It was she who told the court that there were two gates, the main gate and a small gate. The main gate is used by car and the small gate is used by people. She also said that during that night both gates were open.

The relevant part of Dambe’s evidence is that he met the accused earlier that evening. After that he did not see and hear the events that night. He woke up from his sleep after his wife called out to him, after Moke had been killed. When he went out he didn’t see the accused that night. He confirm that he opened the gate for Leslie and had Leslie coming in. He also had a poor eye sight. Although he was inside his house at the relevant and material time, he says he was sure his wife locked both gates.

The relevant part of Leslie Thomas’ evidence was that he returned from Hagen about 7:30 pm. He went to his house, which is located opposite Dambe’s house (about 100 metres or so. The Okuk highway runs in between the two properties). Some time later he went to Dambe’s yard. He went there to give some money to Kathy, which her husband, Lawrence, had sent for her and her children on Friday, but Leslie had forgotten to give them. He said as he was on his way to Kathy’s house and just before reaching the Kefamo bridge, he saw a toyota hilux motor car which was parked on the side of the road. As he came close, the vehicle took off towards 5 mile market. He proceeded and went to the gate of Dambe’s yard and knocked on the gate and Carol came. He told her he wanted to see Kathy. As he was waiting for Kathy, he saw Carol going into her house. Then, as she went in, he saw a man and a woman coming towards him. They came and stood in front of the gate. When they saw him, they turned back and started arguing between themselves. Then they fought. He says he was still standing at the gate after they fought, when he saw someone come out of the house with a lamp.

He says he came into Dambe’s yard after Dambe open the gate. When he went in he saw Moke’s body lying on the ground. On cross examination he did say that as he was going back to his house, he met some men on the road.

Kono Sivi gave evidence of being informed by the deceased’s father of the death of the deceased. She and the accused come from the same village. She knew the accused and the deceased well.

In her evidence she said that soon after the accused arrived at the village on- Sunday afternoon, his line asked him to tell them whether it was true that he had killed the deceased. She said she stood about less than a metre away from him and heard him telling his line that he admitted stabbing the deceased but he didn’t know if she had died or not.

Despite Mr Ulge’s efforts, the crucial part of her evidence, which I have set out above, was not destroyed nor shaken. Further, the accused has in his evidence confirmed the evidence of Kono Sive. The only difference between the two of them is that the accused says he did not make admission as alleged by Kono Sivi.

Jim Mondo’s evidence says that Moke had come down to Asaro about a week earlier and was living with her family. He is Moke’s father. He said on Thursday, two days before the fateful day, the accused arrived at his house at 10 pm. He said the accused came with a young boy aged about 12 to 13 years old. As soon as the accused entered the house, he said, the accused went straight to the girl’s bedroom and checked it out. Then he went to his son’s room and checked it out, he said he was checking out the rooms because the accused was suspicious that his daughters might have brought some men into the house and were hiding them. He says that the accused then threaten to hit the deceased with a cup he was holding. After which the accused walked over to where the deceased was standing and assaulted both her and her sister. He also gave evidence of the accused and his wife arguing.

The next morning, after the witness went to work, Moke disappeared from the house. The accused searched around for her but couldn’t find her and so he enlisted the help of the witness and they both searched for Moke, but she was not to be found. He then put the accused in a police vehicle which was travelling to Hagen and told him that as soon as Moke arrived, he would send her to Simbu.

The accused gave sworn evidence. In essence he confirms the evidence of most of the State witnesses evidence. He confirms that his wife left Simbu a week earlier and came to Asaro and was living with her parents. He confirms that he came down a week later to his in law’s house at Asaro. But he denies having any arguments with his wife or assaulting her and his sister in-law. He confirms that he searched for the deceased on Friday, couldn’t find her and that he then went back to Simbu in a police vehicle that Friday afternoon. He said that he had never been angry with his wife nor had he even assaulted her at any time before.

He admitted coming down again on Saturday, and going to Kefamo. He met his wife and Ruth at Kefamo bridge, then going to Dambe’s house. He confirms that he went and shook hands with Dambe and his family. He also confirms that after shaking hands with the Dambes, the four of them, Moke, Kathy, Ruth and himself went to Kathy’s kunai house, and stood while later Ruth went back to Dambe’s house.

