Woli and Rakom, The State v [1978] PNGLR 51 (28 February 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 51 - State v John Badi Woli and Pengas Rakom 

[1978] PNGLR 51

N124

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN BADI WOLI

AND PENGAS RAKOM

Waigani

Prentice CJ

23-24 February 1978

28 February 1978

CRIMINAL LAW - Parties to offences - Aiding and abetting - Unlawful killing - Individual attacks by two accused in presence of each other - No particularization of fatal blows - Each aiding and abetting the other.

On a charge of unlawful killing against two accused it was found on the evidence that following a verbal altercation, the first accused jumped from his car (where the second accused remained) and punched the deceased who defended himself, that the second accused then left the car and joined in the punching of the deceased; that the two accused continued alternately to deliver a number of punches and that the deceased then died from reflex vagal inhibition it not being possible to say which particular blow caused the vagal inhibition:

Held

(1)      Death was caused by blows delivered in the combined assault by the two accused;

(2)      Each of the accused was aiding and abetting the other since both were attacking at the same time, in the presence of each other with intent to harm.

Mohan v. The Queen [1966] UKPC 3; [1967] 2 A.C. 187 applied.

(3)      Accordingly each of the accused was guilty of unlawful killing.

Trial

This was a charge of unlawful killing contrary to s. 305 of the Criminal Code, against two accused, arising out of circumstances which are fully set out in the reasons for judgment hereunder.

Counsel

W. J. Karczewski, for the State.

C. J. P. Russell, for the first accused.

P. F. Liddle, for the second accused.

Cur. adv. vult.

28 February 1978

PRENTICE CJ: The two accused are charged with the unlawful killing of Mundia Yakapus at the B.P. Service Station, Boroko, on the evening of 7th May, 1977. The deceased’s body was most exhaustively examined by Dr. Aiken some days after his death. The post mortem revealed signs neither of external injury nor of internal injury to organs. The doctor’s opinion that his death resulted from vagal inhibition is not controverted by counsel for the defence: and I find myself compelled to the conclusion that the doctor’s opinion is correct.

The death occurred as a result of an altercation which included punching and, allegedly, kicking. The issues presented are (1) that whatever each of the accused may have done has not been shown to the necessary degree to have caused the death of Yakapus, and (2) that whatever each of the accused did was done in defence of Pengas Rakom who was being attacked by the deceased. To support a favourable conclusion on the second issue, reliance is placed on s. 274 and s. 276 of the Criminal Code.

I remind myself that the facts from which causation of death may be inferred, and any such inference itself, must be established beyond reasonable doubt; and that once self-defence has been raised (as it clearly was here), its existence also must be negatived by the prosecution beyond reasonable doubt.

The accused Pengas gave evidence on oath, in which he denied doing anything more to Yakapus than slapping him on the face, after he himself had been slapped on the face and dragged from the driving seat of a car by the deceased. And it was conceded by Dr. Aiken that a slap to the face was unlikely to have caused vagal inhibition. After the car stopped, so they could buy ice (Pengas said), the deceased came and hit on the (bonnet) of the car with his hand; and when spoken to, said “shut-up”— came and opened the car door, and “got cross”. He, Pengas, shut the door, and then the deceased slapped him on the face through the window of the car. That was when he slapped back. The deceased then opened the door and pulled him out. He fell on the cement and the other occupants of his car came to help him. His friends began pushing the accused — he called them back. He was put on the cement some 25 ft. from the car. The deceased then began kicking him. Pengas’ story has the fistfight which ensued, moving some distance away from him, with consequent inability of himself to see who was doing the punching. None of the detail about being pulled from the driving seat of the car, being sat on the cement and kicked was put to the State witness who claimed to have been present and who saw what happened. Pengas was a most evasive witness who paused repeatedly and significantly before framing answers to cross-examination. He repeatedly failed to answer the question being put; and I formed a very unfavourable opinion of him as a witness.

Michael Kende was a friend of the deceased (they came from Kagua) and was in his company that evening. They each, he said, drank two bottles of beer and no more. (I pause to say that the post mortem, though not conclusive in the point, having taken place four days after death, would support this statement.) They went to various places seeking to engage a taxi, and finally to the B.P. Service Station. While standing there, the vehicle which it is admitted was being driven by Pengas turned fast and sharply into the station. Yakapus called out protestingly “You nearly hit me”. A man whom he identified as the accused, John Badi Woli, then got out of the car and started an argument. Thereupon John Badi Woli threw a punch at the deceased and the deceased threw a punch at him. Others then got out of the car and also punched the deceased. The punching was strong. The witness did not identify who was the driver of the car, but stated that the driver was one who got out of the car, and that the defendant Pengas was one of the two whom he saw punching the deceased. They punched the deceased on the face and neck and on the head, and he fell down. The deceased was then kicked to the stomach and neck. John Badi Woli was one who kicked. The deceased then “straightened his body” and died. Heart massage by the witness failed to revive him. The deceased had blood on his clothes, coming from his nose, mouth and ear. The witness could not say how many blows each accused delivered. He agreed that Yakapus used some strength also in punching. There were six men in the group attacking Yakapus. The two defendants were using more force than the others of the six. This witness is a constable of police — but was unable to intervene because of injury to his hands. He was cross-examined to establish that the first punch was thrown by the deceased; but was adamant that the deceased punched back only after being punched initially by John Badi Woli. This witness was quiet in demeanour and did not attempt to embroider the tale. Apparently there was no inconsistency between what he told here and what he said in the District Court.

Another State witness, Obed Ontimo, had been all afternoon and evening drinking with the two accused and three other men. On arrival at the B.P. Service Station he walked over to the ice machine. When walking back, he said, he saw Pengas arguing with a stranger. They started throwing punches at one another. Then John Badi Woli went in to help. It was Pengas and John against the other fellow. He did not see who started the fight or who threw the first punch. Pengas and John each punched the stranger more than once above the shoulders around the head. While seeing the throwing of punches, this witness did not claim to be able to say whether the punches hit. He did not see any kicking. His impression was that the fight went across the Service Station, John Badi Woli and Pengas were driving the stranger back. They appeared to be taking it in turns to attack him. He insisted that “Pengas went with the argument.”

In a record of interview dated 9th May, 1977 John Badi Woli admitted he fought the deceased but said it was the driver of the car who first fought him. He denied kicking the deceased. The deceased had not hit him before he punched the deceased. He admitted punching the deceased on the eye.

It is clear that the six men in the car including the two accused formed a party which had been drinking steadily since 11.00 a.m. They began at the Boroko Hotel, and at 2.00 p.m. went and bought a carton which they drank at Ela Beach. They then drank at the Moresby Hotel until it closed and went to P.M.C. looking for a dance which did not materialize. They then went to 6-Mile, bought a further carton for which they were seeking ice when the fatal incident occurred. In his sworn evidence Pengas stated he had had none of the beer but had drunk 8 or 9 glasses of whiskey while they were at the Moresby Hotel. All must have been seriously affected by liquor, probably indeed very drunk.

I am satisfied that I may safely accept the evidence of Michael Kende, receiving as it does considerable support from that of Obed Ontimo. I reject the version of Pengas that he was pulled from the car and kicked and I reject the version given by John Badi Woli in his record of interview and his statement from the dock that he saw this happen and thereupon punched the deceased man once.

I find it established to my satisfaction beyond reasonable doubt that:

(a)      the deceased Yakapus became indignant at the vehicle being driven fast and somewhat erratically very close to him, and that he protested to its driver about his driving;

(b)      John Badi Woli then jumped from the car and punched the deceased, who defended himself;

(c)      Pengas Rakom left the car and joined himself in the punching of the deceased;

(d)      that the two accused continued a number of punches, alternately, driving the deceased some distance across the service station;

(e)      that the others of the group were assisting the attack by their proximity at least and probably by kicking the deceased when he was felled.

I am satisfied to the necessary degree that the deceased was killed by blows delivered to him in the combined assault by the two accused, and that the State has to the same degree negatived the possibility that the blows delivered by the accused were launched in self defence in the case of Pengas, or in defence of Pengas in the case of John Badi Woli.

Each of the accused is responsible in law for the death resulting from their attack on the deceased. Both were attacking him at the same time, in presence of each other, with intent to harm him, and each was aiding and abetting the other. It is not to the point that it cannot now be elicited as to which person struck the blow which caused the vagal inhibition. Mohan v. The Queen[l]¹.

Verdict: guilty of unlawful killing.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: M. Kapi, Public Solicitor.

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[l][1966] UKPC 3; [1967] 2 A.C. 187.