State v Dani [2020] PGNC 221; N8444 (6 August 2020)

N8444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1354 OF 2019
CR 1401 OF 2019

THE STATE

v

SAWA DANI&LORETA SAWA
(NO.1)
Co-accused

Madang: Geita J
2020: 2^nd, 24^th, 26^th June; 6^th August

CRIMINAL LAW –Trial - Murder –Section 300 (1) (a) Criminal Code – Section 7 Criminal Code invoked – Accused caused the death of his cousin brother by cutting him with a bush knife on hisleg.

CRIMINAL LAW – Trial - Dispute over a family plot of land for gardening – Accused wife aided her husband by words to cause injury to the victim, resulting in his death – Section 300 (1) (a) Criminal Code.

CRIMINAL LAW – Trial - Each & Severally found Guilty.

Facts

The accused each and severally were arraigned on indictment charging them jointly with the murder of the deceased Kuya Masai. The charge is laid pursuant to Section 300 (1)(a) of the Criminal Code, Chapter Number 262.

Cases Cited
Papua New Guinea Cases

R v Kaiwor Ba [1975] PNGLR 90
R v Korongia [1961] No.204
R v Nikola Kristeff [1967] No.445
State v Angela Colis Towavik [1981] PNGLR 140
The State v Paul Kundi Rape[1976] PNGLR 96

Overseas Cases

R v Muratovic [1967] Qd R 15

Counsel:

Deborah Ambuk, for the State
John Zauya, for the Co-accused

JUDGMENT ON VERDICT

6August 2020


1. GEITA J: On arraignment the two accused pleaded not guilty to a charge of murder alleged to have been committed on 27 August 2019 at Bom in Rai Coast of Madang.The State also invoked s.7 Criminal Code in this indictment. Trial ensued.

Evidence for prosecution.

2. The following material were tended into court by consent viz:

• Exhibit 1 –Statement by Channel Sagem, Corroborator.
• Exhibit 2 - Statement by Richard Sibolo, Arresting Officer.
• Exhibit 3 (a)&(b) Record of Interview Sawa Dani-Pidgin/English
• Exhibit 4 – Autopsy Report – Kuya Masai 26 August 2019.
• Exhibit 5 – Statement by Martin Howley, Corroborator.
• Exhibit 6 - Statement by Richard Sibolo, Arresting Officer.
• Exhibit 7 (a)&(b)- Record of Interview Loreta Sawa -Pidgin/English
• Exhibit 8 – Statement by Rebecca Jonah - 25 September 2019.
  

State Witness 1- Mary Kuya, wife of deceased.

3. On 27 August 2019 she and her husband went to the garden instead of going to the market to sell coconuts as they had been damaged by Sawa and his wife earlier in the day. Sawa had gone ahead to his working group as they began working in their garden. Loreta started an argument with the deceased and left to go and fetch her husband Sawa from the working group. As they returned to the garden Loreta began urging her husband to cut Kuya: “cut him, cut him”. Sawa used a long stick for supporting yams and trapped Kuya, causing him to fall. Sawa then ran, grabbed the bush knife and used it to cut Kuya on his right leg and escaped into the bushes.

The witness said her husband called out to his brother Bais in pain. Help soon arrived and her husband was assisted to the main road. At that time, her 3 children were with them in the garden. Loreta also was with her child but immediately ran away as people gathered around to assist Kuya to the hospital. Kuya was rushed to the hospital around 3pm and 4pm but died along the way. After the incident Sawa escaped to another village Lalok but surrendered to police later on.

In examination in chief the witness said Sawa came armed with a bush knife and a stick. She said Kuya challenged his brother to a fist fight instead of using weapons, so he threw his weapons down. Sawa threw the stick at Kuya as he ducked down. The witness said Sawa than ran, grabbed Kuya’s tramontina bush knife on the ground and slashed her husband’s right lower leg. She said her husband did not retaliate back as he lay on the ground

4. In cross examination the witness said there was a working group that day. She was with her husband Kuya in their garden and Loreta was also with them in the garden.

State Witness 2- Bais Misal.

5. This witness gave testimony of rushing to the deceased’s garden to see what was happening soon after he heard his name called out by Kuya. He said that was some 5 minutes later when he saw Loreta accompanied by her husband walk down to the deceased’s garden. Upon arriving at the garden, he saw his brother with cut wounds on his lower right leg. Sawa could not be found, only his wife Loreta was in the garden. He then went looking for Sawa. In examination in chief he said the dispute was over a plot of land and Loreta was arguing with Kuya. He said his garden was about 20 meters away from Kuya’s garden. The cut was on the back part of the right leg and touching the bone in front.

In cross examination the witness agreed that the dispute was over a plot of land used by both families. He admitted that he did not see what happened but when he came to the crime scene, he saw his brother wounded lying on the ground and so he went looking for Sawa.

State Witness3- Jeffery Bubus.

6. On 27 August 2019 he was with a group of men for their “group work” when Loreta arrived and informed her husband about their young betel nut trees being uprooted by Kuya. He said after eating their share of food Loreta and her husband Sawa left for their garden plot. Sensing that there was going to be trouble, due to ongoing dispute over land between both families, he cautioned them not to fight. He later learned of Kuya’s injuries during the night while he was at home. He said the land in dispute was a common land owned by their three fathers.

State Witness4 - Awasa Sabak Jonah.

7. The witness was at a nearby creek some 15 to 20 meters away when he heard Kuya’s scream and attended to him on that day. He said he also heard Sawa’s wife calling out: “katim, katim”. Kuya was still alive when he reached him and with the help of other men, they carried him out in a makeshift wooden bed onto the main road. He was rushed to the hospital but died along the way. The witness said Kuya had a deep cut on his right lower leg, with the cut extending to the bone. Their attempts to apply first aid to try and stop the bleeding was unsuccessful.

In cross examination when suggested to him that cuts received by Kuya was from a fallen bush knife, he said Kuya’s wounds would only be superficial and only scratch his skin.

State Witness 5 - Rebecca Jonah (Exhibit 8)

8. Her statement was received by consent. She basically corroborates Awas’s story of hearing the cries in agony by Kuya calling out to his elder brother Bais. On that day they were making new sago at a nearby creek. The witness said she also heard her sister in law calling out: “cut him cut him”. As they rushed to the scene, they saw Kuya lying in a pool of blood. She cried and urged the boys to make a makeshift bed with wood and used stock feed bag. Kuya was carried to Bom and Madang Highway and transported to the hospital. His son who had accompanied Kuya to the hospital told them later in the evening that Kuya died along the way.

No case submission

9. At the close of prosecution case Mr Zauya of defence made a no case submission based on both limbs citing insufficiency of evidence and prosecution failure to sufficiently cover all required elements in this case. (Paul Kundi Rape cited). Ms Ambuk submitted otherwise and asked for the case to progress to trial. Having heard both Counsel the court ruled against the no case application and allowed the case to go to trial.

Evidence for Defence

10. Sawa Dani testified that he was with a group of men in another garden when his wife Loreta summoned him to come down as the deceased had destroyed his newly planted betel nut trees and other food crops in their garden. As they returned to the garden, he questioned Kuya why his crops were destroyed as he held no grudges against him. He said Kuya cut a small betel nut tree and rushed at him as he moved backwards. On two occasions he avoided Kuya’s attempts to chop his neck. He said on the third attack as Kuya tried to chop his neck he tripped on a betel nut tree and fell. He said as he raised his bush knife to block Kuya’s attack with his 1.5 meter long bush knife, he blocked it with his smaller bush knife causing Kuya’s knife to fall and cut him. Seeing that he was injured I surrendered to the police as it was my first time to see such a big injury. In examination in chief the witness said Kuya swore at him: “Kaikai kan, what are you going to do”. He said he was not cross when the deceased swore at him. He indicated the deceased’s bushknife to be about 1.5 meters long and his bushknife was about 1- meter long. He said Jeffrey Bubus was present when his wife came to fetch him.

11. In cross examination the witness agreed that since he was first to make his garden on the disputed plot of land he was angered when the deceased destroyed his betelnut trees and other food crops. He said the deceased attacked him first with his bush knife as he tried to avoid his cuts. He denied running away from the injured deceased but had gone to report the matter to police. He admitted leaving his injured brother and travelled about 6 hours to a nearest police station to surrender.

12. Loreta Sawa gave testimony as follows: On 27 August 2019 my husband and I went to our garden with our infant child. My husband left me and joined the wok bung. As I got to our garden, I noticed that all our plants had been dug up and destroyed by Kuya and so I told him to stop but he swore at me, saying he will rape me. He asked me to bring my husband. Since he was my brother in law, tambu, I felt offended and went up to fetch my husband. At that time no one else was around except us. We stayed for some time at the wok bung and walked down slowing back to the garden. As they reached the garden Sawa questioned Kuya why he destroyed his garden as he was not cross with him. The witness said Kuya chopped down a betelnut tree and rushed at them. She said as Kuya swung his bush knife at them she started calling out to neighbours. She said Kuya swung his bush knife three times, aiming at her husband’s neck. As her husband blocked the deceased’s bush knife, the knife fell and cut him.

13. In cross examinations the witness denied suggestions that both her and her husband had discussed their evidence before coming to court. She remained adamant with prosecution suggestions that she encouraged her husband to cut Kuya. She maintained that her husband was not the first person to attack Kuya.

Defense address on verdict

14. The thrust of defence submission was self-defence and the credibility of prosecution witnesses. It was argued that none of the witnesses saw what actually happened save for the two women, arguing that only Loretta Sawa’s version ought to be believed. Counsel submitted that the deceased was the aggressor and only acted in self-defence. A call for an acquittal was advanced on behalf of the accused.

Prosecution address on verdict.

15. The gist of prosecution submission was that the accused had more reason to fight the deceased. After all his newly planted garden produced were uprooted by the deceased. He was summoned by his wife from the group work to come and sort the matter out. As it turned out a fight ensued resulting in the demise of the deceased from knife wounds. Prosecution submit that the fall of the bush knife, which cut the deceased as claimed by the accused not believable. The cut on the leg, right through to the bone cannot possibly be made by a slipping knife. Some force was exerted. As to Loretta Sawa, prosecution submit that witnesses were alerted by her shouts, encouraging her husband to cut the deceased. None of those witness evidences were discredited. Prosecution argued that the accused’s life was not in danger as the deceased was lying on the ground at the material time.

Did the accused Sawa Dani murder the deceased?

16. Having considered the competing evidence and the submissions of both Counsels I am satisfied that the State has proven beyond reasonable doubt that the accused caused the death of the deceased for the following reasons:

1. He was the person summoned by his wife Loreta from the “group work” to come and attend to the problem of their damaged young betel nut trees by Kuya and his wife.
2. During the cause of attending to the issue he got embroiled with his brother Kuya resulting in Kuya to drop guard and fall to the ground.
3. As Kuya lay defenceless on the ground he grabbed Kuya’s sharp bush knife and slashed his back lower right leg, stopping at the bone.
4. The pathology findings at autopsy reveal the following: Bush knife wound across distal 1/3 of left leg severing posterior popliteal artery; and committal fracture of distal 1/3 tibia.
5. The pathology findings on the cause of death: Hypovolemic shock due to massive blood loss due to severed popliteal artery.
6. The pathology findings on the severity and extend of the wound manifest that the bush knife blow was struck with deliberate intention to maim or cause serious harm. In this case death, as a result of blood loss due to the severed main artery.
   

Did the accused Loreta Sawa murder the deceased?

17. Section 7 of the Criminal Code would also make Loreta Sawa criminally liable for the murder of Kuya Masai. Loreta by her words and actions encouraged her husband to murder the deceased. Credible eye witness account of seeing and hearing Loreta utter those fatal words: “katim, katim” to her husband would make her criminally liable. Similarly, Kuya’s cries in agony and Loreta’s utterance for her husband to cut something from prosecution witness was summed up later to be shouts of “katim katim” towards Kuya.

18. Section 7 Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty however there must be some evidence of the wrong committed by that person (s) within the meaning of the provision. Only a single act or omission or a series of them is sufficient in Sections 7 or 8. I find that there is ample credible evidence that Loreta encouraged her husband Sawa to cut Kuya on his leg, which resulted in his death. To this end I make finding based on the evidence before me that all the elements of the offence of murder are present and so the two of you must as a matter of law be lawfully convicted.

Defence of self-defence?

19. The defence of self-defence is available to the accused only to the extent that he has established those defences of self-defence under either section(s) 269(2) or 270(1) of the Criminal Code? A killing in self-defence in an unprovoked assault is authorised by Section 269 and a killing in self-defence in a provoked assault is authorised by Section 270. Assault is an essential ingredient under sections 269 and 270 and that violence is presently being offered: R v Korongia [1961] No.204; R v Nikola Kristeff [1967] No.445; State v Angela Colis Towavik [1981] PNGLR 140.

20. As to the degree of force to be used in self-defence, the Court in the case of R v Muratovic [1967] Qd R 15 said, and I quote:

"The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm."

The principle in Muratovic was adopted and applied in R v Kaiwor Ba [1975] PNGLR 90.

21. I t ake note of the principles considered and applied in those cases and adopt them to this case for the following reasons:

1. The accused has not persuaded me with his evidence that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm and that the supposed force used by the accused would cause him grievous bodily harm.
2. None of those fears and apprehensions existed. Two women gave eyewitness accounts of the fight that day. They include the wife of the deceased and accused Loretta Dani. To my mind Loretta was very selective in her choice of words to distance her husband’s blameworthiness. Her evidence in parts fail to find corroboration with the evidence before court. The deceased’s wife account, on the other hand fits in with the type of wound received by her husband. I found her to be a witness of truth and believe her evidence.
   
3. Although the accused Sawa said he received a cut from the deceased’s attacks, he fell short of showing to court either his cuts or scars to verify his wounds.
   
4. Sawa Dani’s version of blocking the accused’s swings with his very sharp 1 meter bush knife after three attempts hard to believe and fathom. The deceased’s supposed bush knife equally unbelievable. If indeed what he said was true, he would be badly wounded instead of the deceased. He said the deceased attempted to cut his neck with his 1-meter long bush knife 3 times, but on all those occasions he evaded the attacks, save for a nick to his head.
   
5. His evidence of using his small knife which deflected the bush knife, causing it to fall and cut the deceased not credible.
   
6. His evidence of the deceased bush knife fall from his hand and cutting him on his leg fails to find corroboration with the extent of the wound and the location of the wound. Ironically the wound was on the back leg, cutting the flash and stopping short of the shin bone.
   
7. The wound on the deceased was massive and the cut severed the main arteries causing him to bleed profusely. The knife wound almost cut into leg bone.
   
8. Common sense and logic dictates that a bush knife falling at that angle would not cause that type of injury, which resulted in the death of the deceased.
   
9. I am also satisfied that the prosecution has successfully negatived the accused(s) claim of self-defence. His defence is therefore not credible and is dismissed.
   

22. I am not convinced that the accused were witnesses of truth and do not believe their version of events.

Verdict.

23. Accordingly, I return a verdict of guilty against you Sawa Dani and Loreta Sawa and have you both convicted accordingly.

Verdict: Guilty Each and Severally.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Co-accused