State v Peteru [2011] PGNC 19; N4233 (11 March 2011)

N4233

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 1416 OF 2009

THE STATE

V

KEVIN PETERU

Daru: Kariko J
2011: 8 &11 March

CRIMINAL LAW – Particular offence – Inciting to kill – section 308(1)(a) Criminal Code - meaning of "incite" and "incitement"- need for wilful or intentional encouragement or urging to commit an unlawful killing

The accused married two women and he went to and from the wives who lived in separate homes. There were regular fights or arguments between the women over eight years. On 7 February 2009, the first wife stabbed the second wife with a knife causing her death. Earlier that day, the accused had assaulted the first wife. The accused was charged with inciting the first wife to kill the second wife.

Held:

(1) An offence under section 308 of the Criminal Code applies to situations where the prosecution is unable to prove an attempt to kill or an aiding under s. 7 or a conspiracy to murder, and is aimed at "behind the scenes" persons who plan killings: Mauwe Anatape v The State [1981] PNGLR 68 adopted.

(2) To "incite" under section 308 of the Criminal Code means to encourage, stir up, urge or persuade.

(3) Incitement as an offence involves encouraging or urging a person to do a violent or an unlawful act.

(4) For the offence of inciting to kill under section 308(1)(a) of the Criminal Code, there must be wilful or intentional encouragement or urging to commit an unlawful killing

(5) The acts or omissions alleged against the accused did not amount to incitement as required by section 308 of the Criminal Code and the accused was accordingly acquitted.

Cases cited
Papua New Guinea Cases

Mauwe Anatape v The State [1981] PNGLR 68
Porewa Wani v The State [1979] PNGLR 593
R v Umarum [1969-70] PNGLR 190
Agiru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37
The State v John Badi Woli & Pengas Rakom [1978] PNGLR 51
The State v Ben Wafia (No 1) (2003) N2579
Ben Wafia v The State (2006) SC851

Overseas Cases

Browne v Dunn (1893) 6 ER 67

Counsel:

D Mark, for the State
P Palek, for the Accused

11 March, 2011

1. KARIKO J: Ailyn Iosea was a widow when in 1997 she met the accused who was already married to a Dairi Bazi. The relationship between Ailyn and the accused developed to one where they started living together in Daru and they were looked upon as a married couple with Ailyn regarded as the accused's second wife.
   
2. Dairi initially agreed to the accused taking on Ailyn as his second wife. The accused would go to and from the two wives but it seems that he resided mainly with Ailyn and her family.
   
3. After a year or so of this scenario, the relationship between the two wives changed to animosity towards each other and this grew as the two women fought each other from time to time.
   
4. These fights were more arguments than physical confrontations that involved mostly cursing and swearing. The accused tried to stop these quarrels when they happened in his presence but he otherwise did not seek the assistance of authorities such as the village council or the courts to settle the hostility between the wives. It seems the matter was taken up once in the District Court but the case was not progressed.
   
5. On 7 February 2009 the accused assaulted Dairi resulting in her attending the Police Station for assistance. Apparently she and Ailyn had been counselled by the Police over sometime for domestic violence by the accused. After she left the station she apparently met Ailyn when yet another confrontation broke out between the two women during which Dairi stabbed Ailyn with a knife resulting in Ailyn's death.
   
6. Against this background the accused faces an indictment charging him with inciting Dairi to unlawfully kill Ailyn, a charge under section 308(1)(a) of the Criminal Code.
   
7. The accused pleaded not guilty to this charge.
   

Issue

8. There is no dispute that Dairi Bazi unlaufully killed Ailyn Iosea on 7 February 2009. The question is whether the accused incited Dairi to execute the killing?
   

Prosecution case

9. The prosecution relies on the following evidence to prove the element of inciting:
   
   • That over the course of 8 years he was married to Ailyn, the accused did not treat the fights between the wives with any seriousness because he took no steps to settle their problem.
     
   • Even though this problem had grown over the period and the arguments became regular, the accused did not care to solve the matter. He did not even consider taking the matter up with relevant authorities for assistance.
     
   • On 7 February 2009 he assaulted Dairi which then led to the confrontation between Dairi and Ailyn later in the day.
     
   • He was present when Dairi killed Ailyn.
     

Defence case

10. Mr Palek for the accused argued that to "incite" means to "urge on" or "stir up". Simply put, the Defence submission is that the evidence relied upon by the State does not amount to "incitement" as required under section 308 of the Criminal Code.
    

Whether accused present at the scene

11. The only relevant prosecution evidence that is disputed is whether the accused was present when Ailyn was stabbed. Evidence led by Ailyn's son Gibson Adara, who was one of the three State witnesses called to testify, was that the accused was present at the scene – that he arrived after the fighting started but his (Gibson's) mother had already been stabbed. Gibson said the accused tried to stop the stabbing by shouting out but was late. The accused said in evidence he was elsewhere at the time when he received news of the stabbing.
    
12. The defence version was not put to the witness Gibson during cross-examination, so technically that evidence was accepted by the defence pursuant to the rule in Browne v Dunn (1893) 6 ER 67. However I found this witness most unimpressive. He looked down most of the time, answered after long pauses and mumbled his answers. He was reminded numerous times to look up and answer in an audible voice. The particular evidence about the accused being at the scene came just before the close of examination-in-chief and seemed to me to be an afterthought to give credence to his evidence. But his account offered no details regarding the killing and in particular how the fight started; where and when it happened; what it involved; how the stabbing happened; how the stabbing was perpetrated; and what happened after the stabbing. I therefore disbelieve Gibson on this area of evidence and find the State has not proved beyond reasonable doubt that the accused was present when Ailyn was stabbed.
    
13. Even if the accused was present when the killing took place, this would not alter my decision, and I will come to that later.
    

The Law

14. Section 308 of the Criminal Code reads:
    

(1) A person who—

(a) incites, encourages, urges, counsels or commands the unlawful killing of another person; or

(b) does or omits to do any act for the purpose of facilitating, enabling or assisting the unlawful killing of another person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) For the purposes of Subsection (1), it is immaterial that—

(a) no specific person was incited, encouraged, urged, counselled, commanded, enabled or assisted to kill; or

(b) the killing of no specific person was incited, encouraged, urged, counselled, commanded, facilitated, enabled or assisted; or

(c) no person was in fact killed. (My underlining).

15. In my experience where the facts disclose acts of encouragement of an unlawful killing, the prosecution has opted to pursue a charge invoking section 7 of the Criminal Code (aiding). It is not surprising therefore that there is a dearth of case authority dealing with this provision. It is apparently an offence unique to Papua New Guinea. The Criminal Code of Queensland from which this country's Criminal Code is based certainly does not contain a similar section. This offence received some discussion in Mauwe Anatape v The State [1981] PNGLR 68 and was briefly referred to in Porewa Wani v The State [1979] PNGLR 593.
    
16. In Mauwe Anatape's case, the accused and his brother waited outside the courtroom for the brother to kill an alleged sorcerer. The accused was present to assist the brother in case the relatives of the intended victim retaliated. The accused was in fact charged under now section 308(1)(b) which was then section 315 (1)(b) - Doing an act for the purpose of assisting the unlawful killing of another person. No one was actually killed and the conduct did not amount to attempt murder. While the charge was different to the present case (the charge being laid under section 308(1)(b)), the following observations by the Supreme Court are pertinent:
    
    • The section "seems to be directed towards the situation where the prosecution is unable to prove an attempt to kill or an aiding under s. 7 or a conspiracy to murder"; per Miles J at p.70
      
    • The provision "exists to enable the prosecution of 'behind the scenes' persons who plan and organise payback killings"; per Kearney DCJ at p.69
      
17. It is interesting to note in the pre-independence Supreme Court case of R v Umarum [1969-70] PNGLR 190, where the accused person gave his consent to another person to kill the deceased, Clarkson, J held:
    
    • That mere consent or acquiescence does not amount to an encouragement to kill; and
      
    • that mere prior knowledge of what is intended in itself was not enough to bring the accused within the then section 7(b) (aiding and abetting).
      

It seems to me that the circumstances in Umarum's case is one of the situations alluded to by Miles J and Kearney DCJ that led to the enactment of this particular provision.

18. Porewa Wani's case (supra) involved a killing of an accused person during a view by the National Court. The accused was found guilty of wilful murder by virtue of section 7 for aiding. She was present and was aware of the intention of the principal offender, and called "Kill him, kill him, kill him!" words that urged or encouraged the principal offender. On appeal to the Supreme Court where it was argued that conviction, if any, should have been for a charge under section 315 of the Criminal Code (now section 308), the Court held that "urging unlawful killing" is not an alternative verdict open to a charge of wilful murder. Although that issue is not applicable to the present case, I mention it in noting that parliament has not taken up the suggestion by the court that legislature consider adding the offence under section 308 (formerly section 315) to the list of alternative verdicts contained in section 539 (formerly section 552).
    
19. In relation to aiding and abetting under section 7, the law in this country is settled that the mere presence at the scene of a crime is not sufficient to infer any criminal responsibility. There must be both presence and a wilful or intentional encouragement for the commission of the offence. The principle has been approved in many cases including Agiru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37; The State v John Badi Woli and Pengas Rakom [1978] PNGLR 51; and Porewa Wani v The State (supra).
    
20. The word "incite" was discussed by Kandakasi J in The State v Ben Wafia (No 1) (2003) N2579 when dealing with the offence of inciting to mutiny established under section 41 of the Criminal Code. His Honour accorded the ordinary meaning to say it meant "induce", "provoke""instigate", "urge on", "stimulate" or "encourage". On appeal to the Supreme Court (Ben Wafia v The State (2006) SC851) the court appears to have accepted submissions that the word means "urge on to action, stir up".
    
21. The Oxford Dictionary of English defines the verb "incite" as "Encourage or stir up (violent or unlawful behaviour)"; and "Urge or persuade (someone) to act in a violent or unlawful way". The Oxford Dictionary of Law defines incitement as "Persuading or attempting to persuade someone to commit an offence". I approve this simple definition as applicable to the offence of incitement under section 308. Clearly, incitement as an offence involves encouraging or urging a person to do a violent or an unlawful act. Thus section 41 (inciting to mutiny) and section 308 (inciting to unlawfully kill). The various offences described under section 308(1) are very similar requiring encouragement or urging to kill. In my view there must be wilful or intentional encouragement or urging to commit an unlawful killing much alike the requirement of wilful or intentional encouragement for the commission of an offence in considering section 7.
    

Findings

22. On the prosecution evidence, there is nothing to suggest that the accused encouraged or urged Dairi to kill Ailyn. Not only was he not at the scene but he did not say or do anything to encourage or urge the killing. Even if he was present at the scene, the evidence is that he tried to stop the stabbing but was late. That evidence cannot be held to be "inciting a killing". His earlier assault on 7 February 2009 may have contributed to Dairi's anger towards Ailyn that fatal day (although I find no evidence that it did so), but this too does not amount to inciting to kill. And I hold the same view in relation to his apparent inaction and carelessness in resolving the 8 year feud between the wives. His conduct may have contributed to the "bubble" of anger and frustration which the wives lived in until it burst on 7 February 2009, but this does not amount to inciting Dairi to kill Ailyn. In my view, this prosecution is misconceived.
    
23. There is ground to argue that the accused's conduct was morally wrong, that he was enjoying life with two wives but not caring for their welfare and happiness, and that had he attended to their problems properly, Ailyn would be alive today. But what he did was not wrong under the criminal law and certainly did not amount to an offence under section 308 of the Criminal Code.
    

Verdict

In the circumstances, I am not satisfied beyond reasonable doubt that the accused is guilty of the charge of inciting to kill as indicted and accordingly I acquit him.

__________________________________________________________

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