State v Takiabu [2022] PGNC 457; N9883 (2 September 2022)

N9883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) 14 OF 2020

STATE

V

LINDSAY TAKIABU

Waigani: Wawun-Kuvi, AJ
2022: 2^nd & 3^rd May, 27^th May, 2^nd September

CRIMINAL LAW-TRIAL-Wilful Murder, section 299 (1)(a) Criminal Code-Whether the accused stabbed the deceased? Whether the accused stabbed the deceased with an intent to kill?

Lindsay Takiabu is charged with wilful murder under section 299(1) of the Criminal Code. She was in a relationship with Samuel Joseph. Samuel Joseph was also in a relationship with a Susan John Goya.

Lindsay Takiabu walked into the bedroom to find Samuel Joseph in bed with Susan John Goya. An argument ensured. She then left and returned with her female relatives. She used a knife to stab the deceased in his chest. The knife penetrated the lung and heart. The deceased died as a result.
Lindsay Takiabu says that Samuel Joseph was armed with the knife. When she pushed him, he spun around and stab himself against the wall.

Held:

1. On a charge of wilful murder the State is required to prove:
   
   1. The indirect or direct act of the accused which caused the death of the deceased
   2. The act was done with an intent to kill.

See sections 291 and 299(1) of the Criminal Code.

2. Emmanuel Joseph, Samuel Joseph, and Lindsay Takiabu were the only people in the room during the stabbing.
3. Emmanuel Joseph’s view was obstructed by Samuel Joseph.
   
4. Emmanuel Joseph’s evidence was accepted as credible because he did not attempt to implicate Lindsay by saying that he saw the stabbing.
   
5. Lindsay Takiabu’s version of the stabbing is rejected because: (1) she gave inconsistent versions contained in her confessional statement and record of interview (2) her version in Court was a recent invention as it was not contained in the confessional statement or record of interview and State witnesses were not cross examined on her version (3) it was inconsistent with common sense and logic and (4) her description was inconsistent with the findings of the pathologist contained in the medical report.
   
6. Lindsay Takiabu was armed with the knife and not Samuel Joseph. Her evidence that Samuel was initially armed with the knife is inconsistent with common sense and logic.
   
7. There are no other reasonable inferences other than that Lindsay Takiabu stabbed Samuel Joseph.
   
8. It was not challenged that Samuel Joseph had called out that he was stabbed. The evidence is therefore accepted: see Haiveta v Wingti (No 1) [1994] PNGLR 160 per Sheehan J and Kitawal v The State [2007] SC 927.
   
9. The words uttered by Samuel Joseph meet the requirements under section 20 of the Evidence Act and is accepted as a dying declaration.
   
10. Intention is a matter that remains in the mind of the accused. The intention of the accused can be determined from assessing the course of conduct of the accused prior to, during and following the stabbing: see State v Raphael Kuanande [1994] PNGLR 512.
    
11. The conduct of Lindsay Takiabu prior to, during and following the stabbing does not demonstrate either an intent to kill or cause grievous bodily harm.
    
12. The accused is acquitted of the charge of Wilful Murder pursuant to section 299 (1) of the Criminal Code.
    
13. Whilst I am not satisfied that Lindsay Takiabu had an intention to kill or cause grievous bodily harm, she nonetheless caused the death of Samuel Joseph and had no lawful reasons to do so. Pursuant to section 539(1) of the Criminal Code, a verdict of guilty is returned for the charge of manslaughter: see Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999 (15 September 2020).
    

Cases Cited

Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999
Tom v State [2019] PGSC 65
Kitawal v State [2007] PGSC 44; SC927
State v White [1996] PGNC 73; N1441
Davinga v The State [1995] PNGLR 263
Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188
Paulus Pawa v The State [1981] PNGLR 498

Reference

Criminal Code (Ch 262)
Evidence Act

Counsel

Ms Elizabeth Kave, for the State
Mr. Malcom Sumbuk, for the Defence

VERDICT

2^nd September, 2022

1. WAWUN-KUVI, AJ: Lindsay Takiabu (accused) is a 20-year-old female from Tari Pori, Hela Province. She was 18 years old during the relevant period. She was in an intimate relationship with Samuel Joseph (deceased). Samuel Joseph was 26 years old at the time of his death.
   
2. Samuel Joseph was from a mixed parentage of Chimbu and Western Highlands. Samuel Joseph’s twin brother is Emmanuel Joseph.
   
3. He graduated from university and was starting out what was supposed to be a promising career.
   
4. At the relevant period, Samuel Joseph was also in a relationship with Susan John Goiya.
   
5. The State says that on 24 November 2019, Samuel Joseph returned from his first international trip. He went home and spent the afternoon with his brother Emmanuel and Susan John Goya.
   
6. Lindsay then turned up and an argument ensured. She then left to her aunt’s home to gain support to confront Samuel Joseph. They then returned to the Waigani flat.
   
7. The State alleges that she concealed a knife behind her and stabbed Samuel Joseph in the chest when he attempted to calm her. The State says that when she did this, she had intended to kill Samuel Joseph.
   
8. I am now to decide whether Lindsay Takiabu stabbed Samuel Joseph and when she stabbed him, she intended to kill him?
   

BURDEN OF PROOF

9. The onus is on the prosecution to prove its case beyond reasonable doubt and to negate any defences properly raised on the evidence also beyond reasonable doubt.
   

THE CHARGE

10. Lindsay Takiabu is charged with one count of Wilful Murder contrary to section 299(1) of the Criminal Code.
    

THE ELEMENTS

11. The State is required to prove:
    
    1. The indirect or direct act of the accused which caused the death of the deceased
    2. The act was done with an intent to kill.
       

See sections 291 and 299(1) of the Criminal Code.

ISSUES

12. Whether Lindsay Takiabu caused the death of Samuel Joseph?
    
13. Whether she did so with an intent to kill him?
    

The Evidence

14. The State called Lillian Tapale, Susan John Goya, and Emmanuel Joseph.
    
15. Lillian Tapale is the aunt of Lindsay. The State called her to establish Lindsay’s movement following Lindsay’s first departure from the Waigani flats. Much of her evidence was not in dispute. She did not see the stabbing.
    
16. Susan John Goya and Emmanuel Joseph were present with Samuel at all relevant periods.
    
17. Several documents were tendered into evidence by consent. Pursuant to section 589 of the Criminal Code, the material contained in the documents are accepted as undisputed: see Tom v State [2019] PGSC 65, State v White [1996] PGNC 73; N1441 and Davinga v The State [1995] PNGLR 263.
    
18. The accused gave evidence in her own defence.
    
19. I have given due consideration to all the evidence and where I have not stated them does not mean that I did not consider it.
    

Findings of Fact

20. There is no principal in law that requires me to accept the whole of a witnesses’ evidence. I may accept some parts and attach the appropriate weight and reject other parts.
    
21. Lindsay Takiabu and Samuel Joseph were in a relationship. Samuel Joseph had returned from his first international work trip. He was at his home with his brother and Susan John Goya. Susan John Goya was also his girlfriend. He consumed some alcohol. At some point, he retired to bed with Susan. While they were in bed, Lindsay walked into the bedroom. A verbal exchange then occurred between Lindsay and Samuel. Lindsay was ushered out of the bedroom and out of the flat or unit.
22. After Lindsay’s departure, Samuel, Susan, and Emmanuel sat in the living room and conversed. Sometime later, Lindsay returned with other women.
    
23. Much of the evidence of all the witness on both sides are consistent. Both Susan and Lindsay’s evidence is consistent about Lindsay catching Susan and Samuel in a compromising position in the bedroom. And when Lindsay returned, the second time, she had thrown a cup on the wall. They both agree that Susan had left the room for the bedroom. This gives credibility to the evidence of Susan whose evidence was not only supported by Lindsay but that she did not attempt to implicate Lindsay unfairly.
    
24. Only Lindsay, Samuel and Emmanuel were left outside.
    
25. The kitchen and living room formed one space with no partition or separating walls. The entrance was through the kitchen to the living room.
    
26. The police photographer Kemos Konga attended the crime scene in the morning. His statement was tendered into evidence by consent and exhibited as S2. The photographs that he took form part of his statement. He described the space as 4 meters by 4 meters. His description and the photographs reveal the size of the living space and the kitchen. It is a very small space.
    
27. Emmanuel says that Lindsay was standing at the door. That from where Samuel was sitting, it was only a step away. He says that Samuel took a step towards Lindsay. His evidence is consistent with photographs 6, 7, 8, 9 and 11. There was no challenge to the evidence that Samuel took a step towards Lindsay. As a result, I accept that that there was a step difference between Samuel and Lindsay.
    
28. The medical report confirms that Samuel was 1.76 meters in height. Lindsay as observed in Court is short in statute.
    
29. The evidence that Samuel obstructing Emmanuel’s view, is consistent with the size of the room and the stature of both Samuel and Lindsay. This I accept, as submitted by Ms. Kave, gives credibility to Emmanuel’s evidence. Whilst he is Samuel’s twin brother, he did not attempt to implicate Lindsay by saying that he saw her stab, Samuel.
    
30. Emmanuel says that he told Samuel to tell Lindsay to come back the next day to resolve the matter. That Samuel then stood up to talk to Lindsay. When Samuel approached Lindsay, he heard Samuel shout out “I’ve been stabbed”. Samuel did not have anything in his hands when he approached Lindsay.
31. Lindsay then left. He got up checked and saw that Samuel was stabbed and he ran after Lindsay and the women.
    
32. Lindsay however says that Samuel was armed with a knife. That he held the knife with the blade facing towards himself. That when she pushed him, he spun round and hit the wall. That the impact caused the knife to penetrate Samuel in the chest.
    
33. There are several reasons as to why I cannot accept the evidence of Lindsay regarding the stabbing of Samuel.
    
34. Firstly, her version in Court was different to the confessional statement exhibited as “S5” and the Record of Interview exhibited as “S6”.
    
35. In the Confessional Statement she states:
    

“.....my boyfriend and I started arguing and then I saw him picking up a knife. Then he started threatening me with the knife and walked towards me. I got scared and pushed him away and we started fighting. Then he swung the knife and it cut my pointer finger and I pushed back the knife. He was at the back of me so when I pushed back the knife, it got on his body. And I felt his blood on my back and when I turned around, I saw him painted and I got scared and I ran outside...”

36. The confessional statement not only defies logic and common sense and is improbable, but the version is also completely different. In the statement as stated above, she says that Samuel was behind her when she pushed the knife back. That she felt his blood on her back causing her to turn around. This would mean that Samuel was facing her back when the knife penetrated as opposed to her sworn evidence that she pushed him, and he spun around towards the wall.
    
37. In the Record of Interview, she describes pushing the knife back and that the knife penetrated Samuel’s chest. She did not mention or state that she pushed Samuel and he spun around and faced the wall and stabbed himself.
    
38. Secondly, her latest version of pushing Samuel causing him to spin around hitting the wall was not available in any form until Lindsay gave evidence in Court. The version was not available in the Confessional Statement or the Record of Interview. That version of her evidence was also not put to Emmanuel in cross examination. Consequently, I find that her evidence in Court was a recent invention and reject it: see Kitawal v State [2007] PGSC 44; SC927 (22 February 2007) in its discussion on the rule in Brown v Dunn and the consequences of breach.
    
39. Thirdly, her description of how Samuel was stabbed is inconsistent with logic and common sense. It is inconsistent because:
    
    • If Samuel was attempting to threaten her to stay away, he would not be holding the knife with the blade towards himself; and
    • The size of the room indicates that there was not enough maneuvering room for that action to be possible.
      
40. Finally, the medical report indicated that Samuel was stabbed in a downward motion. That is, the knife penetrated the right side of the chest wall across to the left side of the chest at a slanted downward direction to the heart. This would be inconsistent with the description provided in Court by Lindsay. If her evidence was to be believed which I do not believe, it would mean that when the deceased turned, his hand was above his chest and then he struck himself in a downward motion.
    
41. I therefore reject the evidence of Lindsay as to how Samuel was stabbed.
    
42. There is also dispute that Samuel was initially armed with a knife. Emmanuel says that he put down his phone and stepped towards Lindsay. That he did not have anything in his hand. Lindsay says that Samuel approached her with a knife. Lindsay says that Samuel was trying to protect Susan.
    
43. Lindsay’s evidence is inconsistent with common sense and logic. Susan had already left the living room and had gone into the bedroom. Furthermore, Samuel was much taller and much stronger. His brother was also in the room. Lindsay did not pose a risk to Susan that would require Samuel to arm himself with a knife.
    
44. Additionally, the physical surroundings and the presence of people immediately outside the unit, indicate that Lindsay was not in any form of danger or that Samuel posed any danger to her. It was stressed that the property belonged to Lindsay’s father. The unit was conjoined to a tucker shop and was in a premises next to a duplex. In the application of common sense and logic, it is unlikely that Samuel would have drawn a knife on Lindsay.
    
45. For the foregoing reasons, it is concluded that it was Lindsay who was holding the knife as opposed to Samuel.
46. This, bearing in mind the principles in Paulus Pawa v The State [1981] PNGLR 498 as it relates to circumstantial evidence, leads me to ask whether there are any other reasonable inferences than that Lindsay stabbed Samuel.
    
47. Whilst there was a suggestion that some women were at the doorway. There is no evidence by all witnesses that the women were inside the unit or flat. The evidence is that the women were standing outside. The evidence is that the only persons in the room were Samuel, Emmanuel, and Lindsay.
    
48. It is at this stage that I also consider whether Samuel had made a dying declaration. Ms. Kave argues that Samuel had made a statement to the effect that Lindsay had stabbed him and that his statement was a dying declaration under section 20 of the Evidence Act. Mr. Sumbuk argues that Samuel did not make any statement implicating Lindsay.
    
49. Susan says that when she was in the bedroom, she heard Samuel shout out “Lindsay why you stabbed me”. Emmanuel says that when Samuel approached Lindsay, he soon after shouted “I’ve been stabbed”.
    
50. The defence did not cross-examine both Emmanuel and Susan on whether Samuel had called or cried. The evidence therefore is unchallenged and is accepted: see Haiveta v Wingti (No 1) [1994] PNGLR 160 per Sheehan J cited also in Kitawal v State [2007]^[1].
    
51. Whilst the exact words are different, I do not consider the inconsistency to be significant. The gist of both Emmanuel and Susan’s evidence is that he was stabbed.
    
52. I am further satisfied and accept that the statement meets the requirements of section 20 of the Evidence Act^[2] and is a dying declaration. That is:
    
    • The statement was made orally by Samuel before his death and related to the circumstances surrounding his death;
    • Whilst I cannot make a conclusion as to whether Samuel believed that his death was imminent, I can reasonably suppose that he believed that his death was imminent. This is because he was stabbed with a knife in two vital organs namely the lung and heart;
    • At the time he made the statement he would have been a competent witness; and
    • If he had not died, he could have given direct oral evidence in legal proceedings regarding the incident.
      
53. Having accepted that the statement was a dying declaration, I consider the statement to be significant in determining whether he stabbed himself, or whether Lindsay was responsible. The evidence was unchallenged.
    
54. As I have rejected Lindsay’s version in Court as a recent invention, that Samuel was not in possession of a knife, that only Lindsay and Samuel stood together at the relevant time and that Samuel had made a statement to the effect that he was stabbed, I find that the only available conclusion is that Lindsay stabbed Samuel.
    

Demeanor

55. I have observed all witnesses as they gave evidence. Each of the witnesses spoke of what they saw and did not attempt to implicate Lindsay unfairly. Even Lindsay’s aunt who gave evidence for the State could have exaggerated to say Samuel attacked Lindsay. Instead, she simply stated that she was outside when the stabbing occurred.
    
56. As for Lindsay, it was evident from her evidence that she had attempted to distance herself from the stabbing by creating a version which was plagued with several issues. I observed her not to be truthful about how Samuel was stabbed. Hence her version of what had transpired was different each time she retold the story.
    
57. Having concluded that Lindsay stabbed Samuel, I must now decide whether the State has proven the elements of the offence of Wilful Murder beyond a reasonable doubt.

The Law

58. Based on the foregoing findings, I am satisfied on the required standard that Lindsay caused the death of Samuel.
    
59. The issue for determination now is whether she caused the death with the specific intent to kill him.
    
60. In State v James Pah [1985]^[3] the Supreme Court in discussing the element of intention to kill stated that for the Court to convict an accused, the Court must be satisfied that (1) there is an intention to actually kill and (2) that such an intention is put into execution by an overt act.
    
61. Intention is something that is only known to the mind of the accused. Injia, J (as he then was) in The State v Raphael Kuanande [1994]^[4] explains how the Court may derive the intention of the accused. I adopt his explanation at page 514 where he states:
    

“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.”

The course of conduct of Lindsay prior to the stabbing

62. Most of the events prior to the stabbing are not in dispute.
    
63. When Lindsay first arrived at the flat, there is very little evidence of a physical altercation or that she even attempted to attack Susan or Samuel. There is evidence of an argument.
    
64. She then left for her aunty Lillian Tapale’s house. She informed her aunt about the issue and that she wanted to end the relationship. She then got on the taxi with her aunt and another woman. Her aunt says that Lindsay did not have a weapon. That she followed Lindsay to have the issue resolved.
65. When they arrived at the flat, it was only Lindsay that went inside. She threw a cup on the wall and argued. If indeed she had intended to hurt either Susan or Samuel, she would have thrown the cup at either one of them. Or if there was a premediated intent to kill or harm, she would have immediately sought to attack Susan or Samuel. Instead, as the evidence establishes, she stood at the doorway and argued.
    
66. The reasonable conclusion is that she was frustrated, angry and upset and wanted the matter resolved. This conclusion is supported by the evidence of Lillian Tapale and Emmanuel. Emmanuel stated that she kept arguing and so he told Samuel to tell her to leave and return the next day to resolve the matter.
    
67. These matters to my mind do not demonstrate that Lindsay went to the premises to kill or even cause grievous bodily harm. The evidence shows an emotionally distraught young woman who had just caught her boyfriend with another woman.
    

At the time of the stabbing

68. Whilst I have concluded that Lindsay was armed and was responsible for the stabbing of Samuel.
    
69. The evidence of all of witness indicate that the stabbing was not instantaneous. There was some arguing prior to the stabbing.
    
70. It was only when Samuel approached Lindsay, when he was stabbed.
    
71. No witness saw Lindsay with a knife entering the flat. She was standing next to the kitchen. She was identified as taking a cup that was washed from the kitchen and throwing it against the wall.
    
72. She wanted the matter resolved and Samuel wanted her to leave. I infer from the location that Lindsay was standing, and that she had access to the other utensils, that the knife was a weapon of opportunity as opposed to a weapon that she has brought with her.
    
73. The facts as I have found, demonstrate that there was only one stab wound and that immediately after the stabbing, she left the flat.
    
74. She did not continuously stab Samuel or utter any words following the stabbing. She left promptly not even forewarning her female relatives.
75. These factors do not indicate an intent to kill or even cause grievous bodily harm.
    

After the stabbing

76. Lindsay left the unit and premises immediately after the stabbing. She did not even warn her aunt and the other woman who had accompanied her aunt.
    
77. This demonstrates the act of someone who did not expect the events that had just transpired.
    
78. If there was some intent to kill or cause grievous bodily harm, she would have at least warned her female relatives prior to or immediately after. Rather than promptly escaping the scene and leaving them in mortal danger.
    

Conclusion

79. Having considered the events as they had transpired prior to, during and following the stabbing, I am not satisfied beyond a reasonable doubt that Lindsay intended to kill Samuel. I am also not satisfied that she intended to cause grievous bodily harm.
    
80. I am however satisfied that she had caused the death of Samuel.
    
81. There was very little in the evidence that properly raised the defence of self defence. The defence was more towards a self-inflicted stabbing by accident. A defence which has been rejected.
    
82. Having not been satisfied as to the element of intention to kill, a verdict of Not Guilty is returned for the charge of wilful murder under section 299(1) of the Criminal Code.
    
83. Section 539 of the Criminal Code allows for a conviction for a lesser charge of murder or manslaughter where the evidence establishes a lesser charge: see Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999 (15 September 2020) as the Supreme Court authority on the alternatives in homicides charges.
    
84. The evidence does not disclose that she had an intent to cause grievous bodily harm. I am satisfied beyond a reasonable doubt that the evidence establishes the offence of manslaughter. That is Lindsay caused the death of Samuel and that she had no lawful reason to do so. And that she neither had an intent to kill or an intent to cause grievous bodily harm.
    
85. The accused is found not guilty of the charge of Wilful Murder pursuant to section 299(1) of the Criminal Code. Pursuant to section 539(1) of the Criminal Code a verdict of guilty is returned for the charge of manslaughter.
    

ORDERS

86. The Orders of the Court are as follows:
    
    1. The accused having been charged with Wilful Murder pursuant to section 299(1) of the Criminal Code is not guilty.
    2. Pursuant to section 539(1) of the Criminal Code a verdict of guilty is returned for the charge of manslaughter.
    3. The State shall obtain a victim impact statement and served on the defence before 23 September 2022 at 9.30am
    4. A Pre-Sentence Report is ordered and shall be made returnable on 23 September 2022 at 9.30 am.
    5. The offender is remanded in custody.
       

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

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^[1] Refer to paragraph 37
^[2] Section 20 of the Evidence Act states:

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—
(i) he entertained at that time any hope of recovery; or
(ii) he thought that legal proceedings might eventuate; and
(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and
(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.
^[3] Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188
^[4] PNGLR 512