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State v A Juvenile, "GBTD" [2017] PGNC 61; N6683 (23 March 2017)

N6683

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1278 OF 2014

THE STATE

V

A JUVENILE, “GBTD”

Madang : Cannings J
2016: 22 March, 27 May,
8, 13, 14, 15 July, 1 December

2017: 23 March

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.

The accused, a juvenile, was charged with the wilful murder of a fellow villager, a 23-year-old man. The State alleged that the accused entered a house in which the deceased and two other young men were sleeping and without warning stabbed the deceased in the chest, killing him. The accused pleaded not guilty and a trial was held. The State relied on the evidence of the two young men who said that they were sleeping alongside the deceased and woke up to find the accused in the house brandishing a knife and behaving aggressively, and the evidence of a woman who said she witnessed the accused behaving aggressively shortly after the death of the deceased. The accused relied on an alibi: he was asleep at his house at the critical time. He gave sworn evidence and his parents also gave evidence in support of the 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: the testimony of the State witnesses was impressive; the identification evidence was of high quality; the accused’s alibi was unconvincing; circumstantial evidence led only to the conclusion that the accused killed the deceased.

(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 as he inflicted a deep stab wound into the deceased’s chest, which would have required great force and after stabbing the deceased the accused set about attacking and wounding another person.

(5) The accused was therefore convicted of wilful murder.

Cases cited:

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153
Devlyn David v The State (2006) SC881
Fei Stanley v The State (2006) SC1324
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
Paulus Pawa v The State [1981] PNGLR
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
The State v Sapik Tommy (2014) N5575

TRIAL

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

Counsel:

F K Popeu, for the State
B Tabai, for the Accused

23^rd March, 2017

1. CANNINGS J: The accused, “GBTD”, a juvenile, is charged under Section 299(1) of the Criminal Code with the wilful murder of a 23-year-old man, Petrus Yateng, at Yabob village, near Madang town, on Thursday 12 June 2014. The State alleged that GBTD, hereafter referred to as “the accused” or “G”, entered a house in which the deceased and two other young men were sleeping and without warning stabbed the deceased in the chest, killing him. G pleaded not guilty and a trial was held.
   
2. The State relied on the evidence of the two young men who said that they were sleeping alongside the deceased and woke up to find G in the house brandishing a knife and behaving aggressively, and the evidence of a woman who said she witnessed the accused behaving aggressively shortly after the death of the deceased.
   
3. G relied on an alibi: he was asleep at his house several hundred metres away at the critical time. He gave sworn evidence and his parents also gave evidence in support of the alibi.
   

AGE

4. The Court deemed the date of birth of the accused to be 1 June 1999, pursuant to Section 63 (age) of the Evidence Act Chapter No 48 and Section 4(2) of the Juvenile Justice Act 2014. It follows that:
   
   • on the day of the incident the subject of the charge, 12 June 2014, the accused was aged 15 years;
     
   • during the trial, which commenced on 22 March 2016 and has continued over a period of 12 months, the accused has been aged 16 to 17 years;
     
   • the accused will attain the age of 18 years on 1 June 2017;
     
   • on the date of verdict the accused is still a juvenile.
     
5. As the accused has been at all relevant times a juvenile (a person less than 18 years old but aged 10 years or older) the Court has applied the procedures of Part V (proceedings in juvenile courts) of the Juvenile Justice Act, including conducting the trial as “closed” proceedings under Section 69 (court proceedings to be closed).
   

UNDISPUTED FACTS

6. A number of undisputed facts have emerged from the evidence, from a site visit conducted after the close of evidence and from submissions of counsel:
   
   • An incident in which the deceased lost his life occurred at Yabob village in the early morning of Thursday 12 June 2014. He had been sleeping on the floor in a small house, built on low posts, known as a hausboi. He was sleeping on the floor alongside two other young men, Yateng Philip and Lawi Wesi (State witnesses #1 and #3).
     
   • Ten metres from that house is a kitchen connected to a house occupied by State witness #4 Jacobeth Philip.
     
   • The accused’s house is located 250 metres along a walking track from the small house in which the deceased and Yateng Philip and Lawi Wesi had been sleeping.
     
   • The accused and the State witnesses (apart from the Police investigator, State witness #2) are closely related, live in the village and know each other well.
     
   • The deceased was killed by a stab wound to the right chest, the cause of death being a “right haemothorax”(the presence of blood in the chest cavity). These were the findings recorded in a post-mortem report and medical certificate of death prepared by Dr Jiuth Gawi, Emergency Medicine Registrar at Modilon General Hospital [exhibits P2 and P3]. Other observations included: the penetrating knife wound was to the right chest, at the 5^th intercostal spacing (ie between the ribs), measuring 13 cm x 2 cm with a depth of 13 cm; the trachea was deviated to the left side.
     

ISSUES

7. 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.
     
8. 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. Is the accused guilty of wilful murder or any other offence?
      

1 DID THE ACCUSED KILL THE DECEASED?

This is a question of fact, to be determined by applying the definition of killing in Section 291 (definition of killing) of the Criminal Code:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

9. The question is whether G directly or indirectly caused the death of the deceased. Resolution of this issue requires a:
   
   • summary of evidence for the State;
   • summary of evidence for the defence;
   • determination of the question whether the fourth and/or fifth accused killed the deceased.
     

Evidence for the State

10. Four witnesses gave evidence for the State, as summarised in the following table.
    

11. Four exhibits were admitted into evidence by consent:
    
    • The record of interview of the accused: he exercised his constitutional right to remain silent (exhibit P1A (Tok Pisin) and P1B (English).
      
    • The post-mortem report and medical certificate of death, referred to earlier (exhibits P2 and P3).
      
    • The witness statement of State witness #1, Yateng Philip.
      

Evidence for the defence

12. Three witnesses gave evidence for the defence, including the accused.
    

Did the accused kill the deceased?

13. Having weighed the competing evidence and the submissions of counsel I find that the State has proven beyond reasonable doubt that the accused directly caused the death of the deceased by stabbing him, for the following reasons:
    

(a) The testimony of the State witnesses was impressive

State witness #1, Yateng Philip, stated that at 6.00 am on 12 June 2014 G was in the house in which he was sleeping with two other youths, the deceased and State witness #2, Lawi Wesi. G was armed with a kitchen knife and attacked him (Yateng Philip) and cut him three times. Defence counsel Mr Tabai argued that Yateng Philip was a poor witness who falsely stated that he had not given the Police a statement when in fact he made such a statement (which was admitted into evidence as exhibit P4).
I disagree with Mr Tabai’s assessment of this witness. His statement that he made no statement to the Police was most likely a product of his misunderstanding of the question he was asked in cross-examination or a genuine failure on his part to remember making a statement or some embarrassment about disclosing that he is illiterate. I do not think he was making an attempt to mislead the court. In any event, it is a minor anomaly in his evidence.
Yateng Philip was shown to have no motive to give false evidence against his close relative, the accused. His demeanour was sound and I assess him as an honest witness.
I make the same assessment of State witnesses Lawi Wesi and Jacobeth Philip. Their demeanour was sound – they appeared to be telling the truth – and were able to answer questions directly and without equivocation. They were shown to have no reason to give false evidence against their close relative, the accused. They are assessed as honest witnesses.

(b) The identification evidence was of high quality

Mr Tabai put to each of the State witnesses who identified G, as being present and behaving aggressively at the crime scene, that they were too scared and it was too dark for them to be able to say with any certainty that it was, in fact, the accused who they saw.

In light of that argument, I have considered 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. 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 verdict. 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. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness.

In this case, I have assessed the three State identification witnesses as being honest witnesses. However, there is still a risk that they were mistaken about who they saw. 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.

I uphold Mr Popeu’s submission that the identification evidence was of good quality for the following reasons:

• The State witnesses were not identifying a stranger, they were identifying someone they recognised and knew very well, a close relative.
  
• Though they each admitted to being scared I am not convinced that any of them was so traumatised as to be unable to say clearly who they saw.
  
• Though it was early morning, their evidence is consistent: there was enough light for them to be in no doubt about who it was they saw.
  

In light of the above, I conclude that the identification evidence of the State witnesses is honest, accurate and reliable.

(c) The accused’s alibi was unconvincing

G’s alibi was that at the critical time, 6.00 am on 12 June 2014, he was not present at the crime scene. He was at his house 250 metres away, asleep. Evidence of his father and mother supported the alibi.

In considering the alibi I have applied the principles from the leading case John Jaminan v The State (No 2) [1983] PNGLR 318, in particular:

• 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 innocence.
  
• However, in practical terms, the accused must lead evidence and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
  
• How strong or convincing the alibi evidence must be, depends on the strength of the State 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.
  

I have applied those principles and decided not to accept the alibi for the following reasons:

• The evidence of G was not credible. His demeanour was poor.
  
• The evidence of G’s father and mother was unconvincing. Their explanation that it would not have been possible for the accused to leave and come back to the house without waking them because the house moves and makes a lot of noise whenever anybody walks around is too difficult to believe. How could they ever have a good night’s sleep when they have five children, some of whom would surely walk around the house or move into or out of the house during the night, after their parents sleep and before they wake up?
  
• The parents’ evidence of the involvement of others in getting G blamed for the death of Petrus Yateng, such as their suggestion that Dickson Thomas was deflecting blame from himself and misinforming the State witnesses about the presence of the accused at the crime scene, amounted only to supposition, without corroboration.
  
• The evidence of the parents was not independent. This is, of course, not a standalone reason to reject their evidence. But they were overly protective of their son and could not provide any explanation for the three State witnesses clearly identifying him at the crime scene.
  
• G’s parents gave no convincing evidence that at the critical time, the accused was asleep at home. His mother said that when she came out to cook breakfast at 6.00 am, the accused was still asleep. But the details of how she made that observation were vague. The accused’s father was himself asleep at the critical time of 6.00 am. Both he and his wife said that he did not get up until 10 or 15 minutes after his wife.
  
• The alibi evidence, considered generally, left open the possibility that, though the accused went to sleep at 9.00 pm on 11 June and was asleep in the house at 6.45 am on 12 June, he could have left the house during the night or early morning, giving him time and opportunity to enter the deceased’s house and stab him and then attack Yateng Philip at or around 6.00 am on 12 June.
  
• The alibi evidence is not strong enough to create a reasonable doubt over the truth and accuracy of the State’s evidence.
  

(d) Circumstantial evidence leads only to conclusion that the accused killed the deceased

I now apply the principles about entering a conviction based on circumstantial evidence. Neither the State nor the defence addressed the court in detail on this issue. However it is necessary to do so as there was no direct evidence that the accused stabbed the deceased.

The principles about entering a conviction based on circumstantial evidence were set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
  

In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

• do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.
  

I find that the proven facts are:

• at 6.00 am on 12 June 2014 G was in the house of the deceased, Petrus Yateng, holding a knife;
  
• also in the house at that time was the deceased, and State witnesses Yateng Philip and Lawi Wesi;
  
• G attacked Yateng Philip and cut him three times and they struggled inside and outside the house;
  
• by this time the deceased had already been killed by a deep stab wound to the chest.
  

11. I consider that according to the principles in Pawa’s case those facts are inconsistent with any reasonable hypothesis other than that G killed the deceased; and that hypothesis is the only rational inference that can be drawn. According to the principles in David’s case the proven facts lead reasonably to only one conclusion: that G killed the deceased.

Conclusion

12. The State has proven beyond reasonable doubt that G directly killed the deceased. The first element of the offence wilful murder is proven.

2. WAS THE KILLING UNLAWFUL?
   

G 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?

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, 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, The State v Sapik Tommy (2014) N5575).
  

13. It is an accused’s state of mind at the time that he committed the act of killing that is critical. In assessing the state of mind at that time, evidence of his conduct (a) before, (b) at the time of, and (c) subsequent to, the act of killing, must be considered (Fei Stanley v The State (2006) SC1324, The State v Raphael Kuanande [1994] PNGLR 512). Here:
    
    • (a) Though the State did not adduce evidence of G’s involvement in the alleged fight the previous evening between the deceased and Dickson Thomas – which might have established a motive for G’s conduct – the evidence shows that G acted under the cover of darkness to enter the house in which the deceased was sleeping and attack him without warning, thereby showing that G acted with premeditated intent to kill;
      
    • (b) G inflicted a deep stab wound into the deceased’s chest, which would have required great force;
      
    • (c) after stabbing the deceased, G set about attacking and wounding Yateng Philip.
      
14. All factors manifest an intention to kill. I find that the State has proven beyond reasonable doubt that G intended to kill the deceased.
    
4. IS THE ACCUSED GUILTY OF WILFUL MURDER OR ANY OTHER OFFENCE?
   
15. Yes, as it has been proven that he killed the deceased, unlawfully and with the intention of killing him. He is therefore guilty of the offence of wilful murder.
    

VERDICT

The accused, “GBTD”, a juvenile, 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
Tabai Lawyers : Lawyers for the Accused