As they sat talking, he said he heard a man calling from the gate and so he, Kathy and Moke went and later Ruth followed them. He said that when they got to the gate, the man said, “Kathy and Moke, you wanted to go for dance, car is waiting for the two of you” but Kathy told him “Maski”. After that they returned to the house. A short while later, another man came and made a noise at the gate.

According to the accused, this man called out, “Moke, Moke” and when he called out, Carol went to Kathy’s kunai house and told Moke:

“We tell you things, but you don't listen, now your two husbands are here, what will you do. It is up to you, I don’t want to be in trouble.”

He says that after that, Carol told him that the man who called Moke, is Moke’s other husband, and she warned him to look after himself.

According to the accused, Moke went out to the gate. He followed her out and he said he heard the man telling Moke to open the gate. He said he had the man and Moke talking, and he then told the man that Moke was his wife and he was taking her to Simbu. He then says that man make some more threats to kill Moke and the accused. The accused says that that man also smashed a bottle of beer, and jumped over the fence and got into the yard. When he saw that, he said he was scared of his life - jumped over the fence and ran away. He ran away and stayed with some unknown boys smoking till day break when he went to main market, got a bus driven by a friend of his and went straight back to Simbu. He didn’t stop at Kefamo to check on his wife to see if she was alright or not, nor did he stop at Asaro Police Station where his in laws were.

In the first part, the evidence of his record of interview, (noi) the accused, (question & answer 1 to 18 inclusive) he tells of him coming down to Goroka, then going to Kefamo where he met the deceased and going into the compound of Dambe Lowis. This part of the evidence is in general consistent with what was said by Ruth Robert and the accused in his sworn evidence.

However the differences appear thereafter between what he said in his record of interview (paragraph 19 onwards) and what he said in his sworn evidence and the evidence given by the State’s witnesses. I will deal with those aspects later on in my judgement

I have considered carefully all the evidence and the submissions that have been made. On the basis of the evidence, I find the following facts are established.

Moke Mondo and the accused were living together as husband and wife. They had been living together for about one and a half years. On Thursday, 11 July 1996, Moke left her husband and came to Asaro and stayed with her parents at the Asaro Police Station. The accused arrived there a week later the following Thursday evening. He made threats to assault her that evening. On Friday, Moke left Asaro police station. On Friday, after looking for her, and upon not finding her, the accused left for Simbu.

On Saturday, 20 July 1996 Moke arrived at the Lowis’s residence at Kefamo at around midday. She was there till about 5 pm when she and Ruth went to the 5 mile market to buy betelnut. After buying the betelnut they came and sat at the Kefamo bridge, which is not far from Lowis’s residence. The accused met Moke and Ruth at that bridge about 6 o’clock in the evening on that Saturday. They sat there for a while and then went to Dambe’s compound.

Whilst the witness, the deceased and the accused were in Dambe’s yard, though in different houses, two men arrived at different time and knocked on the gate to the entrance to Dambe’s yard. Some form of an argument developed between the accused and the deceased soon after the 2nd man arrived and left.

The accused was present in the premises of Dambe’s yard immediately before the deceased was killed.

The deceased was stabbed fourteen times by a knife. She died directly from the injuries she received.

Mr Ulge has submitted in essence that the State has not proved each and every element of the crime. In this particular instance, he submitted that the State has not proved beyond reasonable doubt the element of intention to kill.

Mrs Ashton-Lewis submitted that the intention can be proved by looking at the injuries inflicted upon the body of the deceased. She submitted that the nature of the element of intention was born out by the post mortem report (Exhibit S3).

I accept the submission by counsel for the state. The medical evidence shows quite clearly that the victim was stabbed some 14 times on different parts of her body. Moreover, the medical evidence also shows that she suffered severe fractures of her ribs. In my view, the wounds inflicted clearly indicated that whoever stabbed her intended to kill her. That person clearly did not intend to merely hurt or to cause her any grievous bodily harm.

Next Mr Ulge, submitted that even then, the state has not proved beyond reasonable doubt that the accused wilfully murdered his wife because it was dark and no one saw him stabbing her, as all of the state’s key witness’ who were at Dambe’s yard at the relevant and material time were inside the respective houses. He attacks the evidence of the state witness as being unbelievable and fabricated.

He submits that given the nature of the evidence and the circumstances of the alleged identification by Ruth Robert of the accused by a dimly lit light, it would be dangerous to convict the accused.

The principles of law on the issue of identification are well settled in this jurisdiction. These are set out in John Beng v the State, Biwa Geta v the State [1988-89] PNGLR. I remind myself of those principles.

There is another legal principle which I consider is relevant and applicable. And that is in relation to the screams that were allegedly made by the deceased.

In State v Briza [1976] PNGLR 575, Prentice Dep CJ. (as then was) held that because the spontaneity of the screamed remarks discounted the possibility of concortion or fabrication, the words of the deceased were though hearsay, admissible not only as to the facts of their having been said, but also as to the truth of the facts they purported to describe.

The facts (from the head notes) was as follows. The accused was charged with the murder of a man from Kairuku who met his death from a stab wound in his back inflicted during a scuffle in a Rabaul street late at night, after a card game attended by both the accused and the deceased. The evidence was that at height of the scuffle the deceased screamed out in Kairuku language, “Leo run - Will (‘the accused”) has stabbed me with a knife “or words to that effect. There was no other direct evidence of the stabbing, which was denied by t he accused. After reviewing the evidence, His Honour said at 521:

“In accordance with what used to be called the “res gestae” rule; ... because of the spontaneity of the screamed remarks discounts the possibility of concortion or fabrication, I regard the words of the deceased as admissible. In accordance with that case, though heresay, they are admissible not only as to the fact of their having being said but also as to the truth of the facts they purported to describe. In saying so much, I have not lost sight of the disability the accused labours under of not being able to cross examine the speaker of them and the possible unrealiability of reported speech. I do think, however, the report of the screamed remarks here is reliable. They are in accord with inferences that can be drawn what was seem to happen ...”

I consider that the principles set out above are quite applicable to the facts of the present case. In the present case there is evidence from Ruth Robert and Kathy Lowis of hearing the deceased calling “Michael lusim mi, lusim mi, Michael it is a knife, leave me, leave me” or words to that effect. In my view the calls or screamed remarks are consistent and are supported by the evidence of Ruth Robert and Kathy Lowis.

Furthermore, immediately after Ruth Robert heard the calls made by the deceased, she went out with a small Kerosine lamp (Exhibit S5) which was lit, lifted it to give her light, and in the light she could clearly see the accused standing next to the deceased. The accused was seen living in a hurry after that. I do not accept the submission that Ruth Robert was lying. On the contrary, I consider her evidence to be much more credible and acceptable. She is a complete stranger to both the accused and the deceased, for she only meet them that day. There was no reason why she would lie. I do not consider that she was mistaken about the identity of the accused, because she had seen him for some time, prior to the incident.

Furthermore, all the evidence points to the fact that the accused was at Dambe’s yard, immediately before the fight. There is evidence that the deceased and the accused went out together, when Carol came and told Kathy that Kathy’s friends were waiting for her at the gate. That evidence was given by Carol. Carol’s evidence is supported or consistent with Leslie Thomas’ evidence, where he says that he came and rattled at the gate and Carol came and he told her he wanted to see Kathy. He also said that as soon as Carol went into the house, a man and a woman came towards where he was, and then both of them went back and both were fighting.

I do not accept the evidence of the accused as to the events that occurred that night. His evidence that someone else coming and smashing a beer bottle and then jumping over the fence are in my view a figment of his imagination. There has been no evidence from the other witnesses of hearing anyone calling out or smashing bottles as suggested by the accused. In my view, he has concorted and fabricated his evidence to suit himself. It is he, not the state witness who have not told the whole truth.

In the end, putting together all the evidence, from the beginning to the end, I am satisfied that the evidence establishes to the necessary standard of proof that the accused wilfully murdered Moke Mondo. Evidence of an intent to wilfully murder has not been shown - but in fact to have caused grievous bodily harm must flow from the use of whatever weapon inflicted the wounds shown and by the wounds themselves. The accused is convicted for the crime of wilful murder.

Verdict: &<;ɘ G6ilty of wilf wilful murder.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor

SENTENCE

10 DECEMBER 1997

SAWONG J: After a triae accused used was found guilty and convicted on a charge of wilful murder. After I administered the allocutus to him and heard ssions from the respective counsels on sentence, I adjourned sentencing him to consider thar that submission. Unfortunately I was not able to sentence him, as soon after, I went to attend Supreme Court Sittings in Waigani. Since I came back from Waigani, the Court was unable to deal with the matter in the first week of December, as the accused’s counsel was not available.

The short facts for the purposes of sentencing are as follows. The accused and the victim were living together as husband and wife. They were living at Kundiawa. About a week before the tragic incident, after some argument between them, the deceased left the accused and came and was living with her parents at the Asaro Police Station. The accused came down to Asaro from Kundiawa on the Thursday night intending to take his wife back to Kundiawa with him the next day. On the morning next day (Friday, upon waking up the deceased without telling the accused left her parents house and went away. Despite searching for her, he was unable to locate her and he went back to Kundiawa. The next day (Saturday) he came back to Goroka. It appears he may have been searching for the deceased. In any event, he went to Kefamo Bridge and there he met up with the deceased. She was at that time with some of her relatives. They all went back to the compound of Dambe Lowis. Whilst they were there, the deceased and the accused had an argument and they fought. In the course of that fight, the accused stabbed her about 14 times on various parts of her body. She died instantly.

THE PRISONER

The prisoner is aged 23 years old. He was married but has no children. He was educated to grade 5. He is the first born in a family of two children. I also note that he had been gainfully employed as to the time he committed the crime. You are a first offender.

When I administered the allocatus to you, you maintained your innocence. Your lawyer has submitted that, in view of the fact that you are a first offender, the ultimate sentence of death as prescribed by s. 299 of the Code should not be imposed. Further he submitted that each sentence must be determined on its own merit and facts. In your case, he submitted that this was not a worst type of or category of wilful murder because of the circumstances in which the offence was committed. In addition he submitted that there was some provocation in the non legal sense by the deceased. In these circumstances your counsel urged the court not to impose the maximum penalty.

Counsel for the state also conceded that this was not a worst case of wilful murder. It was not a premeditated killing, but that the intention to kill came up during the argument with the deceased that night.

The crime of wilful murder is the most serious of all homicide cases, because it involves the intention to kill another person. It is also a crime of violence. That is why the Parliament has said that any person who is convicted of the crime of wilful murder “shall be liable to be sentenced to death”. What this means is that you could or likely to be sentenced to death. There is therefore no automatic sentence of death. Each case must therefore be considered on its own facts and merit.

In the present case, I have considered the submissions that have been made on your behalf by your lawyer. This was not a premeditated killing but the intention to kill developed during the course of argument you had with the deceased that night. There was also some provocation in the non legal sense, on the part of the deceased.

On the other hand, the deceased was stabbed severely and many times on many parts of her body. She was unarmed. You used a dangerous weapon to stab her and she was stabbed repeatedly. She died directly as a result of the injuries you inflicted upon her.

When given an opportunity to address the law on sentence, you maintained your innocence. You expressed no remorseness for the taking of your wife’s life. This was a person you were related, your wife.

I have considered and balanced all those factors in your favour and those against you. In the end, I accept your counsel’s submissions that the ultimate sentence of death should not be imposed upon you.

For the reasons I have given, you are sentenced to twenty (25) years imprisonment in hard labour. I deduct the period of one year five months and ten days you have spend in custody as a remandee.

You are to serve the remaining of your sentence of twenty three (23) years six (6) months and twenty (20) days imprisonment with hard labour at the Bihute Corrective Institution Service.

Lawyers for the State: Public Prosecutor

Lawyers for the Accused: Public Solicitor