State v Kutau (No 1) [2002] PGNC 87; N2245 (15 May 2002)

N2245

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 758 & 760 of 2000

THE STATE

-V-

COSMOS KUTAU KITAWAL
AND CHRISTOPHER KUTAU (No.1)

WEWAK: KANDAKASI, J.
2002: 9th, 10th, 15th May

DECISION ON VERDICT

CRIMINAL LAW - PRACTICE & PROCEDURE - Need to put defence case to prosecution in cross-examination – Failure to do so – Effect of – Evidence called in defence without putting it to the prosecution witness treated as recent inventions and unreliable.

CRIMINAL LAW – Evidence – Assessment of evidence - Logic and common sense play a major part in accepting or rejecting evidence and the guilt or innocence of an accused person – Evidence going against any logic and common sense unreliable – Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected.

CRIMINAL LAW - Verdict – Wilful murder – Dead resulting from deep penetrating sword knife wound – No dispute of death and the accuseds causing the death – Only dispute on intention to kill and availability of the defence of either provocation or self-defence - Earlier fight leading to retaliatory attack on deceased – One of the accuseds expressed his intention to kill the deceased – Accuseds armed with a sword knife against an unarmed man – Deceased fighting with one of the accuseds and the other stabbing him from the back after three earlier failed attempts despite counsel against the attack – Defence of self-defence abandoned during submissions – Apart from the deceased and his friends being closer to the accuseds’ gate, they did nothing to provoke the attack on him and his eventual death – Accuseds not deprived of self control and did not act in the heat of passion - Defence of provocation not available –Guilty verdict returned on wilful murder – Criminal Code ss 299, 266, 267 and 303.

Cases cited:

John Jaminan v. The State (N0.2) [1983] PNGLR 318
Browne v Dunn (1893) 6 R 67(HL)

The State v. Theo Raphael ( ) N
The State v. Raphael Kewangu (12/03/020) N2189.
The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Garitau bonu & Rosanna Bonu v. The State SC528.
Paulus Pawa v. The State [1981] PNGLR 498.
Rosa Angitai v. The State [1983] PNGLR 185.

Counsels:

Mr. M. Ruari for the State

Mr. R. Saulep for the Accuseds

15th May 2002

KANDAKASI J: You stand charged that on the 7th of April 2000, here in Wewak at the Kairuru Wharf area you wilfully murder a Ray Nangel, contrary to s.299 (1) of the Criminal Code ("the Code"). You claimed the defence of self-defence or provocation in the alternative and pleaded not guilty. That resulted in a trial on 9th and 10th of this month followed by submissions. I reserved a decision on the verdict to today.

The State’s Evidence

The State called a total of three witnesses to support the charge against you. In addition to that, it admitted into evidence with your consent, a medical report by Dr. Joseph Sand dated 18th April 2002 (exhibit "A"). It also admitted into evidence with your consent, your respective records of interview in both the Pidgin and English versions as exhibits "B1 and "B2" and "C1" and "C2" respectively.

There is no dispute that there was a fight on the night of the 6th of April 2000, between you and the deceased, which led to another fight on the following night of the 7th of April 2000, resulting in the deceased death. The only issue is whether you acted in either self-defence or failing that provocation without any intention to kill the deceased. This question can correctly be answered by having regard to who started the fights as may be revealed by the evidence before the Court. You claim that it was the deceased and his gang or friends that started both fights and you were only acting in self-defence or were reacting to the deceased and his group’s provocation.

The State’s first witness, Sam Navi says he was with the deceased on the 7th of April 2000. They both had consumed about six bottles of beer but were not drunk. They went in a vehicle driven by a Jeremy Power to pick up Jeremy Power’s mother who was at the Yacht Club. When they got to the Yacht Club, he and the deceased jumped down and stayed outside the Yacht Club’s gate talking with some Wosera boys while Jeremy and the other person went into the Yacht Club for Jeremy’s mother. He says where he and the deceased were standing was not far from your gate. It is just next to that of the Yacht Club’s. He says you must have heard them talking from your house, which was on an elevated land and about 40 meters away and came down to, fight the deceased because of a fight with the deceased the previous night.

He said Christopher opened your gate and came out to fight the deceased saying, "you held my father’s neck" and he started a fight and was fighting with the deceased using their fists. Then, Cosmos came from behind the deceased and stubbed the deceased at his back. That was after three earlier attempts, which the witness says he managed to prevent saying to Cosmos, "father do not do that". He goes on to say that the deceased was at that time, facing Christopher and fighting with Christopher. After the deceased was stabbed, the deceased took a few steps before collapsing and dying, while you two ran back into your house. The deceased was then taken to the Boram Hospital in Simon Joe’s vehicle but he passed away in the vehicle on the way to the hospital. At the hospital he was pronounced dead.

The witness said he was able to see all of these clearly because of the lights from the Yacht Club and the surrounding. He also says he was only a meter away from you and the deceased, trying to break the fight and was able to see Cosmos stab the deceased with a knife.

Mr. Linius Natio, the second State witness said (under cross–examination) that, he was at the Mango Club at Moem on the night of 6th April 2000. When he was just about to drive back home into town, the deceased who was at the club on his own earlier asked him for a lift on his vehicle. Since the deceased was a neighbour and someone he knew well, he allowed him to board the vehicle with other boys as well. When they reached town, they decided to go and buy some smoke from the Seaside 24 hours trade store, which is owned by Simon Joe. Upon reaching the store, he parked the vehicle in front of the store and the deceased jumped out of the vehicle to buy some smoke. As soon as the deceased was at the counter of the store, Christopher got a grass knife and started to hit the deceased. The deceased bought his smoke and returned to the vehicle without fighting back. Just as the deceased was reaching the vehicle, Cosmos who was in his house came down and was trying to help Christopher fight the deceased. The witness says he asked Cosmos to explain the reason for the attack on the deceased but Cosmos was more interested in helping his son that he did not respond. At about that time, the boys on the vehicle jumped down and shouted at the two of you and you both went back to your house.

From your house, you took some sort of a weapon, a fishing gun or something like that and you were trying to use them against the deceased and the other boys. That is when the boys picked up stones and sticks that were there and chased the two of you back into your house. The witness saw this was not good so he called the boys back to the vehicle and they left.

Under further cross-examination, the witness agreed to a suggesting that the fight of the 6th broke out when the boys in his vehicle got down. He also agreed to a suggestion that he felt that the fight was not good so he went and apologized to you. Again under further cross-examination the witness agreed to a suggestion that sometime after the fight, the boys took some stones and sticks and threw them at the two of you.

In this witness’ evidence in chief this witness said no one from either sides was hurt or sustained injuries. He also said the next day, the 7th of April 2000, he went to your house to apologize for the previous night’s incident. Both you and the rest of your family members were there when he went and apologized. He says Cosmos accepted the apologies but Christopher was not happy said to him "Uncle, if I meet Ray, I will square it up with him." The witness told Christopher that that was not good and that he (Christopher) should talk it over and have the matter resolved peacefully.

Mr. Ronald Kipman, the final State witness said he went to the Seaside store with a councillor Charlie Boata. There, Christopher walked over to them and asked for the deceased, asking, "councillor, did you see Ray?" and continued, "If I see Ray, I will send him to the morgue". The councillor told Christopher not to do that as he would be creating another problem. But Christopher insisted and said to the councillor, "Honest to God, if I meet him [Ray], I will send him to the morgue". The reason for this was not made known to him so he did not know.

On your application, the Court visited the scene. That visit confirmed the description of the scene of the crime and location of your gate in relation to the Yacht Club’s as well as the estimated distance of 40 meters per Mr. Navi’s evidence. It also confirmed the existence of a number of lights in the area from the Yacht Club, Fisheries and the other establishments in the area. . It was therefore a well-lighted area. Further more, it confirmed your property being located on an elevated land looking down to the Yacht Club, its gate and yours. The only dispute is that, you say there had always been florescent light bulbs from the Yacht Club while the State’s witnesses say there were spot lights at the time of the incident and later changed to florescent light bulbs.

Defence Evidence

Both of you gave sworn testimonies with the support of Simon Joe, the owner of the Seaside trade store. Christopher’s evidence is this. On the evening of the 6th of April 2000, you and your father Cosmos went to the Seaside store to buy some food for breakfast for the next day. When you reached the store, the deceased came in a vehicle with his drunkard gang. The deceased jumped down and fisted your father, Cosmos who was walking behind you on his jaw. He tried to break your head with a bottle of beer. So you ran around a container, got a mental rod and hit both of the deceased hands and disabled him that way and then went back into your premises.

The deceased and his gang perused you and your father, opened your gate wide and chanted "kill them" and entered your premises. They entered your father’s club area and damaged furniture and other properties in the club. In fear of their lives, the rest of your family members, mother and sisters crawled under your fence into the Yacht Club from where they telephoned the police and reported the incident. Then before, the deceased and his friend’s left, they said they would come back and kill you and your entire family and burn your house down. You say the deceased specifically and personally said he would do that against you. You say that because of the events of the 6th and the threats issued against you and your family members as well as your properties, you were under great threat and fear.

Then on the 7th of April 2000, you and your family had just finished your family worship and you heard a noise from your gate next to that of the Yacht Club’s and it was that of drunkards. You went to your father’s office, took a sword knife and went down to the gate to lock it because of the fear and threat you were under. When you reached the gate area, you found the deceased, Sam Navi and another boy already inside your premises. The deceased pulled you out of your property by both your hands and a fight broke out between you and them. You claim they came to kill you and your family and burn your house down because of the earlier fight and threats. So you used the sword knife to fight your way out by stabbing the deceased at his back. But you told the police that you used a pocketknife, which is not the same as a sword knife. This is because both edges of a sword knife are sharp while a pocketknife has only one of the sides sharp.

Prior to stabbing the deceased from his back, you were fighting face to face with him. You do not say and there is no evidence of the deceased and his two friends being harmed with a weapon. It is clear however, that they used their fists. You stabbed the deceased after having successfully avoiding a punch from him by ducking and running clearly away from him. I asked you to demonstrate that and you did so. In that demonstration you had the knife pointed at the deceased with your hand in a forward direction. Then when you successfully ducked out you made a reverse turn changed the direction of your hand and stabbed the deceased from his back. After stabbing him you ran away into you premises. On the way you met your father and told him that a man has already been injured and told him "let us go to the house."

Your lawyer asked you about a Simon Joe, who you called to give evidence after you and you said he was present at the scene of the crime upon hearing sounds of the fight. He was already under a cherry tree watching. After you had stabbed the deceased your heard the deceased say to Simon "Uncle Si, Toper [meaning Christopher] stabbed me and I am dying"

Under cross-examination, you said Sam Navi was fighting some 8 meters away with a John and did not see your fight with the deceased. This was contrary to your claim in your evidence in chief that the all three of them, including Sam Navi were attacking you and you fought your way through by stabbing the deceased. You did not earlier tell of Sam Navi’s fight to anybody except your lawyer. Therefore, you were telling that story in Court for the first time. You did not know why Sam Navi was fighting with John.

Also under cross-examination, you agreed to suggestions that, you usually hear noises from drunkards from the Yacht Club gate area. You also agreed that it is not your habit to arm yourself and get down to the gate each time you hear noises from drunkards. But you say you did so this time because of the threats and dangers you were under.

Your next witness was Simon Joe. This witness said he got to his Seaside store on the evening of the 6th of April, just as the deceased and his friends were driving off. He was told of what happened after the event. His recital of what was said to him was hearsay and as such I disregard them.

However for the events of the 7th of April, he says he was there and he witnessed the fight leading to the deceased death. He says he saw a vehicle drive in with four people. Of the four, one was the deceased and the other was Sam Navi and he could not identify the other two. These people got off the vehicle and they shock your gate saying "Kan [vagina] Christopher you come down and we will kill you". This was some time between 9:00 and 10:00 p.m.

He said he had come out of his premises and was standing at the side of his canteen or store. From there he could see the deceased and Sam Navi lift a bottle each and drop them in front of your gate. Then Christopher came down and he was pulled out and a fight broke out into two ways. One group was fighting Christopher and the other was fighting his boys who had gone to help Christopher. He called out for them to stop but the fight continued. Then when he turned to where Christopher was, he saw Christopher with a knife. At about that time, he also saw the deceased walk toward where the Fisheries is and he thought the deceased must have seen the knife and was looking for a stick or a weapon to use. Instead, the deceased turned back to where he had been fighting and went straight to the witness and said to him [the witness] "Uns Si Christopher shot me with a knife."

The witness tried to see where the deceased was injured but the deceased fell in front of him and then turned himself backwards coughing out blood three times. So he rushed to get his shirt as he was without one and told the boys to put the deceased on the vehicle for him to take to the hospital. Rather than doing that quickly, Sam Navi laid on top of the deceased and asked the deceased to tell him who stabbed him first before dying. Not long after, he says he had the deceased put on the vehicle and taken to the Boram Hospital where the deceased was pronounce dead by a doctor after an examination.

He was frightened and reported the matter to police after a little while later the same evening. He did not specify the police officer to whom he reported that matter and went on to say that the police themselves told him that they receive a report from the Cosmos’ the night before and they did nothing and that resulted in the death. He then returned to his house.

Early the next morning he went to his place at Moem and on his return, he saw smoke from your property and found that your house and or building had been burnt down. He does not know who burnt it down.

Your final witness was Cosmos Kutau Kitawal. His evidence is a repeat of Christopher’s evidence. At the same time, he gives additional evidence of there being a fellowship not only with his family but also with two community leaders namely, Elias and a Mrs. Posowari both from Turubu. After the fellowship a police vehicle came and picked them up from the Scenic Drive side of your property through a gate on that side of your property. He was then in the process of fixing up the fellowship area when he had a noise. So he sent Christopher down to lock the gate.

Then he did not know what was happening next until he heard a scream from the rest of his family. That is when he came out and went down toward the gate next to the Yacht Club gate. Christopher who told him a man was already injured and that they need to go back to the house met him on the way. So they returned to the house and he told his family to vacate the house in anticipation of retaliation. The family vacated the property through the Scenic Drive side to a NBC premise where an in-law was for safety. From there, the in-law notified the police of the incident and they were taken to Turubu for safety and you hid yourselves their.

When asked about the noise from your gate area Cosmos said, the noise was that of drunkards. They used dirty words like "Kan" [vagina]. This was unusual because although drunkards from the Yacht Club often make noises they never used dirty words like "Kan" [vagina].

Assessment and Finding on Facts

I reminded myself that under our system of criminal justice, the State always as the burden of proving beyond any reasonable doubt, the guilt of an accused person. This is because has the Supreme Court per Pratt J. in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at p.323 said:

"At the end of the day the position is as always, namely: has the prosecution proved its case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and/or the defence witnesses a chink has been made in the prosecution armour, be it through a doubt concerning identification, or the claim of alibi for example, then a verdict must be returned for the accused."

That was in the context of a belated claim of the defence of alibi. Mr. Justice Pratt also expressed the view that the State’s burden to prove beyond any reasonable doubt includes the need to disprove the existence of any defence an accused person may have.

As may be apparent from this, the State has the burden to prove beyond any reasonable doubt its case throughout the whole case. That means in my view that, a trial judge must first be satisfied that the evidence produced by the State does establish a prima facie case against the defendant. If that is done, only then should any evidence called for the defence be considered.

In the present case, a careful consideration of the State’s evidence reveals this. Christopher picked a fight with the deceased at the Seaside store in the night of 6th April 2000. The deceased went there only to buy cigarettes. When you did that, the boys with whom the deceased went, shouted at the two of you and chased you two into your premises. Without entering your premises they threw stones and sticks into you property. The next day, Linus Natio apologized to you and Cosmos accepted but not Christopher. He wanted to fight again and told Mr. Natio: "If I meet Ray I will square it up with him". Mr. Natio counselled Christopher against that but Christopher insisted upon his position.

Later during the evening of the 7th of April 2000, after Mr. Natio’s apology, the deceased with Sam Navi, Jeremy Powers and another went to the Yacht Club to pick up Jeremy’s mother who was already there. The security guards at the Yacht Club did not permit the deceased and Sam Navi to enter. So they stayed outside the gate talking. They were not armed by any means.

Your gate is just next to yours. Your house was about 40 meters further up from a gated on an elevation. You heard the deceased and Sam Navi talking and on noticing that it was the deceased and Sam Navi, both of you came down to where they were and Christopher started fighting with the deceased. Christopher and the deceased fought by exchanging fists and Sam Navi was trying to stop them. At the same time, Cosmos was trying to use a knife against the deceased and Mr. Navi prevented three attempts but Cosmos later managed to avoid Mr. Navi and go to the back of the deceased and stab the deceased from the back while the deceased was fighting with Christopher. You then escaped into your premises and the deceased fell into the hands of Mr. Navi. The deceased was then put on Mr. Simon Joe’s vehicle and taken to the hospital. Unfortunately, he died on the way to the hospital and he was pronounced dead by a medical doctor there.

Christopher expressly stated your intention to kill the deceased when he said to councillor Charles Boata in the presence of Ronald Kipman that you would sent the deceased to the morgue if you see him. The councillor counselled you against it but you maintained that you would do what you said. You also expressed your intention to Mr. Natio when he came to apologize over the previous night’s incident, when you said to him, you would square things up with the deceased.

Your cross-examination of the State’s witnesses failed to create any doubt or hole in that story. No reason was elicited in cross-examination as to why the witnesses would come to Court and give such a story against the two of you unless that is what happened. I therefore dismissed your no case submission at the end of the State’s case.

You then went into evidence and gave a story that was contrary to the one indicated to both the prosecution and the Court at the outset of the trial. Both of you admitted that the deceased died from injuries you caused him on 7th April 2000. You claimed however, that you acted in self-defence and were responding to provocation from the deceased. You did not put to the State’s witnesses amongst others, the following important facts:

1. Cosmos Kutau Kitiwal did not fight with the deceased at any time either on the 6th or the 7th of April 2000;
2. Cosmos Kutau Kitawal did not inflict the fatal sword knife wound that eventually claimed the life of the deceased;
3. Your properties were damaged by the deceased and his gang or group on the 6th of April 2000;
4. The deceased and his group had indicated that they would come back the next day and kill both of you and burn down your house;
5. Christopher did not met and say to Councillor Charlie Boata in the presence of Ronald Kipman that if he sees the deceased he will send him to the morgue;
6. Christopher did not say to Mr. Natio that he would square it up with the deceased if he sees him [deceased];
7. Both the fights of the 6th and 7th of April 2000 were started by the deceased;
8. The deceased pulled Christopher by both of Christopher’s hands and pulled out of your premises and fought him outside the gate on the 7th of April 2000; and
9. The deceased, Sam Navi and Jeremy Power all attacked and fought with Christopher and Christopher had to fight his way out using a sword knife.

The facts listed under 1 and 2 above run directly against your expressed position and the issues for trial. In short you admitted to killing the deceased and raised the defence of either self-defence or provocation. Your evidence runs contrary to that.

The law on this is very clear. Where an accused calls evidence without first in fairness putting it in cross–examination to the prosecution witnesses, such evidence should be treated as recent inventions and unreliable. This stems from well-known authorities like that of Browne v Dunn (1893) 6 R 67(HL). The position was clearly spelt out in the case of John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332 by Bredmeyer J in these terms:

"The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] PNGLR 62 (Prentice J) and The State v. Manasseh Voeto [1978] PNGLR 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused is reduced. I am not blaming Mr Narokobi specifically for this failure. It is possible that his instructions changed during the course of the trial from consent to alibi. I say that because Mr Narokobi cross-examined the prosecutrix at length on consent not on the question of identity. Later in the trial the defence of alibi was still not revealed by the cross-examination of the prosecution witnesses."

The object behind this is in line with our system of justice. Fairness to both parties must prevail in all trials before our Courts. This principle requires an accused person to put his case to the witnesses called against him or her so that in fairness the witnesses can comment and choose to either maintain or retract their evidence. This must be done during cross-examination because under or trial procedure, the prosecution does not normally and readily have a right or opportunity to either recall witnesses or call new witnesses to rebut fresh evidence introduce by the defence.

In some of my most recent judgements I applied this principles to reject evidence not in fairness put to the prosecution witnesses. An example of that is the case of The State v. Theo Raphael (15/02/02) N2180, another wilful murder case, and The State v. Raphael Kewangu (12/03/020) N2189. In the later case, I extended the rule to cover instances in which the State fails to notify an accused person of the existence of particular key evidence in a case and then calls it at the trial.

In your case, your failure to put your evidence as outlined above to the prosecution’s evidence renders those evidence as recent inventions and therefore unreliable and ought to be rejected. Your lawyer was not able to assist me with any argument, and rightly so as to how I could not allow that consequence flow through. I therefore, reject your evidence and proceed on the basis of the State’s evidence.

Further there are serious inconsistencies in your evidence in a number of respects. First, Christopher spoke of meeting only three people, the deceased, Sam Navi, and another at your gate next to the Yacht Club and these three people all attacked him. It was a case of one against three. Then later for reasons unknown, Sam Navi attack a John, one of Simon Joe’s boys and they were fighting. This evidence is to be contrasted with that of Simon Joe’s evidence who spoke of four people attacking Christopher. That caused his boys to go and help Christopher resulting in the fight breaking into two, one with the deceased and one of the deceased’s friends against Christopher and the other two taking his boys.

Secondly, Simon Joe says the deceased before collapsing and eventually, passing away said to him "Uns Si Christopher shot me with a knife." This is in contrast with Christopher’s evidence where he says he heard the deceased say to Simon Joe, "Uncle Si, Toper [meaning Christopher] shot me and I am dying". If the same person is reportedly speaking here, there should be consistency in what the deceased supposedly said but that is not the case.

Thirdly, Cosmos said upon hearing noise of drunkards at your gate and using the dirty word "Kan" [vagina], he asked his son Christopher to go and lock the gate. Christopher however said upon hearing the sound of drunkards at the gate he went to his father’s office and got a knife and went down to the gate. He did not say anything about Cosmos asking him to go and lock the gate. Also whilst still on the noise, Simon Joe said the deceased and his boys called out "Kan [vagina] Christopher you come down and we will kill you". Both Cosmos and Christopher make no mention of these being said apart from the word "Kan" [vagina] referred to in the evidence of Cosmos. Furthermore, Simon spoke of the deceased and his friends lifting beer bottles and dropping them in front of your gate. Neither of you mention anything on that in your evidence.

Fourthly, Cosmos speaks of a scream by the members of the family after the deceased was stabbed. That is when he says he headed for the scene of the crime before being met half way by Christopher. Christopher says nothing about a scream from any or the rest of your family members. Also, Simon says nothing about a scream from your family members.

Finally, Cosmos spoke of two community leaders, namely Elias and Mrs. Posowari both from Turubu fellowshipping with your family and then seeing them off through your gate leading into the Scenic Drive in a police vehicle, before the sounds at the gate next to the Yacht Club came. Christopher makes no mention of this in his evidence.

If the witnesses in your defence are talking about the same incident, there should be no such inconsistencies or nothing could have been left out but there are these inconsistencies and missing evidence.

Not only that, the evidence in your defence does not stand up against any sense of logic or common sense. Christopher firmly stated that you and your family and your properties were under threat of being killed and burnt down. So when you heard the sound at the gate next to that of the Yacht Club’s, you armed yourself and went down to the gate to lock it. Logically, if you were under such a threat, you would have already had your gate locked and stayed within doors and called for help from the people in the Yacht Club or Simon Joe’s store or any of your other neighbours. Alternatively, you could have even escaped through the gate leading onto the Scenic Drive way and hide. Further, you could have insisted upon police presence or protection. There is no evidence of these being done apart from a mere reference to police being notified of the incidents of the 6th of April 2000, by telephone.

Also, if the deceased and his gang as Christopher calls describes, came to attack you, they would have been well-armed and not just merely three drunkards only with their fists. Besides, if they came to kill you and your family and burn down your houses, I wonder why they could have chosen such a public scene as opposed to say attacking you from the Scenic Drive way gate, where it could have been less exposed for them. I also wonder why they could have come to attack you after having come to apologize during the day and in any case no one or anything on the deceased side was injured or damaged in any way. If anything, according to your own evidence, you sustained most of the damage from the previous night’s fight necessitating an apology from the deceased side. Logically, therefore the deceased had no reason to come and attack you and your family again, unless he is a real troublemaker and gets into trouble for nothing. There is no evidence before me of him being such a person. Human nature is such that nobody attacks somebody for nothing unless, the attacker is mentally insane or completely out of his mind. Hence, there has to be a reason for someone to attack another. In this case, you have simply not provided this Court with any reason for the decease supposed attack on you and your family on the 7th of April 2000.

Further, your choosing to run away into hiding in Turubu, instead of going to the police for protection is suggestive of guilty persons as opposed to someone innocently reacting to an attack and in the process killing his or her attacker. Yes I do appreciate that even if you were innocent, you would have had some fear of retaliation, but that would have caused you to go to the lawful and available authorities, like the police for protection and a proper handling of the situation.

Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common sense approached, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceed to convict them, when the defendant’s failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.

I do not find any persuasion in your evidence from a logical or commons sense standpoint. Instead I find your story illogical and out of any common sense. In my view such illogical explanations coupled with inconsistencies as noted dictates a rejection of your evidence and claims and I so do. Your demeanour in court failed to give me the impression that you were telling the truth. Rather it gave me the impression that both of you were forceful in telling your story and wanted to be heard at a volume more than was necessary and kept on repeating phrases that were not necessary or did not match with any of the evidence you called. For example Christopher kept on insisting that you had no intention to kill the deceased but only wanted to injure the deceased. If indeed this was your intention I fail to see why it was necessary to turn around and then stab the deceased after you had successfully broke away from him. Also I fail to see why it was necessary to come down to the gate and meet the deceased and his friends when you could have escaped through the other gate on the Scenic Drive side.

For these reasons, I reject the whole of you evidence and accept that of the prosecution. As a result, I find the charge against you both being established beyond any reasonable doubt. You both set out to kill the deceased and you did. It does not really matter who actually landed the fatal blow. You achieved your intended object of killing the deceased without any provocation as I will shortly elaborate. In so finding, I also reject your claim in the alternative of the defence of self-defence or provocation. I note in the course of your submissions, your lawyer correctly abandoned the defence of self-defence. However, he argued that you acted under provocation.

Sections 266, 267 and 303 cover the defence of provocation in so far as they are relevant. Section 266 defines the defence of provocation, while sections 267 and 303 give the defence of provocation. The Supreme Court in Rosa Angitai v. The State [1983] PNGLR 185, per Kaputin and Gajewicz JJ., made that clear. That case also clarifies the elements or circumstances that must existed to amount to that defence. The Supreme Court in re-phrasing section 267 (1) set out the elements in this way:

"‘A person (who is charged with an offence) is not criminally responsible for an assault committed on a person who gives him provocation for the assault provided always that the person charged —

(1) is deprived by the provocation of the power of self-control; and

(2) he acts on the provocation on the sudden; and

(3) before there is time for his passion to cool; and provided further that the force used by the person charged —

(4) is not disproportionate to the provocation; and

(5) is not intended to cause death or grievous bodily harm and

(6) (the force used) is not likely to cause death or grievous bodily harm.’"

Then for the defence under section 303 of the Code, their Honours held said:

"In our view, examination of that section shows that in order to reduce wilful murder to manslaughter the following three circumstances must co-exist. The accused must do the act which causes death,

(i) in the heat of passion which must be caused by

(ii) sudden provocation within the meaning of s. 266; and

(iii) before there is time for his passion to cool.

Under s. 303 —

‘(a) the force used by the accused may be disproportionate to the provocation;

(b) it can be intended to cause death or grievous bodily harm; and

(c) it may be likely to cause death or grievous bodily harm.’

The existence of any one of these three last mentioned circumstances would, under s. 267, render the defence of provocation ineffective."

What this means in sort is that, in order for the defence of provocation to come to the aid of an accused person like the two of you now before me, three conditions must be met. These are that you must have acted in the heat of passion, which must be caused by sudden provocation, and before there is time for your passion to cool off. In a case where the defence is raised in answer to a wilful murder charge, the defence may still be made out even if the force used is disproportionate or there is an intention to cause grievous bodily harm and the force used as the likelihood of causing death or grievous bodily harm as long as the above three elements are met.

In your case, the fight of the 6th of April 2000 was settled when Mr. Natio came and apologized on behalf of the deceased and his friends. Then on the 7th of April 2000, I find that the deceased and his friends did not come armed to kill you and your family members and destroy you property. Instead they went to the Yacht Club to pick up Jeremy Power’s mother. You heard and or saw them standing at or near your gate which is close to your gate. Because of the events of the previous night you were angry and your wanted to retaliate as was intimated to Mr. Natio and Councillor Charles Boata in the presence of Mr. Kipman, especially by Christopher. Now when you saw the deceased near your gate, that was your opportunity. I find that Christopher went down first out of your premises and onto the public road just outside your gate and that of the Yacht Club’s and took a fight with deceased. I also find that, while Christopher was fighting with the deceased, you Cosmos went to Christopher’s, your son’s assistance with a knife and stabbed the deceased from the back, when there was no need for it. Cosmos you displayed your intention to kill the deceased by arming yourself with a dangerous weapon and stabbing the deceased from the back with such force that it caused a deep penetrating wound to a vital part of the deceased, his lungs. You did that when the deceased was busy fighting with Christopher. You also showed your determination to kill the deceased by persisting in your attempts despite Mr. Navi trying to prevent you from doing so on your first three attempts. Apart from just being closer to your gate I find the deceased and his friends did nothing that could have amounted to provocation within the meaning of section 266 of the Code. You had opportunity to avoid the fight at the first place if you escaped through the Scenic Drive way, if the deceased and his friends shook your gate and swore at you and they came armed and ready to kill you and your family. Neither of you were badly beaten up or injured to warrant the use of a knife against the deceased who was not armed. Consequently, I find that you have not made out your defence of provocation. On the evidence I find that you acted without any legal provocation and or excuse.

Ultimately, therefore on the evidence before me, I find you both guilty on the one count of wilful murder of Ray Nangel on the 7th of April 2000, here in Wewak, East Sepik Province. I therefore return a verdict of guilty on the charge of wilful murder against both of you.

You are now prisoners of the State. Your bail is thus revoked and you shall be taken into the custody of the State pending you sentence.
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Lawyers for the State: Public Prosecutor

Lawyers for the Accuseds: Saulep Lawyers