State v Voiha [2022] PGNC 76; N9521 (15 March 2022)

N9521

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 980 & 882 OF 2009

THE STATE

V

GABRIEL VOIHA & CHARLES KEMBU

Kimbe: Miviri J
2022: 11^th, 14^th & 15^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death undisputed –Internal Head & Puncture of Lung – intent to kill – Role of Accused – Identification – section 7 CCA – totality of overt acts – Whether acting in concert – mere presence – active participation – Self Defence of Deceased – Not Negatived – benefit of Doubt – Acquitted & Discharged.

Facts
Accused were in company paddled out to the reef and assaulted the deceased one hitting the deceased on the head with a blunt object and the other present with a spear. Deceased died of internal injuries to the head and puncture to his lung causing his death. They intended to kill him and did so.

Held
Accused were present but did not constitute aiding and abetting to kill. Self Defence was raised but not negatived against Gabriel Voiha. The role of Charles Kembu was not beyond doubt. Benefit of doubt accorded to both accused and acquitted and discharged. Released from Custody forthwith.

Cases Cited:
Beng, The State v [1976] PNGLR 471
Kwapena v The State [1978] PNGLR 316
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
Wani v The State [1979] PNGLR 593
Wamela v The State [1982] PNGLR 269
Nimagi v State [2004] PGSC 31; SC741

Counsel:

L, Maru, for the State
D, Kari, for Defence

VERDICT

15^th March, 2022

1. MIVIRI J: This is the verdict of two men who assisted by paddling out to the reef where the deceased was, there hitting him with a blunt object to the head and spearing him in the chest causing his death. They aided and abetted each other intending to kill him and did kill him.
   
2. They were charged with wilful murder under section 299 (1) of the Criminal Code Act which reads:
   
   • (1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person intending to cause his death or that of some other person is guilty of wilful murder.
     
   • (2) A person who commits wilful murder shall be liable to be sentenced to death.
3. The allegation against them is that on the 06^th March 2009 at Kario, West Kove at about 6.00pm Bernard Philip now deceased was at Kario reef. He was spearing fish with other boys from Tarava Village. At about 7.00pm the two accused accompanied by others paddled out to that reef. Upon arrival there they saw the deceased and swore, “Kaikai Kan” and attacked him with spear and paddles. In the course of which deceased suffered, multiple skull fractures, cervical spine fracture, right chest wound, and multiple spear wounds to the left chest. The Accused left and the deceased was rushed to the local Health Centre but died due to the injuries sustained. The head injuries the puncture to the lung caused hypovolaemic shock from which he died. The Accused had intended to kill the deceased and aided and abetted each other contrary to section 7 of the Criminal Code and were liable for the death of the deceased.
   
4. The issue is whether Gabriel Voiha and Charles Kembu were identified as persons who aided and abetted one Dominic Gawari in the assault leading to the death of the deceased. And if so, did they individually intent to kill him?
   
5. Much of the evidence was undisputed and were tendered and marked as follows; Exhibit P1 medical affidavit of Doctor Karl Samuel of Kimbe General Hospital dated the 18^th March 2009. He made a medical report of the 14^th March 2009 which is headed Report on Post-mortem Examination of the deceased, Bernard Philip Tomiam. Relevantly death had occurred eight days before his examination made on the 14^th March 2009 at 15.00 hours. Significantly the deceased had severe head injury, puncture of the right lung and hypovolaemic shock from which he died. The summary of significant or abnormal findings at examination were; multiple skull fractures, Cervical spine fractures, right posterior chest wall wound, and multiple spear wounds causing hypovolaemic shock leading to his death.
6. That was also the medical certificate of death also of the 14^th March 09 exhibit P1.
7. Exhibit P2 was Policewoman constable of the Criminal Investigations branch Kimbe Rheema Luckie dated the 08^th May 2009 who corroborated the Confessional Statement obtained by Detective Senior Constable Samson Fanaso with the accused Gabriel Voiha.
8. Exhibit P3 is statement of Peter Mirio Policeman of CID Kimbe dated the 03^rd March 2009, who corroborated Detective Senior Constable Samson Fanaso with the Confessional Statement of one Dominic Gawari not before the Court. And also, the defendant Clement Navus on the 22^nd April 2009. He was also not before the Court here.
9. Exhibit P4 is Statement dated the 03^rd March 2009 of Detective Senior Constable Samson Fanaso of the conduct of the investigations in the matter, including the record of interview conducted in each case with the two accused and others also charged in the matter.
10. Exhibit P5 & P5A are the records of interview of the accused Gabriel Voiha conducted of the 21^st April 2009 at 2.20pm with the policemen set out above in the presence of his own father Patrick Voiha. Relevantly the accused said they went to the scene where Dominic Gawari and Bernard Philip fought. That it was the same story that he had volunteered and given earlier on. He admits that he assisted Dominic Gawari to fight the deceased. And denies that there were others assisting in the fight. He agrees that Bernard Philip had a very bright torch. He says that Dominic had used a paddle to hit the deceased. He was also carrying his spear at that time.
11. Accused admits at question 28 that he used his paddle to hit the deceased. But denies he had a spear on him and did not use it. He admits that there was no plan to kill the deceased but deceased speared Dominic with the spear and so we helped Dominic to fight him. That is the admission he makes at question 31.
12. Exhibit P6 is the record of interview originally in pidgin of the defendant Charles Kembu and later translated to English, Exhibit P6A. He admits getting on a single sided canoe to the scene. He was going there to fish so had his paddle and spear. And that the accused Dominic Gawari and Gabriel Voiha had gone ahead. He followed but turned back to the village when he heard shouting from the scene. That the shouting was by Girin Philip brother of the deceased Bernard Philip. It was dark already. That it was Bernard Philip who first speared Dominic Gawari who retaliated and speared him and killed him. Because Dominic and Gabriel paddled up and asked if they had got plenty fish. And Bernard at that time flashed his torch to the eye of Dominic and speared him with a spear and fight broke out from there. He denies that he helped in fighting the deceased.
13. Exhibit P7 is statement of Francis Dalman constable of Police with crime scene Kimbe Police Station. He took seven photographs of the scene of crime and the body of the deceased showing the injuries on the body particularly the head and the chest. The head injury is visible so too the entry wound into the chest of the spears. This is Exhibit P7A to P7G.
14. The first state witness on oath was one Brian Jackson whose evidence does not identify either of the accused before the Court. But states that he saw Dominic Gawari hit the deceased on the head with an axe. And saw Clement Navus speared the deceased on his chest. It was very risky and he was barely keeping his head above the waters within the shadow of the mangroves. He was at a distance of 10 to 15 meters looking on from a dark area, which became so when the torch 3 cell held by Bernard Philip fell into the sea as he was attacked.
15. The second witness on oath, Peter Dui confirmed these details, the assailants actively involved were Dominic and Clement Navus who speared Bernard Philip on his left chest and Dominic hit him on his head with a sharp tool at the end. There was a cut on the face when we saved him. He recognized these two but not others.
16. The third witness on oath was one Meloa Mondo. He was also from Tarava village. He was there fishing with the deceased and that the boys from Kapo came and swore at them, “Kaikai kan”. He was about 6 to 7 meters from where they were attacking the deceased. He said there were Dominic, Clement, Buki, Charlie and Tule. He did not know Charlie’s other name but said he was in the dock and pointed out the Accused Charles Kembu. That only Clement shot him with a spear and Dominic cut him. It was just only those two he saw.
17. It was dark as the light held out by Bernard Philip according to the evidence of Meloa Mondo fell into the sea when he was assaulted. And he saw only two who he has named. But that the Accused Charlie alias Charlse Kembu was at the scene. Which is contrary to the evidence of Charlse Kembu that he had already left the scene.
18. In defence Gabriel Voiha has given a Statement from the dock that he did not assault the deceased he went and turned back and did not know what happened to him. That Dominic was the one who attacked Bernard Philip after he shot Dominic with a spear and we assisted Dominic to retaliate and attack him. He explains in the record of interview question 40, “We never intended to kill him. He shot me first with a spear then he was trying to shoot Gabriel again and we attacked him. We intentionally burse him up to make him weak so that we could escape but unfortunately he passed away?”
19. In the case of the Accused Charlse Kembu, he gave sworn evidence that the police had made up his story. That Bernard Philip had flashed the torch into the eyes of Dominic Gawari and speared him erupting the fight. Dominic retaliated and speared him in the chest. It was only Dominic and Gabriel and no other was involved in the fight.
20. The totality of the evidence is that the scene of the attack is at night time and was already dark because there is use of torches to see as set out by the evidence. The only bright torch that is agreed to by all is that held by the deceased. Which became dim when it dropped into the sea as he was assaulted and sustained injuries as a result. And that is borne out by the First witness for the State Brian Jackson, who elects to seek the cover of the mangrove in the dark just having his head above water because it was a risky situation. It was at sea on the reef and so lighting was scarce and visibility was not good to see confidently.
21. If this is the situation observed by this witness whose evidence is consistent with the other two that the attack upon the deceased was by Dominic Gawari with the axe, or sharp tool cutting Bernard Philip on the head. And then Clement Navus spearing him, there is no evidence of the role played out by either Gabriel Voiha or Charlse Kembu in each of the witness’s evidence. The State is relying on the evidence of Meloa Mondo that Accused Charlie was there. But that is all in respect of the role that this accused plays in the allegation. Because the other witnesses who were also at the scene do not give the same account if all were looking at the same thing at the same time. This is given the lighting conditions there and prevailing which is the backdrop of the observation that these witnesses are making the identification in the evidence given in court. It is not safe to make determinative and conclusive finding of fact that the deceased was assaulted by the two accused who were assisting Dominic Gawari and Clement Navus. Because there is simply no evidence to this effect from all State witnesses called.
22. I take due account of Beng, The State v [1976] PNGLR 471 which is the law relevant on identification. The circumstances here are such that there was no light from which the observation of the witnesses for the State will sustain against the Accused. Because the only light became dim when the deceased who was holding it was assaulted releasing it falling it into the sea. Given that fact the identification evidence of the accused was not satisfactory by the witnesses. In any case they identified the role of persons who are not before the court on the allegation. The identification of Gabriel Voiha is by his own admissions in his record of interview. But that is inconclusive for the reason that he has raised that he hit the deceased because it was, he who initiated the assault upon Dominic Gawari who retaliated. And this accused helped by hitting the deceased with the paddle because of that fact. Defence of another person who is attacked, here Dominic Gawari is raised because according to this witness deceased used a spear.
23. The raising of this defence raises to the Prosecution to lead evidence that there was no defence of another as alleged by the evidence of the Accused. Relevantly the issues that must be addressed and discharged beyond all reasonable doubt is, “(1) Where a defence of self-defence to murder is raised either under s. 274 or the first paragraph of s. 275 of the Criminal Code, the questions to be determined beyond reasonable doubt are: (a) whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm, (b) whether the accused believed that he could not preserve himself from death or grievous bodily harm otherwise than by using the force that he in fact used, and (c) whether the accused’s belief was based on reasonable grounds: or rather whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds.”Kwapena v The State [1978] PGSC 4; [1978] PNGLR 316 (1 September 1978).
24. The application of this law does not have the evidence fitted in by the prosecution to negative that both Accused were acting in the defence of another Dominic Gawari. It does not make sense that this accused would attack the deceased in a deadly way. And the same question is posed in respect of the assailants Dominic Gawari and Clement Navus. Why would they act as they did against the deceased? It is reasonable to assume that what both Accused raised was more than probable taking place at the hands of the deceased against prompting the former to act as they did. That has not been negatived by any evidence by the State. And given the situation prevailing then the identification evidence is very unreliable and not beyond all reasonable doubt against the Accused. The lighting depicted by the evidence questions the veracity of the evidence of the State witnesses. This lingering doubt is in the hands of the State not the defence.
25. Because in Kandakason v The State [1998] PGSC 20; SC558; Waranaka v Dusava [2009] PGSC 11; SC980, assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is the case against witnesses of the State. They do not explain the reasons and the situation immediately before the fatal attack as in my view that would be against them. They have picked the finer points that would suit them. Even then, the fact remains that it is the duty of the State to negative the evidence of defence of the assailant Dominic Gawari and Clement Navus. And the evidence as it is from the State does not advance its course to discharge the burden it carries. The aggregate is that I am not swayed by the veracity of the State evidence in total and hold that the truth is left unverified and lacking as to the behaviour of the initial assailants who the evidence does not support to erase the doubt now raised by the Accused evidence.
26. It is not beyond all reasonable doubt to make the finding that both Accused were aider and abettor within the meaning of that law under section 7 of the Criminal Code. There must be actual participation in the offence on the part of both Accused not excused by law in the way that they acted: Wani v The State [1979] PNGLR 593. State relies on presence but as in Wani there is no active participation by both Accused. The State has not showed that it was a willed and not innocent, in other words the accused must be part of the group and must have knowledge of what is happening and be actually participating: Wamela v The State [1982] PNGLR 269. And he has not disassociation or separation or withdrawal must be shown for an accused to be exonerated or be not criminally responsible, Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). Here the explanation by the Accused that they acted because the deceased instigated with his spear against Dominic Gawari who merely talked. The force was disproportionate and could have led to injury or maiming of Dominic Gawari and so their actions. It is now by the evidence upon the State to counter that defence of Dominic Gawari was not there on the evidence.
27. This is a lurking doubt that has not been erased on the status of the evidence that the State has produced as set out above. The evidence has not shown the role of the Accused in the crime. Presence at the scene relied is without any further evidence on the role of the accused Charlse Kembu. It is therefore unsatisfactory and does not discharge the burden of proof beyond all reasonable doubt in his case that he was an active participant within section 7 of the Criminal Code. Consequently, the aggregate is that I find him not guilty of wilful Murder as indicted. I acquit him of the charge of wilful murder. He is discharged forthwith.
28. In respect of the Accused Gabriel Voiha, he has raised self defence of another Dominic Gawari in the way that he has acted. Once it has been raised it is the duty of the Prosecution to negative it. Here that has not been accomplished by the State beyond all reasonable doubt on the evidence set out above. The aggregate is that I have serious lingering doubts of the role of the Accused Gabriel Voiha within the realm of section 7 for him to be accountable in the death of the deceased. I am not satisfied beyond all reasonable doubt that he intended to kill the deceased and did in fact kill him. I give the benefit of the doubts I have in favour of the Accused. Accordingly, I return a not guilty verdict on the Indictment laid of wilful murder against the defendant Gabriel Voiha. And consequently, I acquit him of that Charge and discharge him forthwith from Custody. If there are no other charges pending against both Accused, both are free to leave.
29. Verdict Not Guilty of Wilful Murder. Charlse Kembu and Gabriel Voiha are both acquitted and discharged forthwith.
    

Orders Accordingly

__________________________________________________________________Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Defendant