State v Nailas [2018] PGNC 220; N7311 (21 June 2018)

N7311

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 138 OF 2017

THE STATE

V

MANUEL VEE NAILAS

Kimbe: Miviri AJ
2018 : 08^th 19^th June

CRIMINAL LAW - Trial-Wilful Murder- S299 CCA – 12 year old child cut – allegation of sorcery – against mother – intent to kill or not – not disputed cut victim – guilty of murder–intent to cause grievous bodily harm.

Facts

Accused chased the deceased and mother over allegation of sorcery against the mother. Both separated and he pursued the deceased and cut his leg from which he died from blood loss.

Held

1. Not beyond doubt intent to kill
2. Beyond doubt intent to cause GBH.
3. Guilty of murder.

Cases sited:

Nill

Counsel:
L. Jack, for the State

D. Kari, for Defendant

VERDICT

21^st June, 2018

1. MIVIRI AJ: This is the verdict of a man who cut a child on the leg from which blood loss led to death.

Brief Facts on arraignment

2. The accused was armed with a bush knife on the 9^th November 2016 at Tamba section 9. He saw Yuth Paul who was with his mother Gaita Paul. He accused her of sorcery against him and chased her with the bush knife. Both mother and son ran trying to escape. During the course of the chase both became separated. The Accused pursued the son who fell and he cut his right leg causing bleeding which led to his death despite admittance to hospital.
   
3. The State charged under section 299 (1) of the Criminal Code against the prisoner contending he intended to kill Yuth Paul and did in fact carry out that intention.
   
4. Section 299 of the Criminal Code is in 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 wilful murder.
     

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Plea

5. Accused entered a plea of not guilty that he did not intend to kill the deceased.
   

Issue

6. What was the intent of the accused at the time that he delivered the cut with the knife on the deceased?
   

State Case

7. The following evidence were tendered by consent in the state case against the accused and labelled exhibits:
   
   • (i) Exhibit S1 statement of Sailas Raiu
   • (ii) Exhibit S2 statement of Minove Gosuve
   • (iii) Exhibit S3A Pidgin Original Record of Interview of Manuel Vee Nailas dated 11^th January 2017
   • (iv) Exhibit S3B English Translated Record of interview of Manuel Vee Nailas dated 11^th January 2017.
   • (v) Exhibit S4A Medical affidavit of Doctor Willie Toua dated the 17^th January 2017
   • (vi) Exhibit S4B Report on Post Mortem Examination
   • (vii) Exhibit S4C Medical Certificate of death
   • (viii) Exhibit S5A Statement of Paiaman Gomango Pidgin original
   • (ix) Exhibit S5B Statement of Paiaman Gomango English translation
   • (x) Exhibit S6A Statement of Luta Simbai Pidgin Original version
   • (xi) Exhibit S6B Statement of Luta Simbai English Translated version.
     
8. The tale of this evidence is that on the 9^th November 2016 Yuth Paul suffered a cut to his right knee from which he bled heavily and died as a result. Report on Post Mortem showed, “death occurred 7 days before examination cause of death was acute blood loss Deep laceration to the right posterior aspect of knee”. It further confirmed that he was 90 cm tall and 30kg in weight was 12 years old and a student.
   
9. Further that on the same day Gaita Paul was also attacked by Manuel Vee Nailas with a bush knife witnessed by Paiaman Gomango and Luta Simbai who stopped him.
   
10. The accused made no admission in the record of interview that was conducted with police on the 11^th January 2017.
    

State witnesses on Oath

11. Gaita Paul mother of the deceased Yuth Paul gave evidence that on the morning of the 9^th November 2016 Yuth Paul washed, dressed and was on his way to school with her. They were with another person by the name of Josephine Gigmai on the way when they were confronted by the accused who was running from the back armed with a bush knife that he was going to cut them with. Both started to run away to escape along the way they separated and the son ran to a bush track into the oil Palm but tripped and fell. Accused came upon him and cut him on the right leg. When she ran to assist him he also pursued her she ran but then said her son was already cut so surrendered to him. He cut her on her hand but did not continue as he was stopped by witnesses Paiaman Gomango and Luta Simbai. Accused is small brother of her husband and she has been with that family since her marriage now for 26 years. She has three girls who have since married and the son now deceased was the last born still with her.
    

Defence Case

12. Accused gave evidence that he did not mean to cut the deceased who was his son. He only used the blunt side of the bush knife to hit him not the sharp or the blade. He said he did so because the mother accused him of sorcery. He agreed that the deceased did not do anything bad to him. He hit him and did not cut him.
    

Submission by counsel

13. Both counsel submitted that the issue was whether the accused intended to kill the deceased. The deceased died as a result of being cut with a bush knife that was in the possession and use of the accused. And he did so over allegation of sorcery against the mother. He chased both but the mother evaded the son did not sustaining cut to his right leg leading to bleeding that led to his death.
    

Findings

14. It is proved beyond all reasonable doubt that on the 9^th November 2016 accused was armed with a bush knife that he used to chase Yuth Paul and Gaita Paul the mother. That the mother escaped initially and he pursued the son and cut him on the leg from which he bled to his death. It was over an allegation of sorcery against the mother.
    
15. Then he pursued the mother and cut her initially but she successfully defended herself and that he pursued but was stopped by two other witnesses.
    
16. The death of Yuth Paul was at the hands of the accused on the 9^th November 2016. There is no express admission that he intended to kill him and did kill him. Circumstantially the medical report shows a very serious grievous injury a life threatening injury which took the life of Yuth Paul as he did not have blood. And then the accused pursued the mother unsuccessfully. A bush knife is a very lethal weapon used in the way it was done here by the accused. He explains that he was prompted because of the allegation of sorcery. But did he by that fact intend that the deceased should die. On oath he said he was sorry that the boy died, he did not intend, it was against the mother. This is specific to the allegation that has been levelled against him that he intended to kill and did kill the deceased Yuth Paul on the 9^th November 2016.
    
17. Viewing this I find that the evidence is not beyond all reasonable doubt that the accused intended to kill Yuth Paul on the 9^th November 2016. But I find intent to cause grievous bodily harm and that is borne out by the medical evidence beyond all reasonable doubt. By section 539 (1) of the Criminal Code I return a verdict of Guilty of Murder on the indictment.
    
18. Verdict Guilty of Murder
    

Orders accordingly.

________________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitors : Lawyer for the Defendant