N2992

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 180 of 2001

THE STATE

-V-

STEVEN MUL MANGI (No. 1)

WABAG: 	KANDAKASI, J.
2005: 07th, 10th and 11th October

DECISION ON VERDICT

CRIMINAL LAW- Verdict - Accused charged with wilful murder – Accused failing to provide reasonable explanation as to use and whereabouts after admitting to arming himself with kitchen knife – Only inference open – Accused use knife to stab and cause deceased’s death – Evidence failing to disclose an intention to kill but an intention to cause bodily harm - Return of verdict of guilty on alternative count of murder under s. 539 of the Criminal Code.

EVIDENCE – Acceptance or rejection of evidence dependant on credibility of witnesses and their evidence – Logic and commonsense do play major part in acceptance or rejection of evidence – State evidence found credible by reason of no inconsistencies, no evasion and nothing illogical and out of commonsense and no reason for witness to give a false testimony – State’s evidence accepted - Defence evidence inconsistent, illogical and out of commonsense accounts, lack of reasonable explanation when required and evasive - Defence evidence rejected. 

Cases cited:
The State v. Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528
Paulus Pawa v. The State [1981] PNGLR 498.
The State v. Peter Maliombu (29/04/03) N2365.

Counsel:
Mr. M. Ruari for the State.
Mr. D. Kari for the Accused.

11th October 2005

KANDAKASI J:	On Friday last week, the State presented an indictment against you and Buka Leme charging both of you with one count of wilful murder of a Elly Yama (deceased) here in Wabag on 09th August 2000. You both pleaded not guilty and a trial commenced the same day. At the end of the State’s case yesterday, your lawyer made a successful application for a no case submission in relation to the charge against Buka Leme for lack of any evidence against him. It also resulted in a decision that only you, Steven Mul Mangi have a case to answer. 

Facts Arraignment Upon

The facts upon which the State charged you and you pleaded not guilty to were these. On the day of the alleged offence between 11:00pm and 12:00 midnight, you and Buka Leme were drinking at the Dae Won Hotel with the deceased. From there, you proceeded to the Sakalis market. A fight between you, Steven Mul Mangi and the deceased took place with the assistance of Buka Leme. People that were there stopped your fight and it stopped only to be started again. This repeated three times. On the third time, you Steven Mul Mangi and the deceased ended up in a bear’s huge position in the course of your fight and fell to the ground. Soon thereafter, it became clear that, the deceased sustained a knife stab wound. The deceased bleed heavily from the wound. Some people rushed the deceased to the hospital. Unfortunately, that was a little too late. The doctor pronounced the deceased dead on arrival.

State’s Evidence

The State called a Martha Yombun, who gave sworn oral testimony. She testified that she walked to the market place where, a lady was selling her lamp flaps, at what was a mini show. As she got there, she heard you, Steven Mul Mangi calling out "Who are you?" The witness asked "Why are you shouting?" People who were there told her that the deceased and you, Steven Mul Mangi had a quarrel and are continuing.

Thereafter the witness saw you, Steven Mul Mangi punching the deceased who fell to the ground. Steven Mul Mangi, you then got a stone and threw it at the deceased. At that point, the witness said in her evidence in chief that Buka Leme went and grabbed Steven Mul Mangi. Later, the witness changed her evidence under examination in chief that, Buka Leme went and grabbed the deceased. She was not able to tell for sure whether that was to stop the fight between the deceased and Steven Mul Mangi or in support of Steven Mul Mangi. 

By this time, the deceased wife, Julie called out saying; a Sakamong was giving a knife to Steven Mul Mangi and asked for anyone of the persons that were there to have it removed. The next thing, the witness saw was the deceased falling to the ground. She then saw the people that were around pouring water on the deceased but the deceased did not move. Therefore, they rushed him to the hospital and the doctor pronounced him dead on arrival. 

In addition to the above oral evidence, the State admitted into evidence with your consent the following documentary evidence:

1.	Medical Report by Dr. Pinai Smith dated 18th August 2002 – Exhibit "A";
2.	Medical certificate of Death by Dr. Pinai Smith dated 21 August 2002 – Exhibit "B"; and
3.	Record of Interview between Police and Steven Mul Mangi – Exhibit "C".

Evidence in Defence

In your defence, you gave sworn oral evidence. You admitted that there was a fight between you and the deceased over beer or alcohol. That started with the deceased initially asking for beer and later trying to pull some beer you had in your hands. The bystanders stopped the fight only to be started by the deceased and stopped again by the bystanders. In one of those fights, the deceased attacked you so suddenly by grabbing hold and pulling you by your shirt’s collar and punching you on the head. Thereafter, he pulled your shirt away forcefully. That made you angry and you attacked the deceased in return but the bystanders stopped the fight between you and the deceased. 

You went on to testify that the deceased subsequently came attacking you all of a sudden with two stones. He threw the first one at you and it missed you. The second one got you on your head just above your right forehead. You said you bled from that and that the hit rendered you unconscious for a while. You however did not say this to the police in your record of interview. When cross-examined on this, you said you were not asked. 

Continuing with your evidence, you said after you were hit with the stone, you got angry and at the same time, the deceased did not stop his attack on you and he kept on chasing you. You went into a house where they were cooking some meat and tried to get a stick or something like that to defend yourself. You only managed to find a kitchen knife. Armed with that knife, you went out of the house with the aim of defending yourself. 

When you went out of the house, the deceased continued his attack on you. That resulted in both of you grabbing each other and landing on the ground. Eventually, you found out that the deceased ended up with a knife wound and the people witnessing the fight rushed the deceased to the hospital, where the doctor pronounced him dead. You did not explain or say anything about what happened to the knife that you went with. In addition, you did not say what became of it when or before you ended up in the grabbing of each other position with the deceased. All you said was you did not know what happened to the knife because of your drunken state.

In your record of interview, you spoke of the deceased being armed with a bush knife which the deceased used to attack you but you avoided being hurt by it. You suggested that the deceased must have got himself cut by his own bush knife or the kitchen knife you had with you. In addition, you said in your record of interview, you said something about the deceased bleeding from his facial area. You said nothing about that in your oral testimony. When cross-examined upon these aspects of your evidence, your answer was a standard, "I was not asked."

Assessment of Credibility of Witnesses and their Evidence

I now need to decide which version of the evidence to accept. This is dependant on the credibility of the witnesses and evidence called and or adduced by the parties. As I said in a number of cases for example as in The State v. Cosmos Kutau Kitawal & Anor (No 1)(Unreported judgment delivered on 15/05/02) N2266 logic and commonsense do play a very important role in deciding upon the credibility of a witness and his evidence. I proceeded on the authority of cases like that of The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48. In that case, the National Court convicted the defendants of murder applying a logical and commonsense approach, even when there was no evidence directly showing that the defendants had killed the deceased. The Court found that the defendants were in a position to provide a reasonable explanation for the appearance of a badly wounded deceased body in their house, but they did not. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.

In your case, I find that the State’s evidence is consistent with logic and commonsense. The incident happened late in the night. Therefore, it was not possible for the only State witness to see everything that happened. In fact, your evidence corroborates her account of what happened and the circumstances in which the deceased’s death occurred. For example, she said, there were many people because of a mini show, there were more than one fight between you and the deceased that night and that in the last of the fights both you and the deceased fell onto the ground. Further, she also testified of the deceased’s wife saying you had a knife. In addition, you did not raise any question or put up any argument as against the State’s only witnesses credibility, impartiality and accuracy in her recollection of her evidence. She comes from the same village as you are and so therefore she could not have given any false testimony against you. Furthermore, I closely observed her demeanour in the witness box and did not find any trace of a witness either lying or being evasive. She impressed upon me as a truthful witness. In the circumstances, I find the State’s witness’ account of the incident is credible, which I find is supported by a substantial part of your own evidence, including your record of interview. Accordingly, I accept the State’s evidence as credible.

I am not able to find your evidence credible because of inconsistencies in your own evidence, illogical and out of commonsense accounts, traces of evasion when you gave your evidence in Court and your failure to provide reasonable explanations when such explanations were reasonably required of you.

Elaborating upon these aspects, I note that in your record of interview with police, you spoke amongst others of the deceased, sustaining some kind of a wound resulting in some bleeding from his face. You also spoke of the deceased being armed with a bush knife which he swung at you twice and that he could have sustained the fatal injury from that bush knife. Further, you said the deceased hit you with a stone and you fell onto the ground first and he fell on-top of you later. You did not say these in your evidence in chief. Additionally, you said in your oral testimony that, you fell unconscious after the deceased hit you with a stone. You then recovered from that and ran into a house where they were cooking some meat. This part of your evidence is inconsistent with what you said in your record of interview. When asked in cross-examination about these inconsistencies, you merely said you were not asked.

Apart from these inconsistencies, there are several illogical and out of commonsense accounts in your evidence. Firstly, you claimed the defence of provocation and self-defence. In your oral testimony, you said when the deceased hit you with a stone, you fell to the ground unconscious. If the deceased intent on killing you or causing much more harm to you, he would have done so when you were on the ground. Instead, it seems, he waited for you to regain your consciousness and then started chasing you again. Why did the deceased do that is a matter that required an explanation from you, but there is none.

Secondly, you testified that the deceased was a known troublemaker and that he was chasing you around and started more than one fight with you before the fatal one. You therefore had opportunity to run away home and seek some cover somewhere but you did not. This is inconsistent with your claim of acting under provocation or in self-defence. You had opportunity to avoid any danger or harm to you and or cool off but you did not.

Thirdly, you said in your oral testimony that, when the deceased hit you with the stone, you were angry. Despite that, you tried your very best to convince the Court that, all of the aggression came from the deceased and not you. If indeed the deceased started all of the earlier fights before the fatal one, logic and commonsense dictates that you could have been angry and could have acted angrily against the deceased. You showed your anger in your search for a weapon and getting yourself armed with a kitchen knife from a house. The deceased did not chase you into the house. Instead, you went out of the house to where the deceased was and there, the last of the fights between you and him took place.

Fourthly, it was incumbent on you to explain what happened to the knife you were armed with when you and the deceased ended up grabbing each other. This raises a number of questions namely, what did you do with the knife? Did you swing the knife at the deceased? Did anyone remove the knife from you? Where exactly was the knife? In what position was the knife when you and the deceased landed on the ground? What caused you and the deceased to fall to the ground? You alone were in a better position to provide answers to these questions but you did not. Your failure to provide any answers or explanation opens only one reasonable explanation. Considering what you said to the police and the rest of your oral testimony in Court, the deceased was unarmed when you had the last of the fights. As he was unarmed, it was easy for you to grab hold of him and stab him with the kitchen knife. The medical report states that the wound measured 4cm. This is consistent with the size of a normal kitchen knife and your description of the knife in Court.

As for the evasions on your part, I note that, when asked under cross-examination about what you said to the police in your record of interview, you merely said, you were not asked. You knew what happened and you took the stand to tell the whole of all that you did and knew. Therefore, it was incumbent upon you to tell the entirety of your story but you did not. Rather than providing a better explanation for omitting what you said to the police, you chose the convenient answer of saying you were not asked the relevant questions. In so doing, you left unexplained inconsistencies in your testimony. Furthermore, when asked to explain your state of unconsciousness and what happened to the kitchen knife you had yourself armed with, you merely said you were drunk and could not recall. This contrasts sharply with your ability to recall the other aspects of your evidence, which are favourable to you. This was a deliberate design on your part to withhold the truth about what happened in particular what you did with the knife.

Findings of Fact

Based on the evidence before the Court, I find this is what happened. You and the deceased had several fights over beer or alcohol. The deceased started most of the fights, but not the fatal one. Most of what the deceased did was not sufficient to cause you to act in self-defence or provocation as you claimed in your defence. This is because, you had sufficient time to either cool off or for you to run away from any harm or danger the deceased may have leveled against you. The earlier fights started by the deceased causing you to be angry with the deceased, who you say is a troublemaker in the community. You therefore got yourself armed with a kitchen knife to attack the deceased. Once armed with the kitchen knife, you attacked the deceased by grabbing him and stabbing him at a most vital part of his body. This caused you and the deceased to fall onto the ground. That resulted in the death of the deceased shortly after your stabbing of the deceased. This is the only logical and commonsense explanation reasonably open to the Court in the absence of any satisfactory explanation to the contrary and in particular of as to what you did with the knife after arming yourself with it.

Consequently, I find that you did bring about the death of the deceased. I am not however convinced that, you planned to kill the deceased especially, in view of there being no evidence, of any pre-existing conflict or animosity between you and the deceased or your respective families. Rather, I find that, an unnecessary death was brought about because of a stupid substance called beer or alcohol. You did not raise the defence of intoxication nor is there any evidence of you being intoxicated. You knew what you were doing at the time of stabbing the deceased. I find that you had the intention to cause serious harm to the deceased as opposed to a pre-planned intention to kill. I am therefore, not able to return a verdict of guilty on the charge of wilful murder contrary to s. 299 of the Criminal Code. However, the facts as found do support and I return a verdict of guilty on the alternative count of murder under s.300 of the Criminal Code. This, I am authorized to do by s. 539 of the Criminal Code. Many decisions of the Supreme and National Courts have applied this provision or law. Some of these decisions are mine, for example The State v. Peter Maliombu (29/04/03) N 2365.

Proceeding on the basis of the above, I convict you on the alternative charge of murder contrary to s. 300 of the Criminal Code. I order that your bail be revoked and that your cash bail be refunded on provision of the relevant receipt. I further order that you be remanded in custody pending a decision on your sentence.
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Lawyers for the State:				Public Prosecutor
Lawyers for the Prisoner:			Public Solicitor