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State v Waea [1990] PGNC 51; N915 (3 August 1990)

Unreported National Court Decisions

N915

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 256 OF 1990
THE STATE
V
IAMGE WAEA

Waigani

Jalina J
2-11 July 1990
3 August 1990

CRIMINAL LAW - Circumstantial case - Wilful murder - Of deceased - From shotgun fire - Accused admit firing with shotgun - Mistake for cassowary - No eyewitnesses - Denial by accused to actual killing - Whether accused killed deceased - Inference to be drawn - Criminal Code s 299.

CRIMINAL LAW - Wilful murder - Of deceased - From shotgun fire - Accused admits firing with shotgun - Elements of offence - Intention to kill - Not established - Alternative verdict - Criminal Code s 539(1).

Cases Cited:

The following cases are cited in the judgment.

Paulus Pawa v The State [1981] PNGLR 498.

The State v Jupui Kapera N 567.

The State v Lindsay Yaboshiwa N 818.

The State v Peter Noki Manda & William Henry Lagger N 805.

The State v Tom Morris [1981] PNGLR 493.

Counsel:

P Mogish, for the State.

M Enda, for the accused.

Cur adv vult

3 August 1990

JALINA J: The accusands charged that that he on 16 November 1989 at Segeri in Papua New Guinea wilfully murdered one Hevere Duba. He has pleaded not guilty to the charge.

As the accused had admitted to Cole Nicholas Wingu during hing his record of interview that he fired with his shotgun at a dark/black spot which he thought was a cassowary but which later turned out to be the deceased, the trial proceeded on the basis of mistake of fact which, if not negatived by the prosecution, would absolve the accused of criminal responsibility. However, in the course of evidence by the accused, which lasted several days, the accused change his defence to one of total denial. That is to say that the accused admitted firing at a dark/black spot under a mistaken belief that it was a cassowary but subsequently discovered that the deceased was in fact already dead before the accused fired at the said dark/black spot. The accused says, in other words, that the deceased was killed by someone else. The issues are therefore twofold:

1. Whether the deceass waledilled by the shot fired by the accused; and

2. &ـ I60; If the the accused shot the deceased, whether tendekill /p>

From the nature of the defence raised by the accused it must be pointed out at the outset that there are no eyewitnesses to the actual shooting by the accused at the “dark/black spot”. Also there were no eyewitnesses that the deceased was alive at the time the accused fired the shot. The case against the accused is therefore founded on circumstantial evidence. The law relating to circumstantial evidence is as stated by Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 which has been applied in a number of subsequent cases such as The State v Jupui Kapera N 567, The State v Peter Noki Manda and William Henry Langer N 805 and (by me in) The State v Lindsay Yaboshiwa N 818. I do not consider it necessary to quote the relevant passage here. It is also well settled in this jurisdiction that failure by the trial judge, who also sits as a jury, to warn himself of the dangers of convicting on circumstantial evidence could be fatal. I therefore warn myself of such a danger.

To establish the charge against the accused the State called a number of witnesses who gave evidence of the circumstances surrounding the death of the deceased.

The first witness was Malesa Duba, the wife of the deceased. She said that at about 6 o’clock on the morning of 16 November 1989 the deceased took his gun and bushknife and went hunting on their land and she went to their garden where he was to meet up with her and others later. They waited and when he did not return to the garden they returned to the village and waited for him. Still he did not return and at about 6 o’clock that evening a search was mounted for him but without success. The search went on until Sunday 19th November when the deceased’s body was found.

She also gave evidence of the accused and his wife getting angry with her a week earlier over Nigoro land which is owned by the accused and is located near their village.

The next witness was Moses Anai who is the first cousin of the deceased. He returned to the village on 17th November, a day after the killing, and heard of the deceased’s death. He did not say anything and went to have his bath. In the evening a meeting was held in the village during which discussions were held as to the whereabouts of the deceased.

The accused was present at the meeting. So was Malesa Duba. During the meeting the accused called Moses Anai to give him (the accused) some betelnuts which he did and sat close to the accused. The accused spoke at the meeting and said that the next day they should go and see three holes dug by pigs and at which place many people used to hunt for pigs or cassowaries. The accused also mentioned that the deceased might have been shot by rascals with a gun without any noise. When Moses Anai heard this he became frightened or scared because that was where Malesa Duba had said her husband had gone to look for cassowaries although Moses Anai himself did not know where these three holes were even though they were in Nigoro land. The next day, 18th November, he look part in the search with other people from the village but without success. Back at the village that evening there was a further meeting held. The accused attended the meeting and spoke to the people to go and search on the other side of Nigoro land. This land is owned by the accused’s clan. So on Sunday 19th November they went to the place where the accused mentioned at the meeting and when he went with four (4) others to the third hole, they found the deceased’s body which was lying facing up under a tree in an open space with nothing close to him. No guns or knives were found near the body which was about 6 meters from the pig hole under a big tree. He only saw four (4) wounds on the chest and suspected that they were gun wounds but no spear or knife wounds to the deceased’s body. He also saw bullet holes in the bark of a tree. They then called the other people from the village who were searching. The body was left where it was for the police to see. On Monday 20th November the police arrived and took some photographs and other things and then the body was taken home for burial.

Moses Anai, apart from what he heard about the accused mentioning where to look for the deceased and how the deceased may have died, did not hear of any arguments between the accused and the deceased or their respective families. He was otherwise not broken on cross-examination.

The next witness was Dick Immeha who is a Community Health Worker for the Abau Area in the Central Province. On 20th November he attended the scene with a police party comprising CID Policeman Nicholas Wingu, Senior Constable Mathew Akemot and other policeman from Moreguina Police Station. At the scene he made observations of the body and made notes of his external findings. There is no post mortem report as such. Apart from the body being in a general state of decomposition, he observed that it was sitting leaning against a tree with legs stretched forward and apart. The deceased had four bullet wounds on the left chest just above the left breast. He had a blown nose, broken right chin and the skin of his head had peeled off and was resting on his neck as a result of the decomposition.

The body was found in thick forest but where the body was lying was clear. He saw at least one pig hole about 13-15 meters from the place where the body was found.

The next witness was Senior Constable Mathew Akemot of Mareguina Police Station who went with Constable Nicholas Wingu, Dick Immeha, Moses Anai and others from Segeri Village to the scene on 20th November after receiving complaint on 18th November about a missing person and travelling to Segeri Village on 19th November.

At the scene he took photographs including photographs of the deceased’s body which he explained to the Court during his evidence. Photographs which are of relevance are Exhibit “B2” indicating the various injuries which were found by him as well as by Dick Immeha on the deceased’s body and also includes a bullet mark on the stump of a breadfruit tree while Exhibit “B3”, apart from indicating blood stains, also shows that a small tree had been cut. Exhibit “B5” indicates the general view of the scene and the hole where pigs or cassowaries drink and in this respect I note that the view is clear. The vegetation is not thick so as to obstruct any view at least from where the photographs were taken. Senior Constable Akemot estimated the distance from the hole or pool to where the deceased’s body was at about 20-21 meters. Exhibit “B6” is also important. It shows the valley looking down to where the deceased was lying. Senior Constable Akemot went on to say that from the hill the pool as well as where the deceased was lying can be seen very clearly. He estimated the distance at 20 meters.

Senior Constable Akemot also gave evidence of two different conversations which took place between him and the accused at Moreguina Police Station on 29 November 1989. One was at the Police Station and the other was at Senior Constable Akemot’s house. The first conversation was at about 4 o’clock when Senior Constable Akemot called in the accused and notified him that he (Senior Constable Akemot) had the statement of witnesses and he strongly believed the accused to have killed the deceased whereupon the accused told him that it was alright for Senior Constable Akemot to charge him (the accused) and at Bomana the accused would get a lawyer to chop his (the accused’s) head off. He then started crying and Senior Constable Akemot left him after telling him that he could leave the police station and the CIB policeman would question him (the accused) the next day.

However the accused told Senior Constable Akemot that he wanted to personally tell him how he had killed the deceased, but Senior Constable Akemot refused to discuss the matter in his house. Senior Constable Akemot then went to his house.

Not long afterwards the accused arrived at Senior Constable Akemot’s house and despite refusals by Senior Constable Akemot to listen the accused persisted in telling him how he had killed the deceased. His attempt to distract the accused by putting on the television was with no avail. The accused kept on talking in pidgin. He then administered the caution, put the television off and sent his children into the room. Then the accused told Senior Constable Akemot that he went to his garden to work but then decided to obtain pieces of a palm tree which he had cut to make axe handle and from there he decided to check the place where he normally killed cassowaries. On the way he saw the deceased sitting between the two trees.

The accused went on to tell Senior Constable Akemot that as soon as he saw the deceased he shot him with his gun because he (the accused) had already warned the deceased not to go to his hunting ground. As soon as the accused shot the deceased he left his shotgun and ran down to confirm that the deceased was dead. He then got the deceased’s shotgun, bushknife, string bag containing cartridges and some things (in the string bag) and went up to where he had put his own shotgun and went up the hill and hid the deceased’s shotgun, string bag and bushknife. He then went to the garden where his daughter and her husband were.

Senior Constable Akemot also gave evidence of the accused asking him if there was any law relating to someone carrying shotgun into somebody’s land and his (Senior Constable Akemot’s) replying that if someone did that then they should see the police and police could charge that person. The accused then told Senior Constable Akemot that the deceased was wrong so when he (the accused) saw the deceased he shot him because he had warned the deceased not to go to his area. He also told Senior Constable Akemot of the place where he had hidden the gun. This the accused said was near the fig trees and Senior Constable Akemot remembered them as he had gone earlier and taken photographs near those trees but was not familiar with the place.

As he was not familiar with the place Senior Constable Akemot informed the accused that he would send a message to his (the accused’s) in-law Boida Garu to come to the police station so that he (the accused) could explain to Boida Garu where exactly he had hidden the gun. Boida Garu later spoke to the accused at the Moreguina Police Station in the local language. They were alone.

On the 30th November Senior Constable Akemot accompanied Boida Garu and Constable Wingu to Segeri Village for the purpose of recovering the gun. At Segeri Village the three (3) of them were accompanied into the bush by Moses Anai and others with Boida Garu leading the way. Boida Garu showed the fig trees and after almost two days of cutting the roots (of the fig trees) the gun was recovered inside the hole of one of them.

Since Boida Garu has been mentioned, it might be appropriate to go into his evidence. Boida Garu is the accused’s brother-in-law. He gave evidence of speaking to the accused on 30th November about where the accused had hidden the gun and after being told that it was hidden in the hole of a fig tree in Nigoro land he took a police party including Senior Constable Akemot and Nicholas Wingu from Moreguina Police Station and went to the said area, cut the roots of fig trees and then after almost two days they found the gun. He had seen the gun before and recognised it as that of the deceased. Nigoro land is on the other side of the mountain. They have to go through Nigoro to go hunting on their land. He also said that Nigoro land is owned by the accused’s relatives who come from another village. He had never gone hunting on Nigoro land because they were forbidden to go into another clan’s land. He however has not heard of any arguments between the deceased and the accused.

The final witness for the State was Constable Nicholas Wingu who conducted the record of interview with the accused on 4 December 1989. The record of interview was tendered by consent of defence counsel.

In the record of interview the accused told Constable Wingu of waking up at about 6 o’clock in the morning and leaving the village to work in the garden. He took his bushknife, axe, shotgun and string bag with him. He went by himself. On the way he saw footprints. He arrived at his garden and left his axe and then he carried his shotgun, knife and string bag and went up the mountain. He followed the old road down the mountain to obtain pieces of palm tree which he had cut earlier to make handle for his axe and from there he decided to check the hole where he killed cassowaries. When he got there he saw a small black spot. He had killed three cassowaries previously at this spot. He did not fire his shotgun quickly at the black spot but checked three (3) times and confirmed that it was a cassowary sleeping and wanted to fire but decided to check the fourth time. The black spot was still there and he saw no-one around so he thought it was a cassowary sleeping after having bath at the small pool of water down below. He also saw the black mark was moving a bit and guessed. He put his knife and string bag down and fired the gun. He then watched expecting the cassowary to move and throw its legs around in struggle but it did not, so he left his string bag and gun and carried his knife and went down to check. He saw a man sitting down with his shotgun in his arm and facing him. The man was Hevere Duba. After shooting the deceased he went up the mountain but since he thought that it was bad he went back, got the deceased’s shotgun, unscrewed it and hid it in the fig tree. A No.2 Cartridge which he found in the deceased’s shotgun was later thrown into the sea.

At the time he fired the gun he was standing a short distance away as he was concerned about scaring the cassowary off if he went closer. As to whether he saw some blood or marks on the deceased’s body he said that he saw three marks from bullet pellets one on the one (sic) and two on the chest near the breast.

After hiding the gun he went to see his daughter and her husband at the garden but did not tell them nor did he tell the people later in the village when they were searching for the deceased and the reason for his not telling anyone was that he was scared.

Constable Wingu’s other evidence regarding the time Constable Akemot, other policeman and himself went to the scene to see the deceased’s body, the injuries on the deceased’s body and the general scenery is similar to that of Senior Constable Akemot and jack Immeha. His evidence regarding the search for the deceased’s gun is also similar to that of Senior Constable Akemot.

The accused gave evidence on oath. He maintained what he told Constable Wingu during the record of interview on 4th December except that he made a major departure during his evidence in that he denied shooting and killing the deceased. He said that after shooting at the black/dark spot and seeing that there was no movement he went to check for the deceased’s gun and knife and was surprised to find the deceased. The deceased he said had in fact died earlier because there were flies getting to his broken left jaw and there was no bleeding. He also saw two bullet holes just below the left and right ribs respectively. He examined the body and found that the pellet wounds on the left chest above his breast were caused by pellets spreading from the bullet he had fired. The deceased’s gun was placed standing against a tree with its barrel pointing upwards. He also said that at about 10 or 10.30 am he left the garden and went to the hole where cassowaries and pigs wash or drink because he waited for the sun to come up and get hotter and warm up the place. He left for the hunting ground when he heard the voices of his daughter and her husband as they were approaching the garden he was at.

He denied speaking to Senior Constable Akemot at his house at Moreguina and said that anything he said to Senior Constable Akemot and Constable Wingu were said in pidgin and he did not understand pidgin well.

Although the accused has given evidence of shooting at the black/dark spot under a mistaken belief that it was a cassowary but since he had abandoned that defence in favor of one of total denial the defence of mistake of fact does not arise. The issue therefore, as pointed out above, is whether it was the accused’s shot that killed the deceased and for such purpose it is necessary to consider the conduct of the accused both before and after the alleged shooting including his claim of mistake. From his own evidence it can be seen that although he left the village at about 6 am for his garden he did not actually leave for the hunting grounds until about 10 or 10.30. He left at this time as he wanted the bush to get warmer thus causing the pigs or cassowaries to go to the drinking/bathing places or holes. On the way to the garden he saw foot prints. He was therefore aware that there were one or more persons already in the bush.

On his way to pick up the dried palm he had cut in October for the handle of his axe, he changed his mind and decided to check the holes he had shot cassowaries previously. He got to the hill/mountain and looked down at a hole. On the right hand side he could not see anything but on the left, among cane leaves, he saw dark spot which, according to him, was about 20 meters away at a fairly close distance. He said he could not see clearly so he had to stand up and sit down three times to ascertain as to whether it was in fact a cassowary. He did not get close as he did not want to scare it away. He took aim, fired and waited for the dark object to move but it didn’t so he went down, pushed the cane leaves down with his bushknife and discovered the hair of a human being. He went around to the other side and saw that it was the deceased. It must be noted at this stage that this was well after 10 or 10.30 am and as there was no evidence of any rain on this day the place must be presumed to have been bright and clear. From the evidence of Senior Constable Akemot the vegetation is not thick and the water hole as well as the place where the deceased’s body was lying could be seen clearly. This is confirmed by his photograph Exhibit “B5” and “B6”. The accused also indicated in his evidence that after firing the shot and the dark object did not move, he went down to get the deceased’s shotgun and bushknife but then there was no evidence from him as to whether he had earlier that day seen the deceased carrying his shotgun and bushknife. His explanation for this was that normally one does not go hunting without a bushknife. If one went hunting with a gun he always took a bushknife. It is therefore questionable as to to whether the accused did not see the deceased let alone the “dark spot” clearly before he fired. It seems that he saw the deceased from the top of the hill overlooking the pool of water before he fired.

He became scared and took the gun and bushknife, dismantled the gun and put it with the bushknife in the hole of a fig tree. He went home and at a meeting called in the village when the deceased did not turn up, he mentioned that they should check at three pig holes at Nigoro. He also said that the deceased may have been killed by rascals with a silent gun. This was heard by Moses Anai. He did not tell anyone that he knew exactly where the body was because he was scared of being blamed. The body was discovered by Moses Anai at the place where the accused had mentioned. It can be accepted that it was the fear of being blamed or being killed in payback that prevented him from telling anyone. That is a normal human reaction in such circumstances is understandable. But at the Moreguina Police Station when Constable Wingu asked him at first he denied so Constable Wingu let him go. Later during the record of interview on 4 December 1989 he only told Constable Wingu of mistaking the deceased for a cassowary. He did not tell him that someone else shot the deceased. In his evidence on oath there is nothing about him hearing the sound of gunfire before he discovered the deceased’s body.

Also at the police station when he was suspected and taken (there) he did not tell Constable Wingu and Senior Constable Akemot that he was the one who found the body but he in fact did not kill the deceased. There was no reason for him to become scared of them. He did not tell his brother-in-law Boida Garu either.

The injuries to the left chin where the flies were getting to and on which there was dry blood as well as the bullet wounds just below the left and right chest which the accused said he saw where not found by Constable Wingu, Senior Constable Akemot and Jack Immeha.

On the whole I accept the evidence of the prosecution witnesses. I however do not place any weight on the evidence of Malesa Duba as to the accused getting angry with her a week before the death of the deceased because there is no other evidence to show that there was ill-feeling between the accused and the deceased or the accused and anyone else from the village. If any ill-feeling did exist then it would be unusual in a village situation for people not knowing about it. In view of the irregular manner in which Senior Constable Akemot recorded his conversation with the accused I also place little weight on the notebook and his signed statement dated 7 June 1990 as the statement was based on the notes in the notebook even though, in cross-examination, the accused could not give any good reason as to whether Constables Wingu and Akemot were telling lies to the court.

I do not accept the evidence of the accused. During his evidence on oath I observed his demeanor very carefully. His answers were inconsistent and evasive. I do not accept his claim that because he did not understand pidgin he did not understand his conversation (in pidgin) with Senior Constable Akemot and Constable Wingu. He is a former policeman who was based in Lae for quite some time. In fact from time to time when he was giving evidence he explained things in pidgin. I find that he understood the conversation in pidgin.

From the fact that he did not tell the police or even Boida Garu that the deceased was in fact shot and killed by someone else coupled with his inconsistent evidence, his innocence at least as to the shooting of the deceased is doubtful. In Paulus Pawa v The State [1981] PNGLR 498 Andrew J said at p 504:

“An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened.” (see R v Sparrow (1973) 57 CR App 352.)

His evidence of not shooting and killing the deceased is, in my view, one of recent invention. It is not consistent with innocence. I therefore find from inference on the evidence before me that the accused went to Nigoro and from the hill over-looking the pool of water he saw the deceased sitting at the place where the body was found. The deceased was concentrating on the pool and did not see the accused. The accused then shot the deceased at a fairly short distance down from the hill. The injuries on the right chin, the nose, the area above the left breast and on the left arm are consistent with injuries from a shot being fired downwards from the right hand side towards the head of the deceased. I find that the deceased was alive before being shot. I am therefore satisfied beyond reasonable doubt that the accused shot the deceased. As there is no other evidence for me to draw any other inference as to cause of death I am satisfied that the probable cause of the deceased’s death was from shotgun wounds inflicted by the accused. I am however not satisfied beyond reasonable doubt that he intended to kill the deceased as no motive has been established and as such I find him not guilty of wilful murder. However as I have found that he was in full view of the deceased before he shot the deceased, the purpose of his shooting become unlawful before he fired. That is to say that he saw the deceased, a human being, down there and it became unlawful for him to shoot at a human being when he did not have a good reason to do so. He nevertheless fired. This was with one of the most dangerous weapons known to man and his shooting with such a weapon was no doubt likely to endanger human life. His actions come within the ambit of s 300(1) (b) of the Criminal Code and as such I find him guilty of murder as an alternative verdict pursuant to s 539(1) of the Criminal Code.

Lawyer for the State: Public Prosecutor.

Lawyer for the Accused: Martin Enda, Lawyers.