State v Waluka [2019] PGNC 448; N8217 (21 June 2019)

N8217

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 116 & 117 OF 2013

THE STATE

V

GEORGE BATARI WALUKA & EDWARD GIRU

Kimbe: Miviri J
2019: 19^th & 20^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE- Wilful Murder S 299 CCA - Trial- death undisputed – from gunshot - intent to kill - who shot deceased - whether accused fired in defence of deceased - one accused alibi - section 7 and 8 - totality of over acts – acting in concert – aiding abetting - mere presence - active participation - guilty of wilful murder.

Facts

Accused were in company of each other. One was armed with a bush knife while the other with a homemade gun which he discharged shooting the deceased in the neck and he died.

Held
Deceased dead by gunshot
Accused armed with gun
Fired with deceased in line of fire
Second accused aided and abetted
Guilty of murder

Cases Cited:

Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
John Jaminan v The State [1983] PNGLR 318
Wani v The State [1979] PNGLR 593
Wamela v The State [1982] PNGLR 269
Nimagi v State [2004] PGSC 31; SC741

Counsel:

E,Kaye, for the State
D,Kari, for Defence

VERDICT

21^st June, 2019

1. MIVIRI J: This is the verdict of two men who shot the deceased with a homemade gun killing him.
   

Charge

2. They are charged with wilful murder under section 299 (1) of the Criminal Code Act which reads:
   
   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.
      
3. Each accused has entered a not guilty plea to the charge and so evidence has been called by the state both by consent and also sworn evidence. The former is from Exhibit Si to SIOB. In the latter there are the mother of the deceased and the elder brother and another relative. Both accused have also given evidence on oath in defence.
   
4. The allegation against them are that on the 11^th August 2012 one Joseph Waluka had died and his body was taken home to Buludava. He had died after being chopped on his leg with a bush knife over a canoe. He was admitted to the Kimbe General Hospital where he died. His in-laws from Vaganakai got angry and went and burnt down three houses of those who were responsible for causing his death. These houses included that of the accused George Batari Waluka, Edward Giru and one other. On that day the two accused accompanied by four other men armed with bush knives and a homemade gun went to the mourning house of Joseph Waluka the deceased. There George Batari Waluka fired into the air and everyone there ran away in fear. Police also opened fire into the air. The accused retreated and were pursued by those who were there. Accused turned and fired his gun hitting Peter Dome in the neck killing him. He intended to kill him and did kill him. He was assisted by Edward Giru who held a bush knife and was with him there.
   
5. The issue is firstly whether George Batari Waluka shot the deceased Peter Dome? And if so did he intent to kill him? And was he aided and abetted by Edward Giru in the killing of Peter Dome?
   
6. George Batari Waluka says that he fired his gun but did so in defence of Peter Dome against another who was responsible for shooting him initially. It was the pellets that spread and got the deceased. There was really no intention to shoot him because they were related. Edward Giru says he was never there nor did he assist in the wilful murder of Peter Dome. In short this is the case of the accused.
   
7. The first witness was Mary Dome of Buludava married with 5 children. Peter Dome the deceased is one of her sons. On the 11^th of August 2012 Body of Joseph Waluka was brought to the village for mourning. There the in-laws of Joseph went and burnt down three houses whom they thought were involved in his death. Police arrived and people ran away. George Batari and Edward Giru and Richard Nombu went and brought a pig which they left at Lawrence Waluka’s house. Then they came and shot at us. George Batari was holding a homemade gun and Richard Nombu and Edward Giru were both holding bush knives. Lawrence Waluka and Emil Walukla followed a small track leading to our house near where the mango tree was where my son died. When I was there, there were three gunshots. Two of the shots came from where the bamboo was. The other one was from where my son was following him. When I was trying to call out to my son to come back to me, I saw George Batari holding a homemade gun. I was immediately there at that time together with my son. It was about 5 to 6 meters where I saw George Batari Waluka who was similar distance as with my son. From Mango tree to where he was would be the same distance. I hid behind the house when he was about to shoot and when I came out in that instant, I was my son fall. I thought that he was trying to avoid the gunfire but no he had been shot in the neck. I saw trying to go up to the house and they called out “Mummy Peter is dying”.
   
8. Second witness was Thomas Dome resident at Kulungi he is the elder brother of the deceased and his evidence in all material particulars is the same as their mother Mary Dome of the events of the 11^th August 2012. On that day he was at Buludava under Lawrence Waluka’s house. Lawrence Waluka instructed him to go up to Waile village. He could not drive so he stayed. So Elvis Laha with others got on the vehicle to Waile and brought a pig back. I saw men approach the mourning house where body of late Joseph Waluka was. They were armed with guns and knives some had their faces covered. They came in and a warning shot was made by the lead person George Batari Waluka. He fired into space and all in the mourning house took off. Still from under the house of Lawrence Waluka I saw Peter who was following the persons chasing them. I ran after them and I saw my small father Edward Giru holding a knife. He did not do anything. I was concentrating on Peter because the armed persons and I ran after to bring him back. I was about three meters from him and I heard a gunshot on the opposite side on the road left of me and Peter. Peter was still standing. I turned to where the gun was fired and saw smoke coming from the gun. I turned and it was a second shot and Peter fell in front of me. In front of us was George Batari Waluka who was armed with a homemade gun posed to shoot and he saw Peter die. I did not see the cartridge come out but Peter had already fallen. I went and lifted him up and immediately run. I talked to Batari and Richard Nombe. I said he is the small one that you killed if you want you can kill me. I saw Richard put his gun and listening to what I was saying. Then I lifted Peter and we ran. And on our side another boy was boy was also shot there. I turned around and I saw the actions as if there were happy that they had shot someone they lifted their hands and lifted whatever they were holing. These were Batari and at the back were Richard Nombe. There were others but they are from Waile village. We ran away from where they shot him to a lawn where I place him down and checked that he was shot on the bridge of the nose and the neck. He wasn’t talking but still breathing. There was a vehicle a land cruiser Alois Waluka was using. This vehicle took us to try and get help from the hospital but before we reached Lolokoru Compound he died.
   
9. Agnes Mantu was the next witness on the 11^th August 2012 she was at Buludava village when those men came and surrounded. She said George Batari Waluka fired his gun and Peter Dome fell down. He ran ahead to go to the road and George Batari Waluka fired and shot him.
   

Defence Case

10. George Batari Waluka in defence gave sworn evidence that he did not fire his homemade gun at Peter Dome. He fired at Richard Wanibo who had shot Peter Dome.
    
11. In defence Edward Giru on oath said he was no longer at the scene after the police fired warning shot into the air. He did not assist in the wilful murder of Peter DomAssessment of Evidence
    
12. Both the mother and elder son see accused George Batari Waluka poised to fire his homemade gun from where they respectively saw him. Both do not easily take the pick that they saw him fire the homemade gun and kill Peter Dome. Both had the options to tailor their evidence to achieve a favourable outcome to their cause against the accused. Instead both have opted to give what is humanly possible to happen in an actual situation as they described. The first paramount consideration is safety from injury and one’s life. The person immediately in sight parallel to when the deceased Peter Dome falls is the accused George Batari Waluka. The medical evidence of Doctor Joseph Amos affidavit and medical certificate of death of the death of the 16^th August 2012 is consistent that Peter Dome meets his death from a gunshot wound to the left neck causing massive bleeding as a result of rupture of major arteries there causing lack of oxygen hence resulting in death.
    
13. Accused had not denied that he fired the gun but that it was in retaliation for the shooting of Peter Dome by one Richard Wanibo. He is not supported by any other evidence expect his own assertions. On the other hand both mother and elder brother of the deceased ate material witnesses in his cause. They are supported in their evidence by Agnes Mautu who says it was George Batari Waluka who fired after which Peter Dome fell injured because he ran ahead to go to the road when George Batari Waluka fired. She is supported by the evidence tendered by consent and marked as state exhibit S3 Statement of Henry Dome who says:
    

“During this incident I saw George Batari shoot Peter Dome. He was chased and turned around and fired shooting Peter Dome. When he fell down his elder brother Thomas Dome picked him up and brought him to us. This was when there was complete silence and no more fighting. We tried to bring Peter Dome back by washing him with water but he was not speaking. Only his heart was beating. He was shot in the head We put him on a vehicle and brought him to Kimbe General Hospital but by them he was already dead.”

14. This evidence is independently supported by the evidence of Kave Dome that has been tendered by consent exhibit s2. He confirms the burning of three houses of the persons allegedly responsible for the death of Joseph Waluka by his in-laws from Vaganikai. This prompted George Batari, Edward Giru, Emil Waluka, and Richard Nombu to walk to the mourning house. George Batari was holding a homemade gun and the others all holding bush knives each. This witness shouted to George Batari,” You killed your father already and what do you want to do. The people are angry and have burnt the houses. Tomorrow you will build a new one”. He was with Edward Giru and returned what was said. Edward threw a stone at the mourning and the men charged at him. Here these men George Batari, Edward Giru, Emil Waluka, and Richard Nombu ran away. And were chased by others and the witness followed but it was a trap because Peter Dome his nephew was shot in the head and neck. He was carried by his elder brother Thomas Dome. On the other side from where Peter was shot I saw Benedict Dau with a homemade gun and also George Batari with his homemade gun. They stood and watched Thomas Dome carry Peter Dome away. There was no more fighting after that. We took him to the hospital but he died along the way. This evidence is also consistent in all material particulars with the evidence of Paul Dome the father of the deceased and witness Thomas and husband of the witness Mary Dome. Thomas’ evidence is that there is celebration by George Batari Waluka and those with him with what in their hands were raised in joy. It would not make sense for the accused relative of Peter Dome to celebrate that he is shot and mortally injured and death resulted. Only an enemy one with a grievous anger would do that. That is what accused and accomplices did. They celebrated that Peter Dome was shot and injured with the other boys from Vaganakai.
    
15. A ring of truth spirals through their evidence so much so that the version credible is that of the state which I prefer over and above that of the accused that he was there fire but shot Richard Waribo in retaliation for the shoot of Peter Dome. Kandakason v The State [1998] PGSC 20; SC558 (7July 1998); Waranaka v Dusava [2009] PGS 11; SC980 (8 July 2009) assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is not the case against witnesses of the State. I therefore reject accused evidence in total and hold that the truth verified is that account by all state witnesses. That Peter Dome was shot by the accused George Batari Waluka with his homemade gun and he was accompanied by Edward Giru who was armed with a bush knife and both were accompanied by Emil Waluka, and Richard Nombu also armed with bush knives each. That they initially were angry because their houses were set alight and burnt down by the in-laws of Joseph Waluka from Vaganakai and they acted as described by the witnesses for the state. George Batari Waluka discharged his homemade gun into the air. Police responded everyone ran taking cover. The accused were pursued in the midst of those pursuing was Peter Dome. In the haste George Batari Waluka fired his homemade gun and shot Peter Dome in the neck and the head killing him. This is a venerable part of the body and it took skill to be able to fire and hit that target at that range. And also moving in the course. There is therefore not an accidental shooting but was calculated and aimed shooting leading to the demise of Peter Dome. He is picked out of all running after the accused. Obviously a selection and intent to kill is framed and carried out effectively and then celebrated by the accused and accomplices evidence of Thomas Dome.
    
16. The converse is if indeed Peter Dome was a relative why shoot him. Further if both were on the same sides of the argument why shoot him. It was the climax of what he set out to do on that day over the burning of his house. A homemade gun is unpredictable dangerous and lethal weapon. There is no guarantee of its safety and its use. There are no safety devices within. And therefore the propensity to kill maims and hurt is present at its point and squeeze of the trigger device as here happened. The tragic demise on this day was of the deceased Peter Dome at the hands of George Batari Waluka. He was ably aided and abetted by Edward Giru whose presence was willed not innocent. He was a family member well known to all witnesses. He was initially there at the outset when George Batari Waluka fired the gun into the air. He was with him at the time when Peter Dome was shot. He is an active participant by the evidence of all the witnesses combined. He threw a stone by the evidence of Kaye Dome at his house. And this when the fighting got worse with people running and shouting. His deliberate lie to disassociate is not made out. He corroborates the assertion by the witnesses and the State assertions, John Jaminan v The State [1983] PNGLR 318 (29 September 1983). He was present willing and did assist in the wilful murder of the deceased Peter Dome. His house was one of the houses that was set alight and burnt down by the in-laws of Joseph Waluka. He had every reason to join George Batari Waluka in what was happening and did assist as alleged by the state.
    
17. The finding that can be made is that he was an aider and abettor within the meaning of that law under section 7 and 8 of the Criminal Code. There must be actual participation in the offence: Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979). If presence is relied upon it must be willed and not innocent in other words the accused must be part of the group and must have knowledge of what is happening and be actually participating: Wamela v The State [1982] PNGLR 269 (26 April 1982). And disassociation or separation or withdrawal must be shown for an accused to be exonerated or be not criminally responsible: Nimagi v State [2004] PGSC 31: SC741 (1 April 2004). Because the boys who were all hurt with Peter Dome were all from Vaganakai. They were Richard Waribo, Nende Alex and Dodo Willie. And the Vaganakai were persons immediately responsible for the burning of the three houses of the accused. Accused had a motive and opportunity to do what he did in assisting George Batari Waluka. Both were principle offenders within section 7 and 8 of the Criminal Code and the verdict of the court is guilty of wilful murder as charged against both accused. There was intention to kill which was overt and carried out in fulfilment Peter Dome was shot in the most venerable part of the human body which was the head and neck and died as a result. He could not have survived; he was destined to die and did die. There was intent to kill by both accused and I find both accused guilty of wilful murder as indicted contrary to section 299 (1) of the Criminal Code.
    
18. The verdict is George Batari Waluka and Edward Giru both of Buludawa are Guilty of the wilful murder of Peter Dome committed on the 11^th August 2012 at Buludawa.
    

Orders Accordingly
____________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Defendant