N7514
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 927 0f 2016

STATE

V

JOYCELYN SAUN

Maprik:  Gora AJ
2018: 10th, 14th, 15th and 4th September

CRIMINAL LAW- Murder Charge- Section 300 (1) Criminal Code- Whether evidence sufficient to convict- Elements of Offence- Proof beyond reasonable doubt- Evidence sufficient – Verdict of Guilty 

Cases Cited:

Nil

Counsel:

Mr. A Kupman, for the State
Mr. J Javapro, for the Defense 

DECISION ON VERDICT
4th September, 2018

1.	GORA AJ	: INTRODUCTION:	Accused Joycelyn Saun pleaded not guilty to one count of murder pursuant to Section 300 (1) of the Criminal Code.

2.	She pleaded not guilty to an Indictment which is in the following terms:
‘’ Joycelyn Saun of Nuarange village, Wosera Gawi District, East Sepik Province, stand charged that the said Joycelyn Saun on the 13th day of March 2016 at Kandige in Papua New Guinea murdered one Davina Pinga.’’

BRIEF FACTS

3.	Brief facts are that on the afternoon of Sunday 13th of March 2016, Joycelyn Saun and another woman named Fidelma Kipma left their village at Naurange and paddled in a canoe to nearby Kandinge village at Pagwi. At Kandinge village they stopped near Gordan Yaman’s premises and chewed buai. Fidelma saw her boyfriend named Gibson and asked him what he was doing at Kandinge village. The victim Davina Pinga who was also Gibson’s girlfriend heard about this and an argument and fight started between Davina and the two ladies from Nuarange village. During the fight Gordon Yaman held or restrained both of Davina’s hands and Joycelyn Saun pulled out a kitchen knife and stabbed Davina on her back. Davina died soon after on the way to get treatment at the nearby Korongu Health Center. 

4.	State invokes Section 7 of the Criminal Code.

ISSUE

5.	Did Joycelyn Saun Stabb Davina with Kitchen Knife?

THE LAW

6.	Section 300 (1) of the Criminal Code creates the offence of murder and it also prescribes the penalty. The provisions are in the following terms:

‘’ 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; (b) if death was caused by means of an act- (i) done in the prosecution of an unlawful purpose, (ii) of such a nature as to be likely to endanger human life. Penalty: Subject to Section 19, imprisonment for life.’’

ELEMENTS OF THE OFFENCE

7.	The elements of the offence of Murder are;

(a)	A person killed another person
(b)	Intended to do grievous bodily harm
(c)	Unlawful purpose
(d)	Likely to endanger human life.

EVIDENCE FOR THE STATE

8.	State relied on certain documentary evidence tendered by consent of both parties. These are: 

(1)	Record of Interview of Joycelyn Saun dated 5th April 2016, English and Pidgin versions marked as exhibits 1A and 1B respectively; 

(2)	Medical Report compiled by one Kerry Kambak, marked as exhibit 2; 

(3)	Section 96 statement (District Courts Act) by accused Joycelyn Saun dated 15th June 2016, marked as Exhibit 3.

9.	State also called oral evidence from two witnesses named WINNIE PINGA and WILLIAM PINGA

Evidence of Winnie Pinga

10.	Winnie Pinga’s evidence is that she is from Kandinge village and an aunt to the deceased being deceased father’s sister. She says she was in the village when the incident took place.

11.	She says that on Sunday 13th of March 2016 in the afternoon between 4.00pm and 5.00pm she was sitting in the house when she saw Joycelyn   (here-in the Accused) paddle down. She put canoe on the side of one Gordon’s house. They sat down and were telling stories and chewing betelnut with Ronda Yaman and Rachael Yaman when they saw Davina Pinga. She says they got cross and argued. Davina then went back to her father’s house whilst they went into the canoe.

12.	Witness says she told the both of them, “you two get into the canoe you have no business here.’’

13.	As they got into the canoe one Lucy Singa called out, ‘’both of you come back what are they going to do.’’ So they came back and she confronted Lucy and told her ‘’ Lucy not your business let them go.’’
Witness says Lucy got cross to her and shut her up and they started fighting and she was hit on the throat. She says at the same time Gordon Yaman assaulted her and when her brother William Pinga saw this he went to her aid and confronted Gordon Yaman.

14.	She says that, as they argued on Gordon Yaman then held both of Davina’s hands and that is when Joycelyn got a Kitchen knife and stabbed Davina and she fell down.
In examination in Chief witness told court that all this happened in the water and it was already getting dark. She says she was 6-7 meters away when she saw Gordon Yaman hold Devina’s both hands and Joycelyn stabbed Devina.

15.	Witness was able to identify the knife in court and she said the knife was in joycelyn’s bilum. She further stated that after Davina was stabbed she saw her sister Roselyn Liam pull out the knife from Davina’s body

16.	When witness was asked why fight started, she replied ‘’they fought for Gibson, because Gibson was Davina’s boyfriend.’’

17.	When witness was asked what was Joycelyn’s other name, she replied Joycelyn Kipa.

18.	During Cross- Examination witness gave evidence that the fight started due to boyfriend/ girlfriend relationship between Fidelma Kipma and Gibson and that Gibson had stayed 2 days with Davina in their Kandinge village. She further told court Joycelyn was not part of the problem.

19.	She also gave evidence that the fight started at Gordon Yaman’s house but the stabbing took place at the waterfront in the water and that there were lots of people there.

20.	Witness gave further evidence during cross- examination that Davina sank Fidelma and Joycelyn’s canoe and they were floating in the water which was chest level and that it was already getting dark at that time. She said she was able to see Joycelyn stab Davina as it was not really dark.

21.	She said Davina was stabbed on the back of the right shoulder and at that time Joycelyn was standing in the canoe.

Evidence of William Pinga

22.	Witness is the brother of the first witness and father of the deceased Davina Pinga.

23.	His evidence is that he is from Kandinge village and that he is the father of the deceased Davina Pinga. He says that on Friday 11th of March 2016 a person named Gibson had come to see his daughter Davina and he stayed with them on Friday, Saturday and Sunday 13th March 2016.  

24.	That on Sunday 13th March 2016 around 4.00pm he and his family were in the house when two girls named Fidelma and Joycelyn visited their village and came to his house. Fidelma went into the house and called out ‘’Gibson what are you doing here?’’ Gibson replied “I did not marry you, you are not my wife’’ and they started arguing.

25.	Witnesses say he told both the girls to go. So they went to the waterfront. But Gordon Yaman started arguing with his sister Winnie Pinga and assaulted her. Seeing this he told Gordon ‘’none of your business.’’

26.	He says the two ladies Fidelma and Joycelyn then went to their canoe and got in. But Lucy Sengen called out to them and said ‘’both of you come back, what are they going to do.’’ Hearing this they left their canoe and Fidelma went and fought with Devina. As they fought, Gordon Yaman went out and held onto Davina’s both hands and she struggled to get free but she couldn’t. As she was struggling Joycelyn got a kitchen Knife and stabbed Davina on the left side of her back below her shoulder.

27.	Witness says when he saw this he went and got a stick and hit Gordon Yaman on his face. When he hit Gordon, he told him ‘’why did you hold onto her hands and Joycelyn stabbed her with knife.’’ Witness then says that Joycelyn tried to escape but he followed her and grabbed her and tried to pull the knife from her but Gordon came and hit him.

28.	He then thought of his daughter, put her in the outboard motor canoe and rushed her to Korogu Hospital but she died on the way.

29.	Witness was able to recognize the kitchen knife in court. 

30.	In Cross- Examination witness told court that when Fidelma argued with Gibson, lots of people had already gathered and that some people helped Fidelma and Joycelyn argue with Davina. 

31.	When asked, if his other family members took part in the argument he said no, but his sister Winnie was there and only took part in the argument when Gordon picked up an argument with her and that his other family members did not take part.

32.	Witnesses further say argument started at Gordon Yaman’s place, but the stabbing took place at the waterfront in the water about 10 meters away and the water level at that time was about knee deep.

33.	When asked in Cross- Examination as to who stabbed Davina, he replied ‘’Joycelyn Saun.’’ He further stated that, if Gordon Yaman did not hold onto Davina’s both hands, the incident would not have occurred.

34.	When witness was further asked in Cross- Examination as to where he was when Davina was stabbed he replied ‘’ I was close when they were arguing and Joycelyn stabbed Davina. Joycelyn had a knife in her bilum and Gordon held onto Davina’s both hands and that’s the time Joycelyn stabbed her.’’

35.	Witness was further asked as to the positions of Joycelyn and Davina when Davina was stabbed. He replied ‘’very close. They held Davinas hands and Joycelyn stabbed her. It was very close.’’

36.	Witness gave further evidence in cross-examination that at the time when Davina was stabbed, Joycelyn’s one leg was standing on the ground in the water but her the other leg was in the canoe. Gordon held Davina’s both hands and Joycelyn stabbed her. He said the place was still clear at that time.

37.	In re-examination witness stated that where stabbing took place the water was bit deep about chest level.

DEFENSE EVIDENCE

38.	Defense called two witnesses to give oral evidence. First was Joycelyn Saun who is the accused in this case. Second was Fidelma Kipma.

Evidence of Joycelyn Saun 

39.	Joycely Saun is the accused in this case. Her evidence is that she is from Nuarange village and on Sunday 13th of March 2016 she was in her house in the village. 

40.	She says that between 4.00pm and 5.00pm that afternoon a person named Gerard Gawi called Fidelma from Kandinge village by mobile phone but Fidelma could not hear what he was saying. So Fidelma told her she wanted to go and see Gerard at Kandinge village to find out what he was calling for.

41.	Fidelma then jumped into the canoe and the witness, also jumped into the canoe and they both paddled to Kandinge village.

42.	When they got to Kandinge village they went straight to Gerard’s house where Gerard informed Fidelma that they were to attend a meeting of church organization at Maprik and that he would pick her up on Monday which was the next day.

43.	Witness says that after Fidelma finished talking with Gerard they returned back to their canoe. As they were crossing the road they saw Davina Pinga (deceased) and Gibson walking, so Fidelma asked Gibson ‘’ Gibson why are you here?’’ but Gibson did not reply and instead Davina came and asked Fidelma, ‘’is Gibson your husband and you are questioning him.’’ Then she assaulted Fidelma.

44.	She says when Gordon Yaman saw this he came and he fought Fidelma and herself and ordered them to leave the village. So they got into their canoe and Gordan pushed the canoe out in order for them to leave.

45.	As they paddled out Winnie Pinga came from no-where and called out to them, ‘’look at them cock face.’’ Then she told Davina ‘’swim out and sink their canoe and fight them.’’ Davina then swam to their canoe followed by her family members and they sank and broke their canoe. So they had to swim in the water and whilst in the water they stabbed Fidelma under her right side breast. They also stabbed her on the front and back of her head.

46.	Witness says by then place was already getting dark and when Gordon saw that Fidelma was stabbed he swam and pulled Fidelma away to the shore to save her life. She says when Gordon turned around he saw another group fight so he went towards her and took her away to where a coconut was. Then she heard people calling ‘’Davina has been stabbed.’’ She then ran away with Fidelma to a nearest police station for their safety.

47.	In cross-examination witness was asked if fight started in Gordon’s house or Willian Pinga’s house, she replied ‘’on the road’’

Evidence of Fidelma Kipma

48.	Fidelma Kipma is the girl who was accompanied by the accused Joycelyn Saun to Kandinge village. She is purportedly the other girlfriend of Gibson, Davina Pinga being the other.

49.	Fidelma’s evidence is that she is 27 years old and from Nuarange village.

50.	That on Sunday 13th March 2016, between 4.00pm and 5.00pm she was in her village when she received a call from Gerard Gawi from Kandinge village but she could not hear what he was saying on the mobile phone. So she decided to go and see him at Kandinge village. She got into a canoe accompanied by Joycelyn Saun (accused) and they both paddled to Kandinge village.

51.	That when they reached Kandinge village they went to Gerard Gawi’s house and he briefed her on their church women’s group meeting in Maprik on Monday which was the next day.

52.	That after meeting with Gerard they decided to return back and were on their way to their canoe when they saw Davina Pinga and Gibson. She then asked Gibson ‘’what are you doing here’’ but Gibson did not reply. So they continued to where their canoe was and wanted to get in when Davina came with her family members and argued and fought with her.

53.	She stated the first fight was in front of Gerard’s house where Gordon Yaman came to stop the fight. The second fight was in the water when they were just about to paddle out. She says that, in the second fight Winnie Pinga called out to Davina and said, ‘’Davina swim out and break their canoe, fight them and kill them in the water.’’ Davina then swam out towards them and held the canoe and sunk it. They fell into the water and swam and they all fought each other in the water which was neck level.

54.	In that fight they cut her right arm near the shoulder and below her breast and at the back of the head. Gordon Yaman then came to stop them and then pulled her to the river side. Gordon then turned around to see Joycelyn and saw them fighting her so he also pulled her to the side. At that time Davina was stabbed but she did not see who stabbed her as it was already getting dark.

Other evidence

55.	Signed statement of Roselyn Liam dated 19/03/16 contained in the Police Hand-up Brief tendered to court.

56.	Signed statement of Kaijol Gawi dated 19/03/16 contained in the Police Hand-up Brief tendered to court.

ISSUES ARISING FROM EVIDENCE

(a)	Whether it was visible to see clearly at the time of the incident.
(b)	What was the depth or level of water in the river where the incident took place?

DISPUTED AND UNDISPUTED FACTS

Facts not disputed

1.	On 13th March 2016 between 4.00pm and 5.00 pm Fidelma Kipma and Joycelyn Saun paddled in a canoe from their village Nuarange village to Kandinge village to see a person named Gerard.

2.	At Kandinge village Fidelma spotted Gibson in the company of his girlfriend Davina Pinga.

3.	Fidelma Kipma questioned Gibson what he was doing in Nuarange village.

4.	An argument started between Davina Pinga and Fidelma Kipma which led to a fight in the village area.

5.	After that Fidelma Kipma and Joycelyn Saun went to their canoe and were about to paddle back to their village when they were stopped by Davina Pinga and a fight started again, this time in the water in the river.

6.	During the fight Davina Pinga was stabbed with a knife.

7.	Davina Pinga died as a result of the stab wounds.

Facts Disputed

1.	Joycelyn Saun stabbed Davina Pinga with a knife causing her death.

ANALYSIS OF EVIDENCE

The main characters

57.	Main characters to this incident are Fidelma Kipma, Joycelyn Saun, Gerard, Gibson, Davina Pinga, Gordon Yaman, Winnie Pinga and William Pinga. 

58.	Winnie Pinga and William Pinga were the only witnesses for the State.

59.	Gordon Yaman is a co-accused but he escaped from CS custody in Maprik a day before trial was to commence.

60.	Fedelma Kipma and Joycelyn Saun were the only witnesses for the defense. Joycelyn is the accused.

61.	Gerard is the person Fidelma Kipma and Joycelyn went to see at Kandinge village regarding mobile phone call he made to Fidelma Kipa at her Nuarange village.

62.	Gibson is the person Fidelma Kipma and Davina Pinga argued over and fought for.

63.	For purposes of analyzing all evidence I will only refer to these main characters by their first names only.

Analyzing the evidence

64.	The background scenario is that at Kandinge village Fidelma sighted Gibson with his girlfriend Davina. Fidelma is also Gibson’s girlfriend, this she stated in her Record of Interview, though she denied that during cross examination in court. 

65.	It is therefore clear that the arguments and subsequent fighting between Fidelma and Davina was over Gibson. This is obvious because Fidelma questioned Gibson as to what he was doing in Kandinge. 

66.	The manner in which Fidelma asked Gibson obviously made Davina upset and this started all the arguments and fights resulting in Davina being stabbed with a knife causing her death.

67.	The fight continued to the river when Fidelma and Joycelyn were about to paddle back to their village.

68.	Davina had followed them to the river and swam to their canoe and sunk it and they all fought in the water. Evidence show Davina was in the company of her family members who obviously were there to support her fight Fidelma and Joycelyn. 

69.	There is no accurate evidence as to the level of water at the time when they fought in the water. Winnie and William in their evidence for the state estimated the level of water at chest level. Whilst Fidelma for the defense on the other hand indicated in court that it was at neck level. This however would vary depending on the height of an individual and the ground level under the water where one stood as the ground level under the water would also vary from low ground to high ground. 

70.	It can therefore be correctly assumed that the level of water at that time was from below the chest and up to the neck.

71.	During the fight in the water Davina was stabbed with a knife causing her death. 

72.	The question is who stabbed Davina with the knife?

73.	State witnesses Winnie and her brother William for the state gave evidence that they saw a Gordon hold both of Davina’s hands at the back and that is when Joycelyn Saun stabbed her with a knife on the back below her left shoulder. 
74.	Although Winnie in her evidence indicated right shoulder.

75.	Evidence of both Winnie and William is consistent in that they saw Gordon hold Davina’s both hands at the back when Joycelyn stabbed her. Their evidence is corroborative and has not been challenged or either disproved by state witnesses. Their evidence is credible and has weight.

76.	Other witnesses who gave separate written statements and are contained in the Police Hand-up Brief which has been tendered to court are ROSELYN LIAM and KAIJOL GAWI. Their statements are dated 19/03/16 but they were not called by the state to give oral evidence in court although their names are on the list in the Indictment as witnesses for the state.

77.	Roselyn Liam in her statement says that on Sunday 13th March 2016 between 4.00pm and 5.00pm she was at Kandinge village and from the spot where she stood observing, which was about 10 meters away from where the fight was going on, she clearly saw Joycelyn Saun holding a kitchen knife.

78.	Kaijol Gawi in her statement stated that she was at scene of the incident and from where she stood about 10 meters away, she clearly saw Joycelyn Saun stab Davina Pinga. Davina fell down so she went in and helped her out of the water and carried her to Liam’s house.

79.	This evidence, in the form of written statements, of these two witnesses corroborates the evidence of Winnie and William and therefore is overwhelming to confirm that it was Joycelyn who stabbed Davina with a knife causing her death. This was however denied by the accused saying that she did not hold any knife at that time. Fidelma on the other hand gave evidence that she did not see who actually stabbed Davina but she only heard that Davina had been stabbed with a knife.

80.	The timing when all this happened was between 4.00pm and 5.00pm. There was some evidence that the actual fight took place between 5.00pm and 6.00pm. Defense raised no serious issue on the identity of the person who actually stabbed Davina because the place at that time was quite clear and visible. State witnesses were consistent in their evidence that they clearly saw Joycelyn Saun stab Davina with a knife. This is evident by the facts that after the incident both Fidelma Kipma and Joycelyn Saun made an attempt to escape but were apprehended by police at a road block and co- accused Gordon Yaman escaped from CS custody in Maprik, a day before trial was to commence.

SUMMARY

1.	Evidence for the State is overwhelming to show Davina was stabbed by Joycelyn saun with a knife resulting in her death, thus first element of the offence being proven.

2.	Evidence for the State also shows that fight took place in the water and   Joycelyn Saun intended to cause grievous bodily harm to Davina or to other persons who were involved in the fight, thus satisfying the second element of the offence committed.

3.	The fight in which these women were involved in was unlawful and use of knife endangered lives of those who were involved with Davina actually being stabbed resulting in her death. 
Thus the 3rd and 4th elements of the offence being satisfied

VERDICT

81.	Having analyzed all evidence put before the court I am satisfied beyond reasonable doubt that all evidence adduced by the state clearly shows it was Joycelyn Saun who stabbed deceased Davina Pinga with a knife causing her death.

82.	Accordingly I find the said JOYCELNY SAUN GUILTY of Murder of Davina Pinga and hereby convict her for the offence of Murder. 
________________________________________________________________ 
Public Prosecutor:	 Lawyer for the state
Public Solicitor: 	Lawyer for the Accused