State v Yandu [2009] PGNC 197; N3798 (20 November 2009)

N3798

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 447 OF 2007

THE STATE

V

RICHARD WASABO YANDU

Wewak: Cannings J
2009: 13, 14, 17, 19, 20 November

VERDICT

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – elements of the offence – whether the accused killed the deceased – whether intention to do grievous bodily harm.

The accused was alleged to have killed a 52-year-old woman by joining with another person and attacking her with a bushknife in the early hours of the morning, as a reprisal for an incident involving the deceased’s relatives the previous night. The State presented an eyewitness, the deceased’s granddaughter who was ten years old at the time and staying with the deceased on the night in question. Two witnesses gave evidence about what happened the previous night and what happened after it was discovered that the deceased had been attacked. The accused gave sworn evidence that he was somewhere else at the time.

Held:

(1) There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(2) Both elements were proven against the accused and he was convicted of murder.

Cases cited

The following cases are cited in the judgment:

Java Johnson Beraro v The State [1988-89] PNGLR 562
John Jaminan v The State (No 2) [1983] PNGLR 318
Rolf Schubert v The State [1979] PNGLR 66
The State v Raphael Kuanande [1994] PNGLR 512
The State v Robert Wer & Others [1988-89] PNGLR 444
The State v Sei Nakiking Tubol & Others [1994] PNGLR 378

TRIAL

This was the trial of an accused charged with murder.

Counsel

D Mark, for the State
A Hombunaka, for the accused

20 November, 2009

1. CANNINGS J: The accused, Richard Wasabo Yandu, has been indicted for the murder of a 52-year-old woman, Wendy Manjang.

2. The State’s case is that the accused and his brother attacked the deceased at her garden house at Kamgu in the Wosera-Gawi area of East Sepik Province in the early hours of Saturday 7 October 2006. The allegation is that they pulled her out of the house while she was asleep and wounded her badly, left her there and that she died the next day at Maprik Hospital from the injuries inflicted on her.

3. The accused is from Nungaiko No 1 village, which is in the same area. It is agreed that he went to a nearby village, Pukago, on the night of Friday 6 October 2006 to attend a dance and there was a fight at the dance. The State says that the accused, who was drunk, caused the fight and was forced out of the village by local people and that he resented that and threatened to kill someone from Pukago. Two men who say that they were present when the threat was made have given evidence.

4. The deceased is from Pukago but had been living for several years at Nungaiko No 1 with her son, Ruben Wingu, who is an Assemblies of God pastor. Kamgu – the place where she was attacked – is not a village but a spot in the bush at which there are a few garden houses that local people sleep in at night. On the night in question she was sleeping in her garden house with her ten-year-old granddaughter Yunis Wingu. Yunis is Pastor Wingu’s daughter. The State alleges that after he was forced out of the dance at Pukago the accused went to Kamgu with his brother and attacked the deceased, and then went on to Nungaiko No 1. His brother was also charged with murder but the court has been told that he has escaped from custody.

5. The accused denies the allegations. He gave sworn evidence that he went to the dance but did not cause any trouble and issued no threats, that he was not drunk and that when the fight erupted he left with his girlfriend and went straight home to Nungaiko No 1 where he stayed until Sunday before being attacked by the deceased’s relatives and heading to the safety of Maprik Police Station.

6. The accused is alleged to be guilty of murder under Section 300(1)(a) of the Criminal Code.

ELEMENTS

7. Section 300(1)(a) of the Criminal Code states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: ...

if the offender intended to do grievous bodily harm to the person killed or to some other person.

8. The prosecution has the onus of proving beyond reasonable doubt that:

- the accused killed the deceased; and

- the accused intended to do grievous bodily harm to the deceased.

9. They are the two elements of the offence. If the court is not satisfied that the second element is proven, but that the killing was unlawful, an alternative verdict of manslaughter can be entered under Section 539.

ISSUES

10. The accused does not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. He says that he was not present and did not kill the deceased. So the first issue is whether he killed the deceased. If so, was there an intention to do grievous bodily harm? If yes, a conviction for murder will be entered. If no, an alternative conviction for manslaughter will be considered.

11. The primary issues therefore are:

1. Did the accused kill Wendy Manjang?

2. Was there an intention to do grievous bodily harm?

3. If there was no intention to do grievous bodily harm, was the killing unlawful?

4. Should the accused be convicted of an offence?

1 DID THE ACCUSED KILL WENDY MANJANG?

12. Determination of this issue requires:

- a summary of the evidence for the State;

- a summary of the evidence for the defence;

- a preliminary assessment of the State’s case;

- a summary of the defence counsel’s submissions;

- an assessment of the defence counsel’s submissions; and then

- a final determination of the question whether the accused killed the deceased.

EVIDENCE FOR THE STATE

13. It consisted of:

- medical evidence: a post-mortem report;

- record of interview; and

- oral evidence by three witnesses.

Medical evidence

14. An affidavit by Dr Stenard Hiasihri of Maprik District Hospital dated 11 October 2006 was admitted into evidence. Dr Hiasihri treated the deceased when she was admitted to the hospital early on Saturday night and found her to have a clean cut wound to the left upper arm, several clean cut wounds to the head and a clean, neat wound to her left elbow.

15. She died at 8.00 am on Sunday. Dr Hiasihri concluded that:

Sharp dirty weapons were used to inflict the injury.

Major arteries were cut leading to massive blood loss and hypovolaemia.

Dirty wound and hypovolaemia resulted in septicaemia that could not be controlled by antibiotics which inevitably led to death.

Record of interview

16. The accused said that he went to the dance at Pukago and that the local people fought with him and his brother, Carlson. He denied causing the fight, saying it was caused by drunkards. He denied attacking Wendy Manjang.

Oral evidence of three witnesses

17. The first was put forward as an eyewitness and the other two gave evidence of events immediately prior to the incident in which the deceased was attacked and after the incident.

(1) Yunis Wingu is now aged 13. In view of her age, it was appropriate to conduct an inquiry to determine her capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562.

18. Upon answering questions from me she appeared to clearly understand the nature and purpose of the court proceedings, the reason she was in court and that the lawyers would ask her questions about what happened. She appeared to be a bright and intelligent child. She understood that if she did not tell the truth God would not be happy with her and that she could be punished. I was satisfied that she understood the meaning and importance of truth and allowed her to give sworn evidence.

19. Ms Hombunaka raised no objection to her competence as a witness or the admissibility of her evidence. I allowed her father, Pastor Wingu, to sit next to her as a support person. This special measure was ordered under Section 37B of the Evidence Act.

20. In examination-in-chief Yunis Wingu said that she was at Kamgu with her grandmother on 6 and 7 October 2006. The accused, Richard, and his brother, Carlson, came there on the afternoon of the 6th to get a light for their cigarettes. She knows them as they lived at Nungaiko No 1 where her father was a pastor.

21. They came back about 5.00 am on the 7th. Carlson came into the house and lifted up the mosquito net and dragged her grandmother outside and cut her with a knife. Richard was outside and he also cut her. She saw what happened and ran away to a nearby waterhole. Then Richard and Carlson went away. Her grandmother was cut on the middle of both arms, across the head from back to front and across the forehead. She spoke to Yunis and called the names of Richard and Carlson, whose village names are Wasabo and Warangen respectively.

22. Later that morning two men, Benny and Jerom, who come from Nungaiko No 2 village, came and saw what happened. Other men who came to help were Andrew, Hebron, Carson and Sali. She told them what had happened.

23. In cross-examination she said that Kamgu is away from the main road. Richard and Carlson do not normally come to Kamgu but they knew her grandmother as she was living at Nungaiko No 1 where Yunis’s father was a pastor. She gave more details of her story that Carlson had entered the house. The house had only one door and two rooms. It is on medium-size posts. The waterhole she ran to was big but not too deep and has trees around it. She denied that Jerom David and Ronald Wingu were at first suspected of killing her grandmother and that people from Pukago had raided David and Ronald’s houses and in fear of their lives they called out the names of Richard and Carlson as being responsible for killing Wendy Manjang.

24. She confirmed that she gave a statement to the police and she was shown a statement and said that that was the one that she signed with her little finger.

(2) Steven Saiem is from Pukago, aged 42. Wendy Manjang was his aunty. He knows the accused who he says was at the dance with his brother on the Friday night and they were drunk and causing trouble so the local boys fought with them. There was some light rain. Richard and Carlson said ‘if you want to kill us do it straight away because if you don’t there will be trouble’.

25. Steven interpreted that as a threat to harm Pastor Ruben or Wendy who were from Pukago but living at Richard and Carlson’s village, Nungaiko No 1.

26. At 5.30 am Richard and Carlson left. Shortly afterwards – about 30 minutes later – word got back that they had killed Wendy and some boys went to Kamgu and retrieved her.

27. In cross-examination Steven said that he does not know what time the dance was stopped but it was stopped because of the disturbances caused by Richard and Carlson.

28. He conceded that Richard and Carlson did not expressly mention the name of the Pastor or Wendy when they said that there would be trouble. It was just his interpretation of what they said as the dance was organised by the Pastor’s relatives, including his sons who were in the group that fought. Richard and Carlson did not bear any grudges against the Pastor or Wendy before that night. He heard on Saturday morning that Wendy had been attacked but was not in the group that went to Kamgu to retrieve her as he has a problem at the sight of blood.

29. Asked to describe the house at Kamgu, Steven said it was small, with floorings but not fully walled as the house was fairly new and not complete. It was on posts, about 1.5 metres high. There are steps to get up into the house. There are no rooms, it is an open house, he thinks; but when pressed on this he was not sure as he does not go there very often. It was considered safe for Wendy and the small child to stay there as it is normal practice in the area for the people, including females, who are working late in their gardens to sleep over in their garden houses. Wendy was living at Nungaiko No 1 with her son, Pastor Ruben. He is not sure of Wendy’s age when she died but she was not too old to be working in the garden. Yunis was living with her at Nungaiko No 1.

30. Asked to describe the waterhole, Steven said it was a big lake about 1.7 metres deep, a short distance from the garden house. To walk from Pukago to Kamgu will take about 30 minutes. To get from Pukago to Nungaiko No 1 you will not go through Kamgu.

31. It was put to him that when Richard left the dance he went with his girlfriend, Jane Robert. Steven said no, he did not leave with a girl. He left some time after midnight, in the early hours.

32. Asked whether his relatives raided the houses of Jerom David and Ronald Windu on Sunday 8 October, Steven said no, not that Sunday, it happened some time later; they were suspects and they went into hiding but they were not threatened.

(3) Henry Kambu is from Wanjuma No 2 village in the Wosera-Gawi area. He knows the accused.

33. In examination-in-chief he said that he walked to the dance place at Pukago on Friday night, arriving at 9.00 pm. Richard and Carlson caused a problem at the dance and they fought against the Pukago people. Henry said he helped to stop the fight between 4.00 and 5.00 am. Richard and Carlson had bushknives and they cut the ground with them and said ‘when we go back to Nungaiko No 1 we will kill the pastor who stays there’.

34. When they left they were followed by Benny Koki and Simon Kun who were amongst the people who later came back to Pukago and told him that Wendy had been attacked. It takes about 40 minutes to walk from Pukago to Kamgu and he went in the group of about 15 people that went there and assisted her.

35. He asked who attacked her and she said Richard and Carlson. She called them by their village names, Wasabo and Warangen, and said that they cut her with a bushknife. She repeated the same thing when he took her back to the village. She spoke Tok Ples, the Tamukundi language. There were cuts over her body, blood was still flowing, she was crying and in agony and looked as if she was going to die.

36. In cross-examination Henry Kambu said that Richard and Carlson arrived at the dance at 9.00 pm. The fight did not start until the early hours of Saturday morning. He thinks it was about 4.00 or 5.00 am but is guessing as he did not have a watch.

37. Asked to describe the garden house at Kamgu, Henry said it was a new house, with flooring but no walls, on posts about 1.7 metres high with space for three rooms but they are not yet walled. As for the waterhole, it is located seven metres from the garden house, it is deep with plenty of fish and has trees surrounding it.

38. Henry repeated that he was in the group that went to check on Wendy. Kamgu is not on the main route between Pukago and Nungaiko No 1 but there is a short-cut passing through Kamgu and it takes about 45 minutes to walk. From Pukago to Kamgu is a 20-minute walk.

39. As to the claim that Richard left the dance with his girlfriend, Henry said that was not true. He also denied that Jerom David and Ronald Wingu were suspected of killing Wendy or that their houses had been raided.

EVIDENCE FOR THE DEFENCE

40. The accused gave sworn evidence. There was no other evidence for the defence.

41. Richard Wasabo Yandu said he got to Pukago at about 9.00 pm. He went straight there from Nungaiko No 1. He did not stop anywhere on the way. He stayed at the dance until midnight. Jerom David and Ronald Wingu and other boys from Nungaiko No 2 were there. There was light rain. Drunkards started a fight at the gate at midnight so he left while the dance was still going on with this girlfriend, Jane Robert, and went straight to his village, Nungaiko No 1, arriving there at 1.30 am. He went to sleep and stayed there on Saturday.

42. Early on Sunday the deceased’s relatives went to Nungaiko No 2 as they suspected Jerom David and Ronald Wingu of attacking the deceased. They took them to Pukago and that is when he and Carlson were named as suspects as Jerom and Ronald were scared that they would be killed. Then the Pukago people came to Nungaiko No 1 and raided his house and Carlson’s house. He was scared and ran to Maprik Police Station.

43. He does not know where his girlfriend is now. He has been in custody for more than three years and thinks she has probably got married and moved to another province. There were many people following them when they left the dance. He did not know the deceased. He does not know where Kamgu is. He has never been to Pukago before the night of the dance.

44. In cross-examination he said that he was not present when Jerom David and Ronald Wingu called his and his elder brother Carlson’s name. He knows Pastor Ruben and knows Yunis a little. He also said that he knew Wendy but not very well and only sees her once in a while. He was emphatic that he did not go to Kamgu at any time. He did not drink alcohol before or during the dance. He did not cause any trouble at the dance. He did not talk to the State witnesses Steven or Henry. He was not involved in the fight. He did not make any threats to anyone. Wendy did not know his name so someone must have given it to her. Jerom David and Ronald Wingu must have given Yunis his name.

PRELIMINARY ASSESSMENT OF THE STATE’S CASE

45. The medical evidence reveals that the deceased was attacked with a knife and badly wounded. She did not meet an accidental death. The person(s) who attacked her, killed her. The question is whether the accused attacked her. The State’s case hinges on the reliability of the evidence of Yunis Wingu as well as that of the other two State witnesses.

DEFENCE COUNSEL’S SUBMISSIONS

46. Ms Hombunaka submitted that the State had fallen short of proving that the accused killed the deceased, as:

(1) Yunis was an unreliable witness in view of her age and demeanour.

(2) Steven Saiem and Henry Kambu were also unreliable.

(3) There were numerous inconsistencies in the evidence of the State witnesses.

(4) The accused gave credible evidence that he was somewhere else at the time.

(5) Evidence showed that there were other more likely suspects.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

(1) Yunis Wingu was unreliable witness

47. Ms Hombunaka submitted that Yunis was very young and had been fed the story about Richard and Carlson coming to Kamgu, twice, the second time to attack her grandmother. Though no objection was taken to her father, Pastor Ruben, sitting next to her in the witness box, she relied on him too much for support and looked his way if she was not sure what answer she was supposed to give. She gave false evidence about putting her little finger on her police statement as the mark on the document is obviously a thumbprint of an adult. Her demeanour was not sound and therefore she was not a reliable witness.

48. I reject this submission. I thought Yunis was a very impressive witness. She was on occasions subject to a barrage of questions and she gave yes-no answers without hesitation in a way that made sense. I do not think she relied unduly on her father for assistance in answering questions. I agree that the circumstances in which she made her police statement are unclear but this did not detract significantly from the quality of her evidence. I did not gain the impression that she had been coached on what evidence to give. Her demeanour was sound and I regard her as a reliable witness.

(2) Steven Saiem and Henry Kambu also unreliable witnesses

49. It was submitted that they were also unreliable witnesses as they did not respond well to cross-examination. I reject this submission also. Their demeanour was satisfactory.

(3) Inconsistencies in the evidence

50. Ms Hombunaka carefully articulated a number of inconsistencies in the evidence of the State witnesses regarding:

- The layout of the garden house (number of rooms, description of the house).

- The description of the waterhole.

- Relative locations of the three principal places referred to in the evidence: Kamgu, Pukago and Nungaiko No 1 and the distances between them and in particular whether there is a shortcut through Kamgu.

- What happened at the dance place, in particular the time of the fight and the time that the accused left the dance?

- Who went to Kamgu on Saturday morning to attend to Wendy?

51. She asked the court to infer that because the witnesses could not give consistent evidence on such basic details, they were lying.

52. I agree that there were inconsistencies in the evidence but in the process of weighing all the evidence I do not consider them to be very significant or material. The general sequence of events has been established by the evidence and in particular there is a credible eyewitness account of what happened. The presence of inconsistencies does not detract significantly from the value of the eyewitness evidence.

(4) The accused gave credible evidence of being elsewhere

53. Ms Hombunaka was careful when making this submission not to use the term alibi but Mr Mark was right, I consider, to use it when describing the accused’s principal defence. When an accused says he was somewhere else at the time of an offence he is raising an alibi and there are special principles that must be applied when deciding what weight to give to the accused’s evidence, as set out in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318.

54. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

55. Having considered all of the above matters, I record the following relevant considerations:

(a) No notice of alibi was provided to the State. Leave of the court was not sought under Order 4, Rule 4 of the Criminal Practice Rules, to adduce evidence of the alibi. Strictly speaking, it should not have been admitted (The State v Robert Wer & Others [1988-89] PNGLR 444, The State v Sei Nakiking Tubol & Others [1994] PNGLR 378). But the prosecutor raised no objection and it was admitted. The admission of evidence and the weight to be attached to it are two different things, however. The circumstances in which the alibi evidence came to be admitted make it a belated alibi. Even in his record of interview, there is no mention of it. This significantly lessens the weight to be given to it.

(b) The accused was an unimpressive witness. His demeanour was poor.

(c) The alibi was entirely uncorroborated. The explanation for this – that the accused’s girlfriend had probably gone and married someone else, so she was unavailable – was flimsy; as was the claim that no one else was available to give evidence in support of the alibi. Surely if in fact the accused went straight home to the village after the dance someone in the village would have seen him.

56. In light of the above I have concluded that the evidence of the accused is not honest or credible. The alibi evidence is poor and I determine that in fact it is a false alibi.

(5) Evidence of other more likely suspects

57. The evidence that Jerom David and Ronald Wingu were the culprits was also entirely uncorroborated and unreliable. I give it no weight.

FINAL DETERMINATION OF WHETHER THE ACCUSED KILLED THE DECEASED

58. The deceased’s granddaughter Yunis was a reliable witness who gave credible evidence of seeing the accused attack the deceased with a knife. Her evidence was corroborated by the circumstantial evidence of the accused being involved in a fight at the dance at Pukago and issuing threats. I agree with Mr Mark’s submission that Yunis’s evidence should not be seen in isolation. Corroboration was also provided by the deceased’s dying declaration in which she called the names of the accused and his brother; and this evidence I have taken into account under Section 20 of the Evidence Act.

59. The State has proven beyond reasonable doubt that the accused attacked the deceased and that the injuries he and/or his brother inflicted on her directly led to her death. He killed her. The first element of murder has been proven.

2 WAS THERE AN INTENTION TO DO GRIEVOUS BODILY HARM TO WENDY MANJANG?

60. It is at this point of a murder trial that the Court is required to consider the accused’s state of mind. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused’s state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

61. There is ample evidence from Steven and Henry that the accused was behaving aggressively before going to Kamgu. He made threats so the State has established a motive for an intention to cause grievous bodily harm. Substantial wounds were inflicted on the deceased. The medical evidence clearly demonstrates an intention to do grievous bodily harm. The State has proven beyond reasonable doubt that the accused intended to do grievous bodily harm to Wendy Manjang. The second element of the offence of murder has been proven.

3 WAS THE KILLING UNLAWFUL?

62. In view of the determination of the first two issues it is unnecessary to address this issue.

4 SHOULD THE ACCUSED BE CONVICTED OF AN OFFENCE?

63. The State has proven that the accused killed the deceased under circumstances in which he intended to do her grievous bodily harm. He will therefore be convicted of murder, as charged.

VERDICT

64. Richard Wasabo Yandu, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of murder.

Verdict accordingly.

____________________________

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