State v Baga [2022] PGNC 262; N9692 (9 June 2022)

N9692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. (JJ) 32 OF 2019

THE STATE

V

SHEDRICK BAGA

Wewak: Miviri J
2022: 07^th, 9^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death – from Multiple Bush knife Cuts – intent to kill –Whether or Not Accused Acted in Self Defence – Question of Weight – Whether Force Used Excessive Over & Above – Whether Accused Alone or Part Of Group – totality of overt acts – Medical Evidence – Independent Evidence – Corroborative of State Case – Accused Untruthful Lying Witness – Balance Discharged – Guilty of Wilful Murder.

Facts
One of the Accused’s accomplices called out kill him at the sight of the deceased. Accused with the three accomplices chased the deceased all armed with bush knifes each intending to kill the deceased. They attacked and all repeatedly cut him with the bush knives killing him.

Held
Deceased dead
Repeatedly cut with bush knives
All over his body
Intent to Kill
And Killing
Guilty of wilful murder

Cases Cited:
Wani v The State [1979] PNGLR 593
Kwapena v The State [1978] PNGLR 316
Angitai v The State [1983] PNGLR 185
Ba, Regina v [1975] PNGLR 90
Paliau v State [2016] PGSC 54; SC1537
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
John Jaminan v The State [1983] PNGLR 318
Wamela v The State [1982] PNGLR 269
Nimagi v State [2004] PGSC 31; SC741

Counsel:

F.K, Popeu, for the State
A. Kana, for Defence

VERDICT

09^th June, 2022

1. MIVIRI J: This is the verdict of an accused who intended to and killed another by cutting him repeatedly with a bush knife all over the body in the company of three others who also assisted causing massive blood loss from which he died.
   
2. A preliminary matter that must be settled is that of the referral of the accused as a Juvenile with name only by initials other than the full name. He has been referred to as a Juvenile with the prefix to the filed depicting, but there is no date of birth placed before the Court, either in the record of interview, or any other material to establish his age at the time of the commission of the offence. That is a very important matter to draw the application of the Juvenile Justice Act 2014. Without which the Juvenile Justice Act is inapplicable given. Because the definition of a juvenile by that Act section 1is, "juvenile" means a person who is, or in the absence of evidence to the contrary appears to be, ten years old or older, but less than 18 years old;”
   
3. I have considered the application of the Evidence Act section 63 but working backwards on reasonable grounds, facts upon which the determination or estimation can be made to entail section 63. There must be basis upon which the viewing is based to come out with the estimated age at the time of the allegation. Here in his evidence in defence, on oath stated that he will turn 22 years old August 2022. A Simple arithmetic taking 3 years away from the current age of 22 will give the difference as 19 years old. But if the birthday is the month of August, and the offence was committed on the 2^nd March 2018, the Accused would be 18 years old and therefore would qualify as a Juvenile. I take due account of section 4 (3) (f) of the Juvenile Justice Act 2014 in making this assessment. Mindful of section 5 objectives of that Act, including other relevant sections, and Part III diversion in the event that the Accused is found guilty of the allegation this is a relevant factor in considering appropriate penalty against. It will be weighed up with the gravity of the offence committed.
   
4. He has been indicted 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.
     

A person who commits wilful murder shall be liable to be sentenced to life imprisonment without parole. [Criminal Code (Amendment) Act 2022(certified 12 April 2022)]

5. And the facts on arraignment were, that on the 02^nd March 2018 between 3.00pm and 4.00pm Ezekiel Samson now deceased was at Yobamuno village. He was unhappy with the Accused Shedrick Baga’s father who was the ward Councillor of that area. In that capacity he had informed the Police about an unlicenced firearm Deceased had in his home. Because the police had raided his house and taken the gun and K 2000.00 in cash, the deceased was frustrated and approached the Accused father whilst in possession of a bush knife and confronted him about it. And at that time the accused and his small brother and another relative were also present and an uncle of the Accused named Joe Baga called out to the boys to chase the deceased out and to kill him. The Accused and two of his relatives responded taking their bush knives and attacked the deceased cutting him. He tried to escape by running into a nearby Cocoa Garden but was followed by the Accused and two cousins who chopped him in the leg causing him to fall down and then they finished him off, by cutting him on various parts of his body with the bush knives. Members of the Public came and took him to the Naxei Health Centre in Yangoru but he was pronounced dead on arrival. A medical report on him showed that he had died from loss of blood due to the multiple bush knives wounds. The State alleged that this was caused by the Accused and his three relatives, and they intended to kill him when they attacked him in this manner.
   
6. Upon arraignment the accused admitted that he did cut the deceased three times in retaliation for deceased cutting him with the bush knife on the neck, wrist and back. He had acted in self-defence. In his evidence in defence, he showed the scars depicting the attack. There were three in all one on the left shoulder, second on the left collar bone and another on the wrist.
   
7. Therefore, at the outset it was not disputed that the deceased had died. He had died an unnatural death. His death was as a result of multiple bush knife cuts to various parts of his body. And his death was immediately after the attack by the Accused. And this was evident by the medical report that was tendered Exhibit P2. This medical report was from the East Sepik Provincial Health Authority Director of Curative Health Services that an examination was made of the body identified by Police and relatives as that of Ezekiel Samson. At the time of the examination, it was thirteen (13) days after death. The cause of death was as a result of Multiple Bush Knife Wounds. And the time of death was set out as 2^nd Day of March 2018. The cause was severe Blood loss.
   
8. In the summary of significant abnormal finding at examination external he was a male of 21 years old. There was massive multiple bush knife wounds noted over different parts of the body. And it was listed:
   
   1. Right thumb cut off,
   2. Left thumb cut off,
   3. 12cm long deep cut to left buttock and left thigh, proximally,
   4. Left leg cut off at the proximal end,
   5. Left arm cut off at the mid shaft end,
   6. 11cm long deep wounds noted on right thigh and right iliac crest area both at the anterolateral region of the right thigh.
   7. Right leg cut off at distal 1/3 end.

Right perital scalp area haematoma.
Internal : All the bush knife wounds were severe involving muscle, blood vessels and respective bones.
Conclusion: Death Resulted from Severe loss of Blood.
It was signed at the East Sepik Provincial Health Authority dated the 15^th Day of March 2018 by Doctor Jimmy Kambo Government Medical Officer.”

9. Exhibit P3 was initial report from the coroner on the death and order dated the 09^th Day of March 2018 for the post-mortem of the body of the deceased Ezekiel Samson. Including a warrant to bury him after. With the initial report to coroner request of the 2^nd March 2018 by Police.
   
10. Exhibit P4(a) is the photograph of the deceased face in his death. Exhibit P4(b) is the left-hand wrist showing the gruesome cut of the all the fingers. Exhibit P4(c) showed two very open and gapping wounds on the left thigh of the deceased looking from the back as he was supine. It was evidently life threatening and indeed from which there would have been massive bleeding. And would have without proper professional medical treatment seriously led to loss of life. The deceased no doubt succumbed it was a wound that in my view left very little chance of getting back one’s life. And that is evidenced by the death of the deceased on arrival at Naxei Health Centre.
    
11. The State called on oath Jessica Samson sister of the deceased, originally from Yambon village, Yangoru Sausia District. He was her elder brother. She was 23 years old married with two children and earning her upkeep by the sale of cocoa. On that day Friday 02^nd March 2018 between 3.00pm to 4.00pm, She was a grade 6 student accompanied by Cynthia Lovai her cousin now in Lae. They had come to where the scene of the fighting at Joe Baga’s area and stood watching as it unfolded before them. It was about from the witness box to the wall at the back of the Courtroom distance of about 10 meters. Joe Baga is the brother of the Accused Shedrick’s father. The Accused Shedrick Baga before the Court was accompanied by one Jordon, Anthon, and Joe Baga, together all chased the deceased into the cocoa block. They were each holding bush knives each at the time that they chased deceased who was also holding a knife into the cocoa block. We followed them into the cocoa block and stood about 10 meters away witnessing. There they started to chop him with the bush knives that they were carrying with them. As they were chopping and cutting him up, he was calling out, Help, Help. They cut him up and when he was about to die, we got help. He was lying on the ground when they were cutting him. He was by himself against the four of them. And they were attacking he was not. And I saw all, Shedrick, Jordon, Anthon, and Joe Baga, all cut him. He was lying on his back when he was calling out for help. We went looking to fetch help and when we came back, he was already dead. We found him and took him to the Naxei Health Centre at Yangoru.
    
12. In cross-examination She affirmed that the fight initially started at the area of the defendants. From there he ran and they chased him into the cocoa block where they repeatedly cut him with the bush knives that they had killing him. Witness denied that the Accused had cuts to his body. And maintained when shown the photos and clinic book, she did not see any cuts on the accused. She was asked about what the colour of the shirt was and then the trousers that accused wore at that time. She confidently said he wore a green shirt and black trousers. And maintained that she stood and witnessed all that transpired. That she told the truth of all that she saw on that day and maintained that she saw and knew what she was testifying to. Yes, he went to them but they surrounded him and chased him. Counsel’s persistence added fuel to the case for the prosecution than destroy and distort credence to that of the defence case.
    
13. Shedrick Baga gave sworn evidence in defence. He was originally from Yobamuno, Yangoru, East Sepik Province. And would be 22 years in August 2022. He was in grade 12 and schooling at the Bishop Leo Secondary School before he was taken into custody for punching up a Chinese guy for which he was convicted and was serving time at Boram. He was out on bail but committed the offence and so was sentenced now serving appearing for trial therefrom.
    
14. On the 02^nd March 2018 at about 3.00pm to 4.00pm he was at his house when Police from Maprik came. I put report upon which they went to the house of Ezekiel Samson and got a homemade gun. He had used it to threaten me with. So I reported to Police and directed them to the house of the deceased Ezekiel Samson, where they raided and got the gun. Because of that he was very angry and frustrated, and attacked me at my house. He swore at me and told me that you and the Policemen, “eat your mothers vagina bring my gun, if not I will cut you with my bush knife.” He called out in this way at my parents house. I was in my boy house when I heard this. His house is far away from my house. Like the same distance from the Wewak hill district Court house to Mobil. He was cross about this and came to my house swore, “eat your mothers vagina with,” sliced me with his bush knife several times. Whilst he was swinging I was avoiding. I tried to run away from him. I went and saw a piece of palm branch that I got and tried to block his bush knife with. First time he cut it off and cut me on the shoulder. Second time he cut me on the collar bone on the shoulder on the left side. There is a big scar on the back left shoulder. Third time I got cut on my left wrist, the scar is visible. He cut and was saying, “ you eat your mothers vagina you will die”.
    
15. It was only two of us I grabbed him and we rolled in the cocoa block downhill. As we did, I grabbed the bush knife on the handle. He pulled on the blade cutting his fingers. I struggled and pulled the knife off him cutting his fingers off in the process. As he did, he left the knife to me. I got it and cut him twice on his leg. Then I left him and went back to the house. I walked like from WS trading to here. I cut him on the leg to disturb him, so I have to disable him so cut him on the left leg. I knew he would get my life. He had given mark on me. I left him with mark he would follow and kill me. I did not mean to kill him but to stop and disturb him from pursuing me. I came back to the house where my parents were. I came back and saw the two witnesses Jessica Samson and Cynthia with my parents when I arrived. I did not see anyone in the cocoa garden where we were fighting. Jordon and the others I did not see them when we were fighting. And Cynthia and Jessica Samson were not in the cocoa block when we were fighting.
    
16. I felt unconscious with the pain on my neck so my Daddy called a vehicle and took me to the Maprik Hospital. I was admitted overnight and discharged next morning. The nurse stitched my hand, collar bone. On the Saturday 03^rd March 2018 I came to the police and surrendered to Police that day. They did not give me medical report when I was discharged. But I have the clinic book of my treatment and photographs that I took of myself after I was injured by him. Both were marked MF1 1and 2 but were not tendered by defence into evidence to support his contention.
    
17. In cross-examination he was coming from Boram Corrective Institution where he was serving sentence for punching up a Chinese man whilst he was on bail for this offence. He was not in school at the Bishop Leo Secondary School and attending when he came to give evidence in the trial. It was disputed that the face of the person in the photographs that he purportedly said was he. Because the face could not be seen. It was not known who the person was, because there was not even the date when the photographs were taken to confirm indeed his contention. He stated that he took the photographs personally from his phone but did not produce that phone with the photographs in it. Nor did he explain where the phone was at the time of trial. And the clinic book did not have the author of the report written out in court to confirm that fact.
    
18. It was put to him that the deceased never cut him because the witnesses never saw as they witnessed the fight that day. Accused maintained that the deceased had provoked him so he cut him. He maintained strongly that he alone fought with the deceased. There was no one else apart from him. And he did not see the three other persons joining him and fighting the deceased. I was the only one who cut him no one else cut him. He was referred to the medical report and put that there were more than the three cuts he maintained. There were in fact seven (7) or more cuts so if he was responsible for the three, who would have cut the remaining cuts on the body of the deceased?
    
19. This is where his evidence takes the turn against common sense and logic. Because how else could the deceased have suffered those horrific life-threatening cuts without the Accused hand to deceased, if he was only responsible for three cuts that he specifically outlined? He has pointed to no one as responsible for their taking place. He does not say that as there were rolling down hill to the cocoa block the knife cut the deceased there. He only says it was the fingers than the further two cuts he inflicted upon the deceased. The only rational and logical conclusion that can be drawn is from the evidence of the State witness, Jessica Samson. She saw the Accused was with Jordon, Anthon, and Joe Baga. They were responsible for the other cuts on the body of the deceased. It was a bright day and she was standing 10 meters away from where the assault and the fighting was taken place between them. And she moved with them into the cocoa blocks accompanied by her cousin Cynthia Lovai. Both witnessed the cutting of the deceased in the way that she has described.
    
20. That is consistent with the medical report that is set out above prepared by Doctor Jimmy Kambo. He is not a relative of the State witness or the defendant. He has no reason to lie before the court. He is trained and schooled in his field of medicine. And on the basis has made that finding tendered with consent now evidence in this court. It is the independent and corroborating account made of the evidence of the State against the defendant. It shows quite clearly that the defendant has lied. He has told lies in the face of evidence that is incriminating against his behaviour which is nothing less than criminal to be wilfully taking the life of another fellow human being, Ezekiel Samson. He has tried to conceal the other co accused and paint that he was acting in self-defence. But that is without any basis when looked at the fact on the wounds on the body of the deceased. It is by itself self-imposed of the excessive amount of force exerted upon the deceased to exterminate his life. How could an aggressor be so grossly engrossed with injuries painted his entire body if he was leading against his assailant? He would in accordance with common sense be the winner without any injuries to his body. It is clearly the contrary here. The deceased was outnumbered in force with four men with bush knives against him. That is why he ran for safety but to no avail, as he was caught up in the cocoa block where he was cut down in full view of his natural and cousin sisters who witnessed his demise at the hands of the Accused accompanied by Jordon, Anthon, Joe Baga who has instigated the killing by uttering kill him, consistent with Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979). And the accused as was the case with Avia Aihi, following, cut up the deceased accompanied in that cutting with Joe Baga who called out with Jordon, Anthon put the life of Ezekiel Samson beyond survival, hence his gruesome and wilful death against the accused.
    
21. It cannot be self-defence within the meaning of Kwapena v The State [1978] PNGLR 316 (1 September 1978), he was faced with a deadly weapon and had no choice but to act as he did. That is not the case here. Even if he says he was deprived the force is excessive, he has disarmed, but continues to exterminate the deceased and if he seeks reliance that he was provoked it would not come into the light of Angitai v The State [1983] PNGLR 185 (6 June 1983), to the charge against him. His force is disproportionate over and above the provocation given. And in the case of self defence against provoked assault section 267 of the Code, he defeats himself on the fact that he has used excessive force here. He is not only armed with a bush knife but is accompanied by three others who are also armed with bush knives that they used excessively against the deceased who is lying on the ground in no position to defend nor continue the threat with the bush knife to his life. He is now the assailant and has acted criminally with the continuation of the assault to the demise of the deceased, Ba, Regina v [1975] PNGLR 90 (22 May 1975).
    
22. He does not come out into the light of section 269 Self defence against Unprovoked Assault because the evidence set out above illuminates that he has used force over and above necessary for his preservation, because it was reasonable and has happened here, death did result. He was not only by himself but was with three others who were also armed with bush knives that they used extensively on the body of the deceased leading to his death. This is not the same situation observed in Paliau v State [2016] PGSC 54; SC1537 (19 April 2016), where self defence and provocation were available, but the court paid lip service, and therefore court ordered convictions quashed and acquittal.
    
23. He does not demonstrate any truthfulness in the way that he has given his evidence in court. I find him to be lying under oath because he is accountable to the deceased for three wounds on the body of the deceased. The wound to the hand cutting off the fingers leaving the hand useless to grasp any weapon and fight him. The cuts to the buttocks and the leg would leave the force excessive, over and above self-defence. His evidence is illogical inconsistent does not tie in with common sense. The deceased did not get the other injuries without a hand to them. Assessment of logic and common sense denotes that his credibility as a witness of truth is nowhere near compared to that of Jessica Samson. She is a very credible witness. I find that she has told the truth and nothing but the truth as it unfolded before her leading to the death of her elder brother, Ezekiel Samson at the hands of the Accused, helped out by Jordon, Anthon, and Joe Baga who initially gave the call to kill. I prefer her evidence over and above that of the Accused as being consistent with logic common sense and reasonableness. For these reasons I reject his evidence totally as unreliable and accept the evidence of Jessica Samson, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).
    
24. I further find that he has told deliberate lies that in my view corroborates the assertion Jessica Samson testified to. It is analogous to the observation made in John Jaminan v The State [1983] PNGLR 318 (29 September 1983). Because when lies are told out of a conscious sense of guilt, the account of the prosecution is strengthened. I therefore find as a Fact that there was no self defence in law in the evidence of the Accused. On another parallel he was an aider and abettor within the meaning of that law under section 7 and 8 of the criminal code. He helped Jordon, Anthon, and Joe Baga to kill the deceased after the latter uttered kill him. Accused participated in the offence, Wani (supra). He is not merely present but takes active participation exterminating the deceased. His conduct is willed and not innocent He was part of the group and had knowledge of what was happening and actively participated, Wamela v The State [1982] PNGLR 269 (26 April 1982). He did not disassociate nor did he separate or withdraw from that criminal conduct. He is criminally responsible, Nimagi v State [2004] PGSC 31; SC741 (1 April 2004).
    
25. Because the injury is all upon the deceased not the Accused. It is common sense that deceased was outnumbered and did not survive as a result. Accused is a principal offender within the ambit of section 7 and 8 of the criminal code and is guilty of wilful murder as charged. He had the intention to kill called out by Joe Baga which he carried out in fulfilment with the Accused, Anthon, Jordon, and Joe Baga himself. I find the accused guilty of wilful murder as indicted contrary to section 299 (1) of the criminal code.
    
26. The verdict is Guilty of the wilful murder.
    

Orders Accordingly

_______________________________________________________________

Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Defendant