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State v Melpa [2003] PGNC 58; N2450 (8 July 2003)

N2450

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 525 of 2001

THE STATE

-V-

MICHAEL NEMA MELPA

Mt. Hagen : Jalina J
2003 : 1, 2, 3, 4, 7 & 8 July

Counsel:
J. Kesan for the State
P. Kumo for the Accused

DECISION ON VERDICT

8th July 2003

JALINA J: This accused was charged that he on 6th day of December, 2000 at Kombakena village, in Papua New Guinea, murdered one Kimb Tamel, a national male. He pleaded guilty to the charge but upon application by his lawyer Mr. Kumo for a plea of not guilty to be entered on the basis that the accused acted in self-defence and would raise such a defence in his trial, a plea of not guilty was so entered. This case then proceeded to trial with the State calling oral evidence from the deceased’s wife Kenken Kimb and his daughter-in-law Dakan Robert who are eye witnesses to the crime. The State also called Constable Paulus Bubu the Investigating Officer for cross-examination by Defence Counsel Mr. Kumo.

The evidence of the deceased’s wife, Kenken Kimb was to the effect that on the day of the incident the accused arrived at their premises while she and her husband were in their house with their children and their daughter-in-law Dakan Robert. She met him at the gate and he told her that he wanted them to repay some K2,000.00 that he had lent them some time ago and that he was in need of K400.00 but she told him that they had no money at the time. She further said that she was raising some chicken which would be ready for sale in two weeks and that if she gets some money from the sale she could give him the K400.00 he needed.

While she was talking to the accused the deceased left their house and walked over to them. After greeting the accused, the deceased told him that when he had money he sent word for him to come but did not come but now that he (the deceased) had no money the accused had been sending messages through other people for his loan money which was embarrassing to him but since the accused had come he forgave him.

The deceased then referred to assistance he had given to the accused with such things as cassowary, pig and money during the accused’s time of need and that it was better for the accused to issue summons and take him to court. The accused then slapped the deceased on one cheek and the deceased told him to slap the other cheek just as Jesus said in the Bible that people should do and the deceased told the accused that since he was a pastor he would not retaliate.

The accused then pulled the deceased by the collar of his shirt and she separated them by pushing the accused to the front and the deceased to her back and at the same time calling out for help. Her little daughter was pulling her skirt.

The accused then went and grabbed a stick and she observed as to how the accused would come with the stick. The deceased left her and put up his hands in front of the accused and the accused lifted the stick and hit the deceased on the head. The deceased fell on her and they both fell to the ground. She demonstrated this in court.

According to her evidence there was no fight between the accused and the deceased let alone the deceased being the instigator of the fight. She denied on cross-examination that the deceased instigated the fight by first holding on to the collar of the accused’s shirt and tearing it in the process of a struggle and then stabbing the accused on the back with a screw driver followed by an attack on the accused’s head with a shifting spanner after the accused fell to the ground.

She further denied on cross-examination the accused receiving injuries from the attack by the deceased with a screw driver and the spanner.

Apart from her 3 young children aged 9, 6 and 3 years respectively and Dakan Robert, there were no other people present at the time.

The witness Dakan Robert is the daughter-in-law of the deceased. On the day in question she was in the deceased’s house when she heard Kenken Kimb call out and cry so she ran out and stood at the gate and saw the accused pick up a stick and hold it with both hands and hit the deceased on the head. She went on to say that the deceased running towards the accused when he hit him with the stick.

However when questioned later by the Court as to how far the accused was from the deceased when he was hit with the stick she said that the deceased was in front of Kenken when hit and he fell on Kenken and then they both fell to the ground. There were no angry words exchanged between the accused and the deceased immediately prior to the accused hitting the deceased with the stick.

After the accused hit the deceased, Kenken Kimb told her to go and fetch water and spoon out of the house so she did as requested by Kenken. When she was going to the house the accused followed her to the back of the toilet and then climbed over the fence and escaped.

She further stated that the deceased did not have anything in his hand at the time he was hit by the accused on the head. On cross-examination it was pointed out by Defence Counsel after putting to her that she did not mention in her statement to the police about the deceased falling on Kenken and then both falling to the ground after being hit by the accused but she insisted that she did say that. On cross-examination she also denied that the accused received injuries let alone the attack on him by the deceased.

The Police Investigator, Constable Paulus Bubu was called by the State Prosecutor only for cross-examination by Defence Counsel as the confessional statement of the accused, the record of interview and his own statement had already been tendered by consent.

When Defence Counsel cross-examined him about the time of arrest of the accused, Constable Bubu stated that he saw the accused, on 7th December 2000 at the Mt. Hagen Police Station cells at about 10 am. He found the accused to be in a state of shock as he (accused) was concerned about his ministry as a pastor and he tried to comfort him.

As to the injuries the accused appeared to have sustained during a fight, he said that he saw a scratch and swelling on the head and that when the accused lifted up his shirt he saw scratch marks on his back with some dried blood stains. He said that it was not a stab mark. It was not a wound. Upon request from the accused he requested medical attention at the cells because the wound was not serious as well as the personal safety of the accused. When the medical officer arrived, he escorted him to the accused in the cells where the medical officer examined and treated the accused.

Constable Bubu denied that the injuries were serious and that the accused was quite sick because of the injuries. He went on to say that the medical officer did not provide him with a medical report to include in the file even though he requested him to provide same.

The accused gave sworn evidence on his own behalf. His evidence was totally opposite to that of State witnesses Kenken Kimb and Dakan Robert. His evidence was to the effect that after he arrived at the deceased’s premises he was talking to their mother in-law when the wife Kenken Kimb arrived. The deceased and himself were married to two sisters. They were Kenken Kimb, the deceased’s wife who was the younger sister and his wife although he and his wife did assist in raising Kenken before she married the deceased. They have lived as brothers for up to 10 years prior to the incident.

While he was talking to Kenken, the deceased called him to go to him. He told him about the assistance he had given and that now he was in need of K400.00 to buy roofing iron from AgMark. But the deceased complained about the accused telling other people about the money the accused lent him and that it made him feel embarrassed. The deceased went on to say that if the accused wanted the money then he should take the matter to court. This upset the accused so he called the deceased "rabisman" and they exchanged some words to the effect that the accused gave money to the deceased in his time of need and it was not good for the deceased to say that kind of thing when he (accused) was in need of money.

Then the deceased told the accused that he would not repay the money and that the accused should leave. So the accused again called the deceased "rabisman". The deceased became angry and swung his hand at him twice. He missed the accused the first time and when he swung the second time the accused put up his hands and the deceased’s hand hit the accused’s hands. The accused also swung at the deceased.

The deceased then held the collar of the accused’s shirt and then pulled out a screw driver from the back pocket of his trousers and stabbed him in his back. The accused turned to get away from the deceased but he held him tightly and he tore his shirt and he fell to the ground.

When he fell to the ground the accused threw a shifting spanner and hit him on his head. The accused then got up and fetched a stick. The deceased also got a stick and swung at the accused who avoided the stick and he swung the stick in his hand at the deceased hitting him on the head. The deceased fell to the ground. The accused felt pain from the stab with the screw driver and hit on the head with the shifting spanner so he walked out to the dancing area and into a coffee garden where he rested for some time because of the pain. He said that he did not jump over the fence.

He stated that while he was fighting the deceased, Kenken did not separate them nor was Dakan Robert there.

He later left the coffee garden and walked towards Kagamuga Police Station as he had a wantok policeman Robert Konz there but on the way he was picked up by a vehicle and taken to Kagamuga Police Station. Discovering that there was no one at the Kagamuga Police Station he requested the driver to take him to Kiminiga Police Barracks which he did. He then went to Robert Konz’s house at Kiminiga Police Barracks.

When he arrived he told Robert Konz and his wife Jennifer Konz that he was injured and that he wanted soap and towel and shirt and trousers to change. He also told them about the fight. He had a shower and changed his blood stained clothes. The blood stained clothes were washed by Robert Konz’s wife and given to his wife while he was in the cells.

He denied that the attack by him on the deceased was unprovoked. He went on to say that he did what he did to the deceased because after stabbing him and hitting him with the shifting spanner the deceased picked up a stick and swung at him, that his life was at risk.

On cross-examination he denied the State’s version of what happened that day prior to his attack on the deceased.

The next witness for the defence was medical Officer Smee Rank from the Mt. Hagen General Hospital. His evidence was that he treated the accused at the police cells at Mt Hagen Police Station upon request by phone by police from Mt. Hagen Police Station on the morning of 11th December 2000. When he arrived he saw that the accused had a wound on his back which was infected and that there was also scratch and swelling on the head. On examination he found that the accused was quite sick from the wound on his back which was infected. He treated him with amoxcillin capsules and codeine as well as critsapen injection and left. He did not take any notes of what he saw because he was just called to treat the person in the cell but he did prepare a report later upon request from police.

The Medical Report reveals a skin laceration five centimetres (5 cm) long and one and a half centimetres (1½ cm) deep at the back and bruises on the frontal scalp of the head. He concluded that the pain and weakness were caused by the injury to the back which was inflicted by a sharp object.

On cross-examination he denied knowing the accused but he did say that he had seen the accused at the hospital when the accused came for treatment from to the time before he examined him. He also stated during his answers in cross-examination that on the day he treated the accused he was not specifically requested by police but he went and treated the accused because he was on duty at the time.

The last witness for the Defence was Jennifer Konz. She basically confirmed the accused arriving at her and her husband’s house at Kiminiga Police Barracks on the night of 6th December 2000 and asking to have shower and clothes to change. She also said she saw blood on his clothes and also blood on his back after he took off his shirt which was torn. She also saw swelling on his head.

She went on to say that the accused was given towel to have his shower and shirt and trousers to change.

After having his shower she said that he asked to be shown to a room and he then went and slept as he did not feel well. Early the next morning her husband took him to the police station cells.

As has been indicated earlier in this judgment, the accused has raised the defence of self-defence. The law is well settled in this jurisdiction that when an accused person raises defences such as self-defence, accident, mistake etc. in a criminal trial, the onus is on the prosecution to negative such defence beyond reasonable doubt.

So when I consider all the evidence in this case I find the evidence of the State witnesses and the evidence of the accused to be in direct conflict as to what happened at the scene of the crime particularly as to whether there was a fight between the accused and the deceased and whether the deceased stabbed the accused on the back with a screwdriver in addition to being hit on the head with a shifting spanner as well as attacked with a stick prior to him hitting the deceased on the head with another stick.

So it all boils down to whether I should believe the witnesses of the prosecution namely Kenken Kimb and Dakan Robert or I should believe the accused and his witnesses namely Smee Rank and Jennifer Konz.

The evidence of Kenken Kimb and Dakan Robert contain aspects that casts doubt on their credibility and sincerity. Kenken Kimb stated that she separated the accused and the deceased by pushing the deceased to her back and the accused to the front and before the accused hit the deceased on the head the deceased was standing in front of her with both his hands lifted up in the air and when he hit him he fell on her and then they both fell to the ground with the deceased lying on his back but on her stomach.

If the deceased did have both his hands lifted up in the air, then how was it that the accused did not hit the deceased hands but hit him on the head as she demonstrated. There is no evidence of the accused swinging the stick side ways and hitting the deceased’s head.

Dakan Robert’s evidence as to what happened immediately prior to the accused hitting the deceased with the stick was that the deceased was running towards the accused when the accused hit him on the head with the stick. This directly conflicts with Kenken Kimb’s evidence that the deceased was standing in front of her and had his hands in the air when the accused hit him with the stick.

However, when I consider the accused’s evidence as to what happened at the scene of the crime and the evidence of the injuries he received and his clothes being torn and stained with blood, I find that they are confirmed by the evidence of Jennifer Konz and Smee Rank.

Jennifer Konz is an independent witness. She had nothing to do with the fight but gave evidence of what she saw when the accused arrived at her residence at Kiminiga Police Barracks on 6th December after committing the crime. To my mind the torn shirt with blood on it and the blood she saw on the accused’s back could not have come from anything other than the fight the accused said he had had with the deceased. She had no reason to lie and it was not suggested to her that she was lying. Her evidence is consistent with the evidence of the accused and his statement to the police in the Confessional Statement and his Record of Interview as to what had happened earlier that day.

Smee Rank is also an independent witness who gave evidence of the injuries he found on the accused’s body on 11th December, 2000 which was five days after the incident. The accused could not have received those injuries if not from the fight with the deceased. Smee Rank had no reason to lie nor was it suggested that he was lying. He simply gave evidence of the injuries he saw on the accused’s body when he examined him at the Police Station on 11th December. Also the injuries noted by him are consistent with the parts of the accused’s body the deceased attacked and injured him.

When I consider the above material conflicts in the evidence of Kenken Kimb and Dakan Robert, I find that their evidence is not worthy of belief. Even Constable Bubu’s evidence is not worthy of belief as he appears to have made the injuries found on the accused’s back by Smee Rank so trivial which was not the case. In fact the injuries were life threatening to the accused and Constable Bubu appears to have had no concern for human life.

I therefore find that the State witnesses namely Kenken Kimb, Dakan Robert and Paulus Bubu have lied to this Court. I am not surprised by the witnesses Kenken Kimb and Dakan Robert being at pains to totally shift the blame to the accused including the accused being the only person who attacked the deceased because they are closely related to the deceased. The prosecution has therefore failed to negative the defence of self-defence raised by the accused beyond reasonable doubt. I accordingly find the accused not guilty of murder.

I further order that his bail money be refunded to him.
__________________________________________________________________
Lawyer for the State : Public Prosecution
Lawyer for the Accused : Public Solicitor