State v Ignas [2007] PGNC 114; CR 373 of 2005 (11 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 373 OF 2005

THE STATE

v

WESLEY IGNAS
of Kimbangua, Maprik, East Sepik Province
-Accused-

Kimbe: Davani J
2007: 4th, 11th April

Counsel:
A. Kupmain, for the State
P. Kapi, for the Accused

VERDICT

11 April, 2007

1. DAVANI J: On 4 April, 2007, the State tendered an indictment alleging that on 23 December, 2004, Wesley Ignas (the accused) unlawfully killed one BETSUP RANGU GURENENG (the deceased) at the Sarakolok Oil Palm Settlement, in Kimbe, West New Britain Province. The accused was charged under s.302 of the Criminal Code Act (‘CCA’).

2. Section 302 reads: "a person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to section 19, imprisonment for life".

State’s allegation

3. The State alleges that on 23 December, 2004, at about 1am, whilst in a very intoxicated state, the accused went to Sarakolok settlement, at block 809, section 2.

4. He walked up to a group of people who were playing cards. Nearby was a coleman lamp which was used as light. The accused kicked the lamp and broke it. This was when the deceased and others approached him and enquired as to why he did what he did. This resulted in a fight. The State alleges that the accused punched the deceased in his side, which resulted in the deceased’s spleen rupturing and ultimate death.

Analysis of evidence and the law

5. Defence only called the accused as its witness. State on the other hand called Richard Rara and Justin Magiten. Both counsel told the court that the issue was one of identification. However, after hearing the evidence, it became obvious that it was a case of whom to believe, rather than identification.

6. It was not denied that the accused was involved in a fight with all accused persons. It was also not denied that the deceased fought with the accused. What the court must establish is as to who is telling the truth to then determine who inflicted the fatal blow to the deceased or whether it was the accused who inflicted that fatal blow.

7. The accused’s evidence is that on his way home, he came across a man lying across the road. This man was Jackson Willie. The accused noticed that this man had just been assaulted so he asked him who did it. Jackson told him that it was Peter Angu, Junior Leo and Timothy Binen. So when he got to Sarakolok settlement and saw them playing cards, he was quite angry and so kicked the lamp.

8. He said he was 3 to 4 metres away from them when he saw and recognized them. He said after he kicked the lamp, the men in the group then fought him. But the State witnesses say otherwise. They said after the accused kicked the lamp, he then started to fight all of them. State witness Richard Rara said the men he was with were all sober. They tried their best to placate and calm the accused, because they knew him well and vice versa.

9. I should point out at this time that, tendered into court by consent, were the following;

1. Pidgin and English versions of the accused’s record of interview with the police conducted on 4 February, 2005;
2. Affidavit of Dr Joseph Amos of the Kimbe General Hospital dated 9 January, 2005 to which is attached his report on Post Mortem examination and the Medical Certificate of death which Dr. Amos signed and dated 9 January, 2005.
   

10. The accused’s evidence as portrayed in the record of interview is the same as his verbal evidence in court. The interview was conducted on 4 February, 2005, some one month and a week after the incident.

11. The State’s evidence is that it was the accused who punched the deceased in the side. The evidence is that the deceased died from a ruptured spleen, which is consistent with being punched or kicked in the side and also consistent with the medical report.

12. The accused says that he did neither. But the two State witnesses are adamant that he did punch the deceased in his side. The accused did not bring any witness to confirm his story;

- That the others were fighting him and he had to protect himself;
- That he did not punch the deceased in his side.

13. Both counsel did not attempt to discredit witnesses by pointing out contradictory statements, if any. And even cross-examination as to credit was not fully utilized by Defence Counsel. As Hunt J said in Bickel v John Fairfax and Sons Ltd & Anor [1981] 2 NSWLR 474; "The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his oath. (see also R v Sweet – Escott (1971) 55 Cr App R 316 at p.320)".

14. But on a thorough review of the evidence, I noted that there was some evidence by the accused that were not put to the State witnesses or if they were put to the State witnesses, they were very general statements. I think this is because Defence counsel was already focused on the issue of identification, that he did not anticipate the veracity, truthfulness and credibility of witnesses to be of concern. But it is always of concern in any case. As Bray CJ said in Thomas v Van Dan Yssl [1976] 14 SASR 205 at 206;

"..If it is intended to suggest that a witness is not speaking the truth on a particular matter, his direction must be directed to the matter by cross-examination so that he may have an opportunity of giving an explanation of it open to him unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one." As Lord Herschell said at 70, "it is absolutely essential to the proper conduct of the cause".

15. The matters raised in evidence by the accused which were not put to State witnesses in cross-examination and that I consider to be important, will be raised below. It is necessary that I set these out because the accuseds’s story appears to be very water tight to be believed at a glance. The accused has known of the State’s case for some time, so should have been prepared with questions for State’s witnesses by putting its case to the State. As I said above, the questions put by Defence counsel to the State witnesses were very general, and did not assist me in determining the truthfulness of the accused’s story. This is the evidence that I consider to be important and which witnesses for the State did not have the opportunity to respond to;

1. Evidence by accused; After the accused kicked the lamp, he said he tried to hide because a vehicle from the area he lives in drove past. That he then sat at the road junction. The State witnesses caught up with him and one of them shone a torch in his face. He said that was when Sebastian hit him with a piece of timber. He fell down, then Richard, Besup and Justin ran up and started kicking him. That was when the belt holding his cut jeans broke. He then took off his jeans and ran.

Cross examination of Richard – Defence counsel asked;
Q & A 7 - was he armed with a stick or bush knife when he kicked lamp?
Q. - he unarmed.
Q & A 8 - Did Wesley say anything before kicking lamp?
A - Nothing. He just came in and kicked lamp.

Q & A 9 - Wesley said after he kicked lamp, you all assaulted him, correct?

A - Not true.

Q & A 10 - He was one against all of you, you all assaulted him?

A - If we had hit him, there would be injuries on his body as a lot of us.

Q & A 16 - Who else did Wesley punch?

A - Sebastine, Samson, Justin

Q & A 17 - So all of you punched by one man?

A - He punched us, we blocked his hand.

Q & A 31 - Wesley is saying that when he kicked lamp, you, Sebastian, deceased and others assaulted him and he ran to his house?

A - He is lying.

Cross-examination of Justin – No questions were asked of Justin by Defence Counsel about this part of the accused’s evidence i.e whether Sebastian was holding a piece of timber and whether he hit the accused with it.

16. No questions were put to Justin by Defence Counsel as to whether somebody shone a torch at him and whether he, together with Richard and the deceased, then ran up to the accused and kicked him.

17. The same can be said of State witness Richard. Similar questions I posed above were not put to him by Defence counsel.

2. Evidence by accused; After the first assault, the accused ran off, holding onto his shorts. He returned, only in his underpants, and still holding his shorts. He said State witness Justin, who was hiding in the bushes, came out and hit him in his chest whereupon, he fell. When he fell, the deceased, Richard and Justin ran up to him and assaulted him. He blocked 3 punches, then ran off. He returned to tell them that he would fight them in the morning. At that time, he did not know that the deceased was already dead. He saw that nobody was there because that was when Richard came out with a bush knife and said "the wild pig you killed is there. Go get it, cook it and eat it" after which he chased the accused, all the while holding onto the bush knife.

Cross-examination of Richard; No questions were put to Richard, State witness, as to the statement he allegedly made and whether at that time he was holding onto a bush knife.

Cross-examination of Justin; No questions were put to Justin, State witness, as to whether he did jump out of the bushes and punch the accused in the chest after which the accused was then assaulted by the deceased, Richard and Justin.

18. What conclusions can I form after this review? I am left with the State’s allegations that remain unrefuted and supported by the state’s unflinching evidence from its two witnesses.

19. It is not a case of somebody hitting the deceased by accident because the fight was a congested affair. I have heard that the accused fought with all persons at the scene as individuals rather than as a group. The state’s evidence through Justin is to that effect. Defence counsel did not cross-examine Justin on this. I will accept this scenario because when defence counsel put to Justin that he never saw the accused assault the deceased, Justin said he was about 10 metres away from the accused when he saw the accused punch the deceased in the side, whereupon the deceased fell. That was when Justin ran in and pulled the accused away, punching him at the same time. Prior to that, the accused was fighting David and Richard when the deceased intervened and told the accused not to fight which was when the accused left David and Richard and fought the deceased.

20. According to Justin and Richard, after being punched by the accused, the deceased said words to the effect before falling; "Wesley you have killed me". Again the accused was not asked if these comments were actually made. In fact, both State witnesses were not cross-examined on this.

Conclusion

21. There are loopholes in Defences evidence which it has not sufficiently or adequately covered and rectified in cross-examination, which I have demonstrated above. It is counsel’s duty in every case;

1. to challenge every part of a witnesses evidence which runs contrary to his own instructions;
2. to put to the witness, in terms, any allegations against him which must be made in the proper conduct of the Defence; and

100. to put to the witness, counsel’s own case, in so far as the witness is apparently able to assist with relevant matters, or would be so able, given the truth of counsel’s case.
     

22. The other consequences of the Defence’s failure to cross-examine State witnesses on certain matters is a tactical one, but no less important. Where part of a party’s case has not been put to witnesses called for the opposing side, who might reasonably have been expected to deal with it, that party himself will probably be asked in cross-examination why he is giving evidence about matters which were never put in cross-examination on his behalf. The implication of this question is that the party is fabricating evidence in the witness box. Therefore, there is some risk that the accused’s credit as a witness may be affected by failure to cross-examine fully on his behalf.

23. Another important point is that it is trite law that the State must prove the accused’s guilt and the accused to prove his innocence. This is expressed by the phrase – the presumption of innocence, that the accused’s guilt must be proven beyond reasonable doubt. That at the end of all the evidence, if the court has any doubt at all about the accused’s guilt, that the accused must have the benefit of that doubt and be discharged.

24. I also mention the aspect of the ‘Dying declaration’ which the State made brief submissions on. This was never put to the court in the State’s opening address, as a point of law on which the State would be relying on. Both counsel do not know if this was raised at pre-trial as a legal issue to be pursued at trial. Nor was it raised in both counsel’s opening address, so I will not place any weight on submissions made by counsel for the State on this issue.

25. I find on the evidence that I do not have any doubt at all that the accused’s credit as a witness has been shaken because of the failure to fully cross-examine on matters raised above. Furthermore, based on the evidence, I am unable to find any doubts at all in the State’s case. Although Defence counsel did suggest a motive, that State witness Richard being the accused’s brother in-law, wants to see him incarcerated, that this assumption does not in anyway negate the fact that first, State witnesses denied this assumption and secondly, this assumption has not succeeded in shifting what is already very strong, actual, physical and independent evidence against the accused.

26. I find that the State has proven beyond reasonable doubt, the charge of manslaughter against the accused.

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