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State v Gasawa [2009] PGNC 196; N3800 (18 November 2009)

N3800

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 770 OF 2007

THE STATE

V

RUBEN KOU GASAWA, DAVID KOU & RUBEN KOU JUNIOR

CANNINGS J

Wewak: Cannings J
2009: 6, 9, 10, 11, 12, 18 November

VERDICT

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – elements of the offence – multiple accused – whether any of the accused killed the deceased – whether intention to do grievous bodily harm – whether any of the other co-accused aided or assisted the person who committed the offence – Criminal Code, Section 7.

Three men, a father and two of his sons, were charged with the murder of a male relative in an urban settlement. It was alleged that one of the accused stabbed the deceased with a knife, intending to cause him grievous bodily harm, inflicting a fatal wound, while the other two enabled and aided him. The accused who allegedly stabbed the deceased was alleged to be guilty of murder under Section 300(1)(a) of the Criminal Code. The other two were alleged to be also guilty of murder by virtue of Section 7 of the Criminal Code. All accused denied killing the deceased. Two said that they were not present and the other said that he was present and inflicted a minor wound on the deceased but that the deceased was killed by someone else.

Held:

(1) There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(2) Both elements were proven against one of the accused and he was convicted of murder.

(3) The State failed to prove that either of the other two enabled or aided commission of the offence and they were acquitted.

Cases cited
Papua New Guinea cases

The State v Raphael Kuanande [1994] PNGLR 512

Overseas cases

Browne v Dunn (1893) 6 R 67 (HL)

TRIAL

This was the trial of three accused charged with murder.

Counsel

D Mark, for the State
A Hombunaka, for the accused

18 November, 2009

1. CANNINGS J: There was an incident at the Saksak Compound in Wewak late on the afternoon of Friday 30 March 2007 that led to the death of a man, John Morris. The three accused now before the court – Ruben Kou Gasawa, David Kou and Ruben Kou Junior – have been charged and indicted for his murder. They all pleaded not guilty so a trial has been conducted.

2. Ruben Kou Gasawa (Ruben Snr) is the biological father of David Kou and Ruben Kou Jnr (Ruben Jnr). Ruben Snr was 48 years old at the time of the incident, David was 17 and Ruben Jnr 22. The deceased John Morris was aged 38. He was a nephew of Ruben Snr and a cousin-brother to David and Ruben Jnr. The three accused and the deceased are originally from Wom village in the Angoram District of East Sepik Province.

3. The State’s case is that the incident in which the deceased was killed happened after an earlier altercation involving the two sons and another group of men, including the deceased’s cousin-brother, James Kou. The State says that David Kou stabbed the deceased with a knife, intending to cause him grievous bodily harm, inflicting a fatal wound and that Ruben Snr and Ruben Jnr aided and assisted him.

4. David is alleged to be guilty of murder under Section 300(1)(a) of the Criminal Code. The other two are alleged to be also guilty of murder by virtue of Section 7 of the Criminal Code.

ELEMENTS

5. Section 300(1)(a) of the Criminal Code states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: ...

if the offender intended to do grievous bodily harm to the person killed or to some other person.

6. The prosecution has the onus of proving beyond reasonable doubt that:

- the accused killed the deceased; and

- the accused intended to do grievous bodily harm to the deceased.

7. They are the two elements of the offence of murder. If the court is not satisfied that the second element is proven, but that the killing was unlawful, an alternative verdict of manslaughter can be entered under Section 539.

8. Section 7(1) (principal offenders) of the Criminal Code is the provision on which the State relies to argue that Ruben Snr and Ruben Jnr should also be convicted of murder. It states:

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.

9. The State relies in particular on Sections 7(1)(b) and (c), the argument being that Ruben Snr and Ruben Jnr each did act for the purpose of enabling David to murder the deceased and that they each assisted him in committing the offence.

ISSUES

10. None of the accused rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. Each accused says that he did not kill the deceased. So the first issue is whether any of them killed the deceased. If so, was there an intention to do grievous bodily harm? If yes, a conviction for murder will be entered. If no, an alternative conviction for manslaughter will be considered. If the conclusion is reached that one or two of them is directly guilty the next issue will be whether the remaining accused enabled or aided commission of the offence.

11. The primary issues therefore are:

1. Did any of the accused kill John Morris?

2. Was there an intention to do grievous bodily harm?

3. If there was no intention to do grievous bodily harm, was the killing unlawful?

4. Did the other accused enable or aid commission of an offence?

5. Should any of the accused be convicted of an offence?

1 DID ANY OF THE ACCUSED KILL JOHN MORRIS?

12. Determination of this issue requires:

- a summary of the evidence for the State;

- a summary of the evidence for the defence;

- a summary of the site visit;

- a preliminary assessment of the State’s case;

- a summary of the defence counsel’s submissions;

- an assessment of the defence counsel’s submissions; and then

- a final determination of the question whether any of the accused killed the deceased.

Evidence for the State

13. It consisted of:

- medical evidence: a post-mortem report and oral evidence by the doctor who conducted the post-mortem;

- photographs of the deceased’s body;

- police investigator’s evidence;

- records of interview;

- other exhibits;

- three uncontested witness statements;

- oral evidence by seven people who witnessed or were in the vicinity of where the incident occurred.

Medical evidence

14. A post-mortem examination was conducted by Dr Brian Galungim at Wewak General Hospital on 18 April 2007 and he prepared a post-mortem report. The cause of death was "stab wound with internal bleeding".

15. Significant, abnormal findings were:

Examination showed a stab wound to left anterior upper chest wall about 12-13 cm in length.

Penetration through the rib cage and puncturing the left upper lobe of lung causing lung collapse. There was also penetration through the pericardial covering.

Approximately 1 litre of blood was drained mainly from the left chest cavity due to the internal bleeding.

16. Dr Galungim gave oral evidence. He confirmed that the cause of death was internal bleeding and that in his assessment the wound had been caused by a knife – probably a kitchen knife. The only wound he observed was the one recorded in his report: on the front of the chest on the left side. It was a deep wound, about 13 cm, penetrating to the covering of the heart.

Photographs

17. Copies of four photographs of the deceased’s body were admitted into evidence. The copies were of poor quality and only one was of any use. Counsel agreed that it showed a wound, apparently a cut, to the deceased’s back on the right side towards the shoulder: the shoulder blade.

Police investigator’s evidence

18. Sergeant Alex Malken was the police investigator. The incidents happened on a Friday night, the three accused were arrested over the weekend and he was given the case to investigate on the Monday.

Records of interview

19. Ruben Snr denied being present when John Morris was killed and exercised his right to remain silent during most of the interview.

20. David said that he was at the hauswin of his uncle, Moses, sitting down and getting fresh air when the incident happened. Neither Ruben Snr nor Ruben Jnr was present. He exercised his right to remain silent during most of the interview.

21. Ruben Junior denied being present when John Morris was killed and exercised his right to remain silent during most of the interview.

Other exhibits

22. Admitted into evidence were a sketch of the crime scene; two black-handled kitchen knives, each 30 cm in length; and a family tree diagram.

Witness statements

23. Each statement was dated 4 April 2007, five days after the death of John Morris, and made by a resident of Saksak Compound and refers to what happened on the day of the incident.

24. Leo Pamba, aged 23 – he was with a group of boys drinking beer at the nearby St Christopher’s Elementary School – David and Ruben Jnr approached them and chased them – David had two kitchen knives and Junior had a grassknife – did not see how John Morris was killed.

25. Joannah Trak, aged 35 – at 5.30 pm she saw David plant two kitchen knives into an old fridge that was used to collect rainwater near her house – David said that he wanted to ‘kill a man now’.

26. Roy Nak, aged 26 – at 5.30 pm he was at his house when David swung a long, black-handled kitchen knife at him, inflicting some bruises before he (Roy) ran away to take cover.

Oral evidence of seven witnesses who were at or in the vicinity when the incident occurred

27. All these witnesses were living at Saksak Compound at the time. They are all long-term residents and all know the three accused well. Five of them are closely related to the accused and one is an in-law.

28. (1) Moses Kou is Ruben Snr’s brother. He said that he came home from work at 6.00 pm on 30 March 2007. There was a fight going on between his nephew, Ruben Jnr, and his son, James Kou; and he helped stop that fight. Then there was a second fight, which led to the death of John Morris, but he does not know anything about that fight. He only heard about it from his adopted daughter, Jacinta, who is John’s biological daughter.

29. In cross-examination he admitted making a false statement to the police about witnessing the second fight as he and Jacinta had been threatened by Robin Yandu.

30. (2) James Kou is the deceased’s younger cousin-brother. He is Ruben Snr’s nephew and a cousin-brother to David and Ruben Jnr. He was aged 27 at the time of the incident.

31. In examination-in-chief he said that on the afternoon of 30 March 2007 he and other boys were drinking near St Christopher’s Elementary School, just a few hundred metres from where John Morris was killed. David and Ruben Jnr came there after fighting with another group at Caltex [an area at Wewak about a kilometre away]. Then they started another fight at St Christopher’s. Ruben Jnr had a grassknife and used the flat side of it to strike him (James) on his back. Then David and Ruben Jnr went into the community area and started fighting whoever was there and destroying things.

32. James went into Saksak Compound and called out to them ‘I am your big brother, why are you fighting me?’ They came at him again and assaulted him. He fell. Their father, Ruben Snr, came out and scolded them: ‘He is your big brother, why are you fighting him?’ John Morris heard them fighting and came to see what was going on. He took Ruben Jnr aside and told him ‘that’s enough, do not fight any more’.

33. James’ friends arrived and took him back to the house where he cried and said ‘Why did my two small brothers fight with me?’ John told him to stop crying and have a wash and go to sleep.

34. A sister of David and Ruben Jnr, Mary Kou, called out to John from the accuseds’ area: ‘They are pigs, chase them and kill them’. John took offence at what Mary said, went into their area, told her that her brothers had caused a lot of trouble and slapped her.

35. Then David ran towards John and stabbed him. John called out "Aiyo, they have stabbed me already!’ James was three metres away and saw what happened. David stabbed John with a short, white-bladed, black-handled kitchen knife. He tried to assist John but Ruben Snr ran in and chased him and John. Ruben Snr swung a piece of iron at him. He and John bumped into some barbed wire and fell. James fell backwards and became unconscious.

36. In cross-examination James said that he saw David stab John on the back. He did not stab him on the front of his body. Someone else must have stabbed John on the front. He denied making up stories due to threats issued by Robin Yando. Robin has never threatened him. Robin is a villager. He lives mostly at Manjiwat, though he has relatives who he stays with at Saksak and he was staying at Saksak for several months in 2007.

37. James was quizzed over a statement he gave to the police on 30 April 2007, a month after the incident (admitted into evidence as a prior inconsistent statement as exhibit J). It refers to him being hit by Ruben Jnr with an iron rod. James said that that part of the statement was a mistake. That was not what he told the police. Ruben Snr hit him with the iron rod. Ruben Jnr also had a piece of iron but did not hit him with it. Ruben Jnr had a grassknife when the first fight occurred at St Christopher’s but did not have a grassknife during the second fight.

38. (3) Jacinta Kou is the deceased’s biological daughter but has been raised by Moses Kou. She regards both of them as fathers. She is Ruben Snr’s niece and a second-cousin of David and Ruben Jnr. She is now aged 17 and attends St Mary’s Primary School.

39. In examination-in-chief she said that she was at her house at Saksak at the time of the incident. James came towards where she and Mary Kou were sitting in the hauswin. He was crying and then her father, John Morris, came to James and told him to stop crying and go to the house, wash and sleep. John said that they would sort out the problem involving David and Ruben Jnr in the morning.

40. As John was walking away Mary said something that John took offence to so he turned around and told her that her brothers had made a lot of mistakes during the day. Then he slapped her on the cheek. Mary sang out "John Morris hit me for no reason!’

41. That caused David to run in and stab John on the right side of his chest, once, with a black-handled kitchen knife. John yelled out ‘They have stabbed me with a knife!’ Ruben Snr also ran in. He had a piece of iron, 1-metre long; the sort used on building sites for laying bricks. He was cross with John for hitting Mary. Ruben Snr swung the iron on to James’ back as he was holding on to John, trying to help him. Ruben Snr did nothing to stop David. She did not see Ruben Jnr there.

42. Her other father, Moses, came in after John yelled out. James and David looked to be drunk. Ruben Snr was not drunk.

43. Jacinta said that she was only two metres away when she saw David stab her father, John. The light was clear. She identified exhibit L as the knife that David used. It has a 10-cm long handle and a 20-cm blade.

44. In cross-examination Jacinta was emphatic that though she was afraid she had a close-up view of what happened and that David had stabbed her father John on the right side of the chest. The cause of the incident was Mary singing out that she had been assaulted by John. James did not chase David.

45. Shown her police statement which records her as saying that Ruben Snr had pushed the iron rod into her father’s chest, she said that she did not remember telling the police that. Ruben Snr hit John with the iron but did not push it into his chest.

46. She denied being threatened by or being scared of Robin Yandu but in re-examination said that Robin had told her to say some things to the police that were not true, such as that Ruben Snr had stabbed John with an iron rod.

47. Her father John did not have any problems with Ruben Snr or his two sons prior to this incident, Jacinta said.

48. (4) Garry Aguwi has married into the Kou family. He is the husband of Rita Aguwi (another State witness) who is a niece of Ruben Snr and a cousin-sister to David and Ruben Jnr. Garry now lives in Port Moresby but in 2007 he was living at Saksak.

49. He came into the Compound between 5.30 and 6.00 pm and saw David and Ruben Jnr running about wildly with weapons in their hands. David had two knives and Ruben Jnr had a grassknife. They were chasing children. They assaulted James Kou and John Morris stepped in to assist James by assaulting Junior. Ruben Snr, who was carrying a 1.5-metre piece of three-cornered iron, and Moses, arrived on the scene and the fight stopped.

50. Then there was a lady’s voice yelling and the next thing he saw was John and James running towards him. They bumped into some barbed wire and fell. Ruben Snr stabbed John on his chest with the iron rod. John ran towards his wife Rita and collapsed in her arms.

51. In cross-examination Garry denied that Ruben Snr only hit John with the iron. He definitely stabbed him. Jacinta was seeing what happened at the spot where John fell, not where he (Garry) observed Ruben Snr stab him with the iron rod.

52. He did not see David or Ruben Jnr at the spot where Ruben Snr stabbed John. The iron rod has never been seen since. ‘It has gone into hiding’ said Garry.

53. Answering questions from the bench, Garry said that John Morris was not wearing a shirt when Ruben Snr stabbed him. He saw that John’s skin was broken and a lot of blood came out. He helped get John on to a vehicle and they rushed him to hospital but he was dead by the time they got there.

54. (5) Josephine Dila is a mature aged woman. She is a cousin-sister to John Morris and David and Ruben Jnr. She is a niece of Ruben Snr. She is employed at the South Sea Tuna Cannery. Between 5.30 and 6.00 pm she was at her hauswin with Jacinta and Mary Kou.

55. She saw David and Ruben Jnr fight with James and John. Some people tried to stop them but they kept fighting. Mary said something that caused John to slap her. David suddenly ran in from behind and stabbed John once on the back with a kitchen knife. David had not said anything. She was afraid and got her two small boys and ran into her house. It was getting dark but still light enough to see. It happened in front of her hauswin.

56. In cross-examination Josephine said that the stabbing was due to John slapping Mary. David ran away straight after he stabbed John. Ruben Snr and Ruben Jnr were not present. She did not see them there or in the vicinity. Jacinta was present and remained when she took her children away.

57. (6) Rita Aguwi is married to Garry Aguwi. She is the deceased’s sister. She is Ruben Snr’s niece and a cousin-sister to David and Ruben Jnr. She works with a local theatre group.

58. She was in the community area at the time of the incident, getting ready to prepare dinner. She was near a tap and David approached her and said someone had hit him on the head and asked her to wash his head. She did so and noticed that he had two knives on him. She identified them as the two knives admitted into evidence. She tried to hide them from him when she was washing his head but was unsuccessful. He stuck them in his trousers and walked away.

59. Then she saw Junior and John arguing. She tried to settle down Junior who was very drunk but he would not listen and went to the main road, yelling abusive words at John as he went. John also left.

60. Five or six minutes later John ran into her kitchen, holding his chest, and said ‘Sister, I am about to die!’ She was shocked to see him in that condition. His blood spilled on her. There was a severe wound, a deep hole, on the left side of his chest. The flesh was torn. It was not a straight cut. He fell at her feet.

61. Ruben Snr came into her house with a piece of iron and looked as if he wanted to fight John. She told him ‘That’s enough, John is about to die’. Ruben Snr did not respond. He just walked out. She yelled out for help and plenty of people came and they lifted John on to a vehicle and took him to the hospital but he died on the way.

62. In cross-examination she denied knowledge of any threats that Robin Yandu had issued. She conceded that she did not see who stabbed John but said that John had died because of the fight with the three accused so it must have been one of them.

63. Answering questions from the bench Rita Aguwi said that John Morris had been drinking alcohol that afternoon but had not had many drinks.

64. (7) Newman Aki is not related to the accused or the deceased. He is an adult and is also a member of a local theatre group. He was in James Kou’s group drinking at St Christopher’s Elementary School when David and Ruben Jnr arrived and started fighting them. Junior had a grassknife and used the flat side to strike James on his back. David had two small knives and threatened Newman with them so Newman ran to the main road and went to Moem Barracks.

65. He returned to Saksak later that night and heard that John Morris had been killed. He went to David and Ruben Jnr’s house and flashed a torch under the house and found the two knives that David had been wielding. One had blood on it. He gave them to the police. He identified the two knives, exhibits L and M, as the knives that he found that night.

Evidence for the defence

66. The three accused each gave sworn evidence. There was no other evidence for the defence.

67. (1) Ruben Kou Gasawa (Ruben Snr) is a crocodile farmer and scrap metal collector. He is a community leader at Saksak Compound and is a Deacon in the Seventh-Day Adventist church.

68. He was not at Saksak Compound at the time of the incident. Garry Aguwi gave false evidence against him as he and Robin Yandu took the lead role in looting and destroying his houses and livestock.

69. In cross-examination he said that he was down at the dump, busy with his work as a scrap metal collector, between 6.00 and 6.30 pm on Friday 30 March 2007. No one was with him. The State witnesses who said that he was at Saksak Compound at that time are lying. Garry and Robin are very good at getting people to tell lies. Garry and Robin organised the destruction of his property. They are intent on spoiling the Kou family’s name.

70. (2) David Kou was at Saksak Compound at the time of the incident. He was at the hauswin of his uncle, Moses, when he heard his sister, Mary, crying for help. He saw John Morris, who was very drunk, punching and kicking her to the ground. There was no one else to help her and John was much bigger than him so he looked around the hauswin for a weapon. He spotted a butter knife so he got it and cut John on the back with it, on the right side, towards the top. He did not stab him, it was only a cut. He did not intend to inflict a serious injury. Because John was drunk he just wanted to slightly injure him so that he would leave his sister alone. John turned around, saw him, regretted what he had done and ran away. James was also very drunk and he came along brandishing a tree branch but he (David) ran away towards Robin Yandu’s house.

71. He saw Robin stab John in the left upper chest with a homemade bayonet. Robin tried to stab him (David) too but he escaped under Josephine Dila’s house. There was no one else around at the time.

72. He went to the police the next day to report Robin for killing John but the police locked him up for his own protection and he was surprised to find his father and brother in the cell.

73. In cross-examination David said that the knife he used to cut John’s back was neither of the knives admitted into evidence. All the evidence of the State witnesses that put him at the scene of the incident in which John was stabbed was not true. There was no one present when Robin stabbed John other than himself. His uncle, Moses Kou, gave false evidence that he was causing trouble before John was stabbed as Moses had been threatened by Garry Aguwi and Robin Yandu.

74. (3) Ruben Kou Junior (Ruben Jnr) was not at Saksak Compound at the time of the incident. He therefore does not know what happened.

75. In cross-examination he said the State witnesses had given false evidence. He was not there. He was at his other house at Kreer Heights. James was one of the people who burned down his family’s houses and he had fabricated the story to get the three accused in trouble.

Site visit

76. The court party, including the three accused, visited Saksak Compound on the afternoon of Wednesday 11 November 2009, after the close of the defence case and before presentation of submissions. It is a large urban settlement, densely populated mainly by people from East Sepik Province, situated three kilometres from the central business district on the northern side of Cathedral Road, in the town precincts, five kilometres from Wewak Airport. The places referred to in the evidence were observed and it was noted that all of the key events referred to took place within a distance of about 250 metres.

Preliminary assessment of the State’s case

77. The medical evidence reveals that the deceased suffered a single, fatal wound to the left side of his chest. The person who inflicted that wound is the person who killed him.

78. In his closing address the prosecutor, Mr Mark, maintained the State’s case that was put to the accused on arraignment: the person who killed the deceased was David Kou and the other two accused enabled and assisted him.

Defence counsel’s submissions

79. Ms Hombunaka submitted that the State had fallen short of proving that any of the accused killed the deceased. The only evidence that Ruben Snr killed the deceased came from an unreliable witness. The evidence that David killed the deceased was inconsistent and unreliable.

There was no evidence at all that Ruben Jnr killed the deceased.

Assessment of defence counsel’s submissions

1 Only evidence against Ruben Snr was from unreliable witness

80. Ms Hombunaka submitted that the only evidence that Ruben Snr was the person who inflicted the fatal wound came from Garry Aguwi who said he saw Ruben Snr push the iron into the deceased’s chest. I agree that this evidence is unreliable as it is so far out of line with the evidence of the other State witnesses that it is not believable. Garry gave a completely different version of events. He said that he was in the community area and saw John Morris fall after bumping into barbed wire and then get up; and it was after that, that Ruben Snr stabbed John in the chest with the iron. If that were true, Jacinta Kou’s evidence would have to be disregarded as she said that she saw David stab John in the chest. However, Jacinta was an impressive witness and her demeanour was not that of a witness giving false evidence.

81. I reject Garry Aguwi’s evidence as unreliable and conclude that Ruben Snr was not the person who inflicted the fatal wound.

2 Evidence that David killed the deceased was inconsistent and unreliable

82. Ms Hombunaka pointed out inconsistencies in the evidence regarding (a) who inflicted the fatal wound, (b) what weapon was used, (c) what part of the body the deceased was stabbed and (d) where the incident took place.

83. As to (a): Garry Aguwi’s evidence suggested it was Ruben Snr whereas other witnesses gave evidence that David inflicted the fatal wound. As to (b): was it an iron rod or a kitchen knife? As to (c): two State witnesses (Jacinta and Garry) said that they saw the deceased being stabbed in the chest whereas two others (James and Josephine) saw him stabbed in the back. As to (d): Garry suggested that the fatal incident occurred near his place, next to the community area, whereas other witnesses said it was in front of a hauswin.

84. Ms Hombunaka also submitted that the demeanour of the State witnesses was poor: they were nervous and hesitant and gave the impression of making up stories as they went along. By contrast the three accused were confident and consistent when they gave evidence. Therefore the evidence of the accused is much more reliable than that of the State witnesses. David admitted that he cut – not stabbed – the deceased on the back and his evidence was actually consistent with the evidence of James Kou and Josephine Dila. David gave evidence that he saw Robin Yandu stab the deceased. All of this leads to the conclusion that the State presented a faulty and shoddy case, full of inconsistencies, Ms Hombunaka submitted.

85. I will deal first with the proposition that the demeanour of the accused was more impressive than the State witnesses. I cannot agree with that.

86. All of them presented a version of events that had not been put to the State witnesses in cross-examination. Ruben Snr and Ruben Jnr said that they were not at Saksak (thus raising alibis) while David said that he only cut –not stabbed – the deceased on the back and that he saw Robin Yandu stab the deceased. This was very significant evidence but it violated the rule in Browne v Dunn (1893) 6 R 67 (HL). That is, it was a key part of the defence case that was not put to the State witnesses; and the State was left without an opportunity to rebut the allegations. The way in which this evidence was given – especially David’s claim that Robin Yandu is the person who killed John Morris – leads to the conclusion that it was a recent invention: a lie. I regard David Kou as a very unreliable witness.

87. By contrast, I consider that the State witnesses with the exception of Garry Aguwi (whose evidence I disregard as being unreliable) were more reliable. I reject the proposition that their demeanour was poor. This does not mean that their evidence should automatically be accepted. The burden of proving that David Kou killed the deceased never shifts from the State, even though I have concluded that David was an unreliable witness, who lied under oath. But nor does the existence of inconsistencies in the evidence of the State’s witnesses automatically prevent a conclusion that David was the person who killed the deceased.

88. Jacinta Kou said that she saw David stab John in the chest with a kitchen knife. I consider that Jacinta was an impressive witness. Her demeanour was sound. She was neither nervous nor hesitant and she did not give the impression of lying. She was giving direct evidence against her cousin-brother concerning the death of her biological father. She was not shown to have any motive for lying. She said there was sufficient light to see what happened and she had a close-up view. Her evidence about what David did is consistent with the statement she gave to the police (exhibit K) on 4 April 2007, five days after the incident. In that statement she said David stabbed the deceased on the left side of the chest, whereas in her oral testimony she said it was the right side. I do not think this is a significant inconsistency. She has given consistent evidence over a space of two and a half years that David stabbed John in the chest. Her oral testimony was impressive. That is what matters.

89. The major difficulty in accepting Jacinta’s evidence is that it appears to conflict with the evidence of James Kou and Josephine Dila who saw David stab John in the back. I think there are two explanations for this.

90. First, James and Josephine may have been mistaken; James because he was drunk (though he said he was not drunk, the evidence suggests that he was very drunk) and Josephine because she was shocked and frightened and intent on getting her two small boys to safety. They may have seen the same incident as Jacinta, but from a different angle; so they mistakenly described it as a stabbing to the back when in fact it was a stabbing of the chest.

91. Secondly, David might have both cut John on the back (which he admits to doing) and stabbed him on the chest; and James and Josephine might only have observed David inflicting a wound on the back. Both explanations are plausible and this strengthens the conclusion that Jacinta’s evidence should be believed.

92. I conclude that the evidence that David was the one who inflicted the fatal wound is not unreliable.

3 No evidence that Ruben Jnr killed the deceased

93. I agree with this proposition. Of the three accused, Ruben Jnr is the one who is mentioned least in the evidence of the State witnesses. There is no evidence that he wounded the deceased.

Final determination of whether any of the accused killed the deceased

94. The State has proven beyond reasonable doubt that the person who inflicted the fatal wound to the chest was David Kou. The weapon used was a 30-cm long black-handled kitchen knife, with a 20-cm blade (exhibit L). The first element of the offence of murder has been proven against David.

2 WAS THERE AN INTENTION TO DO GRIEVOUS BODILY HARM TO JOHN MORRIS?

95. It is at this point of a murder trial that the Court is required to consider the accused’s state of mind. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused’s state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

96. There is ample evidence from the witness statements admitted into evidence by consent and from the oral testimony of the State witnesses that David was behaving aggressively before the stabbing. A number of young men were drunk. It is clear that the deceased assaulted David’s sister, Mary, and that this was the incident that triggered the stabbing. I find that David was drunk and angry and in a violent frame of mind when he stabbed the deceased. He ran away straight after it happened, as he had knowledge of the seriousness of the wound he had inflicted.

97. It was a substantial wound. The depth of the wound was commented on by Dr Galungim: about 13 cm, penetrating to the heart. John Morris was rushed to the hospital, only about 6 km away, but was dead on arrival. The nature of the wound, inflicted in those circumstances, shows that it was a ferocious stabbing, exhibiting an intention to do grievous bodily harm. The State has proven beyond reasonable doubt that David Kou intended to do grievous bodily harm to John Morris. The second element of the offence of murder has been proven.

3 WAS THE KILLING UNLAWFUL?

98. In view of the determination of the first two issues it is unnecessary to address this issue.

4 DID THE OTHER ACCUSED ENABLE OR AID COMMISSION OF THE OFFENCE?

Ruben Snr

99. I reject his evidence that he was not present. That was an alibi, presented without notice to the State and without any supporting evidence. It was a false alibi.

100. I have rejected Garry Aguwi’s evidence that Ruben Snr was directly involved in stabbing the deceased.

101. The other evidence implicating Ruben Snr came from:

- James, who said that Ruben Snr at one stage hit him with the iron; and

- Jacinta, who said that Ruben Snr swung the iron on James’s back as James was holding on to John, at the time John was stabbed; and

- Rita, who said that Ruben Snr followed John into her house (when John collapsed in front of her) holding a piece of iron, looking as if he wanted to fight John.

102. I accept that evidence as truthful but find that it falls short of establishing that Ruben Snr was doing those things for the purpose of enabling David to commit the offence of murder or that Ruben Snr aided David in committing the offence. He did not enable or aid commission of the offence.

Ruben Jnr

103. I reject his evidence that he was at Kreer Heights as a false alibi.

104. However, I uphold Ms Hombunaka’s submission that there is little or no evidence of his involvement in the stabbing. He did not enable or aid commission of the offence.

5 SHOULD ANY OF THE ACCUSED BE CONVICTED OF AN OFFENCE?

105. The State has proven that David Kou killed John Morris under circumstances in which he intended to do him grievous bodily harm. He will therefore be convicted of murder, as charged.

106. The State has not proven that Ruben Kou Gasawa (Ruben Snr) or Ruben Kou Junior (Ruben Jnr) killed the deceased or that either of them ought to be deemed under Section 7 of the Criminal Code to have taken part in committing the offence. They will be acquitted.

VERDICTS

Ruben Kou Gasawa, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

David Kou, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of murder.

Ruben Kou Junior, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence and is discharged from the indictment.

Verdicts accordingly.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused