State v Sam [2018] PGNC 25; N7105 (12 February 2018)

N7105

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 71 OF 2016

THE STATE

V

SAMMY SAM

Kimbe: Miviri AJ
2018: 12^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300-trial-Sections 7 & 8 aider’s abettors-accused hit deceased on head with 40 ounce coffee punch bottle - deceased fell to his knees - another stabbed deceased in the left back - puncher of the left lung - bleeding-death - Section 7 & 8 aiding abetting - guilty of murder.

Facts
Accused hit deceased on the head with a 40 ounce bottle of coffee punch who fell to his knees and was stabbed with a grass knife by another.

Held
Section 7 and 8 made out
Guilty of Murder

Cases:
Angitai v The State [1983] PNGLR 185.
John Beng v The State [1977] PNGLR 115
Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20;
Kwapena v The State [1978] PNGLR 316
Porewa Wani v The State [1979] PNGLR 593
State v Mangi (No 1) [2005] PGNC 10; N2992
State v Nataemo Wanu [1977] PNGLR 152

Counsel:

A. Bray, for the State

D. Kari, for the Defendant

VERDICT

12^th February, 2018

1. MIVIRI AJ: This is the decision on verdict in the trial of a man who hit the deceased on the forehead with a 40 ounce bottle of coffee punch who fell to his knees and was stabbed by another in the back causing death.

Short facts

2. The Accused was drinking alcohol with others including one Steward on the 4^th July 2015 at Kavui Section 9. There was a fight between themselves and they chased one amongst them who ran to the block of Susan Maima where Michael Agluwa Maima was. Michael tried to stop the accused from fighting but was unsuccessful. The accused hit him with a 40 ounce alcohol bottle on the forehead. He fell to his knees and Steward Klephas who was with him stabbed him on the left side on his back puncturing his lungs causing him to bleed to his death. The defendant helped Steward Klephas in accordance with sections 7 and 8 of the Criminal Code Act.

Charge

3. The Accused was charged with murder under section 300 (1) (a) of the Criminal Code in that he had intended to do grievous bodily harm and did cause that upon Michael Agluwa Maima who died as a result.
   

State evidence by consent

4. The following were tendered as evidence by consent; Exhibit S1Order for post mortem examination, Exhibit S2 Report of death to Coroner, Exhibit S3Warrant to Bury, Exhibit S4B Post Mortem (autopsy) Report, Exhibit S5 Medical certificate of death, Exhibit S6A Medical Certificate of Death, Exhibit S6B Affidavit of Doctor Willie Toua, Exhibit S7A the pidgin original record of interview of Sammy Sam, and Exhibit S7B the English translation of the record of Interview of Sammy Sam, Exhibit S8A photo overall scene, 8B photo witness direction to where deceased killed, 8C photo spot deceased was killed, 8D photo road followed by Steward Klepas after stabbing deceased, 8E photo cut on hand of witness when he pulled knife from Steward Klepas,8F photo scar of injury witness.
   

Facts established

5. What was established by all these evidence tendered by consent was that the coroner was submitted a report by the police who had got a suspicious death of the deceased reported to them. They wanted a post mortem examination to be ordered to determine the cause of death and medical findings related. The circumstances of his death were suspicious in that a group of youths attacked him when he stopped them from fighting and one of the youths hit his forehead with a 40 ounce alcohol bottle where upon he was stabbed on the left side of his back by another and he died.
   
6. Pursuant to this order case number 112/2015 a post mortem was done on the deceased Michael Agluwa Maima by Doctor Willie Toua of the Kimbe Provincial hospital who issued the certificate of death after conducting a post mortem on the body. Medical cause of death was Left Haemopneumothorax. And that he was 51 years old with no other disease or health conditions leading to his death other than that he was healthy before his death. He tendered all material by his affidavit of that fact.

Issue

7. The issue that had to be determined was who had inflicted this grievous injury upon deceased leading to his death?
   
8. Was the accused an aider and abettor in the death of Michael Agluwa Maima pursuant to section 7 and 8 of the Code?

Defence evidence

9. In his record of interview exhibit 7A Pidgin and 7B English translation dated Friday the 28^th August 2015, accused admitted at question 19 that he was holding a 40 ounce coffee punch bottle that he hit Michael Agluwa Maima the deceased with it on his forehead. And that Steward stabbed him with the knife (Question 20). He admitted swearing at the deceased and trying to defend someone there (Question 21). At question 22 he admitted that he hit the deceased on the forehead with the 40 ounce coffee punch bottle and when he fell down Steward came and stabbed him with the knife. And at question 23 he admitted that Susan Maima daughter of the deceased said to Steward you have killed my father and Steward replied swearing at her, Kaikai kan, I want to kill him and I killed him”. He further admitted at question 24 that after killing him Steward removed his shirt and walked away. And that as Steward walked away from there, Susan Maima came and held the hand of Steward with the knife and as she did he swore and pulled the knife and it cut Susan Maima’s hand he said he did not know. At question 27 he admitted that he hit Michael Agluwa Maima with the 40 ounce coffee punch bottle on the forehead falling him, Steward came and stabbed him with the knife on the back and he died. And that you knew you had helped to kill Michael Agluwa Maima? He said it was true. At question 28 he went on to say it was not good to kill him as they did. At question31 he admitted I did not kill him but I did hit him and Steward killed him.

State witness on oath

10. This evidence is hand in hand with the sworn evidence of both Sabert Michael Maima and Susan Maima both eye witnesses to the killing of their father. I have observed both witnesses give evidence and do not doubt their veracity as to what they saw that night which is exactly as recounted by the accused in his record of interview. There was moonlight and they saw the accused there when he hit the forehead of Michael Agluwa Maima with the 40 ounce coffee punch bottle rendering him to fall onto his knees. And as he did Steward who was armed with a knife stabbed him on the left side of his back with it causing him to fall to the ground and bleed to his death. Both very close to the deceased and the accused clearly witnessing what happened. Both are witnesses of the truth and told the truth unreservedly and I believe their evidence which is exactly what is recounted by the accused in his record of interview.

Identification

11. There is no issue with identification in the case in accordance with John Beng v The State [1977] PNGLR 115 because both sides do not dispute the presence of the accused at the scene and how he participated in the death of the deceased.
    
12. What unfolded upon the accused is personally unto him and he is the best judge of what he saw and did on that day. His admission which have been tendered by consent are self- serving and incriminating himself with the charge as laid: State v Mangi (No 1) [2005] PGNC 10; N2992.
13. The admission fall squarely with Porewa Wani v The State [1979] PNGLR 593 that he was not merely present but he hit the deceased on the fore head with the 40 ounce coffee punch bottle rendering him to fall onto his knees where Steward who was armed with a knife stabbed him on the left side on the back causing him to die there. There was no break in his actions and that of Steward both were acting in unison and encouraged and aided each other in the commission of the murder of Michael Agluwa Maima. His actions in hitting the deceased on the head with the 40 ounce coffee punch established that he was present at the scene with the intention of aiding and abetting in the killing of the deceased he set the killing in motion and is liable in law by virtue of sections 7 and 8 of the Criminal Code: State v Nataemo Wanu [1977]PNGLR 152.
14. I am satisfied that both State witnesses have told the truth corroborated by the accused record of interview admissions set out above and where his actions crippled the deceased in a venerable and insecure position when he incapacitated him with that blow to the forehead with the 40 ounce coffee punch bottle rendering him defenceless to what flowed from Steward who was armed with that knife which he stabbed him in the left back on the most venerable organ the left lung causing bleeding from which he died and that his evidence in the witness box contradicts the earlier admissions in the record of interview closer in time to the offence where the events were fresh in his mind and to which he accurately and truthfully recounted what happened. He is therefore in my view a liar who has consciously lied to avoid guilt facing him head on, his lies have corroborated the account of the state witnesses and his record of interview in accordance with the often cited case of Jaminan v The State [1983] PNGLR 318.
15. Further the accused has inconsistencies which are material that effect the truth and veracity of his evidence and the more credible version is that which is consistent with the state witnesses all having being at the same place at the same time seeing the same events unfold materially the same, therefore the truth. Which echoes his record of interview: Kandakason v The State [1998] PGSC 20; SC558.
16. These facts do not give rise to the scene painted out by Kwapena v The State [1978] PNGLR 316 of self- defence or provocation (Angitai v The State [1983] PNGLR 185).
17. What is clearly set out by the evidence consistent with section 7 and 8 of the Code is that Sammy Sam hit Michael Agluwa Maima with the 40 ounce bottle of coffee punch on the forehead rendering him insecure, unstable from defending himself exposing his back to Steward who plunged the knife into the left back causing puncture of the left lung from which he bled to his death. There was therefore intent to cause grievous bodily harm against Sammy Sam and that he did act in concert with Steward, because it was his action that set in pace and motion eventual demise and death of the deceased.
18. Accordingly, I am satisfied beyond all reasonable doubt that Sammy Sam knowingly aided and abetted Steward in killing Michael Agluwa Maima as charged of murder and I return a verdict of guilty of Murder pursuant to Section 300 (1) (a) of the Criminal Code.
19. Verdict: The accused is found guilty of Murder.

Orders accordingly.
_____________________________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant