State v Misi [2021] PGNC 425; N9202 (23 September 2021)

N9202

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 682 OF 2020

THE STATE

V
KAPANA MISI

Kwikila: Sambua, AJ
2021: 13^th,14^th ,20^th & 23^rd September

CRIMINAL LAW – Particular offence – Murder – Intention to cause grievous bodily harm – Self Defence Against Provoked Assault – Tendency towards violence persistent – No imminent threat to life – Assault was intentional – Assault motivated by anger and not in self defence – Verdict of guilty returned – Criminal Code, ss. 300, 270 and 7(1)(c).

Cases Cited:
Papua New Guinea Cases

The State v Angeline Winara (No.1) [2008] N3345

Overseas Cases

Drowne v Dunn (1894) 6R (HR)

Counsel:

Miss T Aihi, and Ms G Gunson and Mr S Kuku, for the state
Mr G Kaore, for the Accused

JUDGEMENT ON VERDICT

23^rd September, 2021

1. SAMBUA, AJ: The State presented an indictment dated the 13^th of September 2021 against the accused charging him with one count of murder contrary to section 300(1)(a) of the Criminal Code Act chapter 262 at 10.30am on the morning of Monday 13^th September 2021
   
2. The accused is charged that he on the 11^th day of December 2018 at Morikini, Illimothovo grassland, Gavuane in Papua New Guinea murdered ISAAC WAPANA (the deceased).
   
3. He was initially arrested and charged by police together with his late co-accused Warave Onne but Warave Onne died before the hearing of this case. The State had to file a Declaration pursuant to section 525 (1) (b) and (3) of the Criminal Code Act with supporting affidavits of Detective Senior Constable Philip Ova dated 13/09/21 and Senior State Prosecutor Miss Theresia Aihi dated 13/09/21 which confirmed his demise.
   
4. Section 300(1) states:
   

Subject to succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

(a) if the offender intends to do grievous bodily harm to the person killed or to some other person,
(b) ...........
(c) ..........

Penalty: Subject to Section 19, imprisonment for life

The State’s allegation

5. The brief facts presented by the State on which the accused Kapana Misi was arraigned were that the accused Kapana Misi and his co accused late Warave Onne led a group of their clans men to attack and kill the deceased Isaac Wanapa. This matter involves a customary land dispute between two clans which led to the assault and death of the deceased.
   
6. It is alleged that sometime between 10.00am and 11.00am on the morning of the 11^th day of December 2018 at Morikini, Illimothovo grassland, the accused and his clans men armed with various offensive weapons namely spears, bush knives and sticks had a confrontation with the deceased Isaac Wapana and his clansmen.
   
7. During the course of the confrontation, it is alleged that the late Wavara Onne fired his spear gun and shot the deceased in is chest with the spear. This was followed by the accused Kapana Misi who fired his spear gun and shot the deceased on his left leg causing him to fall to the ground.
   
8. The death of the deceased resulted from the spear wound to his left lung. The actions of the accused Kapana Misi and late Warave Onne resulted in the offence of murder being committed thereby contravening Section 300 (1) (a) of the Criminal Code Act. The State invoked Section 7 (1) (c) of the Criminal Code in that he aided and abetted Warave Onne to cause the death of the deceased.
   

Plea of Not Guilty

9. The accused pleaded not guilty on arraignment and hence a trial.
   

Tender of Documents by consent

10. The State tendered into evidence with consent of the accused, through his counsel the following documents:
    
    1. Medical Certificate of Death of the Deceased dated 14/12/18-Exhibit “A”
    2. Autopsy Report by Dr Philip Golpak dated 14/12/18 – Exhibit “B”
    100. Record of Interview of Kapana Misi dated 09/10/19 – English handwritten Exhibit “C” and English typed Exhibit “C1”
    4. Sketch Map of Crime scene dated 16/08/19 – Exhibit “D”
    5. Statement of Samuel Koy dated 16/08/19 – Exhibit “E”
    6. Photographs by Samuel Koy 1-68- Exhibit “F1” – “F68”
       

Evidence of State witnesses

11. The State called two witnesses who gave sworn oral evidence against the accused. Both witnesses are eyewitnesses and gave an eyewitness account of what actually happened that day the 11^th of December 2018 when the deceased was speared to death by the accused Kapana Misi and his late co -accused Warave Onne.
    
12. The first State witness was Teru Goru who is a subsistence farmer from Gavuane village and lives with his father in-law Isaac Wapana who was killed by the accused Kapana Misi and late Warape Onne and their tribesmen.
    
13. He told the court that earlier that morning he had accompanied his father in-law Isaac Wapana to Matawa Penue’s house to serve him the Local Land Court order, but Matawa Penue refused to accept it and he rang his tribesmen, and they came. They were led by Warave Onne and the accused Kapana Misi and were armed with weapons. They came and the issue was resolved and he and his father in-law the deceased Isaac Wapana returned to their house.
    
14. However, sometime later between 10.00am and 11.00am whilst he was at his garden, he heard noises of people shouting and destroying things. When he went out to investigate, he saw the accused Kapana Misi, the late Warave Onne and their clansmen surrounding the deceased Issac Wapana and his father. He tried to talk them out not to do anything to his father in-law the deceased Isaac Wapana and his father however was told not to go close, and it is their turn now to kill them.
    
15. He was standing about two metres from where the accused Kapana Misi and the late Warave Onne speared the deceased with their spear guns. Late Warave Onne was the first to shoot the deceased on his chest with the speargun followed by the accused Kapana Misi who shot the deceased on his left leg causing him to fall. The deceased was taken to Kupiano Health Centre but died.
    
16. He described the vegetation at the scene of crime as short kunai grass about knee high and there was nothing obstructing or impeding his view. It was a clear day, and he was so close and saw late Warave Onne and the accused Kapana Misi shoot the deceased with their respective spearguns.
    
17. The witness was able to identify and describe which spear was used by Warave Onne and which spear was used by the accused Kapana Misi from the photograph Exhibit “F9”. He told the court that the long one was used by Warave Onne and the short one which was broken was used by the accused Kapana Misi
    
18. When the photographs Exhibit “F1” and “F2” were shown to him, he identified and confirmed that it was the deceased Isaac Wapana in the photographs and identified and pointed to the spear wound on his chest.
    
19. He also told the court that he knew both the late Warave Onne and the accused Kapana Misi. They are from the same Gavuane village but from a different clan, Keruerupu clan and he is from the Ipathra clan.
    
20. In cross-examination he admitted that he accompanied his father in-law to Matawa Panue’s house at 6.00am to serve the Court Order and there was a near confrontation, but it was quickly resolved, and it did not develop into a fight.
    
21. The second and the last witness for the State was Eo Rira who also gave sworn oral evidence. He is also a subsistence farmer from Gavuane village. He told court that he was in court because of the death of Isaac Wapana. His evidence is similar to the evidence of Teru Goru, the first State witness.
    
22. He told the court that no one told him about the death of the deceased Isaac Wapana. He saw everything with his own eyes. He was present when he saw Warave Onne shoot the deceased with a spear on his chest and then he saw the accused Kapana Misi shoot the deceased Isaac Wapana with a spear gun on his left leg that caused him to fall.
    
23. His evidence was that he heard about the confrontation at Panue Matawa’s house in the morning from Ora Pala and went to Penue Matawa’s house, but it was resolved and did not develop into a fight. His Ipathra clan’s men left and returned to their respective houses. He and Teru Goru stayed back and told them (Keruerupu clan) that there is a way to resolve this problem either in a church way or through a Melanesian way. After that they left Penue Matawa’s house and went to their house and were going about with their daily chores.
    
24. He told the court that between 10.00am and 11.00am he was at the house with his children and was reading his bible when he heard loud rowdy noises of people coming towards his house and destroying things. He went down the house and told his children who were playing outside to go and hide in the garden, and he went up to the house and locked himself in.
    
25. As the rowdy crowd got closer to his house, he could identify the ring leaders of the group as late Warave Onne and the accused Kapana Misi. He counted about twenty-four (24) people that went to his house and destroyed his properties. After destroying his properties, they left and went away. The witness came out of his house and met with members of his clan, the Ipathra clan members.
    
26. Whilst the Ipathra clan members were still discussing, the noisy rowdy Keruerupu clan members returned. When he looked up, he saw that the Keruerupu clan’s men had already surrounded the deceased Isaac Wapana and his father. When he and the Ipathra clan members went over to them, they also surrounded them. And not long after he saw the Koruerupu clans men chase Lapa Ova with a bush knife.
    
27. And soon thereafter he saw Warave Onne shoot the deceased with a spear on his chest and then he saw the accused Kapana Misi shoot the deceased Isaac Wapana with a spear gun on his left leg that caused him to fall.
    
28. He described the vegetation at the crime scene as a kunai grassland with knee-high grass with no trees or other impediments impeding his view. He saw everything that unfolded that day which he told the court.
    
29. He also told the court that the long spear was used by late Warave Onne to shoot the deceased Isaac Wapana on his chest and the short one was used by the accused Kapana Misi to shoot the deceased Isaac Wapana on his left leg when the photograph Exhibit” F9” was shown to him.
    
30. When the photographs Exhibit “F1” and “F2” were shown to him, he confirmed that the face in the photographs was that of the deceased Isaac Wapana and identified and pointed to the spear wound on his chest.
    

Documentary Evidence

31. The evidential value of the documentary evidence that were tendered by consent are as follows:
    

1. Medical certificate of death – Exhibit “A”
   

This is a document that officially confirms and certify that the deceased Isaac Wapana died at 11.00 am on the 11^th of December 2018 at Gavuane village and the cause of death was a spear wound to his lungs.

2. Autopsy Report by Dr Philip Golpak – Exhibit “B”
   

This is a report on a post-mortem conducted by Dr Philip Golpak on a deceased Isaac Wapana at the Port Moresby General Hospital on the 14^th December 2018. The deceased was identified by Roger Isaac, he elder brother of the deceased to Detective First Constable Jimmy Baiyo.
Based on the post-mortem report, Dr Philip Golpak was of the opinion that the deceased died of a spear wound to the left lung.

100. ROI – Kapana Misi – Dated 09/10/19 – Exhibit “C” and H/W and type – “C” and “C1”
     

The Record of Interview is dated 9^th October 2019 and was conducted at Kupiano Police Station between Detective First Constable Philip Evoa and Kapana Misi, the accused and was corroborated by Constable Edumn Kaokao.
In the Record of Interview from Questions and Answers 29 to 33, he told the Police that he and his wife and family were doing gardening and were wrapping bananas with leaves. They went to the garden at 6.00 am in the morning and finished gardening at 3.00 pm or if work is heavy, he finished at 4.00 pm in the afternoon.
When asked in Question and Answer 34 if he had gone anywhere whilst gardening, he answered that he didn’t go elsewhere
In Questions and Answers 39, 40, 46, 63 and 77, he answered by saying that it was long time and cannot answer.
In Question and Answer 53, when asked that from the Police report, you were carrying a homemade gun, a spear gun and a metal pointed spear, what can you say about it? And His answer was, very long time so I don’t know.
In Question and Answer 64, he was asked that from witnesses, you speared Isaac Wapana on the left leg and Warave Onne on the chest, at that time Isaac removed the spear on the chest fell and died on the spot, how can you explain that, and he answered that he didn’t shoot him on the leg.
Question and Answer 65, who shot him on the leg and he answered that he don’t know.

4. Sketch Map of Crime Scene – Exhibit “D”
   

The sketch map of the Crime scene was drawn up by the police to map out the crime scene

5. Statement of Samuel Koy dated 16/8/19 – Exhibit “E”
   

This is a statement of the Police Photographer who took various photographs relating to this case which have been tendered and marked as Exhibit “F1” – “F68”

Defence Evidence

32. In his sworn oral evidence in court, the accused Kapana Misi said that on the morning of the 11^th of December 2018, he went hunting and when he returned from hunting, he heard the news on the attack on Matawa Penue and his family by the Ipertha clan members. So, he carried his spear gun and walked about three miles from his house to Matawa Penue’s house. When asked how long it takes to walk he said that it takes about one and half hours to walk from his house to Matawa Penue’s house. That is a quiet a long walk.
    
33. When he arrived there, he saw that Matawa Penue and his family members were badly assaulted so they had a meeting as to what they should do. And as they were discussing, the Ipathra clan members went and attacked them at Matawa Penue’s house and they fought.
    
34. During the fight, he saw Isaac Wapana cut his son with a bush knife on his back and his son ran away. After that he saw that the deceased Isaac Wapana was trying to cut his co-accused, late Warave Onne with a bush knife and he thought that if Isaac Wapana cut Warave Onne with the bush knife, he will die, so in Warave Onne’s defence he, Kapana Misi had to protect and safe his brother Warave Onne’s life by shooting Isaac Wapana with a spear gun on his left leg. He said that he did it to safe his brother, Warave Onne’s life instead of being killed by Isaac Wapana.
    

Submissions by Counsels

35. Mr Kaore for the defence submitted that there was no intention by the defendant to assist the principal offender or to encourage him to kill the deceased. During the scene of shooting the State witnesses did not explain the reason why the defendant fired his spear gun, all that they said was that the principal offender fired and shot the deceased’s neck followed by the defendant firing his spear gun that shot the deceased on the knee.
    
36. The defendant in his own sworn evidence gave an explanation unlike the State witness the reason why he shot the deceased on his knee. He explained clearly to the court that he shot the deceased on his knee before the principal offender because the deceased attacked his son and cut him with a knife and when the defendant’s son escaped the deceased turned to cut his brother, the principal offender who was not alert at that time, when he was about to cut him (principal offender) on the head the defendant fired his spear gun to disturb the deceased from cutting the principal offender, that was when he left the scene to attend to his injured son, only to learn later that the spear gun held by his brother was fired and that shot the deceased on the chest.
    
37. According to the defendant, the spear gun must have went off after the deceased was trying to remove the spear and collided with the principal offender and the spear gun accidently went off.
    
38. Mr Kuku on behalf of the State submitted that the accused version of events were implausible and inconsistent with common sense and logic. The positions that the deceased, the accused, his son and Warava Onne were in would make it impossible that the accused was acting in self-defence. The accused nor Warava Onne or anyone of their clansmen fired their spear guns at the deceased when the accused’s son was cut on the back. The accused fired the spear gun only when the deceased wanted to cut Warava Onne with the bush knife. It is also implausible because these events and account were not put to State witnesses. All these events were recent inventions, and the court should not believe the accused version of evidence.
    
39. The accused version of events in court was inconsistent with what he told the police in his record of interview dated the 9^{th of} October 2019. Firstly, he said in his record of interview (at question 29-35) that he was wrapping bananas in his garden. He returned back from his garden at 3pm in the afternoon. He went to Matawa’s house after the fight finished. In court changed his story and said that on 11 December 2018, he never went to the garden to wrap bananas but he went hunting.
    
40. The accused was evasive during cross examination and didn’t answer the questions with a simple yes or no when asked and put directly to him.
    
41. The State submitted that the evidence of Teru Goru and Eo Rira are more plausible version of what had happened on the morning of 11 December 2018. Both of their evidence of the accused shooting the deceased on the leg is consistent with the evidence of the accused.
    
42. The court must believe the State’s evidence. Both Teru Goru and Eo Rira maintained their story during cross examination and their demeanour was good.
    

The issue

43. The original issue was one of identification when the trial commenced however as the evidence unfolded, the issue of identification shifted to one of self defence. Hence, it is not necessary to discuss the law on the issue of identification.
    
44. In my view, the State witnesses clearly and positively identified the accused Kapana Misi as the person who shot the deceased with a spear gun on his left leg which he admitted in Court that he did shoot the deceased Isaac Wapana on his left leg in self defence of his brother, Warave Onne.
    
45. So, the issue now is, did the accused, Kapana Misi shoot the deceased, Isaac Wapana in self defence of Warave Onne?
    

The defence of Self Defence

Section 270 – Self Defence against provoked assault.

(1) Subject to Subsection (2), when–
(a) a person has unlawfully assaulted another person, or has provoked an assault from another person; and
(b) the other person assaults him with such violence as–
(i) to cause reasonable apprehension of death or grievous bodily harm; and
(ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,
the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.
(2) The protection provided by Subsection (1) does not apply–
(a) where the person using force that causes death or grievous bodily harm–
(i) first began the assault with intent to kill or to do grievous bodily harm to some person; or
(ii) endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or
(b) unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

46. In the case of State v Angeline Winara (No.1) [2008] N3345 decision by Kirriwom, J. The accused Angeline Winara pleaded not guilty to one count of murder. The charge against her was brought under s.300(1)(a) of the Criminal Code which states that on 24th December 2005 the accused murdered the deceased, Simon Gura, at Kamkumung, Lae.

47. The facts were that on the evening of 24th December 2005 the deceased who is the husband of the accused went to another block nearby in Kamkumung Ass Mango Block as their son wanted to watch movies on CD at Rex Siwi’s place. His wife, the accused, taking her kitchen knife with her for their protection joined them. It later became apparent that one Rita Greg too was with them. After the show ended Rita Greg left, followed by the accused and their son to return to their house. The son wanted to be carried and the mother sent him back to the father to carry him. When the son went to the father, he sent him back to his mother. The mother became quite agitated by the father’s refusal to piggy-back his son and she told him to go back to the father. This time the father got irritated and slapped the son on his buttocks and told him to go to his mother. The child cried and ran back to his mother. The mother became angry when the husband did this to the child and she went over to where he was and slapped him on his cheek. The husband picked up a stick and pursued the accused to retaliate. As they confronted each other the accused stabbed the deceased on the left chest with a kitchen knife. The knife penetrated the left lung causing it to collapse. The deceased died in the same area where he was stabbed and was taken to the hospital. He was pronounced dead on arrival.

48. When rejecting her defence of self-defence against provoked assault under section 270, the Court said:

". ....[T]here can be no dispute that the accused provoked the deceased by assaulting him in the first place which led to him chasing her with a stick, whatever it might have been, a dried tanget stick or branch or a 4 x 4 timber as seen by the accused. The question that remains now is whether the force she used was reasonably necessary for preservation of her own life. Her evidence is supportive of a reckless use or application of a kitchen knife in the darkness and not caring exactly where she was swinging the knife and as the consequence the knife found its mark in the deceased’s body. Of course, the knife could not have by itself dropped out of her hand and stabbed the deceased as if by an act of satan or some supernatural being. That is the picture she is painting when she said that all she can remember is lifting both her hands up to block or fend off the blow she saw about to be delivered by the deceased with a 4 x 4 timber. She does not know how the knife penetrated the chest of the deceased although it was always in her possession

....[T]here must be evidence that the deceased assaulted her with such violence so as to cause her reasonable apprehension of death or grievous bodily harm, and this assault induced her to believe on reasonable grounds that it was necessary for her to preserve her own life from death or grievous bodily harm to use force in self defence and the force she used was reasonably necessary to preserve herself from death or grievous bodily harm. The evidence as to whether her life was in real danger is very shaky as it rests on who the court believes. Even if I accept her story about the 4 x 4 timber, evidence as to what extent that 4 x 4 timber posed serious threat to her life is unclear. There is no question that even threatening words or threat to do harm to someone can amount to assault. However there must be some evidence showing the extent to which that threat was manifested to its fruition to amount to assault of the nature that would induce reasonable apprehension of death or grievous bodily harm is necessary for self-defence to apply in my respectful view. This is not trying to shift the onus of proof to the accused. The least that the accused could show is some evidence of this possibility so as to qualify for this defence and it is for the prosecution to negative that defence beyond reasonable doubt.

The manner in which the accused trusted that knife into the deceased’s body and drove it further and deeper inside with the other hand as she held onto the knife is clearly indicative of deliberate and calculated act to either kill or cause serious bodily harm to the deceased. She was determined to inflict that injury by her action and conduct towards her husband."

49. In this case the defence case is that the shooting death of the deceased Isaac Wapana with the speargun was done in self-defence as opposed to the state’s case that the death resulted from an intention to cause grievous bodily harm. So it boils down to the issue of which side, whether the version by the defence or the version by the State this court should believe as credible and believable.

50. In this case the State’s evidence is straight forward that it was the accused who speared the deceased with a speargun on his left leg after the deceased has been speared with a speargun on his chest by late Warave Onne.
    
51. This evidence has not been challenged nor discredited by the defence during cross-examination. The version by the accused in his sworn oral evidence was not put to the two State witnesses who gave sworn oral evidence.
    

The Rule in Drowne v Dunn (1894) 6R (HR)

52. The accused Kapana Misi on the other hand has four (4) different stories about the shooting dead of the deceased Isaac Wapana. First story is in Question and Answers 29 to 33 of the record of Interview Exbibits “C & “C1” that on that day the 11^th of December 2018, he was at the garden with his wife and family and wrapping their bananas with banana leaves.
    
53. The second story is in Question and Answers 64 and 65 that he did not shoot the deceased with a spear gun and didn’t know who shot him (deceased) with a spear gun.
    
54. The third story is in Question and Answers 39, 40, 46, 63 and 77 when he answered by saying that it was long time and cannot answer.
    
55. And the fourth story is in his sworn oral evidence in court that he went hunting in the morning and when he returned, he heard the news of the attack by the Ipathra clan on Matawa Panue and his family. He carried with him a speargun and walked for one and half hours to get to Matawa Penue’s house. And whilst there they were attacked by the Ipathra clan and in the course of the attack he speared the deceased Isaac Wapana with the speargun.
    
56. In my view these versions of events cannot be believed. The three (3) versions of events that occurred that day and the fourth one being that it’s been a long time and he can’t say. He was clearly and positively identified as the person who speared the deceased with a spear gun on his left leg on the 11^th of December 2018.
    
57. So the next question is; did it occur as contended by Mr Kaore for the defence that the accused explained clearly to the court that he shot the deceased on his knees before the principal offender because the deceased attacked his son and cut him with a knife and when the defendant’s son escaped the deceased Isaac Wapana turned to cut his brother, the principal offender who was not alert at that time, when he was about to cut him (principal offender) on the head the defendant fired his spear gun to disturb the deceased from cutting the principal offender, that was when he left the scene to attend to his injured son, only to learn later that the spear gun held by his brother was fired and that shot the deceased on the chest.
    
58. The state invoked section 7 (1) ( c ) of the Criminal Code Act when indicting the accused with one count of murder under section 300(1) (a) of the Criminal Code Act Chapter 262.
    

Section 7. Principle Offenders

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–
(a) every person who actually does the act or makes the omission that constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.

59. The evidence in this case is that there was land dispute, and the two clans were fighting over it. The accused Kapana Misi was from the Kereukupu clan while the deceased Isaac Wapana was from the enemy clan Ipathra. That day there was a fight between the two clan. The accused Kapana Misi had to walk one and half hours when he heard the news of the Ipathra clans men assaulting and causing serious bodily injuries to Matawa Panue and his family.
    
60. In my view he was there to fight. He carried his speargun and walked one and half hours to get to Matawa Panue’s house. He was not carrying it to go fishing that day at Matawa Panue’s house. He took it with him because there was a fight at Matawa Panue’s house and to use it in the fight. Therefore, the assertion by the defence is rejected.
    
61. In the case of The State v Raphael Kuanande [1994] PNGLR 512. This is a Kundiawa decision by Injia AJ (as he then was). The accused used a Point 22 rifle to kill the deceased. He was charged with wilful murder pursuant to s 299 of the Criminal Code. The accused pleaded not guilty to a charge that on 13 March 1993 he wilfully murdered one Mangua Waugo, contrary to s 299 of the Criminal Code.
    
62. The State alleged that on the said date at about 6 - 6.30 pm, the deceased and other friends went to the accused's house to inform him that they would solve certain problems between them the next morning. The problem related to claims made by the accused that the deceased's father was about to die. As the accused was not in his house, the deceased relayed the information by shouting out the message and returned to his house. Between 6 - 6.30 pm, the accused armed himself with a Point 22 rifle and followed the deceased to his house. He stood on the main highway and shouted to the deceased, saying that he was ready to fight with him. As the deceased heard this and came out from the house, the accused shot him in the stomach. As a result, the deceased died shortly later. The State alleged that by firing the gun directly at the deceased, the accused intended to kill the deceased.
    
63. In that case Injia AJ stated that intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.
    
64. There is no evidence in court that his son suffered injuries as a result of a bush knife attack by the deceased Isaac Wapana. It is a recent fabrication by the accused together with the rest of his sworn oral testimony. He is a untruthful witness and his demeanour was unimpressive. His body language in general was revealing to me.
    
65. I asked a question to the accused Kapana Misi after both counsels have asked questions, why he had not reacted in the same manner he did for his late brother Warave Onne when he saw the deceased Isaac Wapana cut his son on the back with a bush knife? He did not have the answer to the question and did not answer it. This is demonstrative of an untruthful and falsifying witness
    
66. The State witnesses gave consistent and strong evidence. In this case the State’s evidence is straight forward that it was the accused who speared the deceased with a speargun on his left leg after the deceased Isaac Wapana has been speared with a speargun on his chest by late Warave Onne. This evidence has not been challenged nor discredited by the defence during cross-examination. The version by the accused in his sworn oral evidence was not put to the two State witnesses who gave sworn oral evidence.
    
67. I find that there is sufficient and overwhelming evidence before this court that there was fight between the Keruerupu clan and the Ipathra clan over the Illimothovo, grassland at Morikini on the 11^th of December 2018. And I find that the shooting dead of the deceased Isaac Wapana was not done in self defence as claimed by the accused. It was a deliberate and intentional action by the late Warave Onne and the accused Kapana Misi.
    
68. I therefore find that the State has proven its case beyond reasonable doubt and find the accused guilty as charged.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Kaore Lawyers: Lawyers for the Accused