State v Naipao [2010] PGNC 195; N4148 (1 October 2010)

N4148

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 44 OF 2009

STATE

V

JOHN BECKO NAIPAO

Waigani: Salika, DCJ
2010: 07, 08, 13, 19, 20 September
01 October

CRIMINAL LAW – practice and procedure – evidence – how did Buka die – who caused Buka's death – elements of Enga custom involved.
CRIMINAL LAW – development of underlying law – Enga custom that if a man is killed or injured in the yard or house of a person, the owner or person is responsible for that injury or death.

Cases Cited:
Rex Lialu [1988 – 89] PNGLR 449
Counsel:
Mr D Mark, for the State
Mr B Ninkama, for the Defence

01 October, 2010

1. SALIKA DCJ: Introduction: The accused was indicted with one count of murder under s.300(1)(a) of the Criminal Code Act.

2. The State had alleged that on 24 May 2008, the accused between 6.00am and 7.00 am went to Hohola Tyre Service to have his tyre repaired. After the tyre was repaired he had no money to pay for the repair and asked the deceased and Robert Waikale to go with him to an ATM so that he could get cash and pay them. Both men agreed to go with him.

3. On the way to the ATM, the accused suggested to them that they go to his house at Taurama Barracks to go and drink a bottle of Johnnie Walker (duty free). Again both the deceased and Robert Waikale agreed.

4. At the accused's house at the Taurama Barracks the men drank some Johnnie Walker Whiskey. After drinking about 2 glasses each they then drove to 5 mile where they drank some more beer. They then went to the airport with the accused's brother in law and after dropping his brother in law at the airport they then went to Kanage Street, 6 Mile. From 5 Mile to the airport and then to Kanage Street, 6 Mile Robert Waikale drove the vehicle which belonged to the accused.

5. At Kanage Street at a trade store, Robert Waikale bought 3 cans of beer. He went back into the vehicle and was reversing out when he bumped into another vehicle parked at the back. The bump woke up the accused who had been sleeping since they left the 5 Mile ridge.

6. The accused got out of the vehicle and went to the back of the vehicle to see the impact of the bump. After seeing that his near new car had been damaged he got angry and punched Robert Waikale several times before going to the deceased and allegedly stabbed him with a bayonet.

7. The State alleged that the accused then removed the deceased body from the vehicle and drove off. The State accordingly charged the accused with murder.

8. The accused during the course of the trial raised the defences of accident and general denial.

The Issue:
9. The issue then is how did George Kolap the deceased meet his death? What happened to him?

Evidence

10. The following state witness' statements were tendered into evidence by consent. In other words the witnesses were not required to be cross examined by the defence and it was agreed that those statements be put into evidence . The effect of such tender of the statements is that all that is said in the statement is accepted.

State Evidence

11. The statements are of the witnesses:

(a) Willie Neap – Exhibit A

(b) Rex Kennedy – Exhibit B

(c) Dr Lucas Komnapi – Exhibit C

(d) Autopsy Report – Exhibit D

(e) Record of Interview - Exhibit E

(f) Statement of Agnes Sive – Exhibit F

(g) Six sets of Photographs – Exhibit G

12. The State called one oral witness. She was Betty Makande.

13. Betty Makande said on 24 May 2008 she was employed at the Kanage Trade Store. She said she remembered a customer Robert came to buy beer at the trade store. She said Robert came with George (the deceased) and the accused. She said Robert bought beer and went back to the car. She said when he reversed he bumped into a car at the back. She said when the car bumped into another vehicle the accused came out and fought with Robert for bumping his car. She said the accused punched Robert on the nose. She said the accused punched Robert two times. She said she wanted to see more and when she came out she saw the accused hold the deceased on the collar and threw him out of his vehicle and the accused got in his car and drove away. She said she saw the deceased was injured in the heart and blood was coming out.

14. She said George was put near a tree but no one came to help her until a vehicle belonging to a Tari man came and they put George in that vehicle and took him to the hospital.
15. After questions in examination in chief she was asked if she saw Robert reverse the vehicle and she said she did not. She said she was by then sitting down and only heard the noise and when she heard the noise she got up and saw the accused hitting Robert.

16. Upon further questioning she said she saw the accused hit Robert when she was still in the store and she said when she came out she saw accused hold Robert on his collar and trousers and drop him on the side.

17. She said when she came to the front of the gate she saw the accused drag the deceased off the vehicle. She said he lifted him up and threw him down and after that he drove away.

18. She said the accused never came back to the store.

19. She was asked if she saw any weapon lying near the place where the deceased was lying and she said she did not see any weapon on the ground but she saw a knife on the seat in the car. She was asked how she saw that and she said all doors of the car were open. She said the driver's side door was open and the side where the accused came out was open. She said one side of knife was sharp while the other was like a saw. She said the knife was long.

20. In cross examination she was asked whether she had a lot of customers at that time and she said she did not have many customers at the time. She was asked if there were other people there and she said there were no other people there but that there were people on the other side.

21. She said when Robert bought beer the accused did not come out of the vehicle and after she served Robert she sat down.

22. In cross examination it was put to her that the accused only punched Robert because Robert bumped his car to which the witness agreed. She also agreed that at that time the accused did not fight with the deceased and she agreed when she was asked this pertinent question: You did not know what happened to the deceased? And her reply was – How the deceased was knifed I do not know, I only saw the accused pulling deceased out.

23. The witness said when the accused was punching Robert the deceased was not there.
24. It was put to the witness that the accused was punching Robert when the deceased came out of the vehicle with a knife and that the accused pushed him back into the car and the deceased fell on the seat and then the accused dragged the deceased out of the vehicle.

25. The witness said she did not see the deceased swing a knife at the accused.

26. I also note that in answer to another question she said it took her time to come out to the front. She said it did not a long time and said it must have been 10 minutes.

The Defence Evidence

27. The accused gave evidence in his defence.

28. He said that he is from Kamas village in the Enga Province and he resides at Taurama Barracks. He is a soldier with the Papua New Guinea Defence Force and has been with the Force for over 20 years.

29. He said he could recall the 24th May 2008 and said that on that date he was at Hohola Tyre Service at about 6.00 am. He went there to fix his tyre and after fixing his tyre he left with Robert and the deceased in his vehicle. Together they got a Johnnie Walker whiskey which they drank.

30. After some time they left for 5 mile ridge to see a Peter Ganim, who is the accused's in law. At 5 mile ridge, they drank more beer and there the accused fell asleep in the back seat on the left hand side. When asked where the deceased and Robert were before he slept, the accused said that they were drinking with his in-law at 5 mile.

31. When asked about where he woke up, he said he woke up after he heard a big bang, and felt the car moving. He said that he then came out of the car quickly and was confused as to where he was and he saw a big damage to the back of his vehicle. Then he walked to the front and pulled Robert out of the vehicle and punched him.

32. When asked who was driving the vehicle he said that it was Robert. He also said that when he woke up, the deceased was seating at the back seat on the driver side.
33. He said that he approached Robert and asked him how he came to drive his car and how they had come to Kanage Street and started punching him. When he was punching him, he heard someone calling to him that there was someone coming from the back with a knife. Then he turned and saw the deceased with the knife. He pushed the deceased with the door and twisted and pushed him into the back seat.

34. He further said that he shook him in order to remove the knife that the deceased was holding. Then he said he held the collar of the deceased's shirt and trousers and dragged him outside. After doing that he drove off easily.

35. When asked how the deceased was pushed into the car, he said that he held onto his hand and twisted him and pushed him and he landed on the back seat with hands in front.

36. When asked whether he had seen the knife when he was pushing the deceased, he said no. He further said that he did not see his hands as his body covered it.

37. He was also asked how he dragged the deceased and he said that he did it very quickly. When asked how he dropped the deceased, he said that he held him on his trousers and he fell on his stomach. When asked if there were other people there, he said that some people were there who might have been the other people from the other vehicle.

38. When asked when he saw the bump and what the people on the other vehicle did, the accused said they yelled at them and said among themselves that his car must have been a stolen one. He said when the deceased was dragged out of the car, he stood up stumbled and fell. When asked why he had left Kanage street, he said that he was angry with Robert but not with the deceased. When asked why he surrendered to the Police, he said that he heard that the person he had been drinking with died and he was blamed.

39. He was asked how the deceased was related to him he said that they were cousins. When asked why would the deceased come with the knife towards him, and he said because I was punching Robert who was his cousin.

40. When asked if he was armed, he said no. When he was asked how long he took to pull the deceased, he said few seconds. When asked whether he knew that the deceased was hurt at that time, he said no.

Analysis of the Evidence

41. The evidence that was tendered by consent are not relevant to the issue of how George Kolap died. The statement of Willie Neap and Rex Kennedy only go to show that the deceased George and Robert Waikale went with the accused on that day. The evidence of Agnes, the photographer goes to show the identity of the deceased, the clothes he was wearing and more importantly the wound on his body.

42. The statement of Dr Lucas Komnap and his autopsy report goes to show the cause of death. The cause of death was from a stab wound to the abdomen.

43. The autopsy revealed a 25 mm X 30 mm incision wound to the central abdomen, 65 mm above the umbilical and lacerated on the upper edge of the sound. The internal examination revealed the abdomen wound extended downwards and there was a stab wound to the transverse colon of the large intestine. This probably means that the force of the knife was downwards and not bottom up.

44. The photographs tendered into evidence also helps the court where exactly the wound was inflicted on the deceased. I note that the wound is on the upper abdomen below the chest.

45. From all the evidence there is no dispute that the accused, the deceased and Robert Waikale were all at Kanage Street, 6 Mile in the accused's vehicle driven by Robert Waikale. Robert was the only person who was fully awake when they came to the Kanage Street Trade Store. After Robert reversed and bumped the car the accused woke up from his sleep.

46. At the back of my mind I am mindful that the accused had been drinking all night at the Lamana Gold Club and continued drinking that morning at Taurama Barracks and then at 5 Mile ridge. How long he slept in the vehicle can only be an estimation. How affected he was by alcohol at the time can only be an estimation as well.

47. I am mindful that the vehicle was the accused's first and it was near new and it had been dented by Robert. The accused was clearly angry at Robert for driving his vehicle and now bumping it, and he would now have to put money to pay for the damage.

48. I am also mindful that this trip initially was to go to an ATM so that the accused could pay for the tyre repair done on his vehicle.

49. I am also mindful of the broken sequence of events as described by Betty Makande. Betty was in the store. She came out late so she could not have seen everything she said she saw in minute detail.

50. The only players in this incident were Robert, George and the accused. Applying the elimination test, Robert could not have been responsible for the wounds on George's body as he never touched him or got near him before he got the wound so I rule him out. That leaves the accused and George.

51. There was some suggestions by the defence that the wound might have been inflicted by persons in the other vehicle that Robert bumped into. However, there is no evidence to link these other people to this assault on George and to seriously consider that suggestion and give it any credence.

52. As indicated the possibilities are narrowed down to the accused and George himself.

53. The accused's evidence is while he was punching Robert he heard someone in the crowd call out "someone was coming from the back with a knife". When he turned around he saw George with a knife. He said he pushed George with the door and twisted him and pushed him back into the back seat of the car.

54. At this juncture I note that the accused's version of this piece of evidence was never put to Betty Makande that someone called from the crowd to warn the accused that someone was coming with a knife. This was never put to the State witness. This was very important evidence from the accused as the defence case was concerned but was not put to the State witness.

55. He then said he shook him to make him release the knife. This piece of evidence was not put to Betty Makande if she saw that. The accused also said he twisted George. That too was not put to Betty Makande.

56. When asked how he pushed George back into the car he said he held on to his hand and twisted him and pushed him and he landed on the back seat with his hands in front.

57. This evidence of the accused was not specifically put to the State witness if she saw this.

58. The accused went on to say that he did not see the knife when he was pushing George because his body covered it. I find this evidence very difficult to accept for this reason.

59. When someone called out that "someone was coming at the back with a knife" the accused turned around and saw George with the knife. That would have put them facing each other. George with the knife facing the accused and the accused facing George. The accused pushed the deceased with the door. The deceased would still be facing him and he said he held onto his hands and twisted him and shook him to make him release the knife.

60. Again all this evidence was never put to Betty Makande.

61. In holding the deceased's hand with the knife and shaking that hand to make him release the knife, the accused did not say whether he succeeded in making George to release the knife.

62. All these minute details of the accused's story was not put to the state witness Betty Makande. It was not put to Betty that the accused tried to disarm George. Moreover there was no suggestion by the accused that as George was armed and coming to attack him, he acted in the way he did in self defence. The defence of self defence was never raised.

63. The final act of the accused pulling deceased out of the vehicle is also clear. The accused said he then got the deceased by the collar of his shirt from the back of the car and threw him out.
64. From the photographs tendered the deceased was wearing a Polo Tee shirt ( a tee shirt with a collar) and a pair of shorts.

65. So if the accused grabbed his shirt collar with one hand and with the other hand lifted him from his shorts he would have been able to pick him up and throw him out of the vehicle. At the time the accused attempted to lift him up from the car seat the deceased pleaded with the accused that it was Robert who bumped his car and told him to leave him alone or not to attack him. I make the observations here again that this aspect of the defence case was never put to the State's witness Betty Makande.

66. In relation to the knife, the accused's evidence is that when he threw George out of his car, George was still holding the knife. Betty on the other hand said George never held a knife. If George was still holding a knife when he was thrown out Betty and Robert would have retrieved the knife and given it to the police. Betty said George was thrown out without a knife.

67. Betty gave evidence she saw a knife on the back seat of the car and described it as one side sharp and the other side like a saw.

68. I cannot be sure as to when or at what stage George sustained the wound to his abdomen.

69. The medical report said the cause of death was a stab sound in that it was an "incision wound". Black's Medical Dictionary 35th Edition describes 4 varieties of wounds namely – incised, punctured, lacerated and contused. "Incised wounds are usually inflicted with some sharp instrument and are clean cuts..."

70. There is evidence only of one sharp instrument and that is that of a knife. Was the wound on George's body caused by such a sharp instrument? In the absence of any evidence of any sharp instrument I am satisfied that the wound was from a knife.

71. Was the deceased wounded while being pushed in the car or was it when he was lifted from the car and thrown out? There is no clear cut answer to this because the evidence is not clear on that.

72. Betty thinks it happened in the car. She says he does not know. If he was cut when he was lifted out of the car and dumped outside, Betty might have seen it and if the deceased was still holding the knife then how could he have stabbed himself or how could he have fallen on the knife. Pertinently as well there was no knife found left at the scene. There was no knife with George. What happened to the knife? The defence counsel suggested the knife might have been disposed of by Betty and Robert Waikale. Betty denied this. I do not see and find any logical reason why Betty or Robert could have hidden the knife.

73. In that regard on the evidence I find that the deceased received the wound in the car. I make that finding because if the knife was still with George, the knife would have been retrieved by Betty or Robert Waikale. It was an important piece of evidence for the police and to determine how George got wounded. I believe Betty on this that George was not holding any knife when thrown out of the vehicle. This means the knife was still in the car.

74. Having made that finding it follows then that George was wounded in the car.

75. How was he wounded? Circumstantial evidence. The accused's evidence is the only evidence or the story that George was coming with a knife at the back of him. When he turned around he saw George with a knife. The accused then pushed him with the car door and held him and twisted him. From this sequence of events as described by the accused the accused was the dominant of the two men. The way he explained it himself was that he did it quickly or fast. The accused was the bigger of the two men described. It is safe to conclude he was the stronger of the two men.

76. The accused said he twisted him. Did he twist George's body or twisted George's hand. He also said he shook his hand with the hope of disarming him. By that time the accused had overpowered George. There was no further action needed. The accused pushed him and in that motion the victim fell over the knife.

77. The cause of the victim falling on the knife is the accused. See the case authority of Rex Lialu (1988 – 89) PNGLR 449. Had the accused not pushed him to the back seat of the car the victim might not have suffered the wound. It is open to the court to find that after the accused overpowered the victim he then got the knife and stabbed him in the car. That inference is open.
78. It is also open to that court that somehow the deceased fell on the knife when he was pushed by the accused to the back seat while still holding the knife with his hand stretched out.

79. If the first option is accepted by the court, he will be guilty of murder. If the second option is accepted he will be guilty of unlawful killing.

80. In this case I will accept the option most favourable to him. I accordingly find him guilty to unlawful killing pursuant to s.298

I would therefore refer reduce a verdict of not guilty to murder but a verdict of guilty to the alternative charge of manslaughter.

81. The defence of general denial and accident have not been made out.

82. Counsels submission on the law of corroboration is not necessary because there is no legal requirement for corroboration in these types of cases. Corroboration was only required in sexual offences cases but the law on sexual offences has been amended so much so that requirement for corroboration has died with the amendments.

__________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defendant