State v Tumaris [2015] PGNC 292; N6392 (8 December 2015)

N6392

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOs908/14; 612/14; 613/14; 614/14; 615/14; 616/14; 617/14; 618/14; 619/14

THE STATE

-v-

TONAIYA TUMARIS & 8 ORS

Kavieng: Kangwia J
2015: 9 to 13 November

16 to 18 November

08 December

CRIMINAL LAW – Willful Murder s 299(1) Criminal Code Act – Accused Tonaiya Tumaris cut deceased policeman with bush knife several times – Intention to cause death proved by his conduct during act – Convicted of Willful Murder
CRIMINAL LAW – Willful Murder – whether co-accused caught by s7 as principal offenders to Willful Murder – s7 considerations not satisfied – All co-accused acquitted of Willful Murder as principal offender

Cases Cited:
Porewa Wani v the State [1979] PNGLR 593
R v Tovarula [1979] PNGLR 140
SCR No 7 of 1980: Re s27A (6) of the Police Offences Act [1981] PNGLR 28
State v Raphael Kuanande [1994] PNGLR 512

Counsel:
R Luman&Ms. Jack, for the State
M Mumure, for the Accused

08^th December, 2015

1. KANGWIA J: This is a decision on verdict. All accused stand charged that on 8^th January 2014 at Metekavil Village, Taskul, New Ireland Province they willfully murdered policeman Bung Melum. The charge was laid under s. 299 (1) of the Criminal Code Act (CCA). The State also invoked s 7 of the CCA.

2. On their individual plea each accused pleaded not guilty. The Defence sought to have them jointly tried and a trial ensued.

3. The case for the State consisted of the Record of Interview (ROI hereon) in Pidgin and its English translation for all the accused. The Medical Report on the cause of death was also tendered into evidence.

4. In the ROI apart from accused Tonaiya Tumaris, all the other accused denied committing the offence. The State called 5 witnesses who gave sworn evidence.

The Defence called 3 witnesses who also gave sworn evidence.

5. It is a principle of law that the prosecution carries the burden of proving each and every element of the offence charged. (See SCR No 7 of 1980; Re s 27 A (6) of the Police Offences Act [1981] PNGLR 28) The Constitution under s 37 (4) also requires an accused to be proven guilty of any offence alleged.

6. The offence under s 299 (1) of the CCA is in the following terms;

(1) 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 willful murder.

7. In a Willful Murder case, the prosecution must establish beyond any reasonable doubt the element of unlawful killing and the intention to cause the death alleged.

8. In the present case unlawful killing is not in dispute. The manner and cause of death and the person involved in the unlawful killing are also not in issue.

9. It is accepted that Tonaiya Tumaris chopped the deceased with a bush knife a number of times which resulted in the instant death of Bung Melung. The evidence of the State witnesses and the outright admission by Tonaiya Tumaris at trial and in the ROI attest to this.

10. The Doctor’s Report attributed the death to loss of blood from large cuts on the deceased body. The cuts no doubt were caused by Tonaiya Tumaris. The element of unlawful killing has been established to the required standard.

11. The next issue is whether there was an intention to cause the death. Intention related to the state of mind of a person at the time of the offence.

12. In the State –v- Raphael Kuanande [1994] PNGLR 512 Injia AJ (as he then was) said;

“Intention is a matter which goes to the state of mind of the accused at the time he acted.”

As to proof of it His Honour further said;

“It may be proved by direct evidence of the accused 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, at the time and subsequent to the act constituting the offence.”

13. In the present case there was no direct evidence that accused Tonaiya Tumaris expressed his intention to kill the deceased despite his admission to cutting the deceased a number of times.

14. Prior to the attack the evidence relating to accused Tonaiya Tumaris is straight forward. He was wanted by police for some alleged offences. He ran away and hid in the bush. Police mobilized men to apprehend him. On the day of the killing rain forced him to seek shelter.

15. Soon after he arrived at accused Assan Silaupara’s house the deceased and those with him surrounded the house and apprehended him. The deceased instructed him to go with them to the big village to settle the problems for which he was apprehended.

16. It can be inferred that Tonaiya Tumaris hated the deceased for mobilizing youth to run him down. At first he feared police which caused him to run away and hide. Unfortunately rain chased him back to be eventually apprehended. Fear turned to hate from then on.

17. He followed them at the instruction of the deceased. The deceased carried a pump action shotgun while the others including Tonaiya Tumaris carried bush knives and spears.

18. The evidence at the river was varied.
Tonaiya Tumaris gave evidence that the deceased cocked the gun at him and at that instant he attacked him thereby raising self defence. He could not specify where his first swing of the bush knife landed. Apart from TonaiyaTumaris, there is no evidence of the deceased cocking his gun at anyone. He did not mention it in the ROI either. I deem this piece of evidence by Tonaiya Tumaris as a recent invention.

19. According to witnesses Tonaiya Tumaris cut the deceased who was walking in front of him.

20. The medical report showed the following injuries;

1. Cut on the right side of the face at the top of the ear.
2. Cuts on the back with injury to the spinal vertebra.
3. Two cuts over the shoulders.

21. All the wounds being towards the back of the body supports and affirms the evidence that Tonaiya Tumaris walked at or towards the back of the deceased immediately prior to the killing. Therefore it is safe to conclude that;

1. The attack on the deceased by Tonaiya Tumaris was not in self defence; and

2. Tonaiya Tumaris repeatedly attacked from the back of the deceased.

22. The Doctor’s report stated that four severe cuts were found on the deceased. They ranged from 30-50 cm long, 3-8 cm wide and 2-10 cm deep. The repeated cuts towards the back of a defenseless person who offered no resistance demonstrated a willed and deliberate act aimed at nothing less than death.

23. I therefore conclude that the conduct of Tonaiya Tumaris in the manner of attack employed at the time he killed the deceased revealed his intention to cause the death of Bung Melum. I find him guilty of Willful Murder.

24. The next issue is whether the co-accused of Tonaiya Tumaris are caught by s 7 (1) of the CCA as principal offenders. The relevant parts of s7(1) are reproduced and are as follows;

7 Principal Offenders

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may becharged with actually committing it;-

• (a) every person who actually does the act or makes the omission that constituted the offence; and

(b)every person who does or omits to do any act for purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

25. To be caught by s 7 (1) as principal offenders there must be evidence that go to satisfy any of the considerations under s7 (1) (a), (b), (c) or (d) of the Criminal Code Act.

26. At the outset the present case is not one where all or any of the co-accused attacked the deceased. There is no evidence that the co-accused had a common intention to injure or kill the deceased as did Tonaiya Tumaris. If any of them did have such an intention I am sure they would have joined Tonaiya Tumaris in the attack on the deceased. None of the accused acted in concert with Tonaiya Tumaris to kill the deceased.The evidence overwhelmingly revolves around TonaiyaTumaris only.

27. On another note the State witnesses were unimpressive. Either they lacked education or were possessed of a pre-determined disposition. A lot of the answers seemed to me to be more calculated and tailored towards blame on the accused

28. The evidence of the State witnesses when read together contained inconsistencies at crucial events that took place. Examples included where TonaiyaTumaris walked in relation to the deceased, the two times that Tonaiya Tumaris was apprehended and accused Michael Silaupara holding onto the deceased when Tonaiya Tumaris cut him. State witness Silau Katas was the only one who gave evidence that accused Michael Silaupara held the deceased when TonaiyaTumaris cut him.The other eyewitnesses did not support this witness on this point.

29. None of the State witnesses went to the aid of the deceased. Some gave evidence of running away for their own safety, while others gave evidence of being chased after the deceased fell down.

30. Be that as it may it is necessary to visit the considerations under s 7 (1) of the CCA to determine whether the co-accused are caught by any of those considerations. They are as follows;

31. Section 7 (1) (a)
As for s 7 (1) (a), the State was required to establish that the accused did the act or made the omission that constituted willful murder. In the present case there is no evidence that any of the co-accused did anything that can be labeled as constituting willful murder.

32. There is no evidence that they attacked the deceased with Tonaiya Tumaris. Likewise there is no evidence that any of them made an omission that constituted willful murder. Therefore none of the co-accused are caught by s 7 (1) (a) of the CCA.

33. Section 7 (1) (b)
To accord with s.7 (1)(b) the evidence by the State must satisfy the requirement that the co-accused individually or collectively did or omit to do an act for purpose of enabling or aiding Tonaiya Tumaris to commit the offence.

34. According to State witnesses Sape Demin and John Wanga Akime there were personal attacks on them by some of the accused after the deceased fell which caused them to run away. The question is can those attacks be construed as enabling or aiding Tonaiya Tumaris to commit willful murder? I do not see how those attacks can be construed as enabling or aiding Tonaiya Tumaris to commit willful murder.

35. The evidence is clear. Those acts allegedly occurred after Tonaiya Tumaris killed the deceased. Those alleged attacks if they were true were in my view a by-product of the killing. The attacks in no way enabled or aided Tonaiya Tumaris to kill the deceased. There is no evidence that the accused offered encouragement intentionally to enable or aid Tonaiya Tumaris to kill the deceased. Acts that are committed prior to the commission of an offence may go to satisfy the considerations under s. 7 (1)(b). Acts committed after the commission of the offence do not.

36. However, there is evidence that the co-accused were at the location where Tonaiya Tumaris was apprehended and also at the crime scene. Can they be considered as enabling or aiding Tonaiya Tumaris to kill the deceased by their mere presence at the two locations?

37. It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However presence and willful encouragement are enough. (See Porewa Wani –v- the State [1979] PNGLR 593)

38. To say that presence at the crime scene while armed enabled or aided Tonaiya to kill the deceased is in my view a far removed assumption. The accused cannot be caught by s 7(b) just because they were present at the crime scene.

39. Evidence by the State witness Sape Demin was that two of the accused swore a lot and cut betel nut trees when Tonaiya Tumaris was apprehended. Can this act be construed as enabling or aiding Tonaiya to kill the deceased? I fail to see how these utterances and acts can be construed that way. In my view they were more a sign of frustration for the apprehension of Tonaiya Tumaris.

40. There is evidence that the accused were armed with bush knives and spears. According to State witnesses Sepi Demin and John WangaAkimethey and the group aligned with the deceased were also armed with bush knives and spears. Evidence also reveals that all who travelled with Tonaiya Tumaris and the deceased mingled and not confined to any group while being armed.

41. If the accused had travelled with the knowledge that Tonaiya Tumaris intended to kill the deceased or hatched a plan to kill the deceased, I am sure they would have travelled in their own grouping. Under those circumstances being armed during the apprehension of Tonaiya Tumaris or at the crime scene did not enable or aid Tonaiya Tumaris to kill the deceased.

42. As to an omission to do anything to prevent a killing it was stated in R –v- Tovarula [1979] PNGLR 140 as follows;

“In some circumstances the fact that a person voluntarily and purposely present at the commission of the offence and offered no opposition to it although he may have been expected to do so at least to express his dissent, may not afford cogent evidence that he willfully encouraged the commission of the offence.”

43. In the present case it cannot be said that the co-accused enabled or aided Tonaiya Tumaris to commit the offence when they omitted to express their dissent or offer opposition.
In my view the co-accused had no time or opportunity for dissent as the actions of Tonaiya Tumaris were swift and without warning.

Given all that has been said the co-accused are not caught by s 7 (1)(b) of the CCA.

44. Section 7 (1) (c)
To be caught by s 7 (1) (c) the evidence must establish that the accused aided Tonaiya Tumaris to kill the deceased. Such offer of aid may be direct or circumstantial so long as it was offered to achieve the commission of the offence.

45. In the present case the evidence of State witness Silau Katas that accused Michael Silaupara held the deceased when Tonaiya Tumaris killed him stands alone. None of the State witnesses who were eye witnesses confirmed that piece of evidence and it cannot stand as credible evidence. Apart from that piece of evidence there is no evidence that the co-accused gave any assistance to Tonaiya Tumaris to commit Willful Murder. The accused are not caught by s 7 (1) (c).

46. Section 7 (1) (d)
Section 7 (1) (d) does not apply because there is no evidence that any of the co-accused counselled or procured Tonaiya Tumaris to commit willful murder.

47. It is clear the State has not established to the required standard that the co-accused were caught by any of the considerations under s 7 (1) of the CCA.

48. Furthermore, it operates contrary to common sense that accused Kalaro Silaupara, Assan Silaupara and Michael Silaupara who were alleged to be on the side of TonaiyaTumaris gone in to clean blood and remove the deceased after TonaiyaTumaris killed him. This evidence came from State witnesses Silau Katas, Passingan Sepat and Keres Posikei.

49. Had the co-accused been involved in doing anything to aid, encourage or enable Tonaiya Tumaris to kill the deceased common sense dictates that they would have avoided caring for the dead body either out of feeling satisfied at achieving a sought after result or out of fear.

50. The attention given to the dead body by the three accused lends further support to the view that the co-accused did not breach any of the considerations under s 7 (1) to be caught as principal offenders.

51. I therefore find all the co-accused of Tonaiya Tumaris Not Guilty of Willful Murder as principal offenders under s 7 (1).

52. The formal orders on verdict are;

1. Accused Tonaiya Tumaris is found Guilty and convicted of the Willful Murder of Bung Melum pursuant to s. 299 (1) of the Criminal Code Act.
   
2. All the other accused are found Not Guilty of Willful Murder.
   

3. All accused apart from Tonaiya Tumaris are acquitted of Willful Murder and discharged from custody.

____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence