N4820

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 801 OF 2011

THE STATE

V

KAUL NIRUK & KUBAK NURVUE

Kokopo: Lenalia, J.
2012: 9th – 11th & 14th – 19th & 25th September

CRIMINAL LAW – Murder – Plea of not guilty – Trial – Evidence on trial – No dispute on the two accused presence on the scene – Evidence of the two accused commencing the fight – Evidence of them using spades and a bush knife to assault the victim – Criminal Code s.300 (1) (a).

CRIMINAL LAW – Murder – Evidence by the State and the two accused and their witnesses sufficiently establishes that the two accused commenced the fight and they cut the victim with a bush-knife and spades.

CRIMINAL LAW AND PRACTICE – Death caused by acts in the prosecution of unlawful purpose which acts were likely to endanger life – Whether evidence is sufficient to support a finding that the assault was the cause of death – Violent assault upon the deceased – Principles applicable. 

Cases cited

Regina-v-Koito Kartogati [1974] PNGLR 225
Omowo & Yirihim- v-The State [1976] PNGLR 188
John Beng-v-The State [1977] PNGLR 115
Joseph Maino-v-The State [1977] PNGLR 404

Counsel

Mrs. S. Cherake, for State
Ms. J. Ainui, for Accused

25th September, 2012

1. LENALIA J: The two accused are charged with one count of murder wherein the State say that on 29th day of June 2011 at Vunairoto village on the North Coast of this Province, they murdered one Noah Kukubak, an offence against s.300 (1) (a) of the Criminal Code. On arraignment, the two accused pleaded not guilty.

Trial

2.	On this trial five State witnesses were called by the prosecution and a number of documents were tendered by consent. Prior to calling the witnesses, the following documents were tendered by consent:

-medical report Ex. "1"
-record of interview for first accused Ex. "2" – Pidgin version and 
"2(a) for the English translation.
-record of interview for second accused Ex. "3" for Pidgin version 
and "3(a)" for English translation.
-confessional statement of first accused Ex. "4".

3.	The evidence of all witnesses is similar. Because of the similarity of their evidence, I set out their names first then touch on their evidence. Those witnesses were:

1.	Damian Tutmulai,
2.	Josie Noah,
3. Amelia Nurvue,
4. Lavinia Esonia, and
5. To Pia Retio.

4. 	All witnesses gave clear evidence on an incident which occurred on 29th March 2011 at the border between Vunairoto and Putanagororoi villages on North Coast. A young school boy whom I will only refer to as Retio had died and all surrounding villages gathered to bury the deceased. After burial, people walked over to the grave yard to lay their wreaths on the young deceased's grave yard or tomb. 

5.	As they were in that process of laying wreaths, the two accused together with another person by the name of Turadavai started to argue with the victim Noah Kukubak. According to witness Damian Tutmulai he stood about 5 – 6 yards away from where the first defendant was lying down on a table when he saw him raised from the table and walked toward the victim and got a bush-knife from his (victim's) Tolai basket and started to jump up and down and called out in Pidgin, "iu tasol iu kilim brata blong mi ha, iu tasol iu kilim brata blong mi." When the crowd grew, the victim wanted to run away. He then saw the two accused started to fight Noah. He said, he saw the first accused used a bush-knife and the second accused and Turadavai used spades against Noah Kukubak.

6.	The witness was vigorously cross-examined. He was asked if it was true that, he saw the two accused used a bush-knife and spades. He said, he witnessed what he saw and when the victim ran to the house for safety, he did not follow them as there was a big crowd and he got frightened and walked down to the beach. He said, he did not see what happened in front of the house.

7.	The next witness was Josie Noah. She is the daughter of the deceased Noah Kukubak. Her evidence is very similar to the remaining witnesses and even the first one. She was at that gathering for the burial of late Retio at Vunairoto village. She said, when the trouble erupted, she saw three youths running after her father. When she saw this she shouted for help but no assistance came. She recognized those three persons and named them as Kaul, Turadavi and Kubak Nurvue. She said, these are the ones who assaulted her father with a bush-knife and spades. 

8.	In cross-examination, this witness was asked as to how many people were involved in the trouble. She said, though there were many people, she only recognized three persons and those were the ones she had named earlier. She said she saw them used those weapons against her father. It was put to her, because there were many people, she could not properly see who took part in the fight with the victim and who had chased him. Josie said, she identified the three persons whom she named because two of them used spades and the other used a bush-knife. 

9.	Witness Amelia Nurvue confirmed other evidence that, on the afternoon of 29th March 2011, she was amongst villagers of Vunairoto and neighbouring communities to attend the funeral of late Retio. When the trouble commenced, she saw the two accused with a third person she confirmed as Turadavai, assault the deceased with a bush-knife and spades. Asked in chief if she recognized the three persons. Amelia named them as Kual, Turadavai and Kubak and said, no other persons involved in the fight. She described the spades as having white in colour and long handles. Those two spades were exhibited in court.

10.	In cross-examination, she was asked if she did not clearly see the assailants. Amelia said she vividly recalls that the persons she saw during that fight were the two accused assisted by Turadavai. She was asked if she never saw the co-accused assault the victim. She answered by saying that, she saw the three accused acted in concert and hit the accused with spades and the first accused used a knife, but used the back of the knife to hit the victim with.

11.	In case of Lavinia Esonia, she was present at the time Noah was assaulted. She said, she saw the two accused hit the victim with weapons like a bush-knife and two spades. She confirmed the evidence of other witness that, there was nobody else involved in the fight and although there were many people there she only saw the two accused assault late Noah. Asked in cross-examination if other persons or relatives of the late Retio were also involved in the assault, she said, she only saw three persons. She named the two accused and Turadavai.

12.	The last witness To Pia Retio said he was the one who saved late Noah. When he saw the two accused and the other chased the victim, he saw those used two spades and a bush-knife to hit and cut at late Noah Kukubak. When he reached the location where the victim was lying on the ground, he laid on top Noah in order to stop further assaults on the victim. He thereafter pulled the victim to the side and handed him over to his relatives. 

13.	He also arranged for a vehicle to pick the victim to the hospital. He later learnt that Noah had died. He further revealed that the person who was buried was a relative of the two accused. Other witnesses' evidence confirm that the late Retio was the brother of the first accused and a cousin of the second accused. In cross-examination, this witness was asked if the two accused did not use any bush-knife or spades. The witness said, he saw the two accused used those weapons and he had to act to safe the life of the late Noah Kukubak. 

14.	The medcial report shows that the victim died of cerebral hemorrhage on the left "temporal parietal lobe." 

Defence Evidence

15.	Both accused gave evidence and called two other witnesses. The defence evidence does not dispute being on the scene and does not deny the assault. What they deny is that, the two accused merely used their hands to punch late Noah and one of them kicked him. In their evidence, they both admitted assaulting the victim using their fists only. The defence evidence consisted of the following witnesses:

1.	Kaul Niruk,
2.	Kubak Nurvue,
3.	William Taleor, and
4.	Jack Laen.

16.	Again due to the similar nature of the defence evidence not only in terms of the defence case, but also similar to the prosecution evidence. The two accused version of them only using their hands to assault the victim is confirmed by their own witnesses. The defence evidence denied using the bush-knife and spades during the fight between the two accused and the deceased Noah. Both accused admitted assaulting the victim using their hands only. As in the prosecution case, the defence case does not establish involvement of other related relatives of the two deceased being involved in the fight. 

17.	William Taleor and Jack Laen each gave evidence which show that, when the commotion commenced, the two accused together with Turadavai used their hands to hit the victim. In case of William, he said, when he saw Kubak hit Noah with his hands, he walked to the scene and grabbed onto Kubak's hand and pulled him away from the fight and led him away to board a vehicle to their village.

18.	An interesting aspect of the defence case is that, both William and Jack confirmed that they were in the fight. They both witnessed what happened. But interestingly, they did not see the two accused use spades and bush-knife. As earlier alluded to, the defence case establishes that, only the two accused and Turadavai were involved in the fight. The issue now is who used those weapons as described by the prosecution evidence. 

19.	Both accused were cross-examined and re-examined. They maintained their stance that, they did not use any weapons other than using their hands. The first accused was asked if they fought with the victim. He answered and said, the deceased poisoned his brother and he retaliated by punching Noah as they believed he gave a ripe banana to Retio when he returned from school containing poison and after eating it, he vomited and died on the night of the day before he was buried.

Defence addresses on verdict

20.	Ms. Ainui of counsel for the two accused argued in her submission on the verdict that, the prosecution has not proven their case "beyond all reasonable doubt." She attributed this to the issue of identification saying the two accused were incorrectly identified as someone else must have used a bush-knife and two spades. 

21.	Counsel relied on the principles of identification annunciated by the Supreme Court in John Beng-v-State [1977] PNGLR 115 where the Supreme Court said, where a case involves the issue of identification, the trial court should be mindful of all inherent dangers of convicting an accused on reliance on identification evidence. 

22.	Counsel submitted that because her clients were not properly identified, they should be afforded the benefit of any doubts that the court might have on the status of the prosecution case. 

Prosecution address on verdict

23.	Mrs. Cherake of counsel representing the State replied by submitting that here is the case where three persons were identified to take part in the fight and assault of the victim Noah Kukubak. She argued that apart from the three persons identified by the State's witnesses, there were no other persons taking part in the fight on the date this offence was committed. 

24.	Counsel submitted, the issue is not one of identification but is one of the issue of which party should the court believe. She submitted that, the offence was committed on a clear afternoon and those involved were clearly identified. Counsel further argued that, since no one else was involved in the assault, the court should conclude that, the only persons who actually caused the death of late Noah were the two accused and the third person by the name of Turadavai. 

Application of law to the evidence

25.	The two accused are charged with a crime of murder contrary to s.300 (1) of the Criminal Code. This Section states:

"300. Murder.

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

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and
(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life."

26.	The prosecution evidence points to a fight that took place at Vunairoto village on 29th March 2011after the burial of a young school kid late Retio. After the burial a fight erupted because the relatives of late Retio had suspected that the victim of this case, late Noah Kukubak had given poisoned banana to Retio and after eating it he vomited and died. 

27.	The two accused admitted assaulting the victim with their hands only. The issue now is who was then responsible for using a bush-knife and two spades? The evidence clearly point to only three men involved in the fight. But even hitting someone with hands can cause death. 

28.	The State's evidence shows that those three persons were accused Kaul Niruk, Kubak Nurvue and Turadavai. The evidence establishes that there was great commotion. But witnesses such as Damian Tutmulai, Amelia Nurvue, Lavinia Esonia and To Pia Retio vividly and clearly saw the two accused used the weapons applied in that fight. 

29.	The first and third witness saw the first accused used the back of the bush-knife to cut at the victim. The second witness confirmed this. The second witness also confirmed evidence by all four witnesses that, the other two persons, Kubak Nurvue and Turadavai used two spades by hitting the victim on his body.

30.	I find that the two accused were on the scene. I find that they were directly involved in assaulting the victim with the two weapons described in the evidence by the prosecution. I find that, the two accused were the lead assailants who committed the assault upon late Noah Kukubak.
 
31.	To this court, it is the issue of who to believe. There is no other evidence to show if there were others involved on the assault. 

32.	The first accused is the blood brother of the deceased who was buried from which the fight broke out. The second accused in his own evidence said, the boy they buried that afternoon was his cousin brother. It makes sense why the two accused were involved in the assault on the victim of the fight. There may be some evidence of complicity under Sections 7 & 8 of the Criminal Code. However it is not so clear if others were involved in the same as the evidence against the three assailants of the victim of this charge. 

33.	Both Counsel did not address the court on an important point of law under s.300 (1)(a) of the Code. Under that provision, the prosecution needs to prove an intention to do grievous bodily harm. This element is essential to be proven by the prosecution. If such element is not proven, then it is open for the court to find an accused liable for something less than Subsection (1)(a) of Section 300 of the Criminal Code: Joseph Maino-v-The State [1977] PNGLR 404, see also Awap Omowo & Warsa Yirihim-v-The State [1976] PNGLR 188 or Regina-v-Kito Kartogati [1974] PNGLR 225. 

34.	Clearly, the evidence shows that the death of Noah Kukubak was caused by means of acts of such a nature as to be likely to endanger human life. I take the prosecution evidence as credible and find the two accused guilty and convict them on the charge of murder under s.300 (1) (b) (ii) of the Criminal Code. I return the verdict of guilty to manslaughter.

_____________________________________________________________

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