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Briza, The State v [1976] PNGLR 517 (19 November 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 517 - The State v Willie Orki Briza 

[1976] PNGLR 517

N69

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

WILLIE ORKI BRIZA

Rabaul

Prentice DCJ

15-17 November 1976

19 November 1976

CRIMINAL LAW - Evidence - Res gestae - Contemporaneous statements - Words screamed by victim at time of attack - Spontaneity - Murder - Admissible as to truth of content.

The accused was charged with the murder of a man from Kairuku who met his death from a stab wound in his back inflicted during a scuffle in a Rabaul street late at night, after a card party attended by both the accused and the deceased. The evidence was that at the height of the scuffle the deceased screamed out in Kairuku language “Leo run — Willie (‘the accused’) has stabbed me with a knife” or words to that effect. There was no other direct evidence of the stabbing, which was denied by the accused.

Held

That because the spontaneity of the screamed remarks discounted the possibility of concoction or fabrication, the words of the deceased were, though hearsay, admissible not only as to the fact of their having been said, but also as to the truth of the facts they purported to describe.

R. v. Ratten [1971] UKPC 23; [1972] A.C. 378 adopted and applied.

Trial

The accused was charged with the wilful murder of one Anton Warupi in January 1975. The deceased met his death from a stab wound to his back inflicted during a street scuffle after a card party, and as to which there was no direct evidence, save for words screamed by the deceased at the time, implicating the accused, who denied the stabbing. The matter is reported only on the question of the admissibility of the words screamed by the deceased.

Counsel

BB Sakora for the State

RG Day for the accused

Cur. adv. vult.

19 November 1976

PRENTICE DCJ: The accused is charged with the murder of one Anton Warupi on the night 30th/31st January, 1975. The deceased, a man from Kairuku, clearly met his death from a stab wound to his back received during a scuffle in Sohano Street, Rabaul, after a party at a Sulphur Creek house where drinking of beer and gambling over a card game occurred.

The accused, a Popondetta man, has at all times denied implication in the killing and has given evidence on oath to that effect. The wound causing death was of some 8 cms penetration, severing the aorta and made by some such instrument as a small knife. It was 5 cms long. No evidence has been led to establish that the accused at the time owned a knife, or was carrying a knife or similar weapon on the night in question — except that one witness, Iripa, spoke in this court (though not in the District Court) of seeing a knife in his hand apparently at the time a blow was dealt by him to the deceased. The accused was supported by the evidence of his wife to the effect that he neither owned nor was carrying a knife at the relevant time.

The accused, in giving evidence, gave me the impression of being cunning. He was voluble, with an appearance of making preliminary calculation at times.

The drinking and card party had occurred at the house of the witness Jimmy. I think the evidence establishes that most, if not all, of those present not only had a substantial amount of beer at the party itself, but had drunk somewhat heavily earlier that evening in a variety of places including the Niugini Club, the Taiping Club and the Police Canteen.

The story led from the State witnesses was that at the party an argument broke out over an amount of K10. This argument (and query whether it led to wrestling or punching) was between Leo Aