State v Songai (No 1) [2023] PGNC 276; N10440 (17 August 2023)

N10440

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 11 OF 2021

THE STATE

V

LIVAI SONGAI
(NO 1)

Aitape: Miviri J
2023: 15^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 CCA – Not Guilty – Armed with Grass Knife – Chased Stabbed Deceased Right Side of Hip – Broad daylight Identification Close Quarters – Identified By Name and Relation – No Motive – Belated Alibi No Notice of – Criminal Practise Rules Order 8 Div 2 Alibi – Deliberate Calculated Lies – Corroboration of Identification – Identification Proved Beyond All Doubts – Intend to Cause GBH – Death – Guilty of Murder – Remanded for Sentence.

Facts

The accused chased the deceased with a grass knife and stabbed him in the right side on the hips perforating the bowl from which he died.

Held

1. Belated Alibi Accused.
2. False made with conscious to avoid guilt.
3. Corroboration of Identification.
4. Intent to cause GBH.
5. Death.
6. Guilty of Murder.
   

Cases Cited

Hagena v State [2017] PGSC 55; SC1659

John Jaminan v The State [1983] PNGLR 318

Beng, The State v [1976] PNGLR 471

Kandakason v The State [1998] PGSC 20; SC558

Waranaka v Dusava [2009] PGSC 11; SC980

Kwapena v The State [1978] PNGLR 316

James v State [2020] PGSC 39; SC1937

Paulus Pawa v The State [1981] PNGLR 498

Counsel:
D. Mark, for the State

P. Moses, for Defendant

VERDICT

17^th August 2023

1. MIVIRI J: This is the verdict after trial where the accused chased and stabbed Billy Metta in the stomach from which he died.
   
2. The facts on arraignment were that on the 12^th April 2019 around 5.00pm, Billy Metta was at Aitape when a vehicle loaded with boys who were armed with bush knives, grass knives, and wire catapults arrived on board. They got off the vehicle and started chasing the people. The Accused Livai Songai also known as Mando was armed with a grass knife. Which he used to chase Billy Metta together with Ruben Tongam who managed to escape, but the Accused followed Billy Metta to the Aitape Soccer Field oval. Billy Metta fell down onto the field and the Accused used the grass knife and stabbed the deceased on his stomach and then he ran away. The deceased was taken to the hospital but passed away on the 15^th April 2019 from the damage that was done to the Bowl, (stomach) caused by the stab wound.
   
3. The State alleged that when the Accused ran after the deceased with the grass knife, he had the intention to cause grievous bodily harm to the deceased. But it led to his death and therefore his action breached section 300 (1) (a) of the Criminal Code Act. He also aided and abetted the others that he came with, so the State invokes section 7 (1) (a) (b) (c) and (d) of the Criminal Code Act.
   
4. Section 300 is in the following terms:
   

“(1) Subject to the 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 intended to do grievous bodily harm to the person killed or to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

5. The allegation is that the accused intended to cause grievous bodily harm upon the deceased which resulted in the death of the deceased. He denied the allegation. Thus, it fell upon the State to lead the evidence to prove the allegation against the accused.
   
6. In this regard the Record of interview of the Accused conducted with Police on the 20th August 2020 originally in pidgin was tendered and become State Exhibit P1 and the English translation of that record of interview became Exhibit P1(a). And the Arresting Officer Detective First Constable Salvator Nivani’s statement became Exhibit P2, and P3 was that of Detective Senior Sergeant Rodney Malken corroborator, also of the Aitape Police Station.
   
7. The accused stated that his name was Livai Songai not Mando. He was from Prou village. And his father’s name was Freddie Songai Amau. When police asked him about the 12^th April 2019 he said he would tell the Court. And this was the same when he was asked that he was drunk with other boys from Prou, and he accompanied his village boys to Aitape. He denied that he was seen by the eyewitnesses. He denied that he did not know the deceased Billy Metta. And he denied that he chased the deceased to the soccer field here stabbed him and killed him. Including cutting him on his leg. He escaped to Wewak and was there until when he returned police got him and arrested him with the offence. He denied that he escaped to Wewak.
   
8. In sworn testimony on oath the State called Ruben Tongam originally from Yakamul Aitape West Sepik Province. He completed primary education at grade 5 at the Saint Ann’s Primary School in 2015. On Friday 12^th April 2019 he was under the rain tree outside Aitape Town. I was standing there when this happened. They came with a big vehicle 14 truck from Wewak that makes passenger runs from Lemieng it stopped at the Junction and all the boys on it got off. All of them were armed with knives, catapult and they chased us. The Junction is where the bus stop is going to where the bridge is. And these boys were from Prou Vokau which is where the log pond is. They were plenty of boys. But I recognized the Accused and points to the Accused with both hands folded as if in prayer. His name is known as Mando. And he is from Prou. He cut brother Billy and when he fell down, he stabbed him with a knife. I stood at same place he was cut and said stop it stop it that is enough. But it was late he cut and stabbed him in the stomach. I turned around and said enough and he chased me, so I ran to my house. It was a small shower of rain it was clear at 5.30pm. He chased me with a knife, and I ran straight to my house. I did not see anyone follow us except Mando. And he is the same person who is sitted in court today. There were no trees but only grass which was a bit thick on the field. It was about one meter length but the whole body was in full view and can be seen when chased. Only Mando followed us there was no one except him.
   
9. He maintained that evidence on cross examination and did not deviate from it, That Billy Metta was stabbed in the middle of the field, ground one (1) field just to the side of the field next to rain tree. He was also running in the same direction but straight field. My house was next to the field and only one person was chasing us, Billy, and me. I was ahead, Billy and then Accused. Tall grass did not prevent. It was very close so when he the swung grass knife I said enough, he chased me, and I ran to the house. He cut him I turned around and said enough so I saw him. Yes, I did not see him stab him in the stomach. He said he would not know story of lady referring to Dorothy Kamai nor did he know her. Nor did he know of the Accused shopping and leaving with his sister. He maintained that he did not have any story. And that he had no more story all were in the statement.
   
10. In re-examination, he maintained that the face he saw on that day was the same face now sitted in court, Livai Songai, Mando. He is not my enemy, so I saw his face when I turned and faced him. This is in principle the evidence of the first witness for the State Ruben Tongam.
    
11. The next State witness was Warres Kuper who lived in Aitape Town originally from Aipokon Malol Aitape. He completed grade 10 in Saint Ignatius Secondary School. And on the 12^th April 2019 was standing telling stories with the boys. There were two drunken men one on the vehicle and other on the ground arguing. We stopped them and the truck took off with the drunken in it. I was still standing there. This vehicle went and dropped the boys, got another truck and they came back again on charity 14, a passenger truck came with all in it. When it came and stopped those who were on it came out with weapons and started attacking anyone. They were using bush knives, stones, wire catapults attacked boys at first rain tree. They were from Prou and Vokau villages. They did not question they just attacked, and we ran away. I ran and stood under last rain tree and hid towards shop. I saw some boys chased some boys out to field. I saw Billy Metta and two boys outside Sebas and Ruben.
    
12. Bata (Brother)Mando and other chased them to the field, the place was clear, and his name is Mando from Prou. Mando had a grass knife at that time that he was chasing Billy who fell down when he used the weapon to attack him. He was wearing long trousers that was baggy, grass so it might have trapped him to fall down. Yes, I saw Mando used the knife to stab Billy. I ran to the house to get a weapon to retaliate. I was about from the witness box to the Corner of the Court fence about 100 to 150 meters. I did not see Billy get up as I ran to the house. He is deceased we buried him at Die Village Ulau. Next day in the morning whilst in the hospital at Raiho he died.
    
13. Bata Mando mipela raun wantaim and the incident I know him well before the 12^th April 2019. I have known him for years for a long time and we have been living together. He lives in Prou, and I live in Aitape, but we hang around together, so I call him brother Mando. His father’s name is Freddie Amau. Bata Mando is Accused points to him in Court.
    
14. That evidence was maintained in cross examination. 2019 he was living in Aitape, and he knew Billy Metta as a good friend they drank together. And on the 12^th April 2019, Billy Metta did not drink the others and himself were drinking. He was just in the house and in the afternoon at 5.30 he came to us under the shade tree. It was light showers but clear. It was a public place ordinary, and people were waiting for PMVs. There was a previous incident where a brother was attacked. Yes, I was drunk and then I did not do anything I saw my brother being injured and died. I ran back to get a weapon. They must have stopped the vehicle and got on Charity 14 because they came back after about 5 to 7 minutes returning with the people from Prou who were drunk and had weapons. In Aitape People carry weapons it is a cowboy town. And they started chasing everyone. I was scared they have bad name we saw them and ran away. I hid under shade tree close to Kosa opposite side to field where tree standing. I was on right hand side where basketball is 100 to 150 meters saw. It is like from the witness box to the corner of the Court fence.
    
15. People were scared running away because they were throwing stones, so I ran and hid. He had baggy trousers, and it was tall grass and Billy was running in it through the field. When I turned around, I saw him fall because some of the boys who came down, I knew them, and they did not attack me. This was the evidence of the second witness in principle.
    
16. The third witness was the Faith Yakam the Health Extension Officer who prepared the medical certificate of death of the deceased Billy Metta. She was the holder of a Bachelor of Health obtained from Divine Word University. And she was doing her residency from 2016 to 2017 and came to work at the Raiho District Hospital until she was transferred this year to the Tari hospital. She saw the admission of the deceased Billy Metta 9.15am who was stabbed in the right hip region perforating the bowl. He died because his bowl was perforated because of the stabbing, and the stomach or gastric contents went back up again because of the blockage in the bowl and went into the lung causing his death as a result. I was called on 99 because he had no pulse and no breathing, we tried unsuccessfully to resuscitate him. Patient died when I arrived. He was initially admitted with the stabbing in the right hip region.
    
17. And she confirmed the Exhibit P4, medical certificate of death under her hand of the 17^th April 2023 and last saw him alive on the 15^th April 2023. And the cause of death was aspiration caused by the partial bowl obstruction because of the stab wound around the right hip.
    
18. Accused Livai Songai alias Mando, 22 years old from Prou Aitape was educated to grade 8 in 2019 at the Prou Vokau Primary School. On the afternoon of the 12^th April 2019 between 5.00pm to 6.00pm he was with his big sister to do shopping at Papindo, and he carried a rice bag, and she carried some other shopping. Both went and got on the logging company vehicle with other workers of that company and went. It was Toyota Landcruiser open back and there were many workers men women and children. And they all went to Prou. He did not know about the men armed and chasing the others under the shade tree. Or that someone was stabbed as a result. Nor was their any story in the village about how their boys from Prou stabbed someone in town who died as a result. He did not know until the police went and got him from there. Essential he gave evidence of an alibi that he on the 12^th April 2019 was with his sister and had done shopping and gone. He was not involved in the allegation ever at all.
    
19. He called one Dorothy Kamai from Sumsum in Namatanai married to his uncle brother of his mother. She came out of Kerema Compound to see the fighting on that day 12^th April 2019 at about 5.00pm t0 6.00pm. She is the aunty of the Accused because he being the nephew as his mother was the sister of the husband of Dorothy Kamai. She basically gave evidence that she saw one Sebas from the Jinka company got the knife and stabbed the deceased with a forward stabbing motion into the left side. He has gone to Vanimo already. She was 50 to 70 meters when she saw this about the same distance as from the gate of the court premises to its end. She helped the deceased to her house at Kerema Compound sent word for the parents who came and got the deceased Billy Metta and took him to the hospital. There was no one there to help him so she helped him by lifting him up on her shoulder dropping his arm over her shoulder and taking him in that manner to her house. She told this story to the parents of Billy Metta and Ekis the policeman at his house at the Police barracks. She has not come with that story to the police since the 12^th April 2019. And for the four years since up to the present when she came to court.
    
20. Livai is my child “em save silip kirap long haus bilong mi. His mother is my husband’s sister.” He sleeps and stays with me. His mother is my husband’s sister.
    
21. Dorothy Kamai 52 years old, has nine (9) children from her marriage to the uncle of the Accused and has been living at the Kerema Compound just a short walk away from the Aitape Police Station. She has in that time not fronted up to the Police Station with this story. And in that period an innocent person her child, the accused, son of her sister-in-law has been sitting in jail. And she with the evidence to set him free has been just sitting without lifting any muscle to bring it out to the hands of the law. And having made that story to the parents of the deceased they have made no motion to see the police and alert them of this fact. With the same vigour that she sought to help Billy Metta without any hands to her side, she has not made the same having seen the assailant known by face by name and location she has sat out four years since the 12^th April 2019 without lifting a finger or a leg to come to the police Station Aitape to lay out a formal complaint. She has allowed her own flesh and blood born of her sister-in-law, the Accused Livai Songai alias Mando to sit out four years in prison on wait court whilst she toyed with the evidence of his innocence without lifting any finger or iota to air it to the law.
    
22. I ask myself how genuine this evidence is, and my answer in no uncertain terms is that this evidence is not the truth. Because if the deceased and the assailant’s height was as she described the injury will not be on the left side as she stated where the stomach is. It would be common sense that because of the height difference it would be made out with the wound higher to enable the reach of the assailant who was taller than the victim. Even than the medical certificate of death says He was initially admitted with the stabbing in the right hip region. It makes untruths that this witness is now telling the Court. What is stated also by the State witnesses confirmed by the Medical Officer is now disputed by this witness. It is clear, She the aunty of the Accused is simply trying her very best to make out evidence not there in the first place. That is why it was for the four years since the 12^th April 2019 not given to police by her, let alone the parents of the deceased. It was untruths not corroborated by the injury on the body of the deceased independently confirmed by the medical report and officer. She was trying to defend the child she looked after who always slept in their house. She is not an independent witness as the Defence want to make out. She is a very biased witness intent on securing the release of the defendant by her false and concocted lies. The reasons in this regard are self-serving from her evidence.
    
23. I therefore hold that Dorothy Kamai has told untruths to create that her nephew son of her sister-in-law, natural sister of her husband was not the one who stabbed the deceased. This is a deliberate and calculated lie that corroborates the account of the identification evidence given by both State witnesses Ruben Tongam and Warres Kuper. I hold both of them to have told the truth and nothing but the truth as best as they observed on that day, 12^th April 2019 at about 5.00pm to 6.00pm when Bata Mando alias Livai Songai, now sitted in court, stabbed Billy Metta in the right side of the hip area perforating his bowl causing a blockage forcing the gastric content to go back up and into the lung to cause aspiration to cause his eventual death on the 15^th April 2019 at District Raiho Hospital.
    
24. Because there is no notice of Alibi filed in accordance with Order 8 Division 2 of the Criminal Practise Rules. It means this is an alibi that has been created with a conscious sense of guilt by the Accused. If there was indeed a genuine alibi notice by the Criminal Practise Rules would have been immediately filed. Because there would be the evidence of Dorothy Kamai coupled with that of the big sister making this case exceptional for the Accused for eventual acquittal. It has not been filed in good time because it has been recently baked and is uncooked to be eaten. It will not lead the defendant any way other than putting fuel to the fire that the State has ignited that he is the assailant of Billy Metta now deceased as of the 12^th April 2019 when he was fatally stabbed in the right hip area by Bata (Brother)Mando alias Livai Songai causing his death when medical complications set in from the initial injury to the right hip area that he had caused perforating the bowl and therefore a blockage, forcing the stomach content into the lung to cause aspiration leading to his death.
    
25. The defence evidence is therefore self-serving and not corroborated by any independent and material evidence to point in his favour: Hagena v State [ 2017] PGSC 55; SC1659 (11 December 2017). It means he has given false and belated evidence disassociating himself from the truth to avoid the guilt that is glaring against his action, on that day 12^th April 2019 leading to 15^th April 2019 in the death of the deceased. There can be only one conclusion in law that he was armed with grass knife that he used to stab Billy Metta in the right hip area causing the perforation of the bowl leading eventually to his death.
    
26. I find as a fact and hold that the accused has consciously told lies to disassociate himself from the offence by the deliberate lies that he has told. And which lies have been added to by the further and concocted lies of Dorothy Kamai his aunty, wife of his uncle, brother of his mother. I find as a fact that the lies have been deliberately told to avoid his guilt in the murder of the deceased Billy Metta. And this has included the alibi that has been created to build him away from the murder of Billy Metta. But which effect has because of it being told consciously to avoid guilt has amounted to corroboration of the State account: John Jaminan v The State [1983] PNGLR 318.
    
27. In my view the aggregate is that there is firm and conclusive ring of the truth spiralling through the state evidence, so much so that the only credible version is that of the state which I prefer over and above that of Bata Mando, the accused. The injuries are consistent with being delivered on the right hip and not as stated by Dorothy Kamai on the left side. Because here the evidence of the witnesses, Ruben Tongam and Warres Kuper is made in broad daylight in close quarters. It would be harmonious to read the test in Beng, The State v [1976] PNGLR 471. That what the Accused did was observed in very good lightening, at close quarters by persons who were known to him. All knew each other, there was no room for mistakes and the like to doubt what the accused did to the deceased on this day. All are coherent consistent in their veracity. Common sense and logic demands that is the truth to be followed which is not otherwise the case of the accused and his aunty Dorothy Kamai.
    
28. Because the assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Here there are serious unexplained inconsistency in the evidence of the Accused and Aunty Dorothy Kamai. They evidence both are not keeping in with logic and common sense. For those reason they will be rejected outright: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). It is not the case against the witnesses of the State but the defence evidence suffers that fate. It will be rejected outright because the truth now verified is that Accused was the assailant responsible for the stab wound to the right hip area causing perforation of the bowl leading to the death of Billy Metta. He was pursuing with the intention to cause grievous bodily harm. And succeeded to giving that injury from which death has come. He did not stab because he was defending himself as in Kwapena v The State [1978] PNGLR 316. He was stabbing Billy Metta who had no interest to fight him. He on the other had had clear evidence of animosity by the by the way he was acting leading up to the killing, James v State [2020] PGSC 39; SC1937 (24 April 2020). He was the assailant and intent on doing that because of an earlier incident involving where the beer of drunken in that vehicle he was in was taken so that they returned 5 to 7 minutes later in the vehicle charity 14 and did what they did assaulting everyone anyone with the bush knives and other weapons they had causing all there to flee as did the deceased.
    
29. It is the only rational and reasonable explanation. There is no other reasonable hypothesis other than that fact: Paulus Pawa v The State [1981] PNGLR 498.
    
30. The State in my view has discharged beyond all reasonable doubt that Accused stabbed Billy Metta in the right Hip area with a grass knife. And at that time on the 12^th April 2019 when he did that he intended and had the intention to cause grievous bodily harm to him. The result now evident is that Billy Metta has died 15^th April 2019 at the Raiho District Hospital and passed on. I return the verdict of guilty of murder pursuant to section 300 (1) (a) of the Criminal Code. He will be remanded to await his sentence.
    
31. Verdict Guilty of Murder pursuant to section 300 (1) (a) Criminal Code Act.
    

Ordered accordingly.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendant