State v Pokea [2017] PGNC 189; N6795 (10 May 2017)

N6795

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

CR. No. 736 OF 2015

THE STATE

V

BILLY SAPSI POKEA

Waigani: Kirriwom, J
2017: 10^th May

CRIMINAL LAW- Particular offence-Wilful murder – Multiple stab wounds – Deceased died due to loss of blood and incised wounds to skull – General denial – Admissions in the record of interview – Found guilty and convicted.

Cases Cited:

Nill

Counsel:
A. Kaipu, for the State
J. Javapro, for the Accused

DECISION ON VERDICT

10^th May, 2017

1. KIRRIWON J, The accused was charged with wilful murder under section 299(1) of the Criminal Code. He is alleged to have wilfully murdered one DENNIS BEBEGO at Waigani on 5^th of July 2014.
   
2. The State case is that the accused and the deceased are co-workers in the Department of Foreign Affairs. On Saturday 5^th July 2014, both the accused and the deceased were at work when the deceased caught the accused watching pornographic movie on his office computer. The deceased who was a senior officer in rank to the accused confronted him and threatened to report him to the Senior Management and the Secretary and have his employment terminated and he be given his one way ticket home to Mendi, Southern Highlands Province.
   
3. State case is that, upset by what the deceased told him and the threats he made about his possible termination, he left the office and went to the nearest hardware shop where he bought a long bush knife and returned to the office.
   
4. He armed himself with that bush knife and entered the deceased’s enclosed cubicle through the door and locked the door behind him and while blocking the deceased’s escape he attacked the deceased with the bush knife and cut him up in several critical parts of his body until he was dead. He then left the lifeless body of the deceased on the floor of his office and escaped.
   
5. The accused pleaded not guilty and strongly maintained his innocence. Consequently the State called three witnesses, two were co-workers of the accused who were also in the office on that day and the third was one of the policemen who received radio message and attended the scene of the killing at Westpac Bank Building compound, Waigani and discovered a blood stained bush knife on the back of the stairs.
   
6. Daniel Tovakuta gave evidence of hearing screams and struggling noises coming from within the office of the deceased. Thinking that the deceased was in trouble he wanted to investigate and tried to open the door but the door was locked from inside. He walked around to the side and through the glass wall he saw the accused and the deceased with their arms locked tussling with each other. He also saw that the deceased was bleeding or blood pouring from his head to his face.
   
7. Realising there was danger or trouble in the making, Daniel Tovakuta left the office to look for security or police. On the way out he informed Samson Yambon, another Senior Officer of what he saw and together they rushed or hurried out to seek help from security or police.
   
8. While waiting for the police to arrive he saw the accused crossing the road (Waigani Drive) heading in the direction of Theodist. He said the accused clothes were covered in blood and at his back was a concealed knife with its handle protruding out.
   
9. When police arrived they led them to the office and discovered the deceased lying dead on the floor of his office in the pool of his own blood.
   
10. Samson Yambon also gave evidence of being in his cubicle that morning. He remembered being called out of his office by the deceased who was at the accused’s work-station and told him to witness him for having caught the accused watching a pornographic video on the office computer. He watched and heard the accused deny the allegation and trying to explain but the deceased persisted in his threats to report the accused to the Secretary. He did not see any pornographic picture on the accused’s computer. He then went back to his office.
    
11. Samson Yambon had meticulous recollection of the time he arrived at the office. Same time he also saw the accused arrive and go to his work station. He gave the exact time when the late DENNIS BEBEGO called him and told him to go over and be his witness for catching the accused watching pornographic video on his computer. He gave the time at 10:30am when Daniel Torakuta entered the office and proceeded to his work station.
    
12. At about 11:45am he saw Daniel Tovakuta arrive at his office and told him Dennis Bebego was in trouble and needed help. So they both rushed out while Daniel went to look for Police.
    
13. While waiting for Police, he saw the accused leaving the office through the car park. He did not call the Police but the Security guards did after he told them. When the Police arrived he took them up to the office and knocked on the door of the deceased’s office and called his name but there was no response. Police told him to move back as they cordoned off the areas as crime scene.
    
14. He said he saw Dennis Bebego lying in a pool of blood on the floor and had bush knife wounds all over his body. He was already dead.
    
15. Next State witness was Detective Sergeant Nei Pige from Boroko CID. On that day 5^th July 2014 he and other policemen received police radio message of possible murder case at Waigani and suspect fleeing from the scene. They proceeded to the scene at Waigani and searched the back of Theodist but did not find the suspect named so they proceeded to the scene of the alleged crime.
    
16. He went to the crime scene, took photographs and searched the place thoroughly. On the steps leading up to the back entrance of the office, a long bush knife covered in fresh blood was discovered. Police took possession of it after taking picture of the bush knife. The knife was subsequently tendered into evidence and marked as exhibit in this trial together with all the photographs taken of the scene of crime, the body of the deceased lying on the floor and the bush knife.
    
17. On Thursday, 10^th July 2014 based on the information obtained, Police went to Port Moresby General Hospital and apprehended the accused when he attended to get his regular retroviral treatment for his medical condition as a HIV Patient.
    
18. He was taken to the Police Station where Detective Sergeant Nei Pige conducted the record of interview with him in the presence of First Constable Chrissies Timbun as corroborator. This was on the same day of his apprehension. The interview was conducted in pidgin language and at the end of the interview they all signed.
    
19. In this record of interview, the accused cooperated with the Police and told them of what happened and his answers were typed. He gave his story of what happened, how it happened and why it happened. I shall come to later about his story in the record of interview which is in evidence by consent of defence because in this trial the accused refuted the story contained in the record of interview while accusing the police and his colleagues in the office for fabricating the story.
    
20. In his defence the accused also gave sworn evidence. He arrived in the office that morning and went to his work station. He had with him his private Lenovo laptop computer with flat battery so he connected it to his office computer to charge up the battery. In his laptop there were porn movies that automatically started up when the battery became charged.
    
21. When he went to work that morning he also carried his short knife with him to the office because of previous rascal attack on him and he always carried that knife for self-defence.
    
22. He said while he was not paying attention, his laptop screen suddenly came alive and displaying pornographic pictures that the deceased saw as he was passing by his work station.
    
23. The diseased grabbed his laptop and called Samson Yambon over and told him to be his witness for catching him watching porn in office computer. He told him he will report him to Senior Management to give him a red passport home to Mendi, Southern Highlands.
    
24. He tried to explain to the deceased that the laptop was his own personal property and the porn materials were in his private property and everybody watched porn movies, as such he was not violating any law or rule but the deceased would not listen. He took his laptop and brought it with him to his office. The accused followed his to his office protesting his innocence and wanting the return of his laptop.
    
25. In the deceased’s office he tried to wrestle the laptop away from the deceased but he threw it down and the cord detached itself from the laptop and got lost amongst the boxes where the laptop landed.
    
26. He picked up his laptop and left the deceased’s office and returned to his work station. Because he needed to get his laptop working again he went downstairs to seek help from IT people but none was at work that Saturday.
    
27. Then he returned to the office but the main door was locked. He called out but no one listened so he thought the deceased locked him out so turned around and left for home.
    
28. He ended up at 8 mile and had some beer with relatives the result of which he developed diahorrea. The effect of diahorrea on him as a person with low or dysfunctional immune system because of his HIV condition was quite devastating and he was sick for several days. On Thursday he went for his regular retroviral treatment for his HIV at PMGH when he was arrested.
    
29. He said Police took him to Boroko Police Station and asked him questions and told him to answer yes, yes only and threatened him. He denied the answers contained in the ROI; he said those were not his answers but were fabrications by the Police in collaboration with the staff from the Department of Foreign Affairs seeing the body of the deceased at the crime scene.
    
30. He said the signature in the ROI is not his real or true signature. He wrote that down because he was threatened by the Police and did so under pressure so he scribbled that signature which is not the same as his normal signature.
    
31. Contrary to what the accused testified in court, the ROI, from the start to the finish, there are detailed answers given to almost every question asked of the accused.
    
32. The issue in the trial is one of identification and involvement. The accused want the court to believe that he did not kill the deceased because the deceased was not his enemy. The issue concerning his laptop was over when he left the office and returned to his work station, having gotten back his laptop except for the cable. He later went downstairs looking for IT people to help him when he got locked out and he went home. Therefore, he wants the court to believe that whoever killed the deceased, he has no idea, he does not know and he cannot be held responsible for his death.
    
33. But whether the position that the accused now prefers, quite opposed to what is contained in his ROI is the true story of what had happened is very much dependent on whom the court believes. Should the court believe the accused or should it believe the State witnesses and rule him out as untruthful witness? The accused however cannot escape his own story he gave to the Police which is recorded in the record of interview, the story he gave while the incident was still quite fresh in his mind, only five days after the alleged offence was committed.
    
34. To accept the accused story will be parting company with reality because besides the accused who argued with the deceased that morning, there is no evidence of anybody else having any reason to attack the deceased that day. If the accused did not kill the deceased then who did it? It was not suggested that it would have been Daniel Tovakuta or Samson Yambon who were the only other persons inside the office.
    
35. Daniel Tovakuta actually saw the accused struggling with the deceased and the door was locked from inside and he could not go in. He saw blood flowing down the face of the deceased. He later saw the accused crossing the main Waigani Drive with clothes stained in blood. Was Daniel Tovakuta lying when he told this story to the court? What would be his reason for lying to the court? Did he have any grudges against the accused?
    
36. Daniel Tovakuta was not aware of the argument over the laptop and the sex movie between the accused and the deceased before he heard the noise and cries for help and struggle coming from the deceased’s office. When he went to investigate, he identified the accused inside the office in a scuffle with the deceased and the deceased was bleeding. If the deceased was bleeding during that scuffle, that was not the result inflicted wound that led to bleeding. That naturally would have been and could have been caused by the accused.
    
37. It was in this same scene where Daniel Tovakuta saw the scuffle between the deceased and the accused behind locked door that the body of the deceased was subsequently found dead.
    
38. There is clear consistency between what Daniel Tovakuta saw and what the Police found when they approached the office after the accused had decamped showing clear nexus or links or connections for reasonable inference to be drawn that if it was the accused who was seen wrestling or scuffling with the Deceased, it is a reasonable hypotheses that it was the accused who killed him and left the scene covered with bloodied clothes which he discarded after he got home.
    
39. The story given by Daniel Tovakuta is highly probable when compared with that of the accused. To except the accused’s version of what happened would be parting company with reality. The accused wants the court to believe that he argued with the deceased but left him when he released his laptop, he took it and went away. Therefore he has no idea of who might have finished what he had started and killed the deceased. He cannot therefore be responsible. This is the position the accused has taken.
    
40. I have no reason to disbelieve Daniel Tovakuta. He told the court of what he saw. His observation of the scuffle in the office, the accused leaving the office with blood on his clothes with a knife tucked behind his back and the deceased found dead some minutes later, all link up. I accept Daniel Tovakuta as a truthful witness and as someone who told the truth.
    
41. The evidence of eye- witness Daniel Tovakuta is substantiated in detail by the accused himself in his story to the Police in his ROI. I prefer the story that the accused gave to the Police and adopted by him when he signed the document compared with what he told the court. What he told the court is a recent invention or fabrication. He had ample time to think over and come up with a new story while waiting for his case to be tried.
    
42. And the reasons why I must accept the story in the record of interviews are:
    
    • (a) He signed the ROI, it does not matter how he signed it, whether by marking it with X or a dot or wrote an imaginary or fictitious name that is not his, the bottom line is he put his mark on it with his own hand signifying his acceptance of what is stated in the document.
      
    • (b) The accused is educated at University level and he knows the significance of signing an instrument which is a commitment to what is stated in the document. He knew what he was signing for.
      
    • (c) The story given in the many answers to the questions supposedly asked by the Police are very detailed and therefore too good and original to be fabrications by anyone else who did not know about this trouble or was into involved in any way at all. The story in the ROI by way of answers to set questions are consistent with many things that the accused expressed during his testimony and only he alone could have given this story.
      
      • (d) No other person in the office could have fabricated this story and fed the Police with it when they had no knowledge or had any idea of what really happened except the accused.
        
43. For completeness sake I reproduce some parts of the questions and answers from the ROI to demonstrate that this story is not a fabrication by police and Foreign Affairs Officers, this is the accused’s own story:
    

Q 17 where is your office located?

Ans: Inside West Pac Bulding,front is the bank and at the back is the Foreign Affairs and Trade Department.

Q. 18 When you were in the office, were there people in the office?

Ans Yes Samson from Madang and Dennis Bebego and the Other boy from Samarai namely Danial who came later.

Q. 19 What happen when you were in the office?

Ans: I went in and sat on my table and put on my computer to the music section and sex movie(blue movie) appeared and the deceased Dennies Bebego came and saw me and told me saying “Mr. Pokea, nice movie you will get your passport on Monday and you will be posted to Mendi and this red passport we use to get it to go to Australia or USA and not in PNG.When he say that he called Samson to come and witness him that I was watching blue movie.

Q. 20 Then what happen?

Ans: I got up and explain to him (Bebego) that all of us watch blue movies and I am a family man and on March I was being charged but Dennis Bebego (deceased) was shouting at me and told me that I will get my red passport on Monday and will to go Mendi so I was angry and went to new Stop N Shop along Waigani Drive and bought a bush knife valued at K20.95. It’s not a long knife but short with wooded handle (tramontana brand) and at the same time I bought 4 x loose smoke and was smoking one after the other which made my head dizzy and I went into the office.

Q 21 What happen inside the office?

Ans: When I was at the gate I went into the office I was then stop by the security guard for smoking but I told him that its finish so I walk into the office. The office on the ground is for administration and office I work is for Policy so I went up to the Policy.

Q. 22 How did you carry that knife into the office?

Ans: I tuck the knife in my trousers and cover it with my shirt and went inside.

Q. 23 What happen inside the office?

Ans: When I went inside I went straight to Dennis Bebego’s office and hold on to his office door and told him that I want red passport and when he saw me he got up from his chair and wanted to go outside but I locked the door and started chopping him with the bush knife. I was out of my mind and chop him all over his body. When I was chopping him the other work mate Daniel came and saw me and wanted to help Dennis but the door was locked so he did not come inside and if he or Samson tried to stop me I should have chop both of them too but they just ran outside.

Q. 24 How many times did you chop Dennis Bebego with the bush knife and on which part of his body?

Ans: I chop him 5 – 6 times but on which part of his body, Iam not sure,on his head, I don’t know, I was confused.

Q.25 After chopping him, what did you do next?

Ans: I came out through the back door and left the knife on the steps and went to the back gate and went towards Theodist and the PMV bus slow down I got on and went to Boroko then got on another PMV and went to Badili and from there I went to Sabama and change my clothes which I was full of blood then I went to 8 mile.

Q. 26 Can you identify this trousers which we took from your house at Sabama?

Ans: Yes that’s my trousers and also my shirt, brown colour which I left in the house.

Q. 27 For what reason and you murdered Dennis Bebego inside the his office inside West Pac Building along Waigani Drive?

Ans: Dennis and I have being working in the Department for a long time and I have no problem with him. In March this year I insulted a lady and I was charged by the Secretary and on Saturday Dennis saw me watching blue movies and wanted to charged me and game me red passport to Mendi and I told him that I am a family man and everybody watch blue movie but he did not listen to me and told Samson Yambon to witness him and they will again charge me and they will terminate me from my job so I was angry and I went, bought the knife and murdered Dennis Bebego. I did not plan to kill him, I just came to the office and this thing happened and Dennis is not my boss but he is the member of Senior Management Team (SMT) so when he said he will give me red passport on Monday I thought that he will meet with his other members and they will terminate me on Monday so I was angry and murdered him.

Q. 28 Do you know that committing murder is a crime?

Ans: Yes, but I was angry and murdered Dennis Bebego as I told you the stories above.

(typed verbatim from English translation of the record of interview)

44. It is quite clear from this story that it would have been most impossible for any other person to have made up this story to get the accused into trouble over a murder he did not commit. This is an unrealistic and illogical thinking and argument. This is the accused’s own story which he gave and truthfully recorded by Police and he accepted.
    
45. The story in the ROI now completes the whole picture of what really happened in the office and confirms the discovery of the bush knife on the steps of the back door to the building.
    
46. The photos tendered into evidence showing the multiple cuts on the body, arm and legs of the deceased clearly show that he accused when inflicting these cuts on the body of the deceased, did so wilfully and with the intention to kill him.
    
47. There is no more issue of identification or causation as the perpetrator is the accused. I am therefore satisfied beyond reasonable doubt that the accused is guilty of wilful murder as charged
    

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