N9259

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1164 OF 2019

STATE

V

DANIEL GAMU
 (No 1)

Waigani: Wawun-Kuvi, AJ
2021: 7th,11th, 12th & 28th October, 8th November  
CRIMINAL LAW-TRIAL-Attempted Murder, section 304(a) Criminal Code-Identification-Whether accused was the person who attacked the complainant? Whether there was an intention to kill the complainant?
The accused was charged with attempted murder under Section 304 (a) of the Criminal Code. The complainant was slashed eight times on various parts of his body with a bush knife. The accused denied that he was responsible for causing those injuries. He claimed that the complainant was assaulted by members of the public at a location further away from his shop. He raised the defence of identification, involvement, and alibi. He further contends that the element of intention has not been proven to the required level by the State.
Held:
1.	The defence witness Kure Iso places the Defendant on the scene and further confirms the State witnesses’ evidence that the offence occurred outside of the accused shop.
2.	The defence witness Jenifer Mathew’s evidence regarding the location of the altercation between her husband and the complainant, the cause of the altercation and the person responsible for the injuries on the complainant were not put to State witnesses and are a recent invention: Brown v Dunn (1893) 6 R 67 (HL) and Kitawal v State [2007] PGSC 44; SC927 (22 February 2007).
3.	The State witnesses’ evidence was not shaken in cross examination and re-enforced what they said in examination in chief.
4.	The State’s version of events is accepted.
5.	Intention is a matter of the mind. Intention can be derived from the actions of the accused before, during and after the event: The State v Raphael Kuanande [1994] PNGLR 512.
6.	The use of a weapon, the location of the injuries and the ferocity of the attack all demonstrate an intention to kill the complainant. The motive was clear, the accused was told that his brother was attacked by the complainant. 
7.	The State has established that the accused intended to cause the death of the complainant.
8.	A verdict of guilty is returned on the charge of Attempted Murder.

Cases Cited:
Papua New Guinea Cases

Kitawal v State [2007] PGSC 44; SC927 
State v Taroah [2004] PGNC 104; N2675
The State v Emmanuel Bais & Felix Fimberi (2003) N2416
The State v Peter Malihombu (2003) N2365
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
The State v Raphael Kuanande [1994] PNGLR 512
Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188

Overseas Cases
Brown v Dunn (1893) 6 R 67 (HL)

Reference
Criminal Code, section 304(a)
Counsel
Ms Gretel Gunsen, for the State
Mss Rachel Mangi, for the Defence

VERDICT

8th November, 2021

1.	WAWUN-KUVI, AJ:  Daniel Gamu (accused) and John Kariap (complainant) are both from Tari in the Hela Province. They were once good friends. 

2.	The complainant is 39 years old. He is a police officer with the rank of Constable. He has been a police officer for about 14 years. He has been a resident of the McGregor Police Barracks at 9 Mile, National Capital District, for about the same period.

3.	The accused is a businessman. He was born in his village but grew up in National Capital District. He has lived in Port Moresby for almost 21 years. He resides at section 1, Allotment 21, 9 Mile, National Capital District. He operated two shops and a club at that location. Of the shops, one sells general goods and the other sells liquor. The shops and the club are located along the 9 Mile Road towards the Hiritano Highway. He had three wives who bore him 10 children.

4.	 The accused brother is one Steven Gamu also known as Steven Tambije. Steven is married to one Jennifer Mathew.

5.	Tai Tale, Dagi Stanley and Terry Henry are all from Tari in the Hela Province. Terry Henry is deceased. Tai Tale and Dagi Stanley are residents of 9 Mile, National Capital District.

The Allegations

6.	On 12 October 2014, between 6 pm and 7 pm, the complainant, Tai Tale, Dagi Stanley and Terry Henry were drinking alcohol in front of the accused shop. While they were drinking, Steven Gamu came out of the accused premises and started disturbing members of the public. He was armed with a bush knife. The complainant told Steven to put the knife away. This agitated Steven who then swung the knife at the complainant. The complainant avoided the knife, disarmed Steven, and slapped him. Steven fell to the ground. Steven’s wife then shouted out that the complainant had slashed Steven.

