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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1400 OF 2019
THE STATE
v
BALA KWARAM
(NO.1)
Madang: Geita J
2020: 3rd, 4th, 19th, June; 1st, 3rd July
CRIMINAL LAW – Trial – Wilful Murder – Defence of self-defence – Assault essential - Need to prove reasonable apprehension of death or grievous bodily harm – self-defence rejected – ss. 269(2) or 270(1) Criminal Code.
CRIMINAL LAW – Prior inconsistent statements – When successfully made out, the court must disregard both statements, written and oral- The gist of the indictment and elements not disturbed in light of voluntary
admission by the accused.
CRIMINAL LAW -Verdict - Wilful Murder – Section 299 (1) Criminal Code – Admission of guilt – All elements made out
successfully - Guilty verdict returned.
Cases Cited:
Papua New Guinea Cases
Andrew Palili v The State [2006] SC848
David Kandakason v The State [1998] SC558
R v Kaiwor Ba [1975] PNGLR 90
R v Korongia [1961] No.204
R v Nikola Kristeff [1967] No.445
State v Angela Colis Towavik [1981] PNGLR 140
Tapea Kwapena v The State [1978] PNGLR 316
The State v Takip Palne of Dumbol [1976] PNGLR 90
Overseas Cases
R v Muratovic [1967] Qd R 15
Counsel:
Steven Francis, for the State
John Zauya, for the Accused
JUDGMENT ON VERDICT
3rd July, 2020
1. GEITA J: Bala Kwaram of Sirin village, Madang Province was charged with the wilful murder of Peter Karo on 8 June 2019 at Avarak village, Bogia,
thereby contravening Section 299 (1) Criminal Code Act. Subject to s.19 of the Criminal Code offence carries a death sentence. He entered a plea of not guilty.
The evidence for the prosecution
2. The State relied on both oral and witness testimonies. The following material were tended into court by consent viz.
Witness 1 – Alphones Atagari M/A
3. He gave testimony of travelling to a nearby village with 5 other persons for mediation on 8 June 2019 in the morning when they were ambushed by the accused. He said as they approached, the accused attempted to spear him, but he evaded the spear with only a grazed cut on his arm. The witness said as he moved from his attacker, Bala again threw another spear which struck the deceased, causing him to fall. The accused then turned to him and chased him away. I don’t know what happened soon after. I returned later and assisted in his removal to the hospital. The deceased was with his wife, his son in law with wife and me. We were attacked by surprise as we were headed for a community meeting. At the time of the attack the accused was armed with two hunting spears, a grass knife and a bush knife. He described the spear as long, about his height with a sharpened pointed iron tied to a wood with some string and tyre rubbers. NB: The witness is about 1.5 meters tall. He identified the accused in Court and said he was like a son to him and the deceased.
4. In cross examination the witness affirmed that the accused and deceased were related as adopted son and stepfather. The accused’s natural father died in 1996. He denied that they both had ongoing disputes and disharmony between them. As to his statement given to Police, he said the statement was not read back to him however he identified his signature on the statement. He agreed that 4 other persons were with him at the time of the incident.
Cross examination continue:
Q. You were armed with a 1-meter long bush knife?
A. Yes.
Q. Freddy was with a rubber gun?
A. Yes but he did not use it.
Q. Freddy gave rubber gun to the accused?
A. Not true.
Q. Is accused house near the road?
A. Yes, we must go under his house veranda in order to go to the meeting area.
Q. He was sitting at his home facing away and having breakfast?
A. That is a lie.
Q. The person who died was the one who rushed towards Bala, true?
A. That is a lie.
Q. It was the deceased who told the accused in Pisin: “bai mi kisim laip bilong yu”
Q. It was Peter who charged Bala with the rubber gun and Bala took cover?
A. That story is not true. Peter did not shoot the accused.
Q. After rubber gun, deceased got grass knife and chased Bala?
A. That is a lie. He speared the deceased and turned against me with a grass knife.
Q. At that point accused took cover under a tree, true?
A. He ran away and hid in the bushes, after killing. He is lying.
Q. Because deceased was aggressive, Bala in his defence, took cover under his house, took a spear and speared deceased on his right hip, true?
A. He is telling lies he was sitting in his house and when we came, he came out and fought with us and killed deceased.
Q. How was accused armed?
A. He held grass knife and one spear in one hand and with another hand he held bush knife and spear.
Q. You said Bala cut you on your left elbow.
A. Yes, his first spear missed me, and the second spear got the deceased, as we were walking under his veranda.
Q. You said earlier on that the accused was waiting along the road, now you are saying he was sitting in his house?
A. Regarding the first story, I did not clarify, its true he was in his house and not in the bush.
NB: Defence successfully tendered into Court the witnesses written statement- as prior inconsistent statement. (Marked Défense exhibit ‘A”
Q. I suggest to you that the deceased tried to kill the accused, Bala in his defence used a spear made of bamboo and shot Peter, what do you say?
A. That’s a lie, it’s not true.
State Witness 2 – Freddy Michael
5. He gave testimony that as they were on their way to Sirin 2 village to attend a community meeting they were attacked by Bala at Avarak village. That was on Saturday 8 June 2019 around 11.30 am. He said Bala was armed with two spears, a bush knife and a grass knife. The witness said as they approached the village, Bala attacked Alphonse Atagari with his grass knife. With his spear he threw it at Alphonse who ducked with the spear missing him. The witness said he called out to Bala and tried to stop him as he attempted to cut Peter. Peter stopped his attack with his US made knife. The witness said the accused moved backwards, stood at about 2 meters away and speared Peter on his hips. He said Bala came and chased Alphonse Atagari away. He said Peter sat down and pulled the spear from his body as he was nursed by his daughter Rebecca. Bala came back, collected his tools and escaped into the bushes. Peter was taken to the hospital but died around 5pm the same day.
Cross Examination
6. In cross examination the witness admitted that he was carrying a rubber gun and Alphonse was carrying a bush knife. When put to him that they were not headed for a community meeting that day and were armed he said they were on their way to a meeting. He said they were going to hide their weapons along the way to the meeting. When suggested to him that they had gone to the village purposely to attack the accused, he said that was not true. When questioned to describe walking position the witness said Alphonse and Peter walked in-front followed by his wife Agatha Arurak. Followed by the witness and his wife., Peter
State Witness 3 – Rebecca Karo (Deceased’s daughter)
7. The witness said on Saturday 8 June 2019 the five of them were on their way to attend a community mediation at Sirin 2 village. She was accompanied by her husband Freddy Michael, Alphonse Atagari, Peter Karo and his wife Martha Arurak. She said Bala’s house was situated at the end out of four houses in that village. In between the houses was a clearing she described as a playground. The witness said as they came to Bala’s house, he came out of the house, armed with 2 spears, a grass knife and a bush knife. She said Bala attacked Alphonse Atagari with his bush knife as he evaded his attack. Bala again tried to spear him but he crawled under his feet and tried to escape. In the process he received a cut on his arm.
The witness said Bala raised his spear and aimed it at them as they screamed out to him that they have no grudges against him. She said Bala took his grass knife and cut Peter Karo but Karo blocked his attack with his pocketknife. The witness said as Peter Karo raised his arms and pleaded with him, Bala speared him and he fell and cried. Peter Karo pleaded with him that he was his father and would look after him. The witness said as Bala raised his spear and aimed at Peter Karo he said: “Ah you my father ah”. The witness demonstrated how Bala raised his spear, took aim with one leg raised and speared Peter Karo on his right hip. The witness then ran to comfort his wounded father until help arrived and he was rushed to Bogia hospital. He succumbed to his injuries and died the same day around 5.30 pm. The witness confirmed that Bala was his half brother and Peter Karo, was his father. Agatha Akura was her stepmother. She recognised and described the spear in detail and confirmed that it was the one used in the attack.
Cross Examination
8. In cross examination the witness maintained that five of them went to attend a community meeting. When suggested to her that their visit to Sirin 3 was not for the mediation, she said they were told to accompany his father Peter Karo. When asked to describe walking arrangements the witness said as follows: Alphonse Atagari walked in front, followed by Peter Karo, followed by her and her husband with Agartha walking behind them.
Cross examination continue: -
Q. Was Freddy Michael with a rubber gun, yes?
A. Yes.
Q. Was Alphonse Atagari holding a grass knife?
A. No. He was carrying a bush knife.
Q. I suggest to you that those weapons were purposely to attack the accused, what do you say?
A. No.
Q. When you arrived at Avarak village, where was Bala Kwaram?
A. He was in his house and he came out with weapons. We had no intention to fight. We went for mediation. Our weapons were going to be put at one aunt’s house.
Q. Does Bala’s house have a veranda?
A. I only saw him come out. He was at the veranda.
Q. I put to you that Bala was having breakfast on the veranda.
A. No.
During extensive cross examinations the witness remained adamant that Bala was the first one to fight Peter Karo. She said Bala was not trying to evade the deceased’s attacks. The witness categorically denied defence suggestions that Bala speared Peter Karo on the right thigh in self-defence.
Defence Evidence - Bala Kwaram
9. The accused is married with two children. Peter Karo is his step farther and married to his mother at the time of his death. His biological father James Igama has since died. His mother Agatha got married to Peter Karo. He is the third born out of six biological children. He describes his family with continuous arguments over land.
The witness said that on Saturday 8 June 2019 he was sitting on his veranda and having breakfast. He said Peter Karo and Alphonse Atagari came to his house. At that time his back was turned away from them. The witness said Peter Karo armed himself with a rubber gun and said: “I will take away your life.” He got scared and ran and hid behind a mango tree as the spear released by the deceased struck the mango tree. He said the deceased attempted to cut him with a grass knife however he escaped to another mango tree. He said he threw a stone at the deceased but missed. The witness said he ran under his adopted father’s house, got out a spear and speared the deceased on his right thigh as he fell to the ground. The witness said he ran to him and removed the spear and told him: “You came to my house and so I will kill you”.
The accused said his adopted father assisted him put Peter Karo on a wooden bed and took him out with assistance of his other family members.
The witness said his evidence was a bamboo spear but was not retrieved from him as they demanded compensation. Peter Karo was taken to hospital around 1pm but died around 10 pm that same day. In examination in chief the witness said he did not see them coming as his back was turned against them. He said he did not see Alphonse when the fight started as he moved away.
Cross Examination
10. In cross examination the witness admitted that the knife did not cut him. When suggested to him that he was lying, the witness said he was not lying. He said the spear that he used to kill the deceased was wrapped with ginger.
In re-examination when asked if he feared for his life when Peter Karo approached him, he said he was not harmed. He moved away in fear.
Submissions from State
11. Mr. Steven submitted that the only issue before Court was self-defence, and State has successfully negatived this defence on two fronts. Firstly although s.270 (1) & (2) Criminal Code is available to the accused he must come with credible evidence that some form of assault was levelled at him. Failing that this statutory defence of self-defence against provoked assault is not available to him. Secondly his evidence remains uncorroborated and showed signs of falsehood. His account of receiving cuts from the deceased remain unverified and not proven. Furthermore, his account of pulling the spear out from the deceased’s leg and assisting the deceased onto a makeshift wooden bed with his stepfather, uncorroborated. He was at liberty to call witness from his hamlet to verify his account of the fight, but he chose not to do that. Mr. Steven submitted that the accused was lying, and his version of events ought not to be believed. He submitted that the State has proven its case beyond reasonable doubt and urged the Court to return a verdict of guilty against the accused.
Submissions from Defence
12. Mr. Zauya submitted that inconsistencies within prosecution witness evidence regarding how the fight started ought to go against the State and the version of the accused ought to be believed. He submitted that the accused was present at the time and his account of how the fight started was more reliable. He submitted that the accused acted in self-defence as his actions were within the spur of the moment when he feared for his life and acted the way he did. He submitted that the accused was entitled to the statutory defence of self-defence. He relied on the following cases in support: (The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316.). Mr Zauya submitted for an acquittal for the accused.
Did the accused kill the deceased?
13. It is trite law in all criminal trials that the State must prove beyond reasonable doubt that the accused killed the deceased. In this case having considered the competing evidence and the submissions of both counsel I am satisfied that the State has proven beyond reasonable doubt that the person who speared and killed the deceased was the accused, for the following reasons:
(a) The evidence of the three State witnesses, Alphonse Atagari, Rebecca Karo and Freddy Michael, who testified seeing the accused spear the deceased, was much more convincing. Their evidence was also corroborated by the accused, who admitted spearing the deceased. He differed with the type of spear used, saying he used a bamboo spear. Ironically, he failed to bring his bamboo spear into Court as he claimed to have his evidence, the bamboo spear. However only the spear with pointed iron tip was received into court as the one used by the accused to spear the deceased. I remain persuaded that the type of spear and the manner it was used as described by Rebeca befitting the fatality.
(b) The accused did not persuade me with his evidence of being attacked first by the deceased and receiving a grass knife wound to his body. In cross examination he said although he was attacked, he managed to avoid the grass knife attack. Mr Zauya’s submission of the accused spearing the deceased in self-defence was materially inconsistent with the evidenced before me.
(c) The accused did not convince me that his back was turned away when the deceased was approaching. He would be an easy target for the deceased to kill at will by surprise, if indeed the deceased was out to kill him that day as he claimed. The deceased was with four other people, all family members, one of whom was his natural mother. To suggest that the deceased was out to kill him that day was illogical to my mind.
(d) He had a motive for attacking the deceased as the deceased had married his mother who had left them with foster parents. Coupled with that his natural father had died recently making the accused a very bitter man against the deceased. He was angry and harboured past grudges against the deceased. His intentions were clearly manifested.
(e) The accused’s evidence of his stepfather coming to assist him prepare the wounded Peter Karo to safety not believable. Furthermore, his claim of trying to assist Peter Karo by removing the spear that he threw defy common sense and logic. I am not persuaded with this story. All prosecution eyewitnesses said after spearing Peter Karo, he chased Atagari. He then returned to collect his remaining gear and fled into the bushes.
(f) He remained silent during his record of interview. That was an opportune time for him to give his side of the story as he claims it to be, record his innocence and plead self-defence. He did not do that. He also claimed that his stepfather was at the crime scene. Here was his opportunity to call him to be his witness and perhaps support his story of self-defence. Again, he did not do that. It’s within his rights who he decides should be called to give evidence. In the absence of such, I can safely infer that his evidence in Court was concocted and of recent invention. He is not a witness of truth.
(g) I find Rebecca’s evidence convincing and credible. She described the incident with clarity and in detail on who did what and to whom done and the manner in which the attack on Peter Karo was manifested. Her description of the spear throw stance and posture finds corroboration with the length of the spear. The spear produced in Court as evidence is quite long, estimated to be 1.2m in length. Inferentially therefore it cannot be thrown at close quarters. It must be thrown from a reasonable distance apart from one’s target. Rebecca’s eyewitness account of the spear stance and throw in the manner she described very convincing and credible.
(h) The accused assertion that the deceased was out to kill him that day highly illogical and defies common sense and logic as the deceased was accompanied by his wife, who is the accused natural mother and half-sister Rebecca. It is generally believed and practised in most Papua New Guinea tribes that warring and or raiding parties do not include the womenfolk. For obvious reasons they are left behind. Another falsehood detected in the accused evidence.
Defence of self-defence?
14. The defence of self-defence is available to the accused only to the extent that he has established those defences of self-defence
under either section(s) 269(2) or 270(1) of the Criminal Code? A killing in self-defence in an unprovoked assault is authorised by Section 269 and a killing in self-defence in a provoked assault
is authorised by Section 270. Assault is an essential ingredient under sections 269 and 270 and that violence is presently being
offered: R v Korongia [1961] No.204; R v Nikola Kristeff [1967] No.445; State v Angela Colis Towavik [1981] PNGLR 140.
15. As to the degree of force to be used in self-defence, the Court in the case of R v Muratovic [1967] Qd R 15 said, and I quote:
"The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm."
The principle in Muratovic was adopted and applied in R v Kaiwor Ba [1975] PNGLR 90.
16. I take note of the principles considered and applied in those cases and adopt them to this case. The accused has not persuaded
me with his evidence that the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm
and that the supposed force used by the accused would cause him grievous bodily harm. None of those fears and apprehensions existed.
Three prosecution witnesses gave eyewitness accounts of the fight that day. Two of those witnesses gave detailed account of the fight
which resulted in the deceased being speared, resulting in his eventual death. I am therefore satisfied their version of events that
unfolded believable and credible. I am also satisfied that the prosecution has successfully negatived the accused claim of self-defence.
His defence is therefore not credible and is dismissed.
Prior inconsistent statements (Défense exhibit A)
17. In the Supreme Court case of David Kandakason v, The State [1998] SC558 and later adopted in Andrew Palili v The State (2006) SC848 the principle of prior inconsistent statement was stated, and I quote:
“Where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the
court must regard and treat that evidence unreliable, and similarly disregard that previous statement, whether sworn or unsworn,
as it does not constitute evidence upon which the judge can act. In other words, both the sworn testimony of the witness and his
statement given out of the Court are discredited and both are no longer reliable evidence.”
18. As to the prior inconsistent statements made by Prosecution witness Alphonse Atagari: “I don’t know how to sign, and
it was signed by my son in law. Identifies his signature.”, the gist of the allegation and crucial elements remain intact and
not disturbed. No marked differences were detected in the oral testimony and the written statement. The relevancy of the prior inconsistent
statement, in my view will not impact on this case. Whether this piece of evidence is rejected or allowed is immaterial in my view.
Two direct eyewitnesses in Rebecca and Freddy put the accused squarely to this crime. Furthermore, the accused voluntary admissions
of committing this crime has removed all suspicions and again put him squarely to this murder. Defence submission of Alphonse Atagari’s
prior inconsistent statement is therefore put to rest.
19. The relevant law is stated in the following:
S. 299 Wilful Murder
(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.
(2) A person who commits wilful murder shall be liable to be sentenced to death.”
Elements of the Offence
20. The elements of the offence of wilful murder are:
Application of the law to the Facts
21. Applying those principles alluded to above to the facts of this case, it is not disputed that it was the accused who speared the deceased resulting in his death. His defence of self-defence remains flimsy, not convincing and rejected. His motive in this killing manifested itself in the accused harbouring grudges against his stepfather, the deceased. I am therefore satisfied that the prosecution has successfully proven this case beyond reasonable doubt. As regards Mr. Zauya’s submissions on prosecution evidence tainted with inconsistencies, hence, not to be believed, I say here that those inconsistences in themselves will not upset the prosecution evidence as a whole. In any criminal trial slight or minor deviations and inconsistences are forever present because witnesses coming to court focus on different things they saw and heard and so the court cannot expect all witnesses to give any account of exact same versions. At the end of the day the accused has admitted to spearing the deceased and was witnessed by state witnesses. I am more inclined to agree with Counsel of State that the force used by the accused against the deceased in the manner he did makes him criminally responsible and that the force used not reasonable. The accused is therefore not entitled to the legal protection under law.
Findings
22. Accordingly, I return a verdict of guilty against the accused for the wilful murder of deceased Peter Karo pursuant to Section
299 (1) Criminal Code Act.
Verdict: Guilty.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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