|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR NO 877 OF 2009
THE STATE
V
MICHAEL NULI
Kimbe: Cannings J
2010: 21, 24, 25 June,
2011: 19 January
VERDICT
CRIMINAL LAW – attempted murder – Criminal Code, Section 304 – trial – elements – identification evidence – group attack – whether the accused was involved – whether the accused attempted to kill the deceased.
The accused was charged with the attempted murder of a neighbouring villager. It was alleged that he joined with three others in a bushknife attack on the complainant over an allegation that the complainant had killed one of the assailants' pigs. The complainant was badly injured and hospitalised. The accused did not dispute that the complainant was attacked and injured in the manner alleged but denied involvement and argued that it was a case of mistaken identity and that he was in his house at the time of the incident. In the alternative he argued that in the event that the court found he was involved, he did not have any intention to kill the complainant.
Held:
(1) Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioned itself, as the tribunal of fact accordingly, the court was satisfied, having regard to the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, that the quality of the identification evidence was sound, as:
- the State witnesses were honest;
- they were identifying someone they knew and recognised;
- they were not disturbed emotionally to the point that they were not in a position to remember who the assailants were;
- there was ample time for them to recognise the assailants;
- light was provided by a lamp.
(2) As to the alibi evidence, the court was satisfied, having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, that its quality was poor and the alibi was, in fact, false, as:
- no notice of alibi was provided to the State, so it is a belated alibi;
- the accused was an unimpressive witness as his demeanour was poor and he gave vague evidence;
- the alibi was uncorroborated.
(3) As to weighing of the identification and alibi evidence, the identification evidence, considered alone, was sufficient to establish involvement of the accused. The alibi evidence did not give rise to any doubt that the accused was one of the assailants and, being so poor, corroborated the State's case.
(4) The offence of attempted murder has three elements: (a) the accused intended actually to kill the deceased; (b) the accused put his intention into execution by means adapted to its fulfilment; (c) the accused manifested his intention by some overt act.
(5) All elements were proven beyond reasonable doubt as it was a premeditated ambush on the complainant and, given the nature and extent of his injuries: (a) there was an intention on the part of the assailants, including the accused, to kill him, (b) that intention was put into execution by the group attack on him and (c) the accused actively participated in the attack.
(6) Therefore the accused was convicted of attempted murder.
Cases cited
The following cases are cited in the judgment:
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
R v Kiki Kau'Au (1970) No 557
The State v Henry Judah Les (2005) N2950
The State v James Pah [1985] PNGLR 188
TRIAL
This was the trial of an accused charged with attempted murder.
Counsel
F Popeu, for the State
D Kari, for the accused
19 January, 2011
1. CANNINGS J: The accused, Michael Nuli, is charged with the attempted murder of Rudolph Laupu at Gatuwore village on Saturday 9 February 2009.
2. The State's case is that the accused joined with three other young men in staging a bushknife attack on the complainant at his house at 7.00 pm. The alleged motive for the attack was a belief that the complainant had killed the assailants' pig. The State argues that the accused intended to cause the death of the complainant and that that intention was put into effect and that the complainant suffered serious injury as a result.
3. The accused did not dispute that the complainant was attacked and injured in the manner alleged but denied involvement and argued that it was a case of mistaken identity and that he was in his house at the time of the incident. In the alternative he argued that in the event that the court found he was involved, he did not have any intention to kill the complainant.
ELEMENTS
4. Attempted murder is an offence under Section 304 of the Criminal Code, which states:
A person who—
(a) attempts unlawfully to kill another person; or
(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,
is guilty of a crime.
5. The indictment in this case is based on Section 304(a), which means that the State must prove the following elements of the offence:
(a) The accused intended actually to kill the deceased;
(b) The accused put his intention into execution by means adapted to its fulfilment; and
(c) The accused manifested his intention by some overt act.
(R v Kiki Kau'Au (1970) No 557, The State v Henry Judah Les (2005) N2950.) If the State fails to prove all of the elements, no alternative conviction for another or lesser offence is available. In such a case an acquittal must be entered. The court can only convict of an alternative or lesser offence if an alternative charge is included in the indictment (The State v James Pah [1985] PNGLR 188).
ISSUES
6. As the accused does not dispute that the complainant was attacked and injured in the manner alleged, the first issue that must be addressed is whether he was involved at all. If he was not involved, he will be acquitted. If he was involved the question will become whether there is evidence of every element of the offence.
1 WAS THE ACCUSED INVOLVED?
7. Determination of this issue requires:
EVIDENCE FOR THE STATE
8. It consisted of:
Oral evidence
9. The first State witness was the complainant, Rudolph Laupu. He said he is of West New Britain (Gloucester)/Manus parentage. He lives with his wife at Gatuwore in the Talasea area. He has lived in the area for a long time as his father is a long-serving police officer based at Talasea police station.
10. On the evening in question he came back to his house at about 7.00 pm, having spent some time with his parents who were living near the police station, 5 km from the village. His wife and children had already prepared the evening meal and they were eating in the kitchen house, which is in the front of the dwelling house. The kitchen house has no walls at the front. It was only just after dark and they had lit kerosene lamps to provide light. All of a sudden the accused and three of his brothers approached him. He named the accuseds brothers as Hari, Albert and Steven. He first noticed them when they were three metres away. Hari accused him of killing one of their pigs but he replied that he did not know what he was talking about.
11. The first and last born, Hari and Steven, approached from the front left, while the other two, Michael (the accused, the second born) and Albert (the third born), came from the back right. The lead assailant was Hari and he cut him on both legs with a bushknife. The four of them were each armed with a bushknife. He (the complainant) fell in front of the kitchen house and the other two, Michael and Albert, then rushed in and also cut him. Michael and Albert cut him on his back, neck and forearm. Then they all ran away. There was nothing he could do to defend himself. He could not move. He was in a bad way. The neighbours reported the incident to his father at Talasea police station and that night he was taken to Kimbe General Hospital. He lost a lot of blood and almost died. He was in hospital for about two months.
12. He had no difficulty identifying them as the lamps provided light for at least five metres, they all came close to him, and he recognised them as he knows all of them. They all live in the next village, which is only 200 metres from his own village, and he has lived there for 16 years. He used to see them all the time but since this incident he has distanced himself from them.
13. In cross-examination the complainant said that his wife was sitting beside him at the time of the attack. He realised that the assailants were angry with him as they thought that he had killed their pig. Hari was the one who put it to him that he had killed his pig. He replied straightaway, saying 'I don't know anything about your pig! Who told you that I killed your pig and you are here?' That was the only conversation they had. Then next thing he knew, while he was turning around to get an ember from the fire to light his cigarette, Hari pulled his (the complainant's) bushknife away from where it was leaning against a post. Then he attacked. He (the complainant) tried to get his hands on his own bushknife to defend himself but Hari cut him on the palm of his hand, and then cut his legs.
14. The defence counsel, Mr Kari, suggested that the complainant must have been so focussed on trying to defend himself against Hari that he would not have been able to see clearly, in the midst of the commotion, who else was there. The complainant said that the two assailants at his back were shouting and he saw that they were Michael and Albert.
15. Though he felt as though he was going to faint he remained conscious and could talk and see and he remembered what happened. Hari was wearing a black shirt and black trousers. Steven had a raincoat. Michael and Albert wore black shirts. None was wearing a cap. 'I am not blind. My eyes are OK. The light was OK. I saw all four of them', the complainant stated when it was put to him that it might be a case of mistaken identity.
16. The second State witness was the complainant's wife, Rachel Rudolph. She is from Gatuwore. There were four assailants who attacked and cut her husband on the evening of 7 February: Alfred Hari, Michael Nuli (the accused), Albert Baili and Steven Bongi. They accused her husband of stealing a pig. The attack occurred around 7.00 pm but the four of them had come to the house a couple of hours before then, asking for her husband. She told them that he was at the police station. She asked them why they wanted to see him. All they said was that he had 'done something wrong'. She tried to tell them that if there was some problem they could take it to the police and it could be sorted out the next day. But they stayed around under a nearby cocoa tree.
17. Her husband came home around 7.00 pm and they were eating their evening meal in (in her case) or just in front of (in her husband's case) the kitchen house when the four assailants approached. Her husband was sitting on a scraper just a metre in front of her. Two came from the front (Alfred and Steven). Hari pulled away her husband's bushknife and then used it to cut him. Then the others came in and cut him also. Then they ran away.
18. Her husband was rushed to hospital that night and taken to the operating theatre on Sunday afternoon. He stayed in hospital for two months.
19. She knows the four assailants well. They are all from Boro village, which is a short distance from Gatuwore.
20. In cross-examination the complainant's wife said she and her husband had been married since 2006. They have one child. The assailants first came to the house at 5.00 pm. The village peace officer told her that he had spoken to them nicely about their problem but they were still hanging around, in the vicinity of their house, going no more than about 40 metres away.
21. Alfred Hari was the one who attacked first. She was carrying her child, who was very young at the time, when it happened, and the only thing she could do was scream. She was shocked and afraid but there was no one close by who could assist her husband. She denied that she could have mistaken who the assailants were as she saw them all clearly when they first came to the house, she saw them hanging around and she could see from the light of the lanterns when they returned that it was the same group. She saw clearly that Michael Nuli was one of them. All four are brothers and she knows each one of them well, including Michael.
Medical report
22. A medical report prepared by Dr Peter Yama, Surgical Registrar, Kimbe General Hospital, dated 9 May 2009, was admitted into evidence. Dr Yama stated:
Mr Laupu was allegedly chopped by four (4) brothers on the 07/02/2009. He was admitted to the Kimbe Hospital on the same day to the surgical ward, Admission Number 606.
He sustained multiple wounds to his right and left thighs, left forearm and back. He was transfused with two units of blood as he was losing blood from the wounds. He was taken to the operating theatre on the 08/02/09. In the theatre he was found to have sustained serious injuries to his hamstring muscles on the right thigh.
Right thigh:
Left thigh:
Left forearm:
And finally laceration on the back.
He was sutured muscle by muscle, layer by layer, 3-4 stitches per muscle and tendon. Total about 30 stitches including the skin. He was since recovered and has 100% use of normal function of all limbs affected. He suffered from pain, loss of blood and grievous bodily injuries at 40%.
EVIDENCE FOR THE DEFENCE
23. The accused gave sworn evidence, which was the only evidence for the defence.
24. Michael Nuli said that on the day of the incident he was in his house at Boro. He was working in the garden in the morning until about 12.30 pm. He rested in the house for a few hours then at 4.00 pm went to the river to wash. Then he went back to the house and remained there until he had his evening meal. It was dark and he was getting ready to sleep when Albert and Steven came in and told him what they had done. The next morning the complainant's lain came to the village with the police and demanded compensation. He was surprised when he was arrested along with the others.
25. In cross-examination the accused said that he came back from the river at about 4.30 pm. He lives with the complainant's father-in-law so he knows the complainant well and the complainant knows him well. There had never been any problems between them before this incident. Asked why the complainant's wife would make up stories against him the accused replied that she was just angry that her husband was cut.
PRELIMINARY ASSESSMENT OF THE STATE'S CASE
26. Both State witnesses have identified the accused as being directly involved in the incident. Their evidence, if accepted, will be sufficient to put the accused at the scene of the crime.
DEFENCE COUNSEL'S SUBMISSIONS
27. Mr Kari submitted that it was too dark and the two witnesses were too traumatised to make an accurate identification of the accused. The complainant said that it was Hari and Steven who attacked first and he admitted that he tried to defend himself, so he could not possibly have seen who else was involved, especially as the two others attacked from behind him. As for the complainant's wife, she screamed and was obviously scared out of her wits, so she did not have the opportunity to identify either of the others. Therefore both witnesses have mistakenly identified the accused, Mr Kari submitted.
ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS
28. As the defence case is based on mistaken identity it is necessary to consider the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698.
29. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to a consideration of the elements of the offence. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.
30. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
31. Having considered all of the above matters, I record the following relevant considerations:
(a) Both State witnesses gave clear and concise evidence. Their demeanour was sound. It was neither proven nor suggested that they had any motive for giving false evidence. They were honest witnesses.
(b) Both witnesses were identifying someone they knew and recognised. They are locals and they were identifying another local. The complainant's wife had seen them earlier in the afternoon at around 5.00 pm and talked to them when they initially came to enquire after her husband.
(c) Though the complainant's wife was shocked and scared, there is no evidence that she lost her composure or panicked or that anything else happened that disturbed her emotionally to the point that she was not in a position to remember who the assailants were. As for the complainant, he appears to have remained relatively calm and composed, given the situation he was in.
(d) Though the incident took place in a short space of time, there was ample time for both witnesses to recognise who the assailants were.
(e) All assailants came very close to both the complainant and his wife and, as they were eating a meal and light was provided by kerosene lamps, it was dark, but only just, and the lamps would have assisted the process of identification.
(f) The incident happened 16 months before the witnesses gave their evidence, so the details of what happened and who was involved would be expected to still be relatively fresh in their minds.
(g) Though there was one inconsistency in the evidence of the witnesses, in that the complainant said that Hari used a bushknife that he brought with him, whereas the complainant's wife said that Hari used her husband's bushknife, it was not a significant matter of detail and did not detract unduly from the quality of the identification evidence.
32. In light of the above, I have concluded that the evidence of the two State witnesses is honest, accurate and reliable. The identification evidence is of very high quality.
33. As for the accused's evidence, it was very difficult to believe. His evidence was far less credible than that of the State witnesses. Though Mr Kari did not use the term 'alibi' to describe the accused's evidence, that was, in fact what the defence was. The accused was saying he could not have been involved as he was somewhere else (at his house) at the time of the incident. Having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, the quality of this evidence was very poor and the alibi was, in fact, false, as:
FINAL DETERMINATION OF WHETHER THE ACCUSED WAS INVOLVED
34. The evidence is clear that the accused was one of the four assailants.
2 HAVE ALL ELEMENTS OF THE OFFENCE BEEN PROVEN BEYOND REASONABLE DOUBT?
35. I now turn to the three elements of the offence. Mr Kari submitted that if the court finds that the accused was, in fact, involved in the incident, he should nonetheless be found not guilty as he did not have an intention to kill. The injuries to the complainant, though serious, have not been proven to be life threatening. The assailants attacked the complainant, not on the jugular vein, or other vulnerable parts of the body but mainly on his legs and back and other less critical areas. There may have been an intention to inflict grievous bodily harm, but the intention of the assailants, and therefore the accused, can be put no higher than that, Mr Kari submitted.
36. I reject those submissions. This was a ferocious, savage, and premeditated attack. The accused and his accomplices lay in waiting for the complainant for a couple of hours before staging their surprise attack. The complainant was asked one question but when his answer was deemed unacceptable, the attack started. It was a group attack, tantamount to an ambush. The evidence establishes that the accused, Michael, was a key, willing, and active member of the group. The fact that four attackers were involved and that there was only one victim, who was at the time unarmed and unprepared, supports the contention that there was in the group an intention to kill the complainant.
37. Even if the court were to find – which it does not – that the accused, as an individual, lacked the intention to kill, he actively aided and assisted those other members of the group who clearly had that intention, and therefore is deemed to have that same intention under Section 7(1) (b) and (c) of the Criminal Code.
38. I do not accept that the nature of the injuries sustained by the complainant shows that the accused and his accomplices lacked an intention to kill. In fact it was quite the opposite. The evidence is that this was a frenzied and indiscriminate attack. The number of wounds inflicted on the complainant demonstrates an intention to kill him.
39. I am therefore satisfied beyond reasonable doubt that:
(a) there was an intention on the part of the assailants, including the accused, to kill the complainant;
(b) that intention was put into execution by the group attack on him; and
(c) the accused actively participated in the attack.
40. All elements of the offence have been proven and a conviction must be entered.
VERDICT
41. Michael Nuli, having been indicted on one count of attempted murder under Section 304(a) of the Criminal Code, is found guilty as charged.
Verdict accordingly.
____________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2011/4.html