7.	The accused having heard the call, suddenly appeared.  He was armed with a bush knife. He swung the knife at the complainant on the left side of his head which also slashed his left ear. The second blow landed on the complainant’s neck. He then swung the knife aimed at the complainant’s face; however, the complainant raised his hand to protect his face. Simultaneously, the knife cut the complainant’s left ring finger and right palm. The accused then swung the fourth time. The complainant raised his right forearm to protect himself. He was cut three times on the elbow. The complainant fell. As the complainant lay on the ground. The accused cut him on his left and right calf. The accused then walked off.

The Defence

8.	The accused does not deny that the complainant was attacked. He challenges the factual allegations of the State. He states that the attack did not happen in front of his premises, that he was not present at that other location and that unknown persons were responsible for the attack on the complainant.
Burden of Proof

9.	The onus is on the prosecution to prove its case beyond reasonable doubt and to negate any defences properly raised beyond reasonable doubt.

Undisputed Facts

10.	There is no dispute that there was an altercation between the complainant and Steven Gamu. It is also not disputed that the complainant had received injuries on various parts of his body.

Issues

11.	The issues are:

1)	Did the accused cut the complainant?
2)	And if it was the accused, did he intend to kill the complainant?

Findings of Fact

12.	The accused, complainant and witnesses on both sides are not strangers to each other. They are all from Tari and either live or conduct business at 9 Mile. It is in that regard that I am reminded that there is no principle in law that requires me as a trier of fact to believe or disbelieve the whole of a witness evidence. Instead, I may accept none, part or all the witness’s evidence and attach different weight to different parts of the evidence.

13.	 I am also reminded that the concept of common sense and logic plays an integral part in the assessment of evidence and has been adopted in many cases in this jurisdiction.

14.	The complainant, Dagi Stanely, Tai Tale and Terry Henry were drinking together. This is confirmed by the defence witness Jennifer Mathew. Jennifer Mathew further confirms that there was an altercation between her husband Steven and the complainant. And that her husband came out on the losing end and that she had called out for help. 

15.	The location of the altercation, the cause of the altercation and the person who was responsible for the injuries to the complainant is where the evidence between the State and Defence differ.

16.	 The evidence of the defence witness Kure Iso relating to the accused whereabouts is crucial. He says that he was in a room in the store doing stock-take and that it was the accused going in and out of the room. His evidence supports the State case that the accused was in the Store and came out to aid his brother. This witness cannot account for the accused actions outside of the shop. It was the accused wife that told him that there was an incident outside and that he should count the money and give it to her before the police arrived and raided the store. He even states that there were two market tables outside the shop, but they were closed because of the incident. The market is about 6 meters on the other side of the road. He further states that while he was counting there was a big noise outside and he was told that there was a big fight between Tari’s and the police.

17.	 The accused in interview with police recorded in question and answer 19 and 24 says that he was at his home with his family. This is inconsistent with Kure Iso’s evidence and his own evidence in chief. 

18.	The accused was attempting to distance himself however his own witness confirms that the altercation was outside of the store. And it was because of what had transpired outside, that there was an urgency to count the money and give it over to the accused and his wife before the police arrived. That he had done what he was told and when he went outside, that was when he saw police arriving.
19.	The defence witness Jennifer Mathew attempted to distance her brother-in-law by giving evidence that the attack on the complainant occurred at a different location. 

20.	If that was the case, then why did defence witness Kure Iso say that the noise was outside the store and that the markets tables six meters outside the store were closed because of the incident and that when he came outside police had arrived.

21.	I accept Jenifer Mathew’s evidence that she was present when there was an altercation between her husband and the complainant. And that she called out for help. However, I find that the rest of her evidence was tailored to distance her brother-in-law from the attack on the complainant.  I find her reasons for the altercation, the location of the altercation and the persons who attacked the complainant, a recent invention and reject it. Her evidence was not put to the complainant and the other state witnesses. There was no prior notice of this evidence to the State before the witness gave evidence. Considering that the accused contention was that he was not present at the scene, it was essential that Jenifer Mathew’s evidence had to be put to the State witness in compliance with the rule in Brown v Dunn (1893) 6 R 67 (HL) which was elaborated by the Supreme Court in Kitawal v State [2007] PGSC 44; SC927 (22 February 2007).

22.	I also reject her evidence on the reasons for the altercation between her husband and the complainant, the location, and the persons responsible for the attack on the complainant on the basis that it is inconsistent with common sense and logic.

23.	 She states that after her husband punched the complainant to the ground, Tai Tale and Dagi Stanley went to the complainant’s aid. That Tai Tale had a bush knife. That the complainant grabbed the bush knife from Tai Tale and cut her husband. She states that this all happened in the market. If that was the accurate account, then the question is, how was it that the crowd or public attacked the complainant and left his two friends’ injury free. After all, they were all drinking together, and Tai Tale introduced the bush knife. 

24.	Her evidence that the complainant had cut her husband twice with the bush knife and that she was fearful for his life and got on the taxi and left for the house is also inconsistent with logic and common sense. She also said she had checked his wound and it was a big cut. If the husband was cut twice with a bush knife and that she was fearful for his life, the first place to go would be a clinic or hospital and not at home. 

25.	 She was not an independent witness. She was the person identified as the person who called out to the accused. In her cross examination she agreed that she did not want her brother-in-law to go to prison. Her motives to be untruthful about the events that transpired that evening are evident.

26.	I accept the complainant, Tai Tale and Dagi Stanley’s evidence. The evidence was clear and coherent. Whilst the event happened in 2014, the three witnesses gave their account of what each remembered that day. Each of their evidence was not destroyed in cross examination, rather it reinforced what they had said in examination in chief. 

27.	Dagi Stanley lives in the same area as the accused and Tai Tale lives with his uncle whose shop shares the boundary fence with the accused. It was not disputed that his brother also lives with the accused. All the men are from Tari and know each other. Even the accused referred to the complainant in his record of interview as his brother. There was sufficient lighting from the line of shops. There is nothing in the evidence that demonstrates any motive by the witnesses to be untruthful.

28.	The facts I accept are that the complainant was drinking with Tai Tale, Dagi Stanley and Terry Henry. They were drinking outside of Daniel Gamu’s shop. That Steven Gamu came out with a bush knife and caused some disturbance. He was told to put the bush knife away. He did not do so and tried to attack the complainant. The complainant then punched him causing him to fall. His wife called out for help and the accused came to his brother’s aid. He approached the accused and cut him on the left side of his head. He then continued to cut him until the complainant fell unconscious. When the complainant fell, the accused cut his right and left calf.

29.	Having now accept the State’s version of events, I now consider whether the element of intention to kill has been established.

Intention to Kill

30.	In Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188, Kidu CJ in discussing the element of ‘intent’ on the charge of attempted murder stated that, in order for the Court to convict an accused, the Court must be satisfied that (1) there is an intention to actually kill and (2) that such an intention is put into execution by an overt act: see also R v Bauoro Dame [1965-66] PNGLR 201.
31.	 Intention is a matter of the mind. Injia, J (as he was then) in The State v Raphael Kuanande [1994] PNGLR 512 explained how intention may be perceived.  I adopt his explanation at page 514 where he states:

“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.”

32.	In the present case, the accused walked up to the complainant without notice and swung the bush knife on a vulnerable part of the complainant’s body, his head. The medical report and the photographs show that the wound was gaping measuring 7 cm which exposed air cells. This is indicative of the force that was applied.

33.	The wound on the left side of the neck measured15 cm. The left ring finger was fractured and was near amputation. There was a deep laceration or cut on the left tall finger. The right-hand palm was split. There were three wounds to the right elbow. The joint was dislocated. There were 3 cm deep wounds measuring 7 cm on the left calf muscle and deep wounds to the right calf.

34.	From the evidence of the State witnesses, the accused was relentless in his attack. He persisted to cut the complainant even after the complainant fell on the ground. It was only after the complainant was no longer moving that he walked away. 
 
35.	As stated by Dagi Stanley and Tai Tale, they thought that the complainant was dead. After the accused had left, Tai Tale went over and placed his head against the complainant chest. When he realized that he was still alive, he quickly rushed him to the hospital. 

36.	The use of a weapon, the location of the injuries and the ferocity of the attack all demonstrate an intention to kill the complainant. The motive was clear, the accused was told that his brother was attacked by the complainant. 

37.	I find that the State has proven that the accused intended to kill the complainant.

38.	I am therefore satisfied that the State has proven its case beyond reasonable doubt.

39.	A verdict of guilty is returned
_____________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence