N5880
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1163 OF 2011

THE STATE

V

ANDREW SINOGUP

Madang: Cannings J
2015: 5, 12, 17 February, 5 March

CRIMINAL LAW – attempted murder – Criminal Code, Section 304 – trial – elements – whether the accused attacked the complainant

The accused was charged with the attempted murder of the complainant, contrary to Section 304(a) of the Criminal Code. There was no alternative charge. The State's case was that the complainant found the accused having sex with his (the complainant's) wife and when he attempted to approach him, the accused attacked him with a knife, stabbing him in the groin and causing an injury that might have proved fatal. The defence case was that it was the complainant who was the assailant, not the accused, and that the complainant may have injured himself in the altercation with the accused, which occurred when the complainant attacked the accused with an iron rod.

Held:

(1)	The elements of the offence of attempted murder under Section 304(a) are that the accused:

•	intended actually to kill the deceased;
•	put his intention into execution by means adapted to its fulfilment;
•	manifested his intention by some overt act; and
•	acted unlawfully.

(2)	Here, the State failed to prove an intention to kill as it failed to prove that the complainant's version of events was the correct one. The complainant's evidence was not corroborated by any other witness, the complainant was a no more impressive witness than the accused (whose evidence was partially corroborated), the medical evidence was weak and the accused's version of events seemed more believable.

(3)	The State failed to prove an essential element of the offence. Therefore the accused was found not guilty of attempted murder. As there was no alternative charge, he was discharged from the indictment.

Cases cited

The following cases are cited in the judgment:

R v Kiki Kau'Au (1970) No 557
The State v Daniel Kapen (2012) N4895
The State v Henry Judah Les (2005) N2950
The State v James Pah [1985] PNGLR 188)
The State v James Yali (2005) N2988
The State v Michael Nuli (2011) N4198
Vincent Kerry v The State (2007) N3127

TRIAL

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

Counsel

F K Popeu, for the State
J Morog & D Ephraim, for the Accused

5th March, 2015 

1. CANNINGS J: The accused, Andrew Sinogup, is charged with the attempted murder of Philip Magina at Gusin hamlet, Sagalau, near Madang town, on Saturday 25 June 2011. The indictment does not contain an alternative charge. The State's case is that the complainant found the accused having sex with his (the complainant's) wife and when he approached him, the accused attacked him with a knife, stabbing him in the groin and causing an injury that might have proved fatal. 2. The defence case is that it was the complainant who was the assailant, not the accused, and that the complainant may have injured himself in the altercation with the accused, which occurred when the complainant attacked the accused with an iron rod.

UNDISPUTED FACTS

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

•	Both the accused, aged about 30, and the complainant, aged about 40, are long-term residents of Gusin. They both come from the Usino-Bundi district. They are cousins. They know each other well.

•	On Friday 24 June 2011 there had been some conflict between students of the adjacent Madang Teachers College and the people of Gusin and there was some tension still existing on Saturday morning, 25 June 2011, and some students came to Gusin, shouting and acting in a threatening manner.

•	On the night of Friday 24 June 2011, the complainant went looking for the accused as he suspected that the accused was having an affair with his wife. The complainant went to the accused's house, armed with an iron rod.

•	The next morning, on Saturday 25 June 2011, the complainant again looked for the accused to confront him over the alleged affair with his wife.

•	The complainant found the accused, who was with the complainant's wife, next to a bush track between Gusin and Sagalau village on Saturday 25 June 2011. The accused and the complainant then had a physical altercation.

THE CHARGE: ATTEMPTED MURDER

4. Attempted murder is an offence under Section 304 (attempted murder etc) of the Criminal Code, which states:

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

5. The charge in this case is based on Section 304(a). The elements of the offence are, as explained in R v Kiki Kau'Au (1970) No 557, The State v Henry Judah Les (2005) N2950 and The State v Michael Nuli (2011) N4198, that the accused:

•	intended actually to kill the complainant;
•	put his intention into execution by means adapted to its fulfilment;
•	manifested his intention by some overt act; and
•	acted unlawfully.

6. If the State fails to prove all of the elements, no alternative conviction for another or lesser offence is available. In such a case an acquittal must be entered. The court can only convict of an alternative or lesser offence if an alternative charge is included in the indictment (The State v James Pah [1985] PNGLR 188). For example, in The State v Daniel Kapen (2012) N4895 the primary charge was attempted murder and there were two alternative charges, doing grievous bodily harm with intent (Criminal Code, Section 315) and unlawfully doing grievous bodily harm (Criminal Code, Section 319). The accused was found not guilty of the primary charge and the first alternative charge, but guilty of the second alternative charge, under Section 319.

DID THE ACCUSED INTEND TO KILL THE DECEASED?

7. Resolution of this questions requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	statement by the court of its findings of fact; followed by
•	formal determination of this element of the offence.

Evidence for the State

8. The complainant was the sole State witness. His evidence is summarised in the following table.

No	Witness	Description	
1	Philip Magina	Complainant	
Evidence: He was returning from Sagalau Market, following a bush track, when a local resident, a woman, told him that she had just seen the accused chasing his (the complainant's) wife into the bush, so he went looking for him in the direction the woman had pointed – he ran for about 30 metres into the bush and found the accused, who was lying on top of his wife, sexually penetrating her – he (the complainant) ran towards the accused and at that point the wife pushed the accused away, and the accused got up and rushed at the complainant, swinging the knife (30 cm in length) and stabbing him in the groin, close to his testicles – he was in great pain but struggled with the accused, who ran away – the complainant then went to Modilon General Hospital for medical treatment and straight after that he reported the incident to the Police.

In cross-examination the complainant admitted that he went to the accused's house the night before, Friday 24 June 2011, looking for him, as he had heard rumours that the accused had taken his wife away – he also admitted that he was armed with an iron rod but denied finding the accused there or injuring him.	

9. Two exhibits were admitted into evidence by consent: the accused's record of interview, showing that the accused remained silent, and a medical report by Dr A Peawi, undated, which stated:

This is to confirm and certify that Mr Philip Magina was examined here at the Accident and Emergency Unit of Modilon General Hospital on the 25th of June 2011.

He had incurred knife wound on his left thigh about 2 cm deep beneath his testes and penis.

The damage caused is 5% leu that there is a probably dislink to one of his veins stopping normal blood circulation, causing numbness to the site of the infection. [sic]

Philip was released from the Accident and Emergency Unit after he was attended to by our staffs.

Evidence for the defence

10. Two witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description	
1	Andrew Sinogup	The accused	
Evidence: On the night of Friday 24 June the complainant came to his house at Gusin, while he was sitting down having dinner with his family, wielding an iron rod – the complainant attacked him, causing injuries to his hands and knees – the complainant ran away and he (the accused) was taken by his family to a local aid post orderly who treated him. On the morning of Saturday 25 June, the MTC students came into his area, threatening violence, so he fled, following a bush track in the direction of Sagalau – on the way, he met the complainant's wife who asked him about his injuries – he was telling her what happened the night before when the complainant came along wielding the same iron rod he had used to attack him the night before, and again attacked him – he (the accused) was unarmed and had nothing with which to defend himself – they struggled, the complainant overpowered him, then the complainant took off, leaving him further injured on the ground where he lay for 30 minutes before returning to his house – he does not know why the complainant attacked him.

In cross-examination the accused said that he was not given a medical report – he denied having an affair with the complainant's wife – he denied stabbing the complainant, who must have sustained his injury in some way he is not telling the court about.	
2	Lydia Sinogup	The accused's sister	
Evidence: She is the accused's younger sister – in June 2011 she and the accused were living with their parents at Gusin – on the night of 24 June, while the family was having dinner, the complainant entered their house armed with an iron rod and attacked the accused, injuring him on his hands and knees – the complainant did not say anything when he barged in, he just attacked the accused and then ran off – the family took the accused to the local aid post orderly who treated him.	

Findings of fact

11. The Court is faced with two completely different versions of events. Either the complainant or the accused is lying about what happened on the morning of Saturday 25 June 2011 in the bush between Gusin and Sagalau. It is tempting to ask the question 'who does the Court believe?' but as I pointed out in The State v James Yali (2005) N2988, the better question to ask is whether the State has proven beyond reasonable doubt the version of events it is contending for, should be accepted. Beyond reasonable doubt is the highest standard of proof known to the law (Vincent Kerry v The State (2007) N3127). I find that it has not been discharged in this case for the following reasons:

1	The complainant's evidence was not corroborated by any other witness.

2	There were two persons who would have been able to provide direct or indirect corroboration of the complainant's evidence who did not give evidence: the woman who, the complainant said, told him that the accused had just chased his wife into the bush, and the complainant's wife. No explanation was provided as to why those persons did not give evidence.

3	The complainant was a no more impressive witness than the accused (whose evidence was partially corroborated by his sister's evidence). I am not saying that the complainant was an unimpressive witness. It is just that his demeanour was no more impressive than that of the accused.

4	The medical evidence was weak. It was vague, parts of the medical report (which was undated) did not make sense and the doctor who prepared the report did not give evidence. It appears that the complainant presented at the hospital with a minor wound, which required simple treatment. There is no evidence that he suffered a life-threatening injury.

5	Even if it were true that the complainant caught the accused having sex with his wife (and on the complainant's evidence, the accused was in effect raping his wife), it is difficult to believe that the accused would have the presence of mind and the physical dexterity, having been interrupted suddenly while having sex, to regain his composure to the extent necessary to turn defence into offence, and get up and attack the intruder with a knife and in the process aim the knife at the intruder's groin. I consider that the natural reaction of a person caught in the act of illicit sex would be to flee the scene as soon as possible.

6	I find that the complainant genuinely believed that the accused was having an affair with his wife and went looking for the accused both on the Friday night and the Saturday morning in an aggressive frame of mind. The complainant admitted that he was armed with an iron rod when he went looking for the accused on Friday night.

7	I consider that a more likely truthful version of events is that it was, as the accused claimed, a case of the complainant being the assailant and the attacker in the physical altercation that occurred in the bush on the Saturday morning.

12. I therefore find that the complainant's version of events has not been proven beyond reasonable doubt. It follows that the State has failed to prove that the accused intended to kill the complainant. That is an essential element of the offence so the accused is found not guilty. There is no alternative charge so he must be discharged from the indictment.

VERDICT

13. Andrew Sinogup, having been indicted on one count of attempted murder under Section 304(a) of the Criminal Code is found:

•	not guilty of attempted murder; and
•	not guilty of any other offence.

Verdict accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused