State v Lewaripa [2015] PGNC 222; N6027 (10 July 2015)

N6027

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 741 OF 2014

THE STATE

V

MATHEW LEWARIPA

Madang: Cannings J
2014, 11th September, 19th November, 4th December

2015, 18th February, 10th July

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

The accused was charged with the wilful murder of his wife. He pleaded not guilty so a trial was conducted. The State's case was that he directly killed the deceased by hitting her repeatedly with a shade tree stick and stabbing her several times on her back with a sharp object. The accused offered the defence of general denial.

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) It was proven beyond reasonable doubt that the accused killed the deceased as: there was credible eyewitness evidence, the evidence of other State witness was consistent with the State's case and corroborated the eyewitness evidence, and the accused's general denial made by an unsworn statement from the dock was unconvincing and uncorroborated.

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

(4) It was proven beyond reasonable doubt that the accused intended to kill the deceased, given the nature and extent of the injuries inflicted on the deceased. The accused was accordingly convicted of wilful murder.

Cases cited

The following cases are cited in the judgment:

Bank of South Pacific Ltd v Anton Sekum (2011) N4588
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 Justin Komboli (2005) N2891
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others ((2007) N5026
The State v Raphael Kuanande [1994] PNGLR 512

Dates

The events referred to herein occurred in 2014, unless otherwise indicated.

TRIAL

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

Counsel

M Pil, for the State
A Meten, for the accused

10th July, 2014

1. CANNINGS J: The accused, Mathew Lewaripa, is charged with the wilful murder of his wife Almera Anamkai at Suatapro village, Usino Bundi District, Madang Province, on Tuesday 25 February 2014. He has pleaded not guilty so a trial has been conducted. The State alleges that the accused directly killed the deceased by hitting her repeatedly with a shade tree stick and stabbing her several times on the back with a sharp object. The accused offered the defence of general denial.

2. The State called five witnesses, one of whom was put forward as an eyewitness. The weapons allegedly used in the assault were admitted into evidence. The only evidence for the defence was the accused's sworn testimony for the purposes of a voir dire on the record of interview and an unsworn statement from the dock.

3. After the close of the evidence and before submissions the accused escaped from custody. The case was adjourned to allow time for the accused to be returned to custody. However, he did not return to custody. I ruled that he had given up his right under Section 37(5) of the Constitution to be present at his trial and proceeded to hear submissions in his absence. That is consistent with the principle that the Section 37(5) right is not absolute. If, "an accused either escapes from custody or absconds while on bail it is permissible for him to be tried in his absence (The State v Justin Komboli (2005) N2891, Bank of South Pacific Ltd v Anton Sekum (2011) N4588).

UNDISPUTED FACTS

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

• The accused and the deceased were married. They are both from Suatapro village.
  
• The accused and the deceased were both aged 25 years at the time of the deceased's death.
  
• They had an argument on the day of the deceased's death.
  
• The deceased died due to severe loss of blood caused by multiple stab wounds with a sharp object.
  
• The deceased was four months pregnant.
  
• The deceased's relatives suspected that the accused was responsible for the death of the deceased and chased him, threatening to harm him. The accused feared for his safety and surrendered himself to the local Law and Order Committeeman, Kokorua Anamkai, who handed him over to the Police.
  
• The accused was interviewed by the Police, allegedly making admissions which were included in his record of interview, but the admissions were made without him being assisted by a lawyer. He later recanted and claimed that his admissions were made involuntarily. A voir dire hearing in the course of the trial resulted in the record of interview being ruled inadmissible.
  

ISSUES

5. The offence of wilful murder is created by Section 299(1) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

6. The offence 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 (or some other person).
  

7. 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?

8. 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

Oral testimony

9. Five witnesses gave evidence for the State, as summarised in the following table.

1	Aipa Mirasipa	Villager, Suatapro village, brother of the deceased
Evidence
On the day of the death he was at his house – his sister Sairas (State witness No 5) ran to the house to tell him that the accused and the deceased were fighting – he ran to the scene of the fight and saw that the accused was assaulting the deceased – the accused ran away, leaving the deceased lying under a rain tree – he took the deceased to the house and prepared a stretcher to take her to the aid post but she died at the house at about 5.00 pm.
2	Anamkai Kokorua	Law and Order Committeeman, Puksak village, Walium
Evidence
He is the local Law and Order Committeeman – the accused, who had run away since the day of the incident, came to him on Thursday 27 February at Suatapro – the accused told him that he had killed his wife and when the witness asked what he had used, he replied that he used a spear knife – the witness told the accused that he had committed an offence and would have to hand him over to the Police, which he did. As to the spear knife, the accused told him that it was at his sister's house, so he told his father who went and got the knife and brought it back and it was handed over to the Police, together with a piece of wood (which the accused's father told him the accused had used at the start of the fight).
3	Lewaripa Ainak	Villager, Suatapro village, father of the accused
Evidence
Kokorua Ainak told him what his son, the accused, told him about the items he used to attack the deceased – so he went and retrieved them and brought them back to Kokorua: a piece of wood, a knife and a shade-tree branch – he gave those items to the Police.
4	Kikiapi Kimopa	Member, Police Force, Snr Const, Walium Police Station, investigating officer
Evidence
He arrested the accused on 27 February and formally interviewed him on 28 February – the accused voluntarily made admissions. (However, note that the record of interview was refused admission into evidence.)
5	Sairas Mirasipa	Villager, Suatapro village, sister of deceased
Evidence
She witnessed the accused attacking the deceased – immediately before he attacked her, the deceased was carrying their young baby – the accused came out of the bush, got the baby from the deceased and put it on the ground – he then hit the deceased with a piece of wood – then he stabbed her with a spear knife and dragged her to a spot under a tree – she (the witness) ran for help – she ran to Aipa and told him, then she and Aipa ran back to the scene – the accused saw them coming and ran away – she and Aipa helped the deceased to the house (she was still breathing) but when Aipa was preparing a stretcher to take her to the aid post, she died. In cross-examination it was put to the witness that she was lying as she said nothing in her Police statement about the accused stabbing the deceased – she responded that she was not making up anything, she saw it happen with her own eyes: the accused came out of the bush, hit the deceased with a piece of wood, then stabbed her with a spear knife and dragged her under a tree.

Exhibits

10. Three exhibits were admitted into evidence by consent:

P1: A 'medical report' regarding the deceased, prepared by Abraham Gene, caretaker HEO of Walium Health Centre. The cause of death was reported as "severe blood loss – stab wounds". The stab wounds were described as:

1. Shoulder blade, about 3 cm wide and 1 cm deep. No bleeding.
2. Below shoulder blade another stab wound, 3 cm wide, depth 8 cm and still bleeding.
3. Another stab wound just next to the second wound about 3 cm wide and 8 cm in depth. Still bleeding.
4. Another stab wound, central spinal but to the right, about 3 cm wide, 3 cm in depth, no bleeding.
   

P2: A collection of photographs of the crime scene, the body of the deceased and the three items that the second and third State witnesses identified as being handed over to the Police: a piece of wood, a spear knife and a part of a shade-tree branch.

P3: The three items that the second and third State witnesses identified as being handed over to the Police: a piece of wood, a spear knife and a part of a shade-tree branch.

Evidence for the defence

11. The accused gave sworn oral testimony during the voir dire hearing. He said he was in Police custody within two days of the incident, Thursday 27 February, and subjected to a formal interview the next day. He was forced to make admissions and was threatened and was not given the opportunity to see a relative or a lawyer and he did not sign the record of interview.

12. For the purposes of the trial proper, the accused made an unsworn statement from the dock. He said that he did not kill his wife. She was cross with him, so they argued briefly then she left him to look for her mother. Then her mother got cross with her and his wife argued with her mother. He left them. Three hours later he heard that his wife had died. He was shocked by that news but when he went to see her relatives, they chased him with weapons and threatened to kill him. The weapons that were admitted into evidence are not his. He does not know how his wife died or who killed her.

13. The only other evidence introduced by the defence was a witness statement by State witnesses No 5, Sairas Mirasipa. It was admitted as exhibit D1 on the basis that it was a prior inconsistent statement; the argument being that the witness made no mention in the witness statement of the accused stabbing the deceased with a spear knife whereas she gave oral testimony that highlighted that fact.

Did the accused kill the deceased?

14. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that the person who killed the deceased was the accused, and no other person, for the following reasons.

(a) The evidence of Sairas Mirasipa was credible and convincing.

She gave an eyewitness account of what happened. She withstood vigorous cross-examination. Her demeanour in the witness box was sound. She gave no indication of lying or making up stories. There was no material inconsistency between her witness statement and her oral testimony. The fact that something was not mentioned in her witness statement that was highlighted in her oral testimony does not undermine the credibility of her oral testimony. The witness said that she is illiterate. She gave her story to the Police and they typed out a statement, which she put her mark on without appreciating what she was signing. The defence was unable to provide any good reason for not believing her evidence or not giving it considerable weight.

(b) The evidence of the other State witnesses was credible and convincing.

15. The evidence of the other State witnesses (Aipa Mirasipa, Kokorua Anamkai, Lewaripa Ainak and Snr Const Kikiapi Kimopa) was credible and convincing. The defence was unable to provide any good reason for not believing it or disregarding it. While none of this was direct evidence in the same way that Sairas Mirasipa's evidence was an eyewitness account of what happened, it all corroborated the State's case. It was consistent with the proposition that the accused was the person who killed the deceased.

(c) The evidence of the accused was neither credible nor convincing.

16. Faced with such strong evidence against him, the accused needed to provide some good reason for throwing doubt on the State's case. His unsworn statement from the dock was vague and unconvincing and uncorroborated. I attach no weight to it.

Conclusion: did the accused killed the deceased?

17. The State has proven beyond reasonable doubt that:

• the accused beat and stabbed the deceased repeatedly in the back, at Suatapro village, Walium late in the afternoon of Tuesday 25 February 2014;
• the deceased died shortly after being beaten and stabbed;
• the accused directly caused the death of the deceased; and therefore
• in accordance with the definition of killing in Section 291 of the Criminal Code, the accused killed the deceased.
  

18. The first element of the offence of wilful murder has been proven beyond reasonable doubt.

2. WAS THE KILLING UNLAWFUL?
   

19. The accused did not rely on any specific excusatory 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?

20. 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 her 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 ((2007) N5026; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231).
  

21. 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]

22. Having examined the course of conduct of the accused in attacking the deceased, beating her and stabbing her several times, I am satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill her. The third element of wilful murder has been proven. It is not necessary to consider any alternative conviction.

VERDICT

23. Mathew Lewaripa, 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
Public Solicitor: Lawyer for the Accused