N5595

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 377 OF 2013

THE STATE

V

TUN MAI ISAAC

Madang: Cannings J
2013: 24 October, 9 December,
2014: 11, 18 February, 13 May

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – conflicting evidence as to who killed the deceased.

EVIDENCE – dying declaration – Evidence Act, Section 20 – requirements to be established before a statement made orally by a person before his death relating to the circumstances resulting in his death is admissible.

The accused was charged with wilful murder under Section 299(1) of the Criminal Code following an altercation that occurred after a sporting event. The State's case was that he directly killed the deceased by stabbing him in the back. The defence of the accused was a general denial and an alibi.

Held:

(1)	Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

(2)	It was proven beyond reasonable doubt that the accused killed the deceased as: there was credible eyewitness evidence, which was accepted by the court; the deceased made a dying declaration to his father clearly stating that the accused had stabbed him, which was admitted into evidence; the accused's evidence was unconvincing, as was that of the two other defence witnesses who corroborated his story; the accused's alibi was not credible and was rejected.

(3)	As the accused did not rely on any specific excusatory defence, the killing was not authorised, justified or excused by law and was therefore unlawful.

(4)	It was proven beyond reasonable doubt that the accused intended to kill the deceased, given the track and length (22 cm) of the wound, which extended from the lower back and exited the right lower chest. The accused was accordingly convicted of wilful murder.

Cases cited

The following cases are cited in the judgment:

John Jaminan v The State (No 2) [1983] PNGLR 318
Kutau v The State (2007) SC927
Paulus Pawa v The State [1981] PNGLR 498
The State v Abaya Ulas (2010) N4009
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jenny Dei (2011) N4231
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others ((2007) N5026
The State v Raphael Kuanande [1994] PNGLR 512

Glossary

The following people and places are referred to in the evidence.

People

Adrian Malaun – defence witness #3
Dr Vincent Atua – Doctor who prepared post-mortem report
Edward Nenel – man who was stabbed by the accused, before the deceased was killed
Essau Elagon – accused's cousin, referred to in evidence of Tom Kolia
Feale Laun – State witness # 1, deceased's father
Lynette Feale – defence witness #2, deceased's sister
Oilion Feale – the deceased
Snr Sgt Frank Kikoli – Police investigating officer
Tom Kolia – State witness #1, deceased's cousin-brother
Toro Kauta – man referred to in accused's evidence
Tun Mai Isaac – the accused

Places

Beon – correctional institution for Madang Province
Jahil – place of soccer grand final, deceased's village
Madang – provincial capital
Melkuk – neighbouring village, team playing in grand final
Panim – accused's village
Sisiak – neighbouring village/settlement area

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

M Pil, for the State
S Tanei, for the accused

13th May, 2014

1. CANNINGS J: The accused, Tun Mai Isaac, is charged under Section 299(1) of the Criminal Code with the wilful murder of Oilion Feale at Jahil village, near Madang town, on Sunday 9 December 2012. He has pleaded not guilty so a trial has been conducted. The State alleges that the accused unlawfully killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final and that he intended to kill him.

2. The State's case is based on the evidence of the deceased's cousin who gave an eyewitness account of what happened and a dying declaration the deceased allegedly made to his father in which he stated that the accused had stabbed him. The accused's raises an alibi: that he left the scene before the deceased was stabbed and went to a neighbouring village, Panim. The deceased's sister and a friend of the accused gave evidence that supported the alibi.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

•	A soccer grand final was played at Jahil village on the afternoon of Sunday 9 December 2012. The match was between teams from Jahil and Melkuk. The team from Melkuk won. A big crowd was in attendance.

•	The accused, aged 21 at the time, is from Panim, a village about 1.5 km from Jahil. Panim and Jahil are in close proximity to Beon Jail, 10 km from Madang town.

•	The deceased, aged between 35 and 45, was from Jahil. He was a distant relative of the accused.

•	After the match, at least one fight started. The accused was involved. He had been drinking yawa (though he denies that he was drunk). In the course of this fight the accused stabbed a man, Edward Nenel, on the arm, inflicting a superficial injury. (There is conflicting evidence as to whether there was a second fight. The State's case is that there was no second fight but it was in this first and only fight that the accused stabbed the deceased, straight after he stabbed Edward Nenel. The defence case is that the accused left straight after this fight and went to Panim and did not return and that the deceased was stabbed by a person unknown in a second fight which took place after the accused left the scene.)

•	Soon after Edward Nenel was stabbed, the deceased was stabbed in the back, at the sporting field, close to the place at which Edward Nenel was stabbed. He did not die at the scene. He was able to make his way to his house, which was close by, only 30 to 50 metres away.

•	When he got to his house the deceased spoke briefly to his father, then collapsed. His father arranged transport to take him to Modilon General Hospital. There was no delay in getting him to the Hospital but by the time he arrived he was dead.

•	The post-mortem report, prepared by Dr Vincent Atua, recorded the cause of death as "internal bleeding from knife wound".

ISSUES

4. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

5. The primary issues are:

1	Did the accused kill the deceased?
2	If yes, was the killing unlawful?
3	If yes, did the accused intend to kill the deceased?
4	If he did not intend to kill the deceased, should he be convicted of some other offence?

1 	DID THE ACCUSED KILL THE DECEASED?

6. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the accused killed the deceased.

Evidence for the State

7. Two witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Tom Kolia	Age 28, villager, Jahil village	
Evidence	
He is single and lives in the village with his family – he was at the grand final with the deceased, Oilion – he was staying with him at the time – he (the witness) plays soccer for the Jahil team, he is the captain but he had an ankle injury and could not play, he was on crutches – fight broke out between Panim villagers and youths from Sisiak – the people involved in the fight were drunk – he and Oilion tried to stop the fight – the accused, who is from Panim, was involved in the fight and stabbed Edward Nenel with a 'US knife', a bayonet, approx 54 cm long – when the crowd saw that, many people ran away – the accused confronted him, grabbing him by the collar – the accused was still armed with the US knife – he (the witness) talked to the accused, then the accused's cousin, Essau Elagon, came in and removed the accused – then a few minutes later the accused ran eight metres towards Oilion, who was still trying to stop the fight – neither he nor Oilion did anything to provoke the accused; they were just trying to stop the fight.

He (the witness) called out to Oilion to alert him to the danger but it was too late as the accused stabbed him in the back, using the same knife with which he had stabbed Edward Nenel – the knife came out at the front of Oilion's chest – Oilion was hurting but he made his way to the house – straight after the stabbing he (the witness) used his walking stick to fight the accused, hitting him on the shoulder, then the accused ran away – he knows the accused very well – he followed Oilion to the house, just a couple of minutes after he had been stabbed – he was present when Oilion told his parents that the accused stabbed him – he saw that Oilion was badly injured and helped to arrange transport to get him to the hospital.

In cross-examination he said that there was a big crowd present – people were mostly well behaved, it was not the supporters of the two teams who caused the problems, it was the drunkards from Panim and Sisiak who were fighting – he knows the deceased's sister Lynette Feale (the witness's cousin, who lives at Panim) and Adrian Malaun (from Panim) [both were defence witnesses] but he did not see them there when Oilion was stabbed – he thinks that they ran away with others when the fight started, when Edward Nenel was stabbed – he denied that there were lots of fights going on: there was only one fight, in which the accused stabbed Edward Nenel and then he stabbed the deceased – he denied the assertion that the accused left the scene after he stabbed Edward Nenel – he denied being drunk; it was the accused and other boys from Panim and Sisiak who were drunk.

Asked what happened to the accused's knife the witness said that after stabbing Oilion, the accused pulled it out of Oilion's body and ran off with it.	
2	Feale Laun	Aged 65, villager, Jahil, father of the deceased	
Evidence	
He is married with 5 children, Oilion was the eldest – he went to the grand final with other members of his family and watched the match but when the fight started he and his family members ran to their house – he was not there when his son was stabbed – his son came to the house after he was stabbed, it was about 5.30 pm, and said to him, as he was holding his chest, 'Tun Mai Isaac stabbed me with a knife' – he (the witness) first thought his son had been stabbed in the front of the chest, but after a short time his son collapsed – he noticed blood coming from his back – he then realised that his son had been stabbed in the back and the wound went right though his body – he then helped arrange transport to take his son, was still breathing, to the hospital.

In cross-examination he said that there was a big crowd present – it was mainly the boys from Panim who were drunk and who were involved in the fight with Sisiak people – no one from Jahil was involved – he saw the accused fighting with Edward Nenel and saw him stab Edward – others were throwing stones, that is when he and the family ran to the house – he confirmed that he was not present when his son was stabbed – the only person he saw holding a knife was the accused.	

8. Five exhibits were admitted into evidence by consent:

•	A post-mortem report and medical certificate of death (exhibits P1 and P2) by Dr Vincent Atua of Modilon General Hospital. The cause of death was reported as "internal bleeding from knife wound". It was observed that the deceased had suffered a "single knife wound 22 cm long extending from lower back through liver, kidney, lungs and exiting the right lower chest"; also "2 cm entry and exit wounds" were noted.

•	The record of interview of the accused (exhibit P3): he agreed that he was at the soccer field and that after the match there was a fight and that he stabbed Edward Nenel with a knife, but after that happened, he was stopped by some boys and one of them took the knife from him.

•	A witness statement of State witness #2, Feale Laun (exhibit P4).

•	A witness statement of State witness #1, Tom Kolia (exhibit P5).
Evidence for the defence

9. Three witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description	
1	Tun Mai Isaac	The accused, Panim, villager	
Evidence	
The fight started when Toro Kauta, whose team had not made it to the grand final, approached the officials and argued with them, saying that his team should have been playing – he disturbed the presentation and grabbed the winner's trophy and ran away with it – Edward Nenel became agitated and ran in, thinking that the accused's group was supporting Toro, and hit him (the accused), so he stabbed him on his hand and Edward let go of him – the deceased's sister, Lynette Feale, saw what was happening, so she called out "Lusim!" and came towards him (the accused), grabbed his hand and pulled him away – Lynette said "You are all drunk. Come on, let's go", so he agreed to go with her and they went to Panim.

He did not stab the deceased – he only stabbed Edward Nenel, and only used a pocket knife, he did not have a long knife – he did not see the deceased at the field – the deceased was a Seventh-Day Adventist and rarely came to the soccer.

In cross-examination he denied absolutely stabbing the deceased – he, like many others present, had been drinking yawa while watching the match – but he was not drunk, he only had two cups of yawa, mixed with Coke – the pocket knife he had was only 15 cm in length – it was not his, it was Toro's – he got it off Toro when Toro was arguing too much – he did not deliberately stab Edward Nenel, he forgot he was holding the pocket knife – he agreed that Tom Kolia was present when Edward Nenel was stabbed – he does not know how the deceased died.	
2	Lynette Feale	Sister of deceased, lives at Panim, age 34	
Evidence	
She was at the field and watched the match and saw the fight start at the presentation ceremony – she does not know how the fight started but she saw the accused, who she knows well, fighting with Edward Nenel – she ran to where they were fighting, pulled aside the accused and took him with other boys, including Adrian Malaun (defence witness #3) to Panim – she only came to know the next morning about her brother Oilion being stabbed – the deceased was present when the accused was fighting with Edward Nenel.

In cross-examination she said that she saw Oilion at the match and that he was there with their father and other family members, and she was also in that family group, they were supporting the Jahil team – the accused was drinking alcohol but he was not drunk. She denied taking the accused to Panim after he had stabbed her brother; she took the accused away straight after he stabbed Edward Nenel – she denied having any problems with her father or her deceased brother.	
3	Adrian Malaun	Friend of accused, aged 23, lives at Panim	
Evidence	
He was at the grand final – there was a big crowd and lots of drunkards – he was not involved in the fight, he was a long way away – he does not know if the accused was involved in the fight – when the fight started he ran away to Panim, with the accused and Lynette Feale (defence witness #2) and some drunkards.

In cross-examination he said that he was not drinking alcohol that day – he went with the accused and Lynette and some village boys to the field at 1.00 pm.	

Did the accused kill the deceased?

10. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that the person who stabbed and killed the deceased was the accused, and no other person, for the following reasons.

(a)	The evidence of Tom Kolia was credible and convincing.

11. This witness gave an eyewitness account of what happened. It is undisputed that the accused had been drinking alcohol and was in a sufficiently aggressive frame of mind to stab a person, Edward Nenel. There is no evidence that anyone else was cut or otherwise injured in the fight. It was a significant turn of events, causing many people to run away.

12. What happened after he stabbed Edward Nenel? Did the accused proceed to stab the deceased, in an unprovoked attack, that being the evidence of Tom Kolia? Or did he simply calm down, on Lynette Feale grabbing him by the arm, and leave the scene and go to Panim, leaving the deceased to be stabbed by some other unknown person, that being the evidence of the defence witnesses? I find it much easier, as a matter of logic, to believe Tom Kolia's account of what happened, rather than that of the defence witnesses. Not only is it a more believable story, it is evidence from a witness who I assess as being much more reliable than the defence witnesses.

13. The evidence of Tom Kolia is accepted and I find therefore that the accused, after stabbing Edward Nenel, proceeded soon afterwards to stab the deceased in the back. The deceased offered no provocation. He was simply trying to stop the fighting.

(b)	The evidence of the other State witness, the deceased's father Feale Laun, was credible and convincing.

14. I accept the truthfulness of his evidence about what his son said to him when he came to the house. Mr Tanei for the accused submitted that the Court should give little weight to this evidence as he is the father of the deceased and his interest is only in seeing someone punished for his son's death. I disagree. I consider that a father whose son has been stabbed to death would be interested in seeing that the person who killed his son – not just 'someone' – was punished.

15. The deceased said that Tun Mai Isaac had stabbed him. He did not mention any other name. The deceased's statement satisfies the requirements of a dying declaration under Section 20 of the Evidence Act, which states:

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—

(a)	at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—

(i)	he entertained at that time any hope of recovery; or
(ii)	he thought that legal proceedings might eventuate; and

(b)	at the time when the person made the statement he would have been a competent witness in the legal proceedings; and

(c)	the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

16. I find that (a) at the time he made the statement the deceased may be reasonably supposed to have believed that his death was imminent; (b) he would have been a competent witness; and (c) he could, if he had not died, have given direct oral evidence (Kutau v The State (2007) SC927).

17. The dying declaration is a critical piece of evidence. I find that the deceased named the accused as the person who stabbed him. There is no reason to regard what the deceased said as a false allegation. I find that it is a proven fact that the deceased genuinely believed and alleged that the person who stabbed him was the accused.

(c)	The evidence of the defence witnesses was neither credible nor convincing.

18. It is inherently difficult to believe that a young man who was in an aggressive frame of mind and involved in a fight in which he stabbed another man, would instantly calm down upon being grabbed on the arm by a woman who was evidently well known to him and allow himself to be led away to his village. That sort of story might be accepted by the court if evidence to support it was given by witnesses assessed as honest and reliable. But I put neither the accused nor Lynette Feale in that category.

19. The accused chopped and changed his evidence on several occasions and was quite unconvincing. His story about how he stabbed Edward Nenel – he did not deliberately stab him and he forgot that he was holding the pocket knife – was too incredible to be true.

20. I have hesitated before rejecting Lynette Feale's evidence. She is the biological sister of the deceased and it would normally be expected that such a person would be heavily motivated by a desire to see the person actually responsible for the death of her brother to be held to account. But ultimately she too was unconvincing.

21. Adrian Malaun's evidence was of little probative value. He was not present at the fight. He said that he ran to Panim with the accused and Lynette Feale and some drunkards. This is probably true. But what does it prove? Nothing. The witness does not know what happened at the fight, so by the time he and the others ran away, the accused could have already stabbed the deceased.

(d)	Alibi evidence ineffective.

22. An alibi defence can only be effective when the accused introduces evidence to support the proposition that at the time of commission of the offence he was somewhere else. The accused is saying:

•	I am a human being and I cannot be in two places at once,
•	the offence was committed at time A, at place B, and
•	at time A, I was at place C,
•	therefore I could not have committed the offence.

23. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318).

24. In the present case, I find that the alibi defence barely gets off first base. There is only slender evidence that at the time of commission of the offence (the moment that the deceased was stabbed) the accused was somewhere else. There is no evidence that he was at Panim at the time of commission of the offence. There is only evidence – which has already been rejected as unreliable – that he had left the place at which the deceased was stabbed.

25. I have already assessed the evidence of the State witnesses to be strong, so the alibi evidence had to be quite strong, in order to cast doubt on the State's case. The alibi evidence here is weak and ineffective.

(e)	Alleged weaknesses in the State's case are not significant.

26. Mr Tanei pointed to three weaknesses in the State's case, which he submitted created considerable doubt over the conclusion that the accused stabbed the deceased: (i) the knife allegedly used by the accused was not in evidence; (ii) Edward Nenel did not give evidence; (iii) only one so-called eyewitness gave evidence of what happened.

27. These are valid points but none of them creates sufficient doubt in my mind about who stabbed the deceased to find that it was anyone other than the accused. I address them as follows:

(i)	As to the knife, it is surprising, and disappointing, that the alleged murder weapon has not been adduced in evidence. Tom Kolia gave evidence that the accused pulled it out of the deceased's body and ran off with it. I accept that evidence, but that does not explain why the knife has not been found. Did the Police try to find it? There is no evidence about the steps taken by the Police to investigate this case; and I draw the conclusion that the police investigation has been inadequate. Having said that, there is no rule of law or evidence that requires that in a case of murder by stabbing, the murder weapon must be introduced in evidence. Such a case can be proved by other evidence, and that is what has happened here.

(ii)	I agree that it was reasonably expected that Edward Nenel would give evidence. The trial was adjourned on a couple of occasions so that the State could locate him. Eventually, without a proper explanation from Prosecutor Pil, the State's case was closed without Edward Nenel being produced. I make a similar comment on the failure to produce him as I did in relation to the murder weapon. It was desirable and relevant, but not necessary, evidence. The State could prove its case without it.

(iii)	It was unusual that only one eyewitness, Tom Kolia, gave evidence as the State's case was that the accused killed the deceased in the course of a group fight. There was a big crowd at the grand final. The fight erupted straight after or in the course of the presentation ceremony. Many people fled but surely many remained to watch, or engage in, the fight. Why could the State produce only one witness who saw what happened? This is a good question but the response is the same as it is to Mr Tanei's other valid points: further evidence was desirable but not necessary, a prosecution can be successful even in the face of an inadequate Police investigation, there is no rule of law or evidence that says that more than one eyewitness is required. An accused can be convicted of wilful murder if there is no eyewitness; circumstantial evidence can be sufficient (Paulus Pawa v The State [1981] PNGLR 498). Ultimately a criminal prosecution succeeds or fails according to the strength of the evidence produced by the State, which is considered in light of the evidence, if any, produced by the defence. The onus of proving the case beyond reasonable doubt never shifts from the State.

28. There is, of course, another response to Mr Tanei's question: this was a group fight, so why could the defence not produce any witness who saw what happened? Surely, if the accused was not the person who stabbed the deceased, the defence could locate and present witnesses who would say it was not the accused, it was someone else, who stabbed the deceased.

29. Despite the deficiencies in the State's case, which seem to have arisen due to an inadequate Police investigation, the weaknesses exposed by defence counsel have not persuaded the Court that there is sufficient doubt about the veracity of the evidence that has been produced by the State.

Conclusion: did the accused killed the deceased?

30. The State has proven beyond reasonable doubt that:

•	the accused stabbed the deceased in the back, at Jahil, late in the afternoon of Sunday 9 December 2012;
•	the deceased died within an hour or so of being stabbed;
•	the accused directly caused the death of the deceased; and therefore
•	in accordance with the definition of killing in Section 291 of the Criminal Code, the accused killed the deceased.

31. The first element of the offence of wilful murder has been proven beyond reasonable doubt.

2 	WAS THE KILLING UNLAWFUL?

32. The accused did not rely on any specific excusatory defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.

3 	DID THE ACCUSED INTEND TO KILL THE DECEASED?

33. It is at this point of a wilful murder trial that the Court is required to consider the accused's state of mind:

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).

•	If he did not intend to kill him did he intend to inflict grievous bodily harm or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others ((2007) N5026; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231).

34. 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]
35. Having examined the course of conduct of the accused before and when he stabbed the deceased, and particularly given the track and length (22 cm) of the wound, which extended from the lower back and exited the right lower chest, I am satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill him. The third element of wilful murder has been proven. It is not necessary to consider any alternative conviction.

VERDICT

36. Tun Mai Isaac, having been indicted on one count of wilful murder under Section 299(1) of the Criminal Code, is found guilty, as charged.

Verdict accordingly.
_________________________________________________________
Public Prosecutor	: Lawyer for the State	
Public Solicitor	: Lawyer for the accused