State v Dede [2018] PGNC 321; N7410 (13 August 2018)

N7410

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1720 & 1721 & 1722 & 1723 OF 2016

THE STATE

V

WENDELYNE DEDE & JULIUS DEDE & TONY LELE DEDE & DOMINIC DEDE

Kimbe: Miviri AJ
2018 : 08^th, 9^th & 10^th August

CRIMINAL LAW - Trial-Wilful Murder- S299 CCA – identification – death undisputed – broken spine – Section 7 & 8 CCA – accomplice evidence corroboration – moonlight – voice identification – intent to kill expressed – guilty of wilful murder.

Facts

Four Accused assaulted the deceased who sustained a broken spinal code and died as a result. They had intended to kill him and did kill him.

Held

1. Deceased met his death from unnatural causes and trauma.
2. Four accused were seen attacking deceased.
3. Intent to Kill expressed
4. Guilty of wilful murder by all four men.

Cases sited:
The State v Amoko, [1981] PNGLR 373
The State v Barambi [2017] PGNC 234; N6900
The State v Beng [1977] PNGLR 115
The State v Bulen, [1990] PNGLR 43
The State v Jaminan [1983] PNGLR 318
The David v Kandakason [1998] Supreme Court Judgement SC 558
The State v Palili [2006] PGSC 16; SC848
The State v Pawa [1981] PNGLR 498
The State v Wani [1979] PNGLR 593

Counsel:

A. Bray, for the State

J. Waiwai, for Defendant

VERDICT

13^th August, 2018

1. MIVIRI AJ: This is the verdict after trial of four men charged with the wilful murdered of another man.

Brief Facts on arraignment

2. The accused are charged that they on the 22^nd day of July 2016 at Mai in Papua New Guinea wilfully murdered Sam Bio. The State invoked Section 299 (1) of the Criminal Code contending that accused Wendelyn Dede, cut the left leg of Sam Bio who fell to the ground. And accused Julius Dede & Tony Lele Dede called out kill them, kill them, and Dominic Dede all set upon him and attacked him. As a result he suffered a broken spine from which he died. They had intended to kill him and did in fact kill him.
   
3. Section 299 (1) 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.
     

Elements of Offence

4. The elements of the offence are that; (a) a person, (b) unlawfully, (c) kills another person, (d) intending to cause his death. These must be discharged beyond all reasonable doubt against the accused by the Prosecution. In its endeavour the State tendered the following evidence by consent.
   

Evidence by Consent

5. Exhibit S1 Warrant to Bury dated the 29^th July 2016.
6. Exhibit S2 Report of Death to Coroner dated the 27^th July 2016.
7. Exhibit S3Medical Affidavit of Doctor Ketalu dated 4^th August 2016.
8. Exhibit S3 (a) Post Mortem Report dated the 3^rd August 2016.
9. Exhibit S 3(b) Medical Certificate of Death dated the 4^th August 2016
10. Exhibit S4 Sketch of Crime Scene.
11. Exhibit S5 (1 to 6) Photos of Crime Scene.
12. Exhibit S6 (1 to 4) Photos of Deceased.
13. Exhibit S7 (a) Record of Interview Pidgin Original of Wendelyn Dede dated the 3^rd August 2016.
14. Exhibit S7 (b) Record of interview English translation of Wendelyn Dede dated the 3^rd August 2016.
15. Exhibit S8 (a) Record of Interview Pidgin Original of Julius Dede dated the 2^nd August 2016.
16. Exhibit S8 (b) Record of Interview English translation of Julius Dede dated the 2^nd August 2016.
17. Exhibit S9 (a) Record of Interview Pidgin Original of Tony Lele Dede dated the 2^nd August 2016.
18. Exhibit S9 (b) Record of Interview English translation of Tony Lele Dede dated the 2^nd August 2016.
19. Exhibit S10 (a) Record of Interview Pidgin Original of Dominic Dede dated the 3^rd August 2016.
20. Exhibit S10 (b) Record of Interview English translation of Dominic Dede dated the 3^rd August 2016.
21. Exhibit S11 (a) photo of timber retrieved from scene
22. Exhibit S11 (b) photo of timber retrieved from scene.
23. Exhibit S11 (c) photo of two stones retrieved from scene.
24. Exhibit S12 Timber retrieved from a witness.
    

Tale of Evidence

25. On 22^nd July, 2016 at Mai, Hoskins Sam Bio was attacked along the Hoskins Bialla road and cut with a bush knife by the accused Wendelyn Dede on his left leg. He was attacked further and sustained a fractured C2 spinal bone and died as a result. He has since being buried as of the 29^th July 2016. It raised the following issue.
    

Issue

26. Who caused Sam Bio to sustain the fractured C2 that led to his death?
    

Record of Interview contrasted Sworn Evidence.

27. In his record of interview Wendelyn Dede admitted, “ Q29 I don’t know that, I just slashed him, then threw the knife and ran away” Q36 Because he was just close to me that is why I slashed him” Q40 All my fathers didn’t know about the incident, its only me who did it, after assaulting his friends and he was still standing, I tackled him where he fell, took his knife from him and then slashed him, after he swung at me three times”
    
28. On oath he maintains that he alone assaulted Sam Bio cutting him with the knife to the left leg after he had initially assaulted Benedict Dui who fell got up and ran away with the others. Sam Bio had a knife and remained, swang with it three times at him. He retaliated and cut him on his left leg and ran away to Nuli. It is not the injury that led to the death of Sam Bio. But it is an incapacitating injury which disables him from escaping or preventing any further assaults upon him.
    
29. I observed him give evidence including his demeanour, I determine and adjudge him to be calculated in his evidence. For instance when I compared his built and stature to the group that the state witnesses and the deceased comprised he would not have stood the chance of not being hurt or enduring some injury at their hands if he had not acted with the element of surprise and ambush as he did which I find here given the evidence. And that he was accompanied by his fathers, Julius Dede his natural biological father, his uncle Tony Lele Dede younger to his father and the youngest Dominic Dede. The state witnesses all with the others were able to escape because they were not injured but Sam Bio could not because he was cut on his left leg preventing his escape. He was at the mercy of the accused with his fathers. Fundamentally the principles in Pawa v The State [1981] PNGLR 498 (27 November 1981) are relevant and applicable given, there are no other reasonable hypothesis other than the guilt of the accused and that is the only reasonable hypothesis open on the facts and evidence here. Wendelyn Dede admits, “....after assaulting his friends and he was still standing, I tackled him where he fell,..” This is consistent with the evidence of Doctor Lawrence Warangi that a sharp object, a blunt trauma to the neck, spear tackle or heavy object either a stone or log could have caused the C2 fracture. And the force was large State exhibit S12 is possible to cause that injury. The intent and anger of the accused in the defiance of silence disrespecting Haus Karai is evident by the ferocity of the violence exerted upon Sam Bio and the others with him. Sticks and Stones were thrown causing them to run away for their safety leaving Sam Bio at the mercy of the accused. There is no other or none other immediate to this scene where the deceased was left to except this accused and his father’s all the four accused. Is there any other reasonable other than guilt basing? This accused was present in the assault upon Sam Bio accompanied aided abetted by the wilful presence of his father’s Julius Dede, Tony Lele Dede and Dominic Dede. By himself he was not able to and could not have repelled the State witnesses and the deceased by himself. He is an accomplice and there is no corroboration of the account he makes, The State v Amoko, [1981] PNGLR 373 (4 June 1981). The other co accused are similar without any corroboration.
    
30. Tony Lele Dede did run out to the road where deceased and the others were because he heard the big noise. And that he agrees that he was seen by Nick Batari who called to him Longa and he told him to go and sleep. Accused admits that he was there but denies that he uttered the words “kill them kill them.” Accused admits that he went to the scene where the deceased was attacked thereafter and flashed his torch to look for properties of Sam Bio’s friends who ran away. Accused says he didn’t know that the deceased was lying where he flashed the torch. For an immediate relative he was not concerned for the safety of the deceased and was concerned to look for properties using his torch contrary to his evidence on oath where he went to great lengths to explain the family tree and their relationship. Accused says Wendelyn Dede was the one who committed the offence not him and the others.
    
31. On oath Accused changed admitting that he said “Kill him; Kill him,” because he was angry. He ran heading to Hoskins way to where they were fighting. He was angry because they broke custom. There was death in his family and they did not respect that. That they the drunken had already gone so I walked back. And that he said “hold them and kill them” because his uncle, child of sister of elder father, Sabina Wakua’s son Sam Bio’s leg was cut by Wendelyn Dede. And that when he said “fight him kill him,” he was referring to Nick Batari. In this respect it could not be so as he had earlier on spoken to Nick Batari escorted and left him where the creek is where men wash. Obviously when he was saying these words Nick Batari was not and could not have been referred to because he was no longer there.
    
32. The words, “Kill him; Kill him,” fight him kill him,” and “hold them and kill them” tie and incriminate this accused Tony Lele Dede to the offence and death of Sam Bio. They are fundamental elements of charge of wilful murder. That there must be an intention to kill expressed and the killing takes place pursuant. That is the case with this witness and the words he tries to disassociate himself from initially and now tries vainly to explain out of the offence. He has tried desperately to disassociate and explain why he denied using it in the record of interview. He is a witness with a number of versions to his story in this respect against his case. The use of these words with the other three accused presence and their actions criminally against Sam Bio adds to the state case: The State v Wani [1979] PNGLR 593 (30 November 1979).
    
33. Dominic Dede identified by Benedict Dui as he went and punched him in the eye in the attack leading to the assault of Sam Bio. Accused says he was asleep but admits that it was Wendelyn Dede who assaulted the deceased and not him or all the others.
    
34. On oath He says he came back from watching TV with his son at the main village and then sat on the veranda where he heard a big noise, Wendelyn Dede swore and fought. I went through Daniel Tangole’s house and to Daniel Mota and onto road. There were drunkards running towards Hoskins. I ran chased one and caught him, hit him and took him to my in-law Steven Hawai to sleep and next morning to put him on a bus away. I heard people calling Wendelyn Dede out. He denied taking part in the attack on the deceased Sam Bio and the others though changed from the record of interview of sleeping and not coming to the road.
    
35. On oath he came out after hearing the big noise but attacking someone else other than Sam Bio. He said on oath he had lied to the Police at the record of interview when he told them that he was sleeping and that had not come out to the road. He had a number of versions to his evidence in his case. I find that he told deliberate lies to sway his involvement in the offence away. But in so doing he corroborated the account of the witnesses as in Jaminan v The State [1983] PNGLR 318 (29 September 1983) false denials told out of conscious sense of guilt that corroborated the account of the State evidence. The law has been clearly stated in David Kandakason v The State [1998] Supreme Court Judgement SC 558 where the Supreme Court said that where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the court must regard and treat that evidence as unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence, upon which the Judge can act. In other words both the sworn testimony of the Witness, and his statement given out of court are discredited and both are no longer reliable evidence: Palili v The State [2006] PGSC 16; SC848 (31 August 2006). This will be the status of the evidence of Dominic Dede as a witness. The same position would be so of Tony Lele Dede it means their credibility as witnesses will not par out with the State witnesses. It would weaken their individual cases when weighed out with State case.
    

Sworn Evidence State

36. The sworn oral evidence by Benedict Dui, I was with the deceased after watching TV at main village Mai and we came to the main road to go own ways to our houses. There we were asked by two Sepik Boys who wanted us to drop them off at Buvussi. We were Nick Batari, Pius Mangea, Tony Arnold, Sam Bio, and when we came to the area where creek is I saw a person scraping his bush knife on the road. I walked straight to him it was Wendelyn Dede I said good night then he threw punches at me and Dominic Dede came and punched me also and I fell to the ground. I recognized them as it was very close about 50 centimetres. Dominic Dede came and punched my left eye. We were close to each other, we know each other. The moon light was very bright and I saw both in this light. Both came from my right side. Tony Lele Dede and Julius Dede were on the left side when they called out “kill them, kill them! ”. I also saw them in this light because I was on the centre of the road where the white lines are. They used sticks and stones at us and we were afraid of our life and we ran.
    
37. The evidence of this witness was intact and not shaken in cross examination his identification of the four accused was not shaken. He was truthful that he consumed alcohol but not to an extent where he was so drunk and his observation was effected. And the direction he describes the accused Tony Lele Dede and Julius Dede to take from the left is consistent with their house and its location set out in the sketch plan being on the left side along 180m towards Bialla direction off the main road accessed by another road off the main Hoskins Kimbe road. And both defendants would have crossed the road from the left side, the right were attack was taking place against Sam Bio and the others with him.
    
38. Pius Mangea from Mai village gave sworn evidence that in 2016 he was in Mai. He knew Sam Bio who is now deceased. He died on the 22^nd July 2016. That night I went and met Benedict and we went to watch TV. After we came to the road we were about to separate, Nick Batari left us. Two Boys from Buvussi came and asked us to escort them to Buvussi. We were going to leave them at the Bialla Junction. We came to the head of the creek and Dominic Dede came and punched Benedict. And Wendelyn Dede came and cut the left leg of Sam Bio. Both came from the right side of the road. Tony Lele Dede and Julius Dede came and called out Kill them kill them and they threw sticks and stones at us and we were scared and ran. Witness observed and identified from 3 and half meters Wendelyn Dede and Dominic Dede. Tony Lele Dede and Julius Dede he also saw them at similar distance 3 and half meters. There was bright moonlight and we all lived at the same village. Witness identified all accused in court positively. He admitted that he consumed alcohol and told stories and laughed along the way. Sam Bio did not run away as did they all.
    
39. Again the evidence of this witness is unshaken and firm.
    
40. Nick Batari gave sworn evidence. I am married to the sister of Dominic Dede, Julies Dede, and Tony Dede. On the 22^nd July 16 I was with Sam Bio. We drank few beers and together with the others we walked to the main road. I left them there and walked down and met Tony Lele Dede on the left side heading towards Kimbe. It was about 11.00 pm in the night. He said Good night and called my child’s name Longa. I called his child’s name Bolton in return. Then I heard shouts and screaming behind me, calling name of my child Longa Longa. I recognized the voice as of Sam Bio. I want back and asked what happened, and he said, “Wen and them cut me, Stay I will get vehicle to take you to hospital. They will buy a pig to haus Krai. Then I heard, who’s that kill him. Then I headed home and informed my wife that your brother cut Sam Bio we get a vehicle to save him. I came to where Sam Bio was but the brothers were not there. I went to the mission to get help. And came to Sam Bio but he had died already. Concerned about the safety of his wife he left home to secure her safety. He admitted drinking alcohol warrior dark rum.
    
41. I hold this witness to be a witness of truth having observed his demeanour in the witness box.
    
42. Lukas Mare testified Sam Bio is his brother killed on the 22^nd July 2016. I was in my house and heard noise, calling “Kill him, Kill Him!” so I ran out to the road and saw the group that ran past followed by the second which I identified as Wendelyn Dede, Julius Dede, Tony Lele Dede and Dominic Dede. I stood there and heard Sam Bio calling out at the road. Not long their in-law Nick Batari came and said, you all have injured Sam he too contributed to the haus karai of your father. Not long I heard, who is that who is that, Nick did not follow road he ran away. I heard kill him Kill him. I went and got wheel barrow to get Sam. I called him Sam. He said brother I will die. The witness is emotionally moved. It was moonlight and the group I saw them running after the second group were Wendelyn Dede, Julius Dede, Tony Lele Dede and Dominic Dede. They were calling out Kill him Kim him as they ran after the other group.
    
43. Again this witness is also a very credible witness and he corroborates all the other state witnesses and I hold his evidence without any reservations as the truth of what happened that night before him.
    

Doctor Lawrence Warangi is a medical Doctor of 39 years practise. He has a master in Surgery and is the chief Surgeon at the Kimbe General Hospital. The deceased may have died from injuries sustained to his spine just below his head. He was talking despite the C2 fracture the Cord may have snapped when the relatives tried to move him. That fracture was pre-existing. And may have been caused either by a sharp object, a blunt trauma to the neck, spear tackle or heavy object either a stone or log. And the force was large State exhibit S12 is possible to cause that injury.

He is a medical person of 39 years and is school to a masters degree. I do not doubt his evidence. It corroborates the lay witness in all material particulars making them the truth before me.

Facts proved beyond reasonable doubt

44. It is undisputed and proved beyond all reasonable doubt that on the 22^nd July 2016 along the Kimbe Hoskins road 91 meters from the second road junction adjacent to the road into Mai Catholic Mission, Wendelyn Dede cut the left leg of Sam Bio as he came along with his friends. Then he was taken or moved across the road 16 meters to where his body was discovered lying dead. From the side of the road where he lay that was a distance of 6 meters. Near where the body was distance not disclosed are the houses of Witness Lukas Mare and Witness Collin Tua and wife’s. 55 meters along the road to Kimbe is a turn off a road that leads in the Bialla direction 180 meters and located on the end at the right is where the widows were kept. Including the house of Julius Dede and Wendelyn Dede also the mourning place.
    
45. Near his body a piece of timber state exhibit S12 was found. It was a possible murder weapon it was heavy and according to Doctor Lawrence Warangi Chief Surgeon Kimbe General Hospital more than probable if used could have caused the fracture to the C2 fracture. This is set out by State Exhibit S6 (1) and S6 (2) revealing at Post Mortem the fracture C2. S6 (3) and S6 (4) are the left leg that was slashed by Wendelyn Dede and the injuries sustained. It is a gaping wound.
    
46. The undisputed fact borne out by this evidence is the level of violence that is exerted upon the deceased. He did not survive even though he was accompanied by four other friends now appearing as witnesses and two others. Common sense and logic dictates that the slashing of the left leg incapacitated him. It made him defenceless and he could not get away from his attackers. He was therefore at the mercy of his attackers. As Doctor Warangi said he was still able to talk and call but may have died from injuries that he sustained to the spine just below the head.
    

Credibility Witnesses for and against

47. This evidence ties in with the evidence of the accused that there was “haus Karai” for Dominic Dede father of the three Accused Julius, Tony, Dominic, grandfather of Wendelyn Dede located at the house of Julius Dede as eldest child. And who had given evidence that there was to be no noise there he went to great pains to give evidence on this aspect in his evidence on oath. So when that was breached and broken by Sam Bio and the witnesses for the State they were made to bear with the assault upon them. The assault is not immediate because the sketch plan shows that the deceased and friends state witnesses followed a second road parallel up to the Road out of the Mai Catholic Church and School out to the main Hoskins Kimbe road. And the attack takes place 91 meters after they had turned right in the direction to Kimbe where Wendelyn Dede stands at the side of the road awaiting and when they arrive inflicting the cut on the left leg of Sam Bio. This is the initial scene, the second scene is adjacent to the houses of Lukas Mare and wife and Collin and Dorish Tua. There also is where the possible weapons Exhibit S12 are located. It would be consistent that this was an ambush because it is at the corner and from bushes as shown out by the photographs tendered S5 (1)-S5 (6). It means that Sam Bio and the State witnesses at night in moonlight would not have expected an attack as perpetrated. But rose to the occasion after the initial attack and escaped leaving only Sam Bio to be attacked and die as climax of the attack.
    
48. This evidence draws consistency with Beng v The State [1977] PNGLR 115 (2 May 1977) which sets out the principles of identification. Wendelyn Dede cut the left leg of Sam Bio with the bush knife. It is a gaping injury depicted by S5 (1)-S5 (6). He became defenceless and vulnerable to the accused who set upon him and assaulted him. There was no other person at the time 11.00pm to 12.00pm 22^nd July 2016 who was angry and with a motive to assault him except the four accused. He was the first person in the group with the four state witnesses who was set upon by the accused led by Wendelyn Dede cutting him on the left leg so that he was incapacitated and fell to the ground. His movement and escape is disabled he is left in the midst of the four accused. This is clear because the others who are with him are attacked with Sticks and stones and are chased hence their evidence of the same at the hands of the Accused acting in concert aiding and abetting each other. This is clear because the dying words of Sam Bio to Nick Batari, “Wen and them cut me, Stay I will get vehicle to take you to hospital. They will buy a pig to haus Krai. Then I heard, who’s that kill him.” This is confirmed that it is Wendelyn Dede with the others because Nick Batari himself also tells the four Accused which is over heard by Lukas Mare evidence including that Sam Bio is calling out at the road. Not long their in-law Nick Batari came and said, you all have injured Sam he too contributed to the haus karai of your father.
    

It is dying declaration within the meaning of section 20 of the Evidence Act that deceased believes that there is no hope of survival,“ A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if–

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not–

• (i) he entertained at that time any hope of recovery; or
• (ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and
(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

49. That is the case here and it is evidence that cannot be ignored and has been held to lead to conviction: Bulen, The State v [1990] PNGLR 43 (16 January 1990); State v Barambi [2017] PGNC 234; N6900 (15 August 2017)
    
50. This is corroborated by the four accused by their conduct Wendelyn Dede says none of his fathers are involved contrary to the evidence of the four state witnesses set out above. Julius Dede is seen by the witnesses in the chase all four witnesses and also utters the words Kill them kill them. He is an aider and abettor. Tony Lele Dede has also identified similar uttering Kill them kill them and all are chased leaving deceased at their mercy. Who is incapable of moving by his injury to his left leg but is found dead across the road. Wen in the circumstances would be a reference to Wendelyn and the others because he uses the word “them.” He knew his death was imminent and he confessed as to who was responsible for his death. The word “them” here refers to Julius Dede, Tony Lele Dede and Dominic Dede because they are identified there when he was alive. Moments later he was dead after this confrontation by the accused. There is no other person identified and with motive to assault as is of and by all accused here. The accused are all active participants in the crime of wilful murder because when the assault was taking place both Julius Dede and Tony Lele Dede were calling out “kill him! kill him!” and the killing of Sam Bio ensued. There is no other reasonable hypothesis other than the guilt of the accused Wendelyn Dede, Julius Dede, Tony Lele Dede and Dominic Dede in accordance with Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997) and I accordingly return a guilty verdict of wilful murder against all accused. That they then said Wendelyn Dede, Julius Dede, Tony Lele Dede and Dominic Dede of Mai on the 22^nd day of July 2016 at Mai wilfully murdered Sam Bio.
    
51. The accused are all guilty of Wilful Murder
    

Ordered accordingly.

________________________________________________________________

Public Prosecutor : Lawyer for the State

Emam Lawyers : Lawyer for the Defendant