State v Bongede [2011] PGNC 191; N4470 (19 December 2011)

N4470

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1456 OF 2009

THE STATE

V

MARK BONGEDE

Madang: Cannings J
2011: 6, 8, 20, 21, 22 September,
1, 2, 10 November,
7, 19 December

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – conflicting evidence as to who killed the deceased.

The accused was charged with the wilful murder of the deceased, who had been cut with a knife. The State's case was that the accused intentionally killed the deceased during an altercation with him in the early hours of the morning in the village. There was direct evidence from two State witnesses that the accused killed the deceased. The cause of death was not in issue but the accused gave evidence, corroborated by other defence witnesses, that it was not him, but his nephew, who cut and killed the deceased.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

• the accused killed the deceased;
• the killing was unlawful; and
• the accused intended to cause the death of the deceased.
  

(2) As to the first element, it was proven beyond reasonable doubt that the accused killed the deceased as: it was undisputed that the deceased had been killed by being attacked with a knife; the evidence of the two State witnesses who testified seeing the accused cut the deceased was more convincing than the direct evidence of the two defence witnesses who said that it was the accused's nephew who cut the deceased; the accused made admissions to various people soon after the incident and repeated the admissions and raised the defence of self-defence in a formal police interview two months later and at the pre-trial review conducted 19 months after the incident he again raised the defence of self-defence, and provocation; the claim that the accused had made false admissions to cover up for the real perpetrator, the accused's nephew, was not credible; other circumstantial evidence (eg that no one alleged to the police who were in the vicinity of the incident that the accused's nephew was the perpetrator, that the deceased's relatives demanded compensation from and damaged the property of the accused and his lain soon after the incident, and that they were allowed to do so without substantial protest from the accused's lain, corroborated the State's case that the accused killed the deceased.

(3) As the accused did not rely on any specific defence, the killing was not authorised, justified or excused by law and therefore unlawful.

(4) There was sufficient evidence that the accused intended to kill the deceased, given the number, nature and force of the wounds. The accused was accordingly convicted of wilful murder.

Cases cited

The following cases are cited in the judgment:

The State v Abaya Ulas (2010) N4009
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jenny Dei (2011) N4231
The State v John Bosco (2004) N2777
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

A Kupmain, for the State
M T Ipape, for the accused

19 December, 2011

1. CANNINGS J: The accused, Mark Bongede, is charged with the wilful murder of a young man, Gary Dembi. The offence is said to have been committed at Chungribu village in the Middle Ramu district of Madang Province in the early hours of Thursday 1 January 2009. The accused pleaded not guilty so a trial has been held. The State's case is that the accused intentionally killed the deceased during an altercation with him. There was direct evidence from two State witnesses that the accused killed the deceased. The cause of death was not in issue but the accused gave evidence, corroborated by other defence witnesses, that it was not him, but his nephew, who cut and killed the deceased.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:

• The deceased was a young and fit married man who lived at Chungribu. He was killed almost instantly, near the accused's residence, as a result of heavy blood loss caused by being cut with a knife (the question of what type of knife was used is in issue).
  
• The accused was aged 37 at the time. He also lived at Chungribu. He is a community leader and had been from 2002 to 2008 the President of the Arabaka Local-level Government, and before that he was a pastor.
  
• The accused arrived in the village at about 10.30 pm on New Year's Eve, Wednesday 31 December 2008, together with the local Member of Parliament and Minister for Fisheries, Hon Ben Semri MP, with police escorts, Sgt Richard Sibolo and Sgt Christopher Kalam, and a small group of others, including the Minister's son, Ben Semri Junior. They had left Madang town on Wednesday morning and travelled by road to Base Camp, in the Bogia District, and then by motorised dinghy up the Ramu River, stopping briefly at Kwanga, to Chungribu.
  
• The accused's wife and other village women prepared food for the Minister and the accused and their group and they ate and socialised at the hauswin in the accused's area. They listened to the radio and saw in the New Year and then the Minister and Sgt Sibolo went inside the accused's house and retired for the night.
  
• After a while, at about 1.00 am, a fight broke out near the hauswin between the accused's son, McGregor Bongede, and a local schoolteacher, Linus Yaras Runabai. Alcohol was involved. The accused intervened, punched Runabai to quieten him down and Runabai left. The area fell quiet.
  
• A short time later the deceased with some other young men came to the accused's area, swore at the accused, who had not retired for the night, and the two fought. The accused, by his own admission, punched and tripped the deceased; and it was this altercation that escalated into a knife attack on the deceased, which led to his almost instant death. The question of who cut the deceased is the critical issue. Was it the accused or was it his nephew, Effien Atau? Also contentious is the question of who was present when the deceased was cut.
  
• At about 2.00 am the local Ward Councillor, Simeon Lemdi, who lived at Chungribu, returned to the village after attending a New Year party at the neighbouring village of Gumbara. He was drunk but can recall (and this is not disputed by the accused) that the accused came to him and said 'I have cut a man'. Mr Lemdi then took possession of a bushknife from the accused. (The bushknife was admitted into evidence and is alleged by the State to be the murder weapon.)
  
• The deceased was taken to a house in the village (there is conflicting evidence about whose house).
  
• Later in the morning of 1 January a radio call was made to Sgt Willie Nekuai at Aiome Police Station. It was reported to him that there had been a murder at Chungribu so he quickly made arrangements to travel there by boat. He was accompanied by the OIC of Aiome Health Centre, Health Extension Officer, Esau Angin.
  
• Meanwhile back at Chungribu it was decided by Sgt Kalam and Sgt Sibolo that the accused and his family should get in the boat with Mr Semri and leave the village and head upstream. They did so and proceeded to Ronebu and stopped there briefly and then to Basis and then to Grengebu and then to Djam, which is Mr Semri's village.
  
• After the accused left on the boat, his houses at Chungribu were burned down by Chungribu villagers.
  
• Sgt Nekuai, who was on his way to Chungribu from Aiome, stopped at Djam, saw that the accused was with Mr Semri's group and spoke briefly to Mr Semri who asked him to go down to Chungribu to 'witness what had happened'. The accused remained at Djam while Sgt Nekuai proceeded to Chungribu.
  
• Sgt Nekuai and Mr Angin arrived at Chungribu later in the afternoon. Sgt Nekuai took two photographs of the deceased's body, which have been admitted into evidence, and Mr Angin examined the body. They did not stay long at Chungribu as the situation was tense and Sgt Nekuai needed to go back to Djam to pick up the accused, who was the principal suspect.
  
• The deceased's relatives went to Grengebu, which is the accused's wife's village, on the afternoon of 1 January and demanded compensation for the death. They were paid, that day, K15,600.00 in cash.
  
• They left Chungribu the same afternoon and headed back, calling in at Djam, where Sgt Nekuai collected the accused, and proceeding through Akraski to Aiome where the accused was detained for five days before being taken to Madang town, where he was detained further and formally arrested and charged.
  
• The accused was subject to a formal police interview by the arresting officer, Snr Const Conrad Kipandu, on 10 March 2009. The record of interview records the accused as stating that he arrived at Chungribu late on 31 December 2008 with important visitors, including the local MP and Minister for Fisheries, Hon Ben Semri, and Sgt Richard Sibolo of Madang Police. Early on 1 January 2009 he informed some of the village men who were causing disturbances, including a schoolteacher, Linus Yaras [Runabai], Denik Yaras and Victor Camillus, to 'slow down the noise' as the visitors were asleep. This resulted in Linus Yaras fighting with him. That incident was then reported by various youths to the deceased, Gary Dembi, who was a youth leader and under the influence of alcohol, who came to the accused's house, shouting, and this caused the accused to intervene. Asked whether it was true that he used a bushknife 'to murder' the deceased, the accused replied 'yes', that he cut the deceased twice, once on the head and once on the leg, he did not chase him but chopped him on his (the accused's) premises to protect his area and in self defence, intending only to injure him and give him pain so that he would leave the premises.
  
• The accused was remanded in custody at Beon Jail for several months in 2009. He was committed for trial by the District Court on 2 July 2009. He was granted bail by the National Court in 2009 and has complied with the conditions of bail.
  
• On 22 July 2009 Mr Angin prepared a report on the death (which has been admitted into evidence) showing that the deceased died from excessive loss of blood through three open wound sites, having sustained sharp object (knife) injuries to:
  
  • ➢ the head (scalp: 12 cm wide x 3 cm deep; skull: 4 cm wide x 0.5 cm depth);
  • ➢ right hand (thumb hanging on skin, pointer finger chopped off); and
  • ➢ right leg (8 cm long x 4 cm deep, extending into the tibia).
    
• On 10 August 2010 the National Court conducted a pre-trial review. The accused was represented by his present counsel, Mr Ipape, and the State was represented by the present prosecutor, Mr Kupmain. The Court was told that the accused would plead not guilty and that at the trial he would raise the defences of self-defence and provocation.
  
• No indication was given to the State that the defences of self-defence and provocation would not be relied on until 5 September 2011, the day before the trial was due to commence, when affidavits of defence witnesses were served on the State. Those affidavits had the effect of raising the defence of general denial as the evidence would be that it was not the accused who killed the deceased, but rather, the accused's nephew, Effien Atau.
  

ISSUES

3. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

• the accused killed the deceased;
• the killing was unlawful; and
• the accused intended to cause the death of the deceased.
  

4. The primary issues are:

1. Did the accused kill the deceased?
2. If yes, was the killing unlawful?
3. If yes, did the accused intend to kill the deceased?
4. If he did not intend to kill the deceased, should he be convicted of some other offence?
   

1 DID THE ACCUSED KILL THE DECEASED?

5. Resolution of this issue requires a:

• summary of evidence for the State;
• summary of evidence for the defence;
• formal determination of the question whether the accused killed the deceased.
  

Evidence for the State

6. Exhibits admitted into evidence were the record of interview (summarised above), the medical report of Mr Angin (which was the only medical evidence, there being no formal post-mortem examination or report), a bushknife (tendered through a State witness and alleged to be the murder weapon), a police statement by one of the State witnesses and the photos taken by Sgt Nekuai of the deceased's body. Four witnesses gave oral evidence, summarised below.

(1) Simeon Lemdi said that when he came to the village he saw the accused at the back of the accused's house. He was wearing shorts, had no shirt on and was holding a bushknife, sweating. He asked him what he was doing and the accused replied 'I have cut a man', but did not say who it was that he had cut. He grabbed the bushknife from him and walked to the front of the accused's house and saw the deceased lying on the ground, 20 metres from the house, already dead. The bushknife, he knew, belonged to the accused's nephew. It had the words "FADE H" written on the wooden handle. It had bloodstains on it. (Such a bushknife, which the State alleges is the murder weapon, was tendered through this witness and marked exhibit P4. The knife's blade is 66.4 cm in length and 2 inches wide at the broadest part of its width. The wooden handle is 12.7 cm long.) Mr Lemdi said that he grabbed the bushknife from the accused and gave it to Sgt Kalam, thinking that Sgt Kalam would arrest the accused. That did not happen, however, so he (the witness) held on to it for another day before giving it to the deceased's elder brother, Vincent Dembi. He was the one who radioed Sgt Nekuai and asked him to come to Chungribu to conduct an investigation.

7. In cross-examination Mr Lemdi admitted that he had been drinking and was a little, but not very, drunk but said he could identify the accused clearly and he could also recognise that the bushknife admitted into evidence was the one that he had taken from the accused.

(2) Steven Spencer said that he walked over to the accused's house when he heard noises coming from that area at about 2.00 am. The accused was arguing with the schoolteacher, Runabai. He saw the accused holding a knife (which he identified as exhibit P4) and he was trying to cut the deceased on his back but the deceased pushed him and ran away. The accused ran after the deceased and cut him on his hand. The deceased fell on his back and the accused tried to cut him on his neck. The deceased defended himself and the accused cut off four of his fingers on the right hand. Then the accused walked away but got cross again and came back and cut the deceased on his front, lower leg. Mr Spencer said that he could see what was going on as there were four fluorescent lights at the accused's area. He lifted up the deceased and took him to the house of the deceased's sister, Ewana; and later Pastor Barnabus took him to the Pastor's house.

8. In cross-examination he was grilled over a written statement he provided to the police (exhibit P5) and signed, but which says his name is "Minas Lemdi". He said that this might have been a mistake but that he and Minas Lemdi were both present and their evidence would be the same. The statement was prepared by the deceased's brother, Vincent Dembi, and typed out by the arresting officer, Kipandu, and he did not read it before signing it. He was adamant, however, that he had seen the accused cut the deceased.

(3) Sgt Willie Nekuai gave evidence of receiving the radio call on the morning of 1 January and the trip to Chungribu, taking the photos and returning to Aiome in the evening. The accused was the principal suspect. He knows the accused well. He did not know the deceased whose body had to be identified for him by village men and the deceased's relatives. When he took the photos he concentrated on the two big wounds, to the head and the leg. He cannot verify that four of the deceased's fingers had been cut off. He recalls that some parts of the fingers were missing. He formed the opinion that the deceased had been slain.

(4) Minas Lemdi said that he was at the accused's hauswin. There was a fight at the front of the accused's house between his son and Runabai. After that the accused came in and cut the deceased on the head (the crown), the hand (cutting four fingers) and the leg. Mr Lemdi said that he was present with Steven Spencer when all this was happening and that he observed the events from a distance of seven to ten metres. He identified exhibit P4 as the bushknife that the accused used.

9. In cross-examination Mr Lemdi was adamant that he was present and that there was sufficient light for him to see what was going on. He denied that it was his second-cousin, Effien Atau, who cut the deceased. Effien was not present. He admitted that local custom would sometimes require a man to shoulder responsibility for a wrong committed by his relative but it did not happen that way in this case.

10. That was the evidence for the State.

Evidence for the defence

11. The accused and four other witnesses gave evidence for the defence.

(1) The accused, Mark Bongede said that after he had fought with first the schoolteacher, Runabai, and then the deceased, the deceased was going to run away but the accused's nephew, Effien Atau, came in with a grassknife – not a bushknife – and cut the deceased. He (the accused) got cross with the boys and told them to take the deceased to Tony Muan's house. The deceased was not dead at that stage. Mr Muan took him away and he was assisted by Pastor Barnabus, Benson Yanli, McDonald Reuben and Sheggy Umbrae. Neither Steven Spencer nor Minas Lemdi was there. After the deceased was taken away he (the accused) went back to his hauswin. He saw Sgt Kalam and – thinking that his nephew, Effien, was in trouble and needing protection – told him 'I have cut a man'. He showed him a bushknife, with a duckbill-shaped handle, indicating that that is what he used. Exhibit P4 is not the knife that he showed Sgt Kalam. Councillor Simeon Lemdi was not present at that stage. He had been drinking at Gumbara and did not arrive until 15 minutes after Effien had cut the deceased. Sgt Kalam had been unable to understand clearly what had happened so when Councillor Lemdi, who was very drunk, arrived he told him 'I have cut a man'. Councillor Lemdi got the knife – it was not exhibit P4 – and walked off to his house. He did not come back to the accused to check his story. He just told people that 'Mark Bongede killed Gary Dembi'; and the news spread.

12. In the morning, as the accused was leaving on the boat with the Minister, Effien came to the riverbank, crying, and saying 'Uncle, it's not you who should go to prison, it should be me, you are shouldering responsibility for my wrong. I killed that man'. He (the accused) shouted at him 'Shut up! You are not fit to explain'. Present during this exchange were Sgt Kalam, Sgt Sibolo and a number of other men. He said that as he was still intent on protecting Effien as he was his nephew and he is a drug-body and would be in no position to explain properly to the court how the incident happened. So he (the accused) got in the boat with the Minister and they went to Ronebu and then to Basis, where he planned to leave his family. However, his son, McGregor, and Effien, had run and walked there and they jumped on the boat and went with them to Grengebu, where his wife and children alighted. The local councillor, Mark Kletai, brought a big group of people down to the river to meet the Minister and the people heard the story that 'Mark Bongede killed Gary Dembi'. It was there, in front of the community, that Effien said, for the second time 'Uncle, it's not you who should go to prison, it should be me, you are shouldering responsibility for my wrong.' He cried in front of the community and showed them the sarif that he had used to cut and kill the deceased.

13. As to the admissions that he made in the police interview the accused said that under local custom and Melanesian culture he still felt obliged to protect his father's lain, especially his nephew. Effien is the grandson of the sister of his adoptive father, Bongede Jidu. The accused's biological mother died while giving birth to the accused so his obligation to his adoptive father's lain is very strong.

14. After the police interview, while in remand at Beon Jail, he heard that Effien Atau and other men, including Gideon Atau and Tolia Ingai, had burned down his two houses in the village, stolen property and cut down his coconut, betel nut and cocoa trees. He was very upset when he heard that story. When he came out on bail he told his cousin-brother, Tano Nenggai, that the problem should now be sorted out in a customary way in the village but Tano refused to listen and continued to encourage Effien and the others to destroy his properties. It was when he realised his cousin-brother was showing him no respect that he decided that he should change his plea.

15. In cross-examination the accused said that Sgt Kalam was present when Effien cut the deceased but that Sgt Kalam would not have known who Effien was. Asked why Sgt Kalam has not come to court to give evidence and say that it was not the accused who cut the deceased but another man, the accused said that he 'would not know'. The accused was adamant that Steven Spencer was not present when the deceased was cut: he was 100 metres away, at the haus kuk of Jacky Kakai, smoking marijuana. There were a number of people who witnessed the killing of the deceased by Effien, including Denik Yaras, Victor Lemdi, Mosko (second name unknown) and Sheggy Umbrae and Tony Muan (who are defence witnesses).

(2) Sheggy Umbrei said that he was present at all the altercations which occurred. He saw Effien Atau come in after the accused had fought with the deceased. Effien cut the deceased on the head and leg with a short to medium sized grassknife. Then Effien ran away. Then he (Mr Umbrae) helped Pastor Barnabus and others take the deceased to Tony Muan's house and then later Councillor Lemdi arrived and the deceased was taken to the Pastor's house. That all happened between 2.00 and 4.00 am. Later that day Councillor Lemdi gave orders for the village people to destroy the accused's property.

16. In cross-examination Mr Umbrae was asked why he did not tell the police officers who were present that it was not the accused, but someone else, who had killed the deceased. He replied that that was because Councillor Lemdi was threatening them. Asked why Effien would want to cut the deceased, Mr Umbrae said it was because he was drunk, so he joined the fight.

(3) Tony Muan said that he was present with Mr Umbrae and many others when he saw Effien Atau cut the deceased with a grassknife. Exhibit P4 was not the weapon used.

17. In cross-examination Mr Muan said that the accused did not assist Effien Atau cut the deceased. Effien acted alone. He did not tell the police who were present what had happened as the deceased's relatives were very aggressive. Sgt Kalam was present when Effien cut the deceased.

(4) Ansalom Bogo was present at the first fight between McGregor Bongede and Runabai. That was at the back of the accused's house. Things went quiet for a while and he went back to the hauswin and was telling stories when the second fight happened. Later he heard that someone had cut Gary Dembi with a knife. He did not hear then who was responsible. In the morning at the riverbank as the Minister's delegation was leaving, with the accused on board, he overheard Effien Atau say to the accused 'It's not you who killed this person. It should be me who is going to prison.' After the boat party had left, Simeon Lemdi ordered village youths to invade the accused's area. His houses were torched and tree crops destroyed. When Sgt Nekuai came in the afternoon, he did not take photos of the burned out houses, he only photographed the deceased's body.

18. In cross-examination Mr Bogo said that the words that he heard Effien Atau say about the accused 'should not be going to prison' were uttered to him and others including Vincent Kakai and Tom Joseph, after the accused and the Minister had left on the boat.

(5) Joel Nadori is from Grengebu and he was there on the morning of 1 January when the Minister's delegation arrived from Chungribu. He went to the riverbank and heard Effien Atau say that he had killed Gary Dembi and that he should be going to prison, not Mark Bongede. Effien showed the people who were present the grassknife that he had used to cut Gary. Effien cried on the shoulders of his cousin, Georgina Tano. Effien kept saying that he had killed Gary. Gary's relatives came from Kumunimo village (which is Gary's village, though he was brought up at Chungribu) – about 100 people came – demanding compensation and behaving in a threatening manner and they were paid K15,000.00 cash. This was paid as the accused's wife is from Grengebu.

19. In cross-examination Mr Nadori said that no money was demanded from Effien Atau.

20. That was the close of the defence case.

Application to reopen evidence

21. Immediately after close of the defence case the State applied to reopen its case for the purpose of presenting rebuttal evidence in the form of sworn oral testimony by Effien Atau. I refused the application, which was opposed by the defence, as although the State was given very late notice of the radical change in the defence case, involving a significant departure from what was stated at the pre-trial review, the State had been put on notice the day before the trial started of the altered position. That was when a number of affidavits by the defence witnesses were served on the State. The affidavits made it quite clear that the defence case would be that Effien Atau was heavily implicated. The State had the opportunity to seek an adjournment, but failed to do so. Evidence was received on 6 and 8 September 2011, then the trial did not resume until 20 September, on which day the State closed its case, again without seeking an adjournment. The defence case was presented on the basis of there being no evidence from Effien Atau. So I ruled that it would not be fair to allow the State to reopen its case and that it was not necessary in the interests of justice.

Did the accused kill the deceased?

22. Having weighed the competing evidence and the submissions of both counsel I have concluded that the State has proven beyond reasonable doubt that the person who cut and killed the deceased was the accused, and not Effien Atau, for the following reasons:

(a) The evidence of the two State witnesses, Steven Spencer and Minas Lemdi, who testified seeing the accused cut the deceased, was much more convincing than the direct evidence of the two defence witnesses who said that it was Effien Atau who cut the deceased.

(b) I was not persuaded by Mr Ipape's submission that the evidence of Mr Spencer and Mr Lemdi was materially inconsistent with the medical evidence. They appear to have exaggerated the finger-wounds: their evidence was that the deceased had four fingers cut off but that is not borne out by the photograph of the deceased's body that shows only the thumb hanging loose. They may have also confused the crown with the forehead. But in material respects their description of the head wound and the leg wound and the manner in which those injuries were inflicted was consistent with the medical evidence.

(c) The accused made admissions to two people in authority – Sgt Kalam and Councillor Lemdi – soon after the incident that he had 'cut a man'.

(d) He had a motive for attacking the deceased as the deceased and other young men had been consuming alcohol and were causing disturbances after Minister Semri and others had retired for the night. He was angry and frustrated by their actions.

(e) The evidence about Effien Atau admitting on two occasions on the morning of 1 January that it was him, not the accused, who cut the deceased, is not believable as these statements are alleged to have been made in the presence of many people including those in some authority, such as Sgt Kalam and Sgt Sibolo, (and presumably Minister Semri too) and it is reasonably to be expected that they would take immediate action to ensure that the real culprit was arrested and not the falsely accused man. The evidence of the defence witnesses who said that they heard Effien Atau say such things was unconvincing.

(f) The accused repeated the admission that he was the one who cut the deceased and raised the defence of self-defence in a formal police interview two months later. And at the pre-trial review conducted 19 months after the incident he again raised the defence of self-defence and provocation.

(g) The explanation about customary obligations he has provided for making false admissions to cover up for the real perpetrator, Effien Atau, is not credible.

(h) The circumstantial evidence corroborates the State's case that the accused killed the deceased: no one alleged to the police who were in the vicinity of the incident that the accused's nephew was the perpetrator; the deceased's relatives demanded compensation from and damaged the property of the accused and his lain soon after the incident, and were allowed to do so without substantial protest from the accused's lain.

(i) Although the court must always be cautious in drawing adverse inferences against an accused arising from the failure of the defence to call witnesses to give evidence that would be expected to favour the accused (The State v John Bosco (2004) N2777), this is a case where adverse inferences must be drawn. Sgt Kalam and Sgt Sibolo, in particular, were on duty and it is very difficult to understand why, if the defence version of events were true, they have not been called to give evidence.

23. The first element of the offence has been proven beyond reasonable doubt.

2. WAS THE KILLING UNLAWFUL?
   

24. The accused did not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.

3 DID THE ACCUSED INTEND TO KILL THE DECEASED?

25. It is at this point of a wilful murder trial that the Court is required to consider the accused's state of mind:

• Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).
  
• If he did not intend to kill him did he intend to inflict grievous bodily harm or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231).
  

26. 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]

27. Having examined the course of conduct of the accused before and when he cut the deceased, and particularly given the nature and force of the wounds (the attack to the head evinces an intention to kill and the depth of the leg wound manifests a ferocious wielding of a bushknife) I am satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill him. The third element of wilful murder has been proven. It is not necessary to consider any alternative conviction.

VERDICT

28. Mark Bongede, having been indicted on one count of wilful murder under Section 299(1) of the Criminal Code, is found guilty, as charged.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Kuman Lawyers: Lawyers for the accused