State v Tabogani [2008] PGNC 187; N3558 (8 May 2008)

N3558

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1161 OF 2006
(NO. 1)

THE STATE

V

STEVEN TABOGANI
Of SIRISIRI, RABARABA
MILNE BAY PROVINCE
Accused

Alotau: Davani .J
2008: 4th, 5th, 8th May

CRIMINAL LAW – Murder – deceased stabbed – knife used – s.300(1)(a) of Criminal Code Act

CRIMINAL LAW – Not guilty plea – denial of charge – circumstantial evidence – possible dying declaration – s. 20 of the Evidence Act

Facts

On the evening of 13th May, 2005 at Alotau, the deceased and 3 women were walking along Garuboi Street, when for no reason, the accused accosted the women, then slapped the man. The women took fright and ran off. A few minutes later, the deceased ran up to them. They saw that he was bleeding. He told them that ‘he stabled me’ then fell down unconscious.

Issues

1. Did the accused stab the deceased?
   
2. Is the deceased’s statement, ‘he stabbed me’, good enough evidence on which to convict the accused?
   

Held

1. The only rational inference is the accused’s guilt.
   
2. Yes.
   

Cases cited:

Papua New Guinea Cases

The State v Tom Morris [1981] PNGLR 493
The State v Marianno Wani Simon & Alan Oa Koroka (1987) N600

Overseas Cases

Barca v R [1975] HCA 42; (1975) 133 C.L.R. 82

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

VERDICT

8 May, 2008

1. DAVANI .J: The accused, Stephen Tabogani, pleaded not guilty to one count of murder, charge laid under s. 300(1)(a) of the Criminal Code (‘CCA’). This provision reads;
   

"300. Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder –

• (a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or
  

...

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

State’s allegations

2. The State alleges that on 13th May, 2005, at Garuboi Street, here in Alotau, Joe Gerald (the ‘Deceased’) was walking with 3 females, when Steven Tabogani (the ‘Accused’) stabbed him with a sharp object.
   

Accused’s case

3. The accused does not deny that he was on Garuboi Street and did meet the deceased. His evidence is that he slapped him three times but did not stab him.
   
4. He was the only one who gave evidence in his Defence electing to give sworn evidence.
   

Analysis of evidence and the law

5. The State called Towagwam Tokumwareta (‘Tokumwareta’) and a Wendy Charlie (‘Wendy’) in its bid to prove that the accused stabbed the deceased. Wendy is related to the deceased referring to him as ‘brother’.
   
6. Towagwam said that that evening he was on his way from Rabes Kitava compound to his house when he met a man and 3 women, also walking and heading to town. This was on Garuboi Street. He said he saw them at the far end of Elena Inn. He caught up with them and walked about 3m behind them. At the entrance of the Elena Inn, they met 3 boys. The witness said he recognized them as being from ‘bottom town’. They were walking in the opposite direction. He said he saw one of the boys shout at the deceased, then slap him. Then the women ran, and he also ran. He said the man who was slapped also ran after the women. However, as he was turning the corner to the Works compound, the women then called out to him for help. He went to them, and saw the man lying on the ground. He saw that there was a pool of blood where he was lying.
   
7. He said the women asked him to stay with the injured man whilst they went to the Police Station. However, he did not and left because he did not want to be a witness.
   
8. Wendy Charlie, the next state witness, told the Court that she was with two other women and the deceased about 7 or 8pm that evening when the incident happened. Her story is similar to Tokumwareta’s except that she said she saw the accused stab the deceased. After she saw him stab the deceased, she together with the other girls ran. The deceased still on his feet, caught up with them, then told her, "he stabbed me" then showed them the wound in his side. That was when she called out to Tokumwareta to stay with the deceased whilst they went to the Police Station.
   
9. Although Wendy Charles may have witnessed the accused stab the deceased as she said, there is an issue as to whether she actually saw him stab the deceased or slap him. The accused’s evidence or Defence is that he only slapped the deceased, he did not stab him. He has maintained that story since his arrest and interview with the Police. So who would have stabbed the deceased?
   
10. Tokumwareta’s evidence is that when he saw the accused slap the deceased, he ran. He did not see what happened next except that he later saw the deceased run up to the women. There is no evidence of the time period from when the slapping occurred to when the deceased took flight. But the good evidence is that when the women and Tokumwareta saw the slapping, then they ran, after which the deceased ran after them.
    
11. The evidence also is that when all this occurred, there were no other persons on the street except the accused and his friends, Tokumwareta, the women and the deceased. Of the group that the accused was with, he was the only one who confronted the deceased. His friends were ahead of him. The evidence is that they were not in a group when the accused attacked the deceased.
    
12. Therefore, the only likely assailant is the accused. Did he stab the deceased? The good evidence is that there were no other persons who attacked the deceased, except him. None of the witnesses saw him wield a knife or a sharp object. Wendy’s evidence that she saw the accused stab the deceased is not supported with the evidence of her seeing the accused armed with a weapon. That is where I accept Ms Yayabu’s contentions that Wendy could have made up that statement relying on what she learnt later. So I will not place any weight on her evidence of what she thought she saw. However, I accept her evidence that immediately after the accused attacked the deceased, that he ran after them, up to her, where he said "he stabbed me" and showed her the stab wound, after which he fell. I find that to be good evidence.
    
13. When the deceased said "he stabbed me", who could he have been referring to? The accused of course. I say this because he was the only one who was seen by at least 3 people, to attack the deceased. Apart from his friends who were ahead of him, there were no others where the deceased was. It is too much of a coincidence to think that somebody else could have done that when the evidence is very much against the accused.
    
14. Apart from that, what of the statement "he stabbed me" made by the deceased immediately before he lapsed into consciousness and died? Defence counsel did not raise any objections as to its admissibility. State’s counsel also did not rely on that statement in its bid to prove this case. I do not know why. But s.20 of the Evidence Act is the relevant provision on Dying declarations, which is what I make out the deceased’s statement to be. However, because Defence counsel did not raise objections, Wendy’s statement that "he stabbed me" is good evidence before me.
    
15. Apart from that, I will also discuss the accused’s evidence and his demeanour. First, the accused told the Court that the deceased and the three women walked directly at the accused which was why he slapped him. But I do not understand why the deceased who had three women with him, at about 7 or 8 pm, would walk directly towards the accused who was with 2 or 3 other boys, based on the evidence, all under the influence of liquor, and then, intimidate the accused. That would have been very foolish indeed. The accused’s evidence is also not supported by Wendy or Tokumwareta. Tokumwareta’s evidence is not only reliable but is independent. I find that the accused is lying.
    
16. Secondly, the accused was very defensive in his answers, e.g when the Prosecutor put to him that Tokumwareta always saw him walking on the road that ran past his house, he said there was another road that he often used, not the road that ran past Tokumwareta’s house. Whereas Tokumwareta’s evidence is that they all live on the same street and because he lived on that street with relatives for 2 years, that he knows who the accused and his friends were. He actually named them in Court.
    
17. The accused’s demeanour and answers suggests or suggested to me that he did not wish to be caught in a situation where his answers would give him away.
    

Conclusion

18. If this Court were to rely on direct evidence, my findings will be based on the following;
    
    1. When the accused slapped the deceased, they were the only 2 persons at the scene of the crime. The others were some distance away. There was nobody else at the scene of the crime;
       
    2. The deceased told Wendy that "he stabbed me" before he lapsed into consciousness;
       
    3. The accused is known to Tokumwareta, therefore there is no dispute as to who the deceased’s attacker was or is.
       
19. In the alternative, if I were to rely on inferences, more particularly circumstantial evidence, I make the following findings;
    
    1. When the accused slapped the deceased, he also stabbed him. It all happened very quickly. There was no other person who could have done this within the time the accused stabbed the deceased, to when he ran to the women, then fall.
       
    2. Tokumwareta saw the accused slap the deceased. Tokumwareta and the women ran, out of fear. Then Tokumwareta saw the deceased run up to the women and then fall.
       
    3. That between the time Tokumwareta saw the accused slap the deceased to when he turned and ran, the accused then stabbed the deceased. This all occurred within seconds.
       
    4. The description of the deceased’s’ injuries confirm the stab wound to be as a result of a clean, swift thrust. The medical report of Dr Greg Tokwabilula of the Alotau General Hospital dated 30th May, 2005, tendered into Court by consent states that. It reads in part;
       

"...

...laceration to the left side of the chest...Externally, it measures 1.5cm and runs deep...

...the left lung was penetrated right through

...the weapon used appears to be small...projected with some reasonable force, the weapon passed into the muscular layer of the chest, through the left lung and eventually piercing the left ventricular wall...

...Joe died as a direct result of a stab wound to the left chest causing life-threatening injuries to the left lung and heart..."

5. After he did that, the accused calmly joined his friends, with no thought of the fate of the deceased.
   

20. Therefore, the accused’s guilt is the only rational inference that all the circumstances would enable it to draw. (Barca v R [1975] HCA 42; (1975) 133 C.L.R. 82 at 104 and applied in The State v Tom Morris [1981] PNGLR 493). This is because the facts proved in evidence are inconsistent with any other hypothesis other than the accused’s guilt. (The State v Marianno Wani Simon & Alan Oa Koroka (1987) N600).
    
21. I find the State has proven beyond reasonable doubt the charge of murder against the accused. This Court finds the accused guilty as charged.
    

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