State v Tawa (No. 1) [2024] PGNC 436; N11109 (6 December 2024)

N11109

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 16 OF 2024

STATE

V

NITAWA TAWA
(No 1)

Ramu: Narokobi J
2024: 12th and 15th November and 6th December

CRIMINAL LAW – Criminal Code, s 299 – Wilful Murder - Whether the element of intention to kill was proven beyond reasonable doubt.

CRIMINAL LAW – Criminal Code, s 539, Whether Alternative Charge of Murder Proven.

Facts
The accused Nitawa Tawa was charged with one count of wilful murder contrary to s 299 of the Criminal Code, in that on 19 September 2022, he was in the company of other men, killed one Gideon Kururuwa by repeatedly cutting his limbs, ankles and puncturing his side, resulting in death from loss of blood.

Held:

(1) The evidence of the State is to be preferred over that of the accused sworn testimony based on common sense and logic, proving beyond reasonable doubt the killing of the deceased, but the evidence was lacking on the element of intention to kill, thereby applying s 539 of the Criminal Code, a verdict of guilty of murder under s 300(1)(a) of the Criminal Code is returned.

(2) No autopsy report was tendered by the State, however, there was no other reasonable explanation of the death of the deceased other than that the deceased died from heavy loss of blood from multiple knife wounds inflicted by the accused and his accomplices.

Cases Cited
Aieni v Tahain [1978] PNGLR 37
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
Mako Ranjigi v The State [1994] PNGLR 44
Paulus Pawa v The State [1981] PNGLR 498
Special reference pursuant to Constitution, Section 19(1) (2020) SC2091
The State v Dippon (2014) N5705
Tawingo & Others v The State (2008) SC983

Legislation Cited
Criminal Code Act

Counsel
Mr J Kasse, for the State
Mr C Momoi for the Accused

DECISION ON VERDICT

6th December 2024

1. NAROKOBI J: Nitawa Tawa was charged with one count of wilful murder contrary to s 299 of the Criminal Code. The State alleges that he was in the company of three other persons when they confronted Gideon Kururuwa on 19 September 2022, at Mopo Village in the Usino Bundi district of Madang Province and cut his ankle, wrists, fingers, head and punctured his side. He died from heavy loss of blood from those injuries. The State invoked s 7 of the Criminal Code, in that they aided and abetted each other to commit the crime.
   

Background

2. Death of the deceased was not disputed. At issue was who killed the deceased and the cause of death. Did the accused inflict the fatal injuries from the bush knife or was it someone else? The State alleges that the killing took place in the kitchen house of the sister of the deceased, Leah Philip who saw what happened, while the accused says that the death took place in the bush, and he was not involved.
   
3. Wilful murder under s 299 of the Criminal Code has four elements which the State must prove beyond reasonable doubt (Tawingo & Others v The State [2008] SC 983). In Tawingo & Others v The State, the court held that the state has the onus of proving four essential elements of wilful murder:
   

(a) A person who;

(b) Unlawfully kills;

(c) Another person and;

(d) With intent to cause his death or that of some other person.

State’s Evidence

4. The State relied on the record of interview of the accused, Nitawa Tawa (both the Pidgin and the English translated version), the Statement of the Investigator, the Statement of the Corroborator and the evidence of Leah Philip and Momis Kururuwa by oral testimony. The accused relied on his own sworn testimony. He did not call any other witnesses, including any alibi witness.
   
5. In the record of interview, the accused stated it was Phillipon Kaun that killed the deceased. The record of interview was tendered with the consent of the accused.
   
6. Leah Philip is the sister of the deceased, educated to Grade 8. She says she will give evidence of what transpired on 19 September 2022. Nitawa Tawa the accused is known to her as they are related through ancestral connection. In her evidence she says that due to an earlier dispute, Nitawa Tawa, Phillipon Kaun, Yabo Wais and David Nitawa came looking for the deceased. When they arrived at her house they cut the plants, cut her dog and almost shot her baby with a sling shot. She said Nitawa Tawa gave instruction to look for the deceased. He was not there so they left. After that episode, her brother Gideon Kururuwa arrived and she cooked some banana over the fire and shared it with him. At about 11.00am he went to sleep in her kitchen and she took out her market table and did some sales outside of her house. She was some five (5) metres from her kitchen. She saw Nitawa Tawa, Philemon Kaun, Yabo Wais and David Nitawa come into the kitchen and attack her brother. They cut his fingers, wrists, elbows, ankle and two sides of his head. His left ribs were punctured, too. During cross-examination she remained confident of what she witnessed. She said she saw the events with her own eyes. At one point it was overbearing and she became emotional and she broke down. But she was nevertheless confident with what she saw. The accused did not disturb her evidence in cross-examination. It is also difficult to understand why she would come and openly and unashamedly lie to Court.
   
7. Momis Kuruwara said that he was not at the village at the time his brother was attacked. He was in the bush. When he heard the noise, he returned quickly. When he came, he saw the deceased lying on the ground. He turned him over and asked him, who attacked him. He said it was Nitawa Tawa, Phillipon Kaun, Yabo and Michael. Soon after that he died. His evidence was not disturbed during cross-examination.
   

Accused’s Evidence

8. The accused Nitawa Tawa, said there was a dispute over sago leaf between Momis Kururuwa and Yabo. He comes across as confident and aware of what was going on. Momis Kururuwa was chased away on 18 September 2022. The next day, his brother Gideon Kururuwa came to Nawex Village and was very aggressive. He assaulted Nitawa Tawa. Details were that Gideon Kururuwa swung a knife at him, he blocked it with a tree branch, causing him to slip and fall. Gideon Kururuwa was then chased away. Nitawa Tawa then retreated to his house. He does not know how the deceased was killed as he was in his house. During cross-examination he was asked why he made a contrary statement to the police, telling them that it was Phillipon Kaun that killed Gideon Kururuwa. In his response he said that he didn’t go with Phillipon Kaun. He was told later at his house of the death of Gideon Kururuwa.
   

Law on Identification Evidence and Circumstantial Evidence

9. This is a case which depends on identification evidence. The cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698 provide the accepted principles a Court must be alert to when it considers the evidence of a witness identifying an accused who denies involvement. These considerations are:
   
   • There must be issued an appropriate self-caution.
   • There must be a careful assessment of the identification evidence.
   • An honest witness may be a mistaken one.
   • An identification witness must be honest and accurate.
   • Whether the evidence is corroborated.
   • Whether the person to be identified is a stranger or is known to the witness.
   • The length of time the witness observed the accused.
   • The emotional state of the witness.
   • The prevailing conditions.
   • The line of sight.
   • An accused is presumed innocent and sufficient weight is given to the accused defence evidence.
   • Accused right to remain silent is enforced.
   • Elements of the offence are accurately set out and applied.
     
10. I bear all these considerations on identification evidence in mind, when I am assessing the evidence of the State and that of the accused.
    
11. There are aspects of this case that rely on circumstantial evidence. I apply the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:
    
    • the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
    • to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
      

Issues on Evidence

12. Mr Momoi submits that there is no evidence of the cause of death from a postmortem report. He relies on the case of The State v Dippon (2014) N5705. On the other hand, Mr Kasse for the State submitted that the death of the deceased is not an issue. The State also relies on the case of R v Pari-Parilla (1969) N527 that in a trial for wilful murder, that the death of the victim is an essential fact to be proven and it may be proven circumstantially provided the inference leaves no reasonable doubt. I accept the State’s submission given that the death of Gideon Kururuwa is not disputed. I will however re-visit this issue on the question of intention.
    
13. Mr Momoi then submits that the English translation of the record of interview does not accurately convey the statement in the original pidgin version. I am not sure I understand exactly what he means, but I will discount this evidence, as the Court did not have the benefit of an independent expert translator to assist. The only piece of the evidence in the record of interview, I accept, is Nitawa Tawa’s statement that Phillipon Kaun cut the deceased. This is not disturbed by the submissions and the evidence.
    
14. Mr Momoi further submits that there are inconsistencies in the evidence of the two State witnesses, Leah Philip and Momis Kururuwa as to who was involved. Leah Philip identifies Nitawa Tawa, Phillipon Kaun and Yabo Was armed with a bush knife, cutting her brother. Momis Kururuwa’s evidence was that the deceased told him that Nitawa Tawa, Phillipon, David Tawa and Michael Tawa cut him. The two witness also gave inconsistent information on the nature of the injuries. Mr Kasse submits that there is no dispute over the key individuals involved in the attack – Nitawa Tawa, Phillipon Kaun and Yabo Wais. I agree with Mr Kasse that these three names feature in the evidence of Leah Philip and Momis Kururuwa. Furthermore, Nitawa Tawa voluntarily identifies Phillipon Kaun in the record of interview.
    

Considerations

15. I have compared the evidence of the State and that of the accused. I am impressed by the account of Leah Philip. There is no reason why she would come and lie to court. Her cross-examination did not elicit any motive to lie. Nitawa Tawa is known to her. There was no issue of lighting as it was about 11.00am. There was no interference with her line of sight and the proximity of 5m ensured her confirmation of the identity of Nitawa Tawa. Nitawa Tawa’s own evidence was that he and the deceased had an altercation. The deceased tried to cut him, but the knife cut a branch he was holding, and Nitawa Tawa fell into the drain. This aspect of Nitawa Tawa’s evidence explains why Leah Philip said that when deceased came to her, he was chased. Nitawa Tawa was very angry with Gideon Kururuwa for assaulting him. I will give the accused the benefit of doubt with regards to the inconsistencies in the record of interview and the evidence of the accused except for his statement that it was Philemon Kaun that cut the deceased and killed him. In his evidence he says that he was at his own house when the incident occurred. The accused did not provide any alibi evidence. Nitawa Tawa would have been very angry from being attacked by the deceased causing him to fall into the drain. The accused evidence to court is a recent invention. For these reasons I will reject the evidence of the accused.
    
16. The evidence of Nitawa Tawa does not resonate with common sense and logic. The only evidence of Nitawa Tawa that is to be accepted is what happened on 18 September 2022 and the events of 19 September 2022, just before 11.00am. His evidence of what transpired before the killing of the deceased coincides with Leah Philips evidence, to the extent of the deceased arriving at her place, running away from somebody. That somebody was Nitawa Tawa, and a group of men, including Nitawa Tawa and Yabo Was. The fact that he calmly accepts his ill treatment by the deceased and returns to his house, does not accord with common sense and logic. This is because he was provoked by Gideon Kururuwa and would have been very angry and went with Yabo Was and Phillipon Kaun to avenge his assault.
    
17. The question then is did Gideon Kururuwa die from the wounds inflicted by Nitawa Tawa and his accomplice Yabo Was and Philipon Kaun? The accused submits that there is no medical report to suggest what caused the death of Gideon Kururuwa. He says that Gideon Kururuwa was still alive when he spoke to Moses Kururuwa. Whilst it is always important to have an autopsy report, the evidence shows that there was no other reasonable explanation for the death of Gideon Kururuwa then from the knife injuries he suffered. According to Leah Philip the deceased was well before he was attacked by the accused and his accomplice. They ate banana she cooked on the fire. The nature of the injuries suffered, that is to the fingers, wrists, elbows, ankles, head and ribs, suggests no other explanation then that Gideon Kururuwa died from loss of blood from these knife wounds. Even in cross-examination there was no suggestion put to Leah Philip and Momis Kururuwa that there was an intervening factor that either caused or contributed to the death of Gideon Kururuwa, other than what occurred. Applying the principles in Paulus Pawa I am left with no other reasonable hypothesis then that the accused caused the death of Gideon Kururuwa. The State has proven the first and second element beyond reasonable doubt – that is a person, who killed the deceased.
    
18. Was the killing unlawful? This is the third element. From all the evidence presented, the State has proven beyond reasonable doubt that the killing was not justified, as there was no defence or basis in law that justified the killing. The accused does not raise any defence to justify the killing but denies involvement. It was a mob attack.
    
19. Was there an intention to kill Gideon Kururuwa? The intention to kill can be determined from the nature of the injuries (Mako Ranjigi v The State [1994] PNGLR 44). The State’s evidence was that the deceased’s ankles were cut, his fingers, elbow, his side, and his head, were not spared. Momis’ account of the injuries is somewhat different. However, this is a part of the evidence from the State that is lacking. Gideon Kururuwa was still alive when Momis came and spoke to him. There are no photographs and medical report to confirm the nature of the injuries. I therefore find that the State has not proven the intention to kill beyond reasonable doubt. However, on the evidence of Leah Philip and Momis Kururuwa, the fact that Nitawa Tawa, Phillipon Kaun and Yabo came with offensive weapons and the harm suffered by the deceased was grievous bodily harm considering s 1 of the Criminal Code being, “any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.” The intention to cause grievous bodily harm, is proven beyond reasonable doubt.
    

Alternative Verdict

20. Applying s 539 of the Criminal Code, I consider the charge of murder (Special reference pursuant to Constitution, Section 19(1) (2020) SC2091). Section 300 (murder) of the Criminal Code states:
    

(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; or

21. The two elements of the offence of murder are:
    
    • the accused killed the deceased; and
    • he intended to do grievous bodily harm.
      
22. The first and second element of murder has been proven beyond reasonable doubt from my discussion of the evidence.
    

Aiding and Abetting

23. Applying s 7 of the Criminal Code, in order for derivative responsibility to be established ie aiding and abetting , there must be both an intention to encourage the commission of an offence and an encouragement in fact to commit an offence (Aieni v Tahain [1978] PNGLR 37), Nitawa Tawa was with Yabo Was and Phillipon Kaun, and Leah Philip saw them physically attack the deceased, thereby facilitating and assisting each other to commit the offence of murder. It was Leah Philip’s evidence that Nitawa Tawa led them to come and look for Gideon Kururwa.
    

Verdict

24. From all the evidence and circumstances of the case, I find that there is no other reasonable hypothesis inconsistent with the guilt of the accused Nitawa Tawa for the murder of Gideon Kururuwa.
    
25. I therefore find that the State has not discharged its responsibility to prove beyond reasonable doubt that Nitawa Tawa intended to kill the deceased Gideon Kururuwa, but that he and his accomplice intended to cause him grievous bodily harm, resulting in the death of Gideon Kururuwa, contrary to s 300(1)(a) of the Criminal Code. Applying s 539 of the Criminal Code, I return a verdict of guilty of murder under s 300(1)(a) of the Criminal Code. I will now hear submissions on sentence.
    

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused