Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Apuga [2009] PGNC 192; N3811 (28 October 2009)

N3811

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1017 & 1019 OF 2007

THE STATE

V

JOEY APUGA & RAJIV KAMA AWEI

Waigani: Paliau, AJ
2009: April, 16th, 17th, 20th, 21st & 27th &
28th October

CRIMINAL LAW – Verdict – Wilful Murder – Charge of – Not Guilty Plea – Criminal Code s. 299(1)

CRIMINAL LAW – Verdict – Defence sufficiently adduce evidence of Provocation and Self-Defence – Prosecution failed to negative defences beyond reasonable doubt – Prosecution also failed to prove beyond reasonable doubt that the co-accused aided and abetted the commission of the crime.

Cases cited:

The State v Raphael Kuanande [1994] PNGLR 512
Mechline Poning v The State (2005) SC814
The State v David Yakuye Daniel (2005) N2869
R. v Nikola Kristeft (1967) N445

Counsel:

Mr. D. Mark, for the State
Mr. D. Mamu & Ms. Pagler, for the Accuseds

DECISION ON VERDICT

28th October, 2009

1. PALIAU, AJ: The accuseds are indicted for the willful murder of Patricia Wape on the 22nd April, 2007, pursuant to s. 300(1)(a) of the Criminal Code. They pleaded not guilty to the charge.
   
2. The case proceeded to trial and at the close of the state's evidence, the Defence made a no case submission. The Court rejected the no case submission and the Defence called evidence.
   
3. They are charged that on the 22nd April, 2007, at the Waigani Police Station, the accused Rajiv Kama Awai stabbed the deceased. The accused Joey Apuga gave the knife, the murder weapon to Rajiv. The deceased died instantly.
   
4. The deceased had a de facto marriage relationship with the accused Rajiv for sometime. But before this relationship, Rajiv was married to the accused Joey. The relationship between the deceased and Rajiv came to an end and Rajiv returned to the accused Joey. Rajiv and Joey had an on-going conflict with the deceased thereafter.
   
5. It is alleged that on the 22nd April, 2007, Rajiv and Joey saw the deceased at the Waigani market and chased her. The deceased ran to the Waigani Police Station to seek refuge and assistance. As the door to the station was locked, she was unable to gain entry. It was at that instant that the accused Joey gave the knife to the accused Rajiv who stabbed the deceased.
   

THE EVIDENCE

State's Evidence

6. The State called six (6) witnesses. They are John Benjamin, Anna John, Andrew Kerua, Nelson Kilipia, Mafuri Sevese and Max Bowi. Certain documentary evidence was tendered by consent and they were the Record of Interview of Joey Apuga and Rajiv Kama Awei; Post Mortem Report of Dr. Lucas Komnapi; Medical Report of Dr. O. Poki and Statement of Max Bowi.
   

Defence Evidence

7. The Defence called four (4) witnesses and they are Rajiv Kama Awei, Joey Apuga, Kipoi Koya and Patrick Koleo. Documentary evidence tendered by consent were Nelson Kilipia's statement; Preventive Orders; Rajiv's cap and photographs of Rajiv's wound.
   

THE ISSUES

8. At the close of the Defence case, there is no dispute that the accused Rajiv killed the deceased. The defences raised are provocation and self-defence. The issues therefore are:
   
   • (1) Whether the accused Rajiv was provoked.
   • (2) Whether the accused acted in self-defence.
   • (3) Whether the accused Joey played any part in the killing.
     

THE STATE'S CASE

State's First Witness - Benjamin John.

9. This is the first witness to testify on behalf of the State. This witness is the deceased first cousin. In examination-in-chief, he said that on the 22nd April, 2007, at around 7:30 am, he together with his sisters - Anna John, Japheth John, Merriam John and the deceased left Morata and went to Paga Hill Settlement in Down Town, Port Moresby to get life chicken. They then proceeded to Kina Mart at Waigani and bought lambflaps. From there they went to the Waigani Main Market. The witness waited for his sisters and the deceased in front of TST store next to Waigani-Morata bus stop.
   
10. As he was waiting, he witnessed his sisters and the deceased being chased by Rajiv and Joey from the market towards the Waigani Police Station. He saw Joey running and dragging a small girl beside her and holding a knife with the other hand. He followed them to the Police Station and watched from a distance of 15 to 20 meters. He saw the accused Rajiv stabbed the deceased on her neck. This took place at the front doorstep of the Police Station. He was unable to see where the accused got the knife from. He did not see where his three sisters went after the stabbing. He did not see what took place at the market and who started the argument or fight. He said there was an on-going marital conflict between the deceased and Rajiv.
    
11. In cross-examination, he maintained the above evidence. He admitted and confirmed there was an on-going marital conflict between the deceased and Rajiv. When questioned as to whether himself and other members of the deceased relatives were involved in the on-going conflict, he deviated by not directly answering the question. He denied entering the accused's premises in the early hours of 22nd April, 2007 and behaved in a threatening manner towards the accused. He also denied there was in existence a preventive order issued against him and others from entering the accused premises, as they were continuously issuing threats against the accuseds over this on-going marital conflict.
    
12. He maintained his evidence in re-examination.
    

State's Second Witness - Anna John.

13. This witness' evidence is similar to Benjamin John in so far as they relate to their journey from Morata to Town and to the Waigani market. It became apparently different at the market and at the Police station. After marketing at the market, herself together with her other two sisters and the deceased were walking out of the market gate when Rajiv approached them. Rajiv wanted them to go to the Police Station. When they questioned him why, he argued and fought with them. Joey assisted Rajiv to fight with them and said to the deceased "I gave you five knife wounds and you did not die, now I will stab at your vagina and you will die".
    
14. She further claimed to have been punched by Rajiv and fell to the ground inside the market. She later ran to the Police Station with her other sisters. On their way to the Station, she saw Rajiv kicked Japheth and the deceased hit Rajiv on his face with a piece of timber and she saw Joey giving her knife to Rajiv. They later ran to the Station with Rajiv and Joey following them. They were unable to gain entry into the Station because the door was locked. It was at that time that Rajiv stabbed the deceased.
    
15. She denied having any knowledge of Benjamin John entering Rajiv's premises early in the morning on the 22nd April, 2007, when cross-examined. She did not see any policeman at the Police station. And members of the public did not stop the fight.
    

State's Third Witness – Andrew Kerua.

16. This witness is the Taxi driver who took the deceased to the hospital. His evidence relates to him seeing the fight at the market car park and continued to the Police station. He saw four ladies running to the station being chased by Rajiv and Joey. He saw Joey gave the knife to Rajiv who stabbed the deceased at the station doorway. There was no policeman at the station at that time.
    

State's Fourth Witness – Nelson Kilipia.

17. Nelson testified not seeing the fight at the market. He saw the fight at the car park and towards the station. The station door was locked and no policeman was at the station. The stabbing took place at the doorway of the station and Rajiv and Joey were together when Joey gave the knife to Rajiv. After stabbing the deceased Rajiv tried to stab Japheth but he stopped it to happen.
    

State's Fifth Witness – Maifuri Sevese.

18. Maifuri is a police officer attached to the Waigani Police Station at that time. He testified to the effect that prior to the incident, Rajiv and Joey were at the station to lodge a complaint against Benjamin John relating to trespass and breach of a preventive order. As the morning shift police officers were not present they were advised to wait. Rajiv and Joey went to the market after waiting for a while and he left as well for the market sometime later. At the market he saw Rajiv and Joey arguing with the deceased. Upon closer look he observed the deceased trying to stab Rajiv and Joey with a bush knife. He also observed Rajiv and Joey were unarmed at that time. His attempt to remove the knife from the deceased was unsuccessful. She continued to fight with Rajiv to the police station. The other three sisters joined in and assisted the deceased to fight with Rajiv.
    
19. He also stated the door to the police station building was open when he left for the market. The door to the station is always open on a 24 hour basis. In fact he stated that in his 13years service with police the doors to police stations are open 24 hours. Max Bowie another officer attended to the accused Rajiv when he went to the station the next morning.
    

State's Sixth Witness – Max Bowie.

20. Like, Maifuri, Max is a police officer and was also attached to the Waigani Police Station. He was the one who attended to Rajiv and Joey at the station that morning. But he asked them to wait for the morning shift officers. He said Rajiv and Joey went to the Station that morning to complain about some people entering their premises early that morning and threatened them with a shot gun and bush knives. Rajiv and Joey remained at the Station and he went out to chew betelnut and later went back to the Station. He was back at the Station when he saw people running to the Station. He saw the deceased running to the Station and fell down in front of the Station. He did not see who stabbed the deceased. But stated the deceased was not stabbed at the doorway of the Station. He did not see Rajiv and Joey in front of the Station when the deceased fell. They were later detained in the Station. He also said the Station door is open 24 hours and at that time it was open as he was at the Station counter.
    

THE DEFENCE CASE

Defence First Witness – Rajiv Kama Awei

21. Rajiv is the accused and in his evidence he related that on the day of the incident, very early in the morning at 5 am, Benjamin John came to his residence and threatened him and his family with a shot gun and a bush knife. Later that morning Rajiv and Joey came to the Station to report this threat. As the morning shift officers were yet to arrive at the Station, they decided to go to the market. At the market the deceased and her other 3 sisters ran towards him and the deceased took a bush knife and wanted to stab him but was unsuccessful. He ran towards the Station with the deceased and the 3 ladies running after him. Before reaching the Station and beside the second hand clothing place, the deceased and the 3 ladies caught up with him as he fell down because he was walking backwards and he lost his balance and at the same time protecting himself from being attacked by the ladies.
    
22. As he was down one of the ladies came and tried to stab him on his stomach and he kicked her on her private parts and got the knife off her. At that time the deceased cut him on his forehead, above the eyebrow which caused blood to flow covering his face and eyes and he was not able to see properly. He defended himself by swinging the knife in all directions as his eyes was affected by the blood and did not know where the knife landed.
    
23. He was brought to the Station and kept at the control room with Joey and their daughter for their safety. They were later brought to Boroko Police Station and Rajiv was charged with willful murder.
    

Defence Second Witness – Joey Apuga

24. Joey is the co-accused and in her evidence she testified that she heard and saw the deceased and the 3 ladies coming towards Rajiv at the market place. She was with her daughter when the deceased came towards her and tried to cut her with a black handle bush knife. However a police officer saved her as he tried to remove the knife from her. The deceased then ran after Rajiv towards the Police Station. She did not see what happened after that. She later walked to the Station and was locked with Rajiv for her safety.
    

Defence Third Witness – Kipoi Koya

25. Kipoi in his evidence said he was near the market when the commotion started. He saw and heard some ladies swearing at the accused. He recognized one of the ladies as the deceased as she is from the same area as his and at times sees her at the market. She was in possession of a black handle bush knife. She was trying to stab the accused. She later saw the accused ran towards the Police Station followed by the ladies. As he turned around, the ladies were closing in on him to attack him so defended him self. At that time Kipoi saw one of the ladies who tried to attack the accused being kicked by the accused and as she fell down the accused got the knife off her. Kipoi then saw the deceased cut the accused with the knife she was holding and the accused was bleeding and he swung the knife in all directions to defend himself. Kipoi then got the knife from the deceased and hid it. He said he did not see the co-accused at the scene of the fight at the market.
    

Defence Fourth Witness – Patrick Koleo

26. Patrick was the fourth and last defence witness. He stated in his evidence that he actually saw what happened at the market. He was 3 to 4 meters from the incident. He said he saw four women approaching the accused and behaving in a violent and abusive manner. The deceased who was amongst the women tried to cut the accused but was blocked by a table that was in between them. The accused ran to the Police Station. The women including the deceased followed the accused. He turned around and tried to defend him self and that was when he fell down. One of the women tried to stab him but he got the knife off her and at that same time the deceased cut the accused on his head. He was blinded by the blood and was swinging the knife in all directions when he tried to defend him self not knowing where the knife landed. Patrick followed the accused to the Station as he was bleeding heavily and was placed in the cells for his safety.
    

THE LAW

27. Section 299(1) of the Criminal Code states that:
    

" 299. Wilful Murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

28. The accused Rajiv does not deny causing the death of the deceased. He is however pleading provocation and self-defence. The co-accused Joey denies taking part or causing the death of the deceased.
    
29. I would like to first of all deal with the co-accused Joey Apuga. The issue that is in relation to Joey is whether she had a hand or took part in the killing of the deceased. The only evidence that is in any way connecting Joey to the murder is that of Benjamin John, Anna John, Andrew Kerua and Nelson Kilipia. In effect they all stated that they saw Joey together with Rajiv going after the deceased and the ladies to the Police Station. Benjamin John saw her holding a knife whilst dragging her small daughter with her. He was unable to say where Rajiv got the knife from to stab the deceased. Anna John saw her assisting Rajiv to fight them and claimed to have said this to the deceased: "I gave you five knife wounds and you did not die, now I will stab at your vagina and you will die." She saw Joey giving her knife to Rajiv and they followed them to the Station. Andrew Kerua saw the deceased with her 3 sisters running to the Station being chased by Rajiv and Joey and Joey gave a knife to Rajiv who stabbed the deceased at the Station doorway. Nelson Kilipia said the stabbing took place at the doorway of the Station and he saw Rajiv and Joey together when Joey gave the knife to Rajiv.
    
30. It is quite clear from the above evidence that Joey was aiding the commission of a crime. Together with Rajiv they chased the deceased and the 3 ladies to the Station and she gave the knife to Rajiv. However, against this evidence is the evidence of another 2 State's witnesses. They are Maifuri Sevese and Max Bowie. They are Police Officers attached to the Waigani Police Station. Their evidence is a complete contrast to the evidence provided by Benjamin, Anna, Andrew and Nelson. In effect their evidence does not link Joey in anyway to the murder of Patricia Wape, the deceased. Maifuri was at the market when the fight broke out. It was instigated by the deceased and her 3 sisters according to him. He saw the deceased with a bush knife trying to stab Rajiv and Joey with it at the market. He did not see Joey carrying any knife. In fact he tried to remove the bush knife from the deceased but was unsuccessful. The deceased together with her 3 sisters continued to attack Rajiv all the way to the Police Station. There is no mention of Joey involving in the fight with Rajiv all the way to the Police Station.
    
31. The other State witness, Max Bowie said he was at the Station when he saw people running to the Station. He saw the deceased running to the Station and fell down in front of the Station. He did not see who stabbed the deceased but she was not stabbed at the doorway of the Station. He did not see Rajiv and Joey in front of the Station when the deceased fell. He saw them later when they were detained at the Station for their safety. As well as Maifuri, he stated that at that time the door to the Station was open. The door is open 24 hours.
    
32. Section 7 of the Criminal Code relates to aiding and abetting and provides that:
    

" 7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:-

• (a) every person who actually does the act or makes the omission that constitutes the offence; and
  
• (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
  
• (c) every person who aids another person in committing the offence; and
  
• (d) any person who counsels or procures any other person to commit the offence."
  

33. And Section 8 of the Criminal Code states that:
    

" 8. Offences committed in prosecution of common purpose.

Where –

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence."

34. Was Joey aiding, assisting or enabling Rajiv to murder the deceased? Did she together with Rajiv intend to kill the deceased? The evidence adduced by the State is so inconsistent that I am not satisfied as to the guilt of Joey on her part in the commission of the crime of murder against the deceased. First, the evidence of Benjamin, Anna, Andrew and Nelson is different to that of Maifuri and Max in relation to Joey in possession of a knife. Benjamin, Anna, Andrew and Nelson all said they saw Joey giving the knife to Rajiv and Rajiv used the Knife to stab the deceased. Maifuri and Max said otherwise. Maifuri was at the market and he only saw the deceased holding a knife and was trying to stab Rajiv and Joey with it. He said Rajiv and Joey were unarmed. They were not in possession of any weapons, not even knives. Max was at the Station and he did not see Rajiv and Joey in front of the Station when the deceased fell in front of the Station. He said the deceased was not stabbed at the doorway of the Station.
    
35. The other factor that makes the State's evidence not to be believed is that the evidence by Benjamin, Anna, Andrew and Nelson are so similar that in my view they were rehearsed and refined before they were given in Court. It was clear that they had a personal vendetta against Joey and Rajiv as shown throughout their evidence. Anna said she heard Joey telling the deceased "I gave you five knife wounds and you did not die, now I will stab at your vagina and you will die".
    
36. The Defence witnesses Kipoi and Patrick although were at the market and in close proximity to Joey did not hear the above words uttered by Joey. Not even Maifuri who was also at the market and saw and heard everything.
    
37. The State wants the Court to believe that if the door to the Police Station was open, the stabbing would not have occurred, even if it was true that Joey gave her knife to Rajiv to stab the deceased. But Maifuri and Max said the Station door is open on a 24 hour basis. Max was at the Station at the time and the door was open and he did not see Joey and Rajiv in front of the Station when the deceased fell in front of the Station. The deceased was not stabbed in front of the Station. According to Maifuri, Joey and Rajiv were unarmed when he saw them at the market. They were not in possession of any knife. He only saw the deceased with a knife trying to attack Joey and Rajiv with it. He tried to disarm the deceased but was unsuccessful.
    
38. I believe the evidence given by Maifuri and Max as independent witnesses. Together with Kipoi and Patrick they gave a true account of what happened. The State has therefore not proven beyond reasonable doubt that Joey aided and assisted Rajiv in killing the deceased. I find Joey not guilty as charged. Joey is acquitted and discharged accordingly. Her bail moneys shall be refunded forthwith upon presentation of receipt.
    
39. In so far as the accused Rajiv is concerned, he does not deny killing the deceased. He is however pleading provocation and self-defence. The elements of willful murder are a person, kills another person, intending to cause that person's death is guilty of willful murder. It is for the State to prove that Rajiv intended to kill the deceased: See The State v Raphael Kuanande [1994] PNGLR 512. It is the state of the mind of the accused before or at the time of the killing that must be ascertained as to his intent.
    
40. On the morning of the date of the incident, the accused together with Joey came to the Waigani Police Station and laid a complaint against Benjamin John, who on the early hours of that morning is alleged by the accused to have threatened them with a gun at their residence. They came peacefully to the Station. They were unarmed. As testified by Maifuri, they were also unarmed when they went to the market. It was the deceased and her sisters that started the fight at the market and the deceased was armed with a knife and chased Rajiv to the Station. Rajiv received a wound to his forehead with a knife by one of the deceased sisters. Rajiv was blinded by the blood from the wound and was unable to see properly and was swinging the knife that he got off the sister in all directions to defend himself from being attacked by the deceased and her sisters. There was no intention on his part to kill or to cause grievous bodily harm to the deceased or any of the sisters for that matter. The State has therefore not proven beyond reasonable doubt as to the intention of accused.
    
41. The law in relation to the defence of provocation is provided for under Section 267 of the Criminal Code. It states as follows:
    

"267. Defence of provocation.

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he-

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool, if the force used is not disproportionate to the provocation, and is not intended to cause, or likely to cause, death or grievous bodily harm.

(2) Any question, whether or not-

• (a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce to assault the person by whom the act or insult is done or offered; or
  
• (b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
  
• (c) any force used is disproportionate to the provocation, is a question of fact."
  

42. Section 303 of the Criminal Code makes a person guilty of manslaughter only if he unlawfully kills another in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for the passion to cool.
    
43. The defence of self-defence against unprovoked assault is provided for under Section 269 of the Criminal Code. The provision provides that:
    

"269. Self-defence against unprovoked assault.

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) If-

• (a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
  
• (b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,
  

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm."

44. As determined in Joey Apuga's case, I believe the evidence of Maifuri Sevese and Max Bowie. Therefore I accept the accused evidence and the other defence witnesses. The deceased and her sisters instigated the fight at the market against the accused and Joey. The deceased tried to stab the accused at the market but was unsuccessful. She followed him to the Station together with her sisters still holding on to the knife. The accused was assaulted with a knife on his forehead first by the deceased as she was the only person holding on to a knife, apart from one of the sisters which before that the accused had already taken the knife off her. The accused was being attacked by the deceased and her sisters without provoking such an assault. In fact he was provoked and assaulted first by the deceased when she cut his forehead. And it was at that instant when he was blinded by the blood flowing from his forehead that he started swinging the knife in all directions to defend himself from further harm.
    
45. I therefore find that the defence of provocation has been established by the accused. The accused was provoked by the deceased by assaulting him on his forehead first with the knife. He was provoked to the extent that he was deprived of his power of self control and before there is time for his passion to cool down. The force used was not intended to cause death or grievous bodily harm.
    
46. I too find that the accused has adduced sufficient evidence of self-defence in that he was firstly assaulted by the deceased by cutting him on his forehead. He was being mobbed by the deceased and her sisters and the deceased held a knife and the accused had to protect himself from being attacked by swinging the knife he took off one of the sisters in all directions. He was unable to see as he was blinded by the blood covering his eyes. I am of the view that at that time he was placed in a life threatening situation. The cut on his forehead was not as a result of him provoking it. He was being mobbed by the deceased and his sisters and he had to make an effectual defence against them, in particular the deceased as she was in possession of a knife. What the accused did by swinging the knife was not intended to cause or not likely to cause, death or grievous bodily harm. The accused had a reasonable apprehension that the deceased and her sisters would cause death or grievous bodily harm to him and he believed on reasonable grounds that he was unable to preserve himself from being killed or to suffer grievous bodily harm except to act the way he did by swinging the knife in all directions, even if death or grievous bodily harm was to occur. The accused found himself in a situation where he was not expected to be calm. Calm reaction was unthinkable at that time: Meckline Poning v The State (2005) SC 814.
    
47. The Defence does not carry the burden of proving beyond reasonable doubt the elements of provocation and self-defence. The Prosecution carries that burden of proving beyond reasonable doubt that such defences do not exist by negating the elements of such defences. All that the Defence needs to do is to adduce sufficient evidence that such defences exist: The State v David Yakuye Daniel (2005) N2869 and R. v Nikola Kristeft (1967) N445.
    
48. The Prosecution has not negatived beyond reasonable doubt the defences of provocation and self-defence as raised by the Defence. The State has failed to discharge that burden.
    
49. I therefore find the accused not guilty as charged. The accused is acquitted and discharged forthwith.
    
50. His bail moneys are to be refunded to him forthwith upon presentation of receipt.
    

O R D E R

1. The accused Joey Apuga and Rajiv Kama Awei are found not guilty as charged; and
   
2. They are acquitted and discharged forthwith; and
   
3. Their bail moneys shall be refunded forthwith upon presentation of receipts.
   

__________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accuseds