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State v Donald [2018] PGNC 398; N7496 (16 May 2018)

N7496

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.319 OF 2015

THE STATE

V

RICHARD DONALD

Lae: Pitpit, J
2015: 1^st & 2^nd December
2016: 29^th & 30^th November
2018: 16 May.

CRIMINAL LAW- Wilful murder- Criminal Code Act, section 299 (1) – Accused found guilty following trial – Prisoner admitted to have taken Marijuana smoke that had affected his mind and caused him to behaved in the violent manner that he did, resulting in the killing of the deceased Nellie Robert who was then age five (5) years old – Whether intoxication as a defence was available to exonerate the Prisoner from criminal liability-

Held:

1. Prisoner know or ought to have known the possible effect of taking marijuana
2. Prisoner deliberately and intentionally took marijuana voluntarily
3. Since the charge of wilful murder involves the specific intention to kill, close examination of the circumstances leading to, at the time of and subsequent to the act are relevant and necessary to determine whether such an intent existed (The State v Raphael Kanande).
4. Possible defence of intoxication under section 29 of the Criminal Code Act therefore, is not available.
5. Prisoner is therefore guilty and convicted of the offence of wilful murder pursuant to section 299 (1) (a) of the Criminal Code Act.
6. In determining the appropriate sentence each case ought to be considered on its own circumstances and merits.
7. Killing in this case was a willed act, product of a deceased mind rendered by the voluntary intoxication by the prisoner himself.
8. Gravity of offence nevertheless, has to be assessed and measured in terms of the finding of the lack of motive, pre-planning and killing arising as it did, was on the spur of the moment based on some delusions that he had been guided by certain sources to commit what he had done. Court however found that his state of mind had been caused by the effect of marijuana voluntarily taken by the Prisoner.
   

Cases cited:

Ansca Steven –v- The State SCRA 24 OF 2013
Manu Kovi –v- The State [2005] SC789
R –V- Bena- Forepe l1965-66] PNGLR 329

Counsel:

Ms P Matana, for the State
Mr J Huekwahin, for the Defence

DECISION ON VERDICT

16^th May 2018

1. PITPIT J: This is the judgement of the court on sentence. The brief facts of the case as alleged by the State are as follows:
   

The accused now prisoner Richard Donald is from Tagup village, Erap LLG, Nawae District of the Morobe Province. He was an 18 year old student doing grade 8 at Finoan Primary School when he committed the offence. In brief, he had attacked and chopped one Robert Fiyangap with a bush knife on the back of his head, chased him out of his house and then, came upon the deceased a 5years old girl and went on to chopped and mutilated her to death. He was indicted on one count of Wilful Murder pursuant to section 299(1) of the Criminal Code. He had pleaded not guilty but was found guilty and convicted as charged following trial.

Brief facts

2. On Friday 15^th February 2014, after school, the prisoner decided to head for Gafan village in the Wain-Erap LLG, of the Nawaeb District of the Morobe Province to go and see one of his friends as pre-arranged. On the way he met a brother by the name Miniau and both began smoking marijuana until around 5:00pm in the afternoon, when they then decided to go into Gafan village. As they walked to the village, the drug began to take its effect on the Prisoner so his friend Miniau decided to leave him and went his way. The accused then, went into the village on his own and was seen dancing in the public square.
   
3. After this, he then wandered off to one Robert Fiyangap’s house at Gafan village where he then told them that he was hungry. Robert Fiyangap’s invited him to sit down and rest while his wife prepares some food for him. Robert and his family have never met and do not know the Prisoner. He was a stranger to them.
4. As the Prisoner settled down to lie down at the veranda of the house, his eyes caught sight of Robert Fiyangap’s bush knife which was placed at that time under the overhang of the house outside the veranda. He then, suddenly sprung to his feet, took hold of Robert Fiyangap’s bush knife and then charged at Robert Fiyangap who was with him on the veranda, cutting him on the back of his neck and head.
   
5. Fearing for his life, Robert Fiyangap then ran into the room and locked the door from the inside of the room but the accused broke down the door and went after him, so he(Robert Fiyangap) decided to jumped through a window from the room to the ground and fled.
6. The Prisoner also went through the same window and was going after Robert Fiyangap when he ran into the five (5) year old daughter Nellie Robert knocking her to the ground. Upon seeing the five (5) year old Nellie Robert, the Prisoner swung the bush knife he had with him and slashed her on her back, face and her neck multiple times and then stood there staring at the body until the aunt of the deceased child came and took the body of the child to their house.
   
7. The prisoner then continued to pursued Robert Fiyangap into the village church where he was eventually subdued by the villagers and handed over to the Police.
8. State says that when the Prisoner swung the bush knife at Nelllie Robert, he cut her on vulnerable parts of her body multiple times, with such force and ferocity that clearly reflected a strong intention to cause the ultimate result; her death.
9. When arraigned he however, had pleaded not guilty thus denying the charge.
10. In its endeavour to fulfil its obligation to prove its case beyond doubt, the State had tendered by consent a number of documentary evidence comprising of the following:
    
    1. Record of Interview conducted by Senior Constable Ostiella Samoa and the Prisoner Richard Donald on 10^th September 2014 at the CID office of the Lae Central Police Station. The pidgin version of this document was marked “S1” whilst the English translation was marked as “S2”.
       
    2. The photographs and medical report. I should also mention that eventually the Medical Report and a bush knife were tendered as “S3” and “S4” accordingly.
       

In addition to the exhibits the State also called three witnesses who gave sworn testimony. They were Miti Mitim, Robert Fiyangap and Charlie Tuningken.

11. The charge against the Prisoner Richard Donald was straight forward. He was charged that he on the 15^th of August 2014 at Gafan village, Nawaeb District, Morobe Province, Papua New Guinea did wilfully murdered one Nellie Robert thereby contravening section 299 sub- section (1) of the Criminal Code Act.
    

Section 299(1) of the Criminal Code Act states as follows:

(1) Subject to the succeeding provisions of this code, a person who unlawfully kills another person, intending to cause his death or that of some other person is guilty of wilful murder.

12. In order for the accused to be found guilty of this offence, the State has to establish by way of evidence the following essential elements;
    
    1. That the accused did kill Nellie Robert
    2. That the killing was unlawful and,
    3. That when he killed Nellie Robert he had intended to cause her death.
       
13. As far as the facts were concerned the court had found the following facts as undisputed facts:
    
14. That on Friday 15^th August 2014, the Prisoner Richard Donald was going to Gafan village to visit his friend named as Mai. He met his so called friend along the way to Gafan village and that his friend Mai had offered him marijuana to smoke. The two smoked marijuana until about 5:00pm. At about 5:00pm, the Prisoner then went into the village and was seen singing and dancing in the village square.
    
15. He then went to one Miti Mitim’s house and Miti Mitim told him to sit down and think about God, as he appeared to be behaving in an abnormal manner.
    
16. He stayed for awhile but then, got up and went over to Robert Fiyangap’s house which was a few meters away from Miti Mitim’s house.
    
17. At Robert’s house he told Robert that he was hungry and Robert saw him that his eye was blood-shot and according to both Miti Mitim and Robert Fiyangap, he appears to have taken drugs. This was confirmed by the accused himself that he had taken marijuana.
    
18. This, the court had found to be the cause of his abnormal behaviour. The court also found that the Prisoner had voluntarily taken the marijuana and rejected his claim that he was threatened and forced by his friend to take the marijuana drug. In other words, the court had rejected his possible defences of insanity under section 28 and intoxication under section 29 of the Criminal Code Act. In its findings on trial, the court had found that the Prisoner deliberately and intentionally had taken the marijuana knowing very well that it would affect his mental stability.
    
19. The offence of wilful murder is an offence requiring the specific intent to kill. Hence, it is necessary to assessed from the evidence whether the prisoner would have had such an intention whether it be under a delusion or otherwise.
    

Returning to the facts

20. Robert Fiyangap then told the accused to sit down and wait while his wife prepare some food for him. He seemed to have heard, understood Robert Fiyangap and agreed with him by saying “em tru ya”. He sat down and tried to sleep but kept turning from side to side and then he suddenly got up to his feet and went to where Robert Fiyangap had placed his bush knife and he took hold of the knife and without warning turned upon Robert Fiyangap and swung the bush knife at the back of his head and neck. As Robert Fiyangap escaped into the room to hide, the accused went after him. It would seemed however that he was not satisfied with whatever injuries he inflicted already inflicted on Robert Fiyanga so, he then broke down the door and went after Robert Fiyangap, still armed with the bush knife.
    
21. When Robert Fiyangap saw him coming he jumped through a window out of the house onto the ground and escaped.
    
22. The accused also went through the same window and jumped out of the house and still armed with the bush knife as he went after Robert Fiyangap.
    
23. At this time, the five (5) year old daughter of Robert Fiyangap who may have heard the earlier commotion at the house when the accused had attacked her father had come to the house to see what was happening. Unknown to her the assailant of her father the accused having jumped down from the window and set with violent intent after her father, suddenly came upon her.
    
24. The accused then got the bush knife and swung it at the little five (5) year old across her back, she fell down and he swung and struck her again on her face. While she was lying on the ground he delivered the final blow to her neck.
    
25. According to the witness Charlie Tuningkeng who was the author of the Death Medical Report made on 23^rd of August 2014 and described the injuries he observed as follows;
    

Head - stret igo antap na brukim kru insait, deep 5cm
Hand- encle or handjoin 1 cut of, 23cm
Backsait – em stret open cut, 25cm
Ear – knife kisim ear igo antap olsem long het, 15cm
Neck-Em i off cut liklik skin tasol holim.
Bel – em olgeta kam autsait liklik skin long bel baten iholim. Na tupela
Bikpela cut long baksait.

26. This document was tendered by the State and admitted into evidence as “S4”.
    
27. It was stated by witness Miti Mitim that he saw the accused Richard Donald cut the little gitl Nellie Robert all over her body and then he stood and stared at the child for a while until the aunty approached to rescue the little girl but the accused chased her and went into the main Gafan village where he went to the village church where he was eventually subdued by the villagers.
    
28. Although the identification of the accused was not an issue, the Court noted and was satisfied that the accused Richard Donald was positively identified by the State witnesses Miti Mitim and Robert Fiyangap.
    
29. The Court therefore was satisfied beyond reasonable doubt and found that the accused Richard Donald was the perpetrator of the attack on the five (5) year old child Nellie Robert on the 15^th day of August 2014.
    
30. The Court furthermore, based on the evidence of the witnesses Miti Mitim, Robert Fiyangap and Charlie Tuningkeng, found and was satisfied that as a direct result of the vicious attack and serious injuries inflicted on Nellie Robert by the accused Richard Donald, the said Nellie Robert had died.
    
31. The issue that arises at this juncture is; was the killing unlawful. Again, this ought to be answered by reverting back to the facts before, during and after the vicious attack on her that afternoon of 15^th August 2015.
32. The evidence by both Miti Mitim and Robert Fiyangap, were that they were at their respective houses when the accused Richard Donald had wandered into their respective premises and houses.
33. The accused is a stranger to them. As he has approached each of them, each of them had observed him to have been behaving in a kind of an abnormal manner, and having observed his eyes to be very red and that he appeared to have been under some form of drug.
34. Both have suggested to him to sit down and rest to collect his thoughts and senses. He however, from their evidence – it seemed could not be still.
35. Even though He was a stranger to them, they have treated him with compassion and understanding.
    
36. When questioned by the Court whether they have any dispute or conflict with the Accused or his lines they both had denied any cause for the accused to have behaved in the manner he did.
37. In fact when he went to Robert Fiyangap’s house he had told him that he was hungry and Robert had told his wife to prepare some food for him. He was told to sit down and wait while the wife prepared his food. He sat and lie down but then, suddenly sprung up to his feet, walked around on the veranda and then saw the bush knife of Robert Fiyangap under the roof on the veranda. Where upon, He took hold of the bush knife and then went on to attack Robert. He swung and struck Robert on the back of his neck and Robert sustained a deep wound to the back of his neck.
    
38. Robert then escaped into the room locked the door behind him but the accused was determined on his attack so he broke down the door to the room in search of Robert and through the window, Robert had escaped in determined to attack Robert some more.
    
39. Unfortunately, the accused came upon the little young five year old innocent Nellie Robert who had innocently wandered onto the accused’s path who then slaughtered and mutilated her to death for no reason at all.
40. Having examined the circumstances of the case and the evidence of the witnesses with regard to the circumstance, before, during and after the attack of the girl Nellie Robert, I find no reasons, motive or justification for the accused actions.
    
41. The Court therefore is satisfied and finds beyond doubt that the killing was unlawful.
42. I now look at the next issue and this is whether the accused had intend to cause death when he had attacked the little girl Nellie Robert.
43. With respect to this issue, I adopt and would endorse what was stated in the case of The State-v-Raphael Kuanande [1974] PNGLR 512 where at p514 he said and I quote:
    

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by the direct evidence of the accused’s expression of the intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of the conduct of the accused prior, at the time and subsequent to the act constituting the offence.”

44. The undisputed facts of the accused conduct were that he felt hungry and appreciated that he needed food and asked Robert and his family for food.

He was observed to have red eyes, walking around. When spoken to, he appreciated and understood what is being said to him and he seemed to obey suggestions made to him. He was in my view able to identify people. Whilst on the veranda he saw a knife- a bush knife, he recognized the object and he knows what it was and what it is capable of doing- And that it, was capable of being used as a weapon.

45. He decided, for whatever reasons only known to him to pick up the weapon and attack his good Samaritan. By chopping him behind his neck.
    
46. After Robert Fiyangap had run into the room to hide from him, he had pursued him. When he found the door locked, he broke down the door to gain access into the room. Inside the room, he saw and realised Robert was not in the room, He quite quickly worked it out that Robert must have escaped through the window, so he too went through the window in pursuit of Robert to continue his attack on him. He appeared to be determined it seemed for some purpose..
47. I pause to ask, was it to find Robert and apologise to him for cutting him and help him?
    
48. There is no evidence that he was saying anything, but one fact was clear.
49. He was still armed with the bush knife that he had just chopped Robert with. It is therefore opened to the Court to infer that he was in hot pursuit of Robert to continue to harm or even kill him.
50. It was lucky for Robert that his innocent little girl Nellie Robert presence at the scene intervened at that point and distracted the attention from him and allowed him time to escape to the village.
51. It was however, unfortunate and tragic for the innocent little girl for she bore the full blunt of the accused’s attack. By the accused cutting her at the back, face, neck, hand and body.
    
52. The force of each blow was vicious and directed to vulnerable parts of the body. With her whole intestine coming out with the only attachment to the belly button.
53. A joint of her hand was amputated. Her neck was completed chopped off with only a skin holding it to the body. Her ear and face was cut, she was brutally mutilated to death.
    
54. According to witness Miti Mitim, the accused stood for a while starring at the body of the child before chasing her aunt who came to rescue her.
55. In my humble opinion, the conducts of the accused prior to the tragic killing and, at the time of the killing, the numerous blows when she was probably running after her father, and even after she had fallen and lying dead on the ground indicates to me that the accused had intended to cause her death.
    
56. The accused however, had whilst not disputing that he had taken drug or marijuana, he had told the Court that he was forced by his friend Maioru. He had not taken marijuana before and that this was his first time.
57. He said his friend had threatened that if he did not smoke he would assault him.
    

Section 29 of the Criminal Code Act reads:

(1) Section 28 applies to the case of a person whose mind is disordered by intoxication or stupefactions caused, without intention on his part, by drugs or intoxication liquor or by any other means.
(2) Section 28 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied.

58. In the Record of Interview, which was tendered by consent, the accused gave an answer to question 14, where he said:
    

“Long dispela taim mi bin pinis skul na laik go long ples Gafan and sem taim mi bin bungim wanpela brata nem bilong em Minau second nem mi no save. Na em kirap givim mi wanpela hap simok nogut, drug na mi pulim tupela taim tasol na mi pilim ai raun na barata Minau tok na mitupela wokabaut na mi pundaun long graun. Na mi tokim em olsem mi silip liklik na bai mi go bek long ples tasol em posim mi na mipela igo.

Mi wokabaut igo na Minau tokim mi long mi noken bihainim em igo na mi strong na em tokim olsem sapos mi bihainim em bai em paitim mi na em pusim mi go daon na mi pundaun, mi lukim wanpla driman.”

59. I find that when you took the marijuana you had taken it without any threats or force as you have claimed in your evidence to the Court.
60. I find that you had voluntarily taken the marijuana smoke before going into the village on your own free will.
61. It was after you had taken the intoxicating substance and on the way to the village when you began to misbehaved and your friend or brata Minau did not like the way you were behaving that he may have told you not to follow him or he would assault you.
    
62. I find your claim of threats and force by your brother Minau as self serving and fabricated to isolate yourself from your own voluntary taking of the drug.
63. By virtue of subsection (2) of section 29, I reject your defence of intoxication.
64. Having found that the defence was not available, and on my finding that you in fact by all your actions and conducts prior to, at the time of and after the commission of the attack on Robert and the deceased Nellie Robert.
65. I find you guilty and I convict you as charge.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused