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State v Bellie [2022] PGNC 113; N9524 (17 March 2022)

N9524

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 469 OF 2021

THE STATE

V

GEORGE BELLIE

Kimbe: Miviri J
2022: 15^th & 17^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Accident – Deliberate Stabbing – Credibility – Whom to Believe – Ring of Truth State Evidence – Intention to Cause GBH – Death As A Result – Burden Discharged – Guilty of Murder Section 300 (1) (a) CCA.

Facts
Prisoner in Jealous rage stabbed his wife in the abdomen and then on the side causing massive internal injuries to the stomach spilling the intestines out. She was hospitalized a week and succumbed to the injuries. He intended to cause grievous bodily harm from which she died.

Held
Trial
Intent to cause grievous bodily Harm or accident.
Two times deliberate stabbing
No accident
Intent to cause Grievous bodily Harm
Guilty of Murder section 300 (1) (a) CCA.

Cases Cited:
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

L. Maru, for the State
D. Kari, for the Defendant

VERDICT

17^th March, 2022

1. MIVIRI J: This is the verdict of upon George Bellie of Kalabu, Maprik, East Sepik who was charged with stabbing Diana Kevin firstly in the abdomen and then on the side with a knife causing her to suffer internal injuries from which she died whilst being admitted in the hospital. He had intended to cause Grievous bodily but death ensued.
   

Charge section 300 CCA Murder

2. The charge was pursuant to Section 300 (1) (a) of the Criminal Code reading:
   
   • (1) 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; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

3. The relevant facts on arraignment are that on the 29^th August 2020 between 8.00pm to 9.00pm both Diana Kevin and George Bellie were at Section 7 Sarakolok. They had a few alcoholic Drinks at their neighbour’s place after which they decided to walk home to their house. And along the way George Bellie assaulted Diana Kevin because she said good night to boys who were along the way. He hit her over that and neighbours stopped them. He proceeded to their house. She was comforted by the neighbours who escorted her to the house. By then he was already in the house. She switched the light inside. He came out of their bedroom armed with a knife to her and stabbed her with that knife in the abdomen above the stomach. He pulled it out and stabbed her a second time on the far-right side of her stomach. As he pulled the knife out, she cried out, “George you sutim mi pinis,” and fell to the floor. As She did her intestines spilled out of the Stomach through the Stab wound above her abdomen. He fled the scene when this happened. She was rushed to the hospital and underwent treatment but succumbed to the injuries a week later and died.
   
4. He had intended to cause her grievous bodily harm when he stabbed her there. And she died as a result contravening section 300 (1) (a) of the Criminal Code Act.
   
5. He pleaded not guilty and so a trial was run on the issue that he had not intended to cause her grievous bodily harm.
   
6. The State tendered the following evidence by consent into evidence. Exhibit P1 was the affidavit of Doctor Lawrence Warangi of the Kimbe General who compiled a medical examination on the 10^th September 2020 on a body that was identified to him by one Mike Nozu of Section 7 Block 792 in the presence of Detective Senior Constable Alexander Isouve as being that of Diana Kevin. The Report on Post-mortems Examination was Exhibit P1(a), Order for Post Mortem was P1(a) relevantly stated that, “Entry wound left 11^th Inter corner space. Missile bevelled -20cm long travelling transversely. No fractures. 150 cm in Height weighed 80 kg and was reputed 49 years old.” Notably she had three of the injuries repaired at surgery and the fourth did not which eventually led to the death.
7. Exhibit P1(b) was order for Post Mortem Examination by the Coroner dated the 08^th September 2020. Exhibit P1(c) was Medical Certificate of Death which stated, “Anoxia” as disease or condition directly leading to death. Significantly in layman’s language, “Penetrating Abdominal wound causing multiple Bowel perforation.”
8. Exhibit P2(a) was the Pidgin original version of the record of interview with the Accused of the 21^st October 2020. Of which Exhibit P2(b) is the English Translation. This is the record of interview that was taken closer to when the allegation arose. It was fresh in the mind of the Accused what had happened on that night of the Saturday 29^th August 2020. At question 14 he elected to remain silent when asked about the death of Diana Kevin his second wife that night. He continued at question 15 that he did not know about how it happened and did not know what to tell. He acknowledges being with the witness Arnold Apa that night immediately before the allegation arose. And that he admits consuming alcohol so too the deceased on that night. He explained that he had told her not to drink homebrew and they were angry with him and assaulted him. He denies assaulting her leading to bleeding in her mouth.
9. He denied carrying or being in possession of the knife the subject of the proceedings leading to the death. And that he was not angry with the deceased Diana Kevin. He denies the allegation and that he went ahead to section 2 Sarakolok and then went to his house at Gaungo.
10. Exhibit P3 was the statement of Ruben Bairi Policeman corroborator of the record of Interview. And Exhibit P4 was the Statement of Investigating officer Alexander Isouve.
11. On Oath called were Leontin Jeffo, 18 years old from Finchafen Morobe Province. She was in grade 9 at Mosa High School. On the night of the 29^th August 2020 between 8.00pm to 9.00pm she was in the house at Sarakolok section 7 when she heard her Aunty Diana Kevin called out and cried. So, she ran out to where she was on the road. George had hit her so the boys ran to George and fought him. He is her second husband. The boys hit him and stopped him. Both Diana and George made peace and so we walked down. I held Aunty’s hand and we walked up to the house. She turned the light within on. George came out, I called Mama, George ya. She turned and he planted the knife in her. And She called out, George you sutim mi ya. When She fell, he planted the second time on her rib. I was scared and ran out. Her intestines came out. And the house is of Aunty Diana and George. It was a very bright solar light and I was three (3) meters from where it happened. The knife is a small knife jugged like a saw. He stabbed with vigour with the right hand and stabbed her. The house is on the ground.
12. She was cross examined by Defence and maintained this evidence unshaken consistent although out. She denied that Diana Kevin came running to hug George Bellie and ran immediately into the knife injuring herself on it. He just came and stabbed her. She got injured and cried out, George yu sutim mi pinis and fell. I ran off. And the stabbing was less than a minute apart seconds. At least it was about 2 minutes the whole thing happened.
13. I found the witness very confident young lady because no doubt what she witnessed was gruesome and haunting seeing an immediate close relative stabbed to her death. She did not deviate in any way in her. Cross examination did not bring out any tatters except made her evidence watertight. It was a very convincing credible account in line with common sense and life. I found no reason to disbelieve her evidence and cross examination did not elicit any motive other than the truth as she witnessed on that day.
14. The second witness on Oath, Arnold Apa 31 years old originally half Madang and East Sepik, married with two children resident at section 7 block 971, said on the 29^th August 2020 between 8.00pm to 9.00pm, he was with George Bellie at a reconciliation with his family. And George Bellie with his wife Diana Kevin were at his house. My uncle made peace and we were drinking. He gave some drink to George Bellie who was drinking prior. He went to buy betel nut and met George Bellie with his wife Diana Kevin. In company together they passed some youth and Diana Kevin said good night to them. George got a bottle and shot her with it on her face. The boys got angry and assaulted George as he assaulted their sister Diana Kevin.
15. Along the way George Stabbed his wife twice with the knife and she reversed avoiding it. I told him stopped him and took him to their house. Some minutes later about 10-15 minutes I heard shouting and George sutim Diana ya. And George came out with the knife. I wanted to chase him but she was injured so I got banana leaves and tried to stop the bleeding with it. Then I went and got Daga Wagai to drive her to the hospital. But Diana Kevin died a week later.
16. Diana was also drunk but was not that really drunk. She said good night to the boys which made him angry. They are children some from Sepik and Morobe who live there but he was jealous. He married Diana Kevin for two or three years before this incident. They would fight two or three times in a week. I am their neighbour but I did not know the reason they always fought.
17. I saw she had two wounds She said on her side also he stabbed her. She said George sutim mi. Earlier I held George wrapping my hands around and locking his hands and stopping him from stabbing her with the knife twice. He swung the knife twice with his right hand, and she jumped back twice when he did. And I took him to their house.
18. Again, this witness was unshaken in cross examination. He was a very confident and sound witness. He did not find words to speak they came naturally to him and he strongly firmly maintained the consistency of his evidence. He was adamant in his evidence. He was a neighbour unrelated to the deceased. There was no reason elicited as to the reason for his story other than it was what he saw the Accused do that night against the deceased.
19. The last State witness on oath was Vinisia Gilo. She was 20 years old daughter of Diana Kevin the deceased. She lived with her mother and the George Bellie. He was her stepfather from his marriage to her mother the deceased. She was resident at section 7 Block 972 Sarakolok. On that night 29^th August 2020 at about 8.00pm to 9.00pm she was at the scene where the allegation took place. She was at the house there was noise on the road prompting her to run to road where George Bellie had assaulted her mother. She saw the assault and both were stopped making peace. Then they came to the house where Mother Diana Kevin switched on the solar powered light in the room. It was very bright and outside there was very bright moonlight. She was 5 meters away George came out when the light was on. And I saw him holding a bayonet a saw knife in his hands. He came and stabbed her in the stomach. She cried out, George yu sutim mi ya. She knelt down he removed the knife and the second time stabbed her. Mother fell down and Leontin ran out of the house in fear. George ran out following her into the mountain. Mother got her stomach and fell in front of my legs. I held her and turned around intestines came out. I wanted then to find medicine to help to the vehicle on the hospital.
20. She is my natural mother. She gave birth to me. George is her second husband. They were married in 2018. She was stabbed in the abdomen and the left side of the ribs. He swung his hand with the knife. And George Bellie is now sitting in the dock, she points him out. Sometimes when they argue George would tell her he would cut off her legs or kill her. He would have bad thoughts against her. He was jealous of her.
21. She was a very confident and consistent witness. She was very firm in her story and did not deviate nor make any amendments to the initial story she swore and gave. I find her to be a very confident witness and very credible. I believe her account of what she witnessed and saw as the truth as it happened that night.
22. The State evidence is consistent in all material particulars, Accused had assaulted Diana Kevin on the road because she had said good night to the boys who were on the road as they passed. They were children related and lived there. The Accused responded to her greeting by assaulting her and attempting to stab her twice with the knife that had a saw-like back from the evidence of Arnold Apa which she jumped back and avoided. He cautioned him not to stab her and to stop. He physically grabbed and wrestled with him to stop him from inflicting the stab twice upon her. He grabbed him engulfing both his hands around his upper body locking in his hands to his body. Then he talked to him and led him to their house.
23. Whilst the deceased was led behind after being comforted by those who had stopped them including Leontin Jeffo and Vinisia Gilo who accompanied her back to the house where both she and the Accused lived. Inside she switched on the solar powered light brightening up that area. It was also a bright moonlit night outside. As She did the Accused came out of their room holding that knife with saw like jugged edge and stabbed her with a hard stabbing motion with the knife posed in his right hand with the point directly at Diana Kevin. It penetrated her abdomen in the stomach area. Then he pulled it out again and in a hard swinging motion veering in a semi-circle still with the same hand with the point of the knife plunging into her left side.
24. This is the common evidence of all witnesses. In the case of Leontin Jeffo and Vinisia Gilo they both were immediately with the deceased at the time and place she was stabbed by the Accused. Both recount the same details and also what the deceased said as she fell to the floor after the second stab to her left side, “George yu sutim me”
25. George Bellie had two version that in the record of interview of being without a knife and never stabbing her. The second version was after having sworn, gave evidence that she had ran to him to hug him. He was with the knife and as he turned, she lunged herself on the knife stabbing her stomach. And also, the stab to the left side on the ribs. He then ran away in fear of reprisal.
26. He denied that he assaulted her because he was jealous. He merely told her to leave the boys who were drinking homebrew. But they assaulted him for no reason. He made peace with her and went ahead to their house with Arnold Apa. And he did not intentionally stab her as evidenced by the witnesses for the State. It was herself running on to the knife he held. She was also drunk. And he was holding the knife because he heard People coming to the house.
27. That on the day 29^th August 2020 he was feasting with Arnold Apa at Block No. 971. He joined them and stayed with them drinking with them including his wife, Diana Kevin. They finished and came back. And on the way saw Diana Kevin they were drinking and saw Arnold Apa and together they went to look for more drinks. He told Arnold leave it and they went back. They came to where his Mrs. Diana Kevin was with the boys drinking. She asked him whilst sited who he had come. He pulled her and the Boys assaulted him. He stopped them and went to the house. There he heard People coming and so came out with the knife. Diana Kevin ran to me and jumped on me and the knife got her. That is how she got injured. She called out and I realized I was holding the knife. George yu sutim mi. I left and went out and walked down. If I remained, I would be assaulted and yes I was able to control myself even though it was hard stuff.
28. In cross examination he denied the evidence of Arnold Apa and that of the other two, Leontin Jeffo and Vinisia Gilo.
29. He had a very serious and material discrepancy in evidence, initially when spoken to by Police he denied stabbing her or being in possession of the knife. In the evidence on oath, he reversed and turned, admitting he had the subject knife in his hand, but that it was the Diana Kevin who came and jumped on it as he turned. He did not have a credible explanation why she would jump on a deadly weapon to be injured as She did not once but twice. He told a new story in court that was never told to the Police in the record of interview conducted on the 21^st October 2020, a month after the allegation in question. It was fresh in his mind that she ran onto the knife that he held, yet he did not tell the police. It was event that occurred on the 29^th August 2020. A month after it was not fresh in his mind to tell.
30. Today 15^th March 2022 almost a year running into the second year he suddenly had a memory upsurge, that she was running and jumped onto the knife that he held that knife. He did not swing it twice as alleged by the witnesses for the State. He denied that he had possession of it then, but now concedes he had in his possession immediately before she was injured. And she was injured when the knife was in his possession in his hands. A grown man he did not move the knife aside to save her. His wife he allowed her to be stabbed of her own volition by the Knife.
31. He is an incredible and dishonest witness. He made up a story that added fuel to the State’s case even more with vigour of the burning guilt in him. He was a jealous man and clearly so evidenced by the two or three fights that he would have with her witnessed by his fellow Sepik man, Arnold Apa who lived immediately next door. This witness shared his moments events that effected his life with the accused, on this occasion reconciliation between his uncles. He shared food drinks and alcohol with him. He was a very good neighbour from the same Province East Sepik Province. His evidence was independent and very strong corroboration of the Accounts that were given by the two daughters of the deceased. It was added fire by the accused own detailed lies corroborating the State version, so that there was no doubt as to the guilt of George Bellie that he delivered the fatal blow with the knife twice to the body of Diana Kevin. Firstly, to the abdomen and then to the left ribs.
32. This is evidence upon which his credibility as a witness of truth is nowhere near to the evidence of the State witnesses, both girls and Arnold Apa set out above. They have very sound and strong fibre of truth in the account they give. There is no ulterior motive either in the evidence, or in law to doubt the veracity of their evidence. The defendant has by his lies corroborated their account: John Jaminan v The State [1983] PNGLR 318.
33. A ring of truth spirals through their evidence so much so that the version credible is that of the state which I prefer over and above that of the accused that he was jumped upon by the deceased who self-inflicted the injury twice, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009) assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is not the case against witnesses of the State but is the case for the defence as I have set out above. His evidence suffers that fate.
34. I reject his evidence totally as untruth and lies that have come out with a lot of inconsistencies and incredible accounts. His case has not the weight nor the strength in comparison with the vigour of the State. He stands no where near to dismantling his identification and the motive and the intent he by his overt actions carried out on that day. No person in his right mind will jump on a deadly weapon a sharp knife with a jugged saw edge in the way he describes. They are lies in the face of glaring truth of his guilt. In the haste to avoid he has lied to heap that it is the State who are telling the truth. He was jealous husband over a young woman Diana Kevin and stood that temptation by the fights witnessed by Arnold Apa next door. His intention is expressed by twice stabbing minutes earlier prevented by Arnold Apa and finally sealing that in the house not once but twice.
35. In my mind the evidence points to an intent to cause grievous bodily harm. The weapon is dangerously and deadly it is swung with vigour into a defenceless woman unsuspecting not once but twice. Her voice, George yu sutim mi ya, rings no mercy because as She is in a kneeling motion very timid and defenceless, he delivers yet a second blow to the left rib. And this is intent to cause grievous bodily harm. It is serious injury that will cause or maim the body. It will be detrimental to well being of a reasonable human being. And Diana Kevin is no different from any other. She did not endure despite the professionalism of Kimbe General Hospital. Internal injury immediate from his action has called short her 49 years of life. His intent to grievous injury her evidenced.
36. I am satisfied beyond all reasonable doubt that George Bellie intended to cause grievous bodily harm when he delivered the knife blows firstly and secondly to the stomach and the left side of Diana Kevin on that night 29^th August 2020 at Sarakolok section 7 Kimbe. I am satisfied that she died as a result a week and a day later at the Kimbe General Hospital emanating. I find him guilty of murder pursuant to section 300 (1) (a) of the Criminal Code and return that verdict accordingly.
37. Verdict: Guilty of Murder under section 300 (1) (a) Criminal Code Act.
    

Ordered accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant