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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1457 OF 2006
THE STATE
V
GAWANGO ANGO
Madang: Cannings J
2010: 6, 10, 26 May
VERDICT
CRIMINAL LAW – trial – murder – Criminal Code, Section 300(1)(a) – alleged grassknife attack by accused on deceased – general denial.
EVIDENCE – apparent admissions in record of interview contrary to accused’s sworn testimony – whether there is a rule of law or practice that sworn testimony carries more weight
The State alleged that the accused and others attacked the deceased with a grassknife, killing him. The only evidence the State presented at the trial was the accused’s record of interview – which was admitted into evidence over the objection of the defence – which contained admissions. In his sworn testimony the accused contradicted those admissions by denying that he attacked or cut the deceased with a grassknife. There was no other evidence. The case raises the issue of the respective weight to be given to admissions in a record of interview and an accused’s sworn testimony.
Held:
(1) There is no rule of law that says that if an accused gives sworn evidence rebutting what he said to the police the court must by necessity give more weight to the sworn evidence.
(2) The weight to be attached to a confessional statement or record of interview depends on the circumstances in which any incriminating statements were made to the police and whether any objection was made to their admission into evidence.
(3) The weight to be attached to an accused’s sworn testimony will depend on the normal factors that decide whether any witness’s evidence is believed such as the witness’s demeanour and the credibility of the evidence in light of other evidence before the court.
(4) Here, the integrity of the record of interview was suspect as neither the police officer who conducted the interview nor the other officer present at the interview gave evidence.
(5) The accused was not shown to be lying and his demeanour was sound. His sworn testimony therefore carried more weight than the record of interview.
(6) As the State presented no other evidence, it failed to prove its case and the accused was found not guilty.
Cases cited
The following case is cited in the judgment:
The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N4013
TRIAL
This was the trial of an accused charged with murder.
Counsel
A Kupmain for the State
A Meten for the accused
26 May, 2010
1. CANNINGS J: Gawango Ango is charged with the murder of Bowo Gorongo at Pototo Camp in the Saidor area of Madang Province on 28 February 2006. The State alleges that the accused was with several others in a haus boi belonging to Ezekiel Yaling when they saw the deceased, who they alleged was guilty of the murder of four people. The accused and the others attacked the deceased with a grassknife, cutting him badly, and killing him. The State alleges that the accused intended to do grievous bodily harm to the deceased and that therefore he is guilty of murder under Section 300(1)(a) of the Criminal Code.
ELEMENTS
2. 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.
3. The prosecution has the onus of proving beyond reasonable doubt that:
4. They are the two elements of the offence of murder. If the court is not satisfied that the first element is proven, an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is satisfied but not the second, an alternative verdict of manslaughter can be entered under Section 539(2).
5. The accused denies that he killed the deceased. So the first issue is whether he did so. If no, did he do grievous bodily harm? If he did kill the deceased, 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. The primary issues therefore are:
1 Did the accused kill the deceased?
2 Did he unlawfully do grievous bodily harm to the deceased or commit any other similar offence?
3 Was there an intention to do grievous bodily harm?
4 Should an alternative conviction for manslaughter be entered?
1 DID THE ACCUSED KILL BOWO GORONGO?
6. Determination of this issue requires:
Evidence for the State
7. This is an unusual case in that the State’s case was based on a single piece of evidence: the accused’s record of interview, which the State argues contains admissions. No witnesses gave evidence for the State and no medical evidence was presented.
8. The admission into evidence of the record of interview was objected to but the grounds of objection were not clear. In any event I refused the objection as at the pre-trial review the defence had indicated that the record of interview would be tendered by consent and no notice of objection was filed.
9. The interview was conducted on 20 April 2006 at Madang police station by Sgt Tangi Elisha. Another police officer, Ray Ban, was also present. The accused is recorded as stating that he was 19 years old. He was at Ezekiel Yaling’s haus boi on the night of Tuesday 28 February 2006 with four other named men. They heard stories that Bowo Gorongo was a murderer who had murdered four people and that he was staying at the house of Tutunge Goge. Then Bowo Gorongo suddenly turned up and for no reason cut two of the men at the haus boi. Then Bowo Gorongo ran away to Tutunge Goge’s house. Then the community (he names 37 individuals) joined together and burned down Tutunge Goge’s house. They then grabbed Bowo Gorongo and grabbed the grass knife that he was holding and cut him.
10. The State relies on the following questions and answers to argue that the accused has made admissions that he killed the deceased:
Q 24: This is a grass knife that you use it to murder Bowo Gorongo with?
Answer: Yes.
Q 31: When Tutunge Goge’s house was set on fire and when Bowo Gorongo jumped outside what did you do to him?
Answer: He jumped out and we chased him and grabbed hold of him.
Q 32: When you grabbed hold of him what did you do to him?
Answer: We gave him pain on his body.
Q 33: The injuries that Bowo Gorongo received on his body doesn’t look as though you were trying to give him pain but that you all meant to kill him. What have you got to say to this?
Answer: We four of us meant to kill him.
Q 38: When you all chased Bowo who actually attacked him first?
Answer: Myself, Gawango Ango, cut him first after Peter, then Gurugu and Dawa Kawago was the last person.
Evidence for the defence
11. The accused gave sworn evidence. No other witnesses gave evidence and no exhibits were tendered. He said that on the night in question he and the others were sitting in the haus boi when Bowo Gorongo arrived. He saw that his enemy, Peter Ingai, was there and lifted him up and said ‘I will cut you’. The accused said that at that point he intervened, came in between Bowo Gorongo and Peter Ingai, held on to a grass knife and separated them but in the process he (the accused) was cut on the left side of his back with the grassknife. He ran away to the house and observed that the wound was deep, so he dressed the wound and slept. Early the next day he found out that Bowo Gorongo was dead. He said that he told the same story to the police.
12. In cross-examination the accused said that he ran away to another person’s house, not his own house. He had no knowledge of the allegation put to him by Mr Kupmain that, in fact, he went to that house to get a grass knife to use to cut the deceased. He ran into the house and asked the owners to help him dress his wound. They were surprised to see him. They were having a meal but they helped him by pouring kerosene on his wound. He also denied cutting the deceased when he intervened in the struggle with Peter Ingai. He stuck to the story he had told in examination-in-chief: that he was injured while trying to separate the deceased and Peter Ingai.
Preliminary assessment of the State’s case
13. This case raises the issue of the respective weight to be given to admissions in a record of interview and an accused’s sworn testimony. The prosecutor, Mr Kupmain, submitted that the admissions were clear and concise and that the accused’s sworn testimony lacked credibility. The defence case was vague and uncertain and really amounted to an alibi, but there was no alibi notice, so the alibi should be rejected, Mr Kupmain submitted.
Defence counsel’s submissions
14. Mrs Meten submitted that the record of interview could be interpreted in a way that was not prejudicial to the accused, ie that he was not admitting to having killed the deceased. But even if he did make admissions, his sworn testimony should be preferred. It was not necessary for there to be an alibi notice, she submitted.
Assessment of defence counsel’s submissions
1 Record of interview does not contain admissions
15. This is incorrect. The accused says that he joined with others in chasing the deceased and that he cut him first, followed by others.
2 Sworn testimony should be preferred
16. There is no rule of law that says that if an accused gives sworn evidence rebutting what he said to the police the court must by necessity give more weight to the sworn evidence. The weight to be attached to a confessional statement or record of interview depends on the circumstances in which any incriminating statements were made to the police and whether any objection was made to their admission into evidence. The weight to be attached to an accused’s sworn testimony will depend on the normal factors that decide whether any witness’s evidence is believed such as the witness’s demeanour and the credibility of the evidence in light of other evidence before the court (The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N4013).
17. Here, I consider that the integrity of the record of interview is suspect as, although it has been admitted into evidence, neither the police officer who conducted the interview nor the other officer present at the interview gave evidence. The accused was also asked a number of leading questions, which calls into question the fairness of the interview. Although the record of interview contains admissions, the weight to be attached to those admissions is not as great as it would have been had the police officers given evidence about the circumstances in which the interview was conducted.
18. As to the weight to be attached to the accused’s sworn testimony, the accused was not shown to be lying and his demeanour was sound. The story he told was not an outlandish one. His evidence was a little confusing in that his evidence-in-chief suggested that after being himself cut he ran away to his house and dressed the wound himself whereas in cross-examination the story was that he had run to another person’s house and the occupants of the house helped him dress the wound. The manner in which he handled the cross-examination did not convey the impression that he was lying or that this story was a recent invention. I conclude that his sworn testimony carries more weight than the record of interview.
3 Alibi notice not necessary
19. The accused gave evidence that he was present at the time and place of the alleged offence and that he was involved in an incident with the deceased apparently shortly before his death. He got wounded and ran away. I am not convinced that an alibi notice was necessary or that it is proper to characterise the defence as an alibi. The failure to serve an alibi notice therefore does not detract from the defence case.
Final determination of whether the accused killed the deceased
20. The State has failed to prove that the accused killed the deceased. As this is an essential element of the offence of murder, and manslaughter, the accused cannot be guilty of either offence.
2 DID THE ACCUSED UNLAWFULLY DO GRIEVOUS BODILY HARM OR COMMIT ANY SIMILAR OFFENCE?
21. This question needs to be posed in view of Section 539(4) of the Criminal Code, which states:
On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—
(a) unlawfully doing grievous bodily harm to such other person; or
(b) unlawfully assaulting such other person and thereby doing him bodily harm; or
(c) unlawfully wounding such other person; or
(d) unlawfully assaulting such other person.
22. As the court has accepted the accused’s version of events the conclusion must be reached that it has not been proven that he did grievous bodily harm to the deceased, assaulted or wounded him. He therefore cannot be guilty of any of the alternative offences in Section 539(2). It is not necessary to consider any further issues.
VERDICT
23. Gawango Ango is not guilty of murder and not guilty of any other offence.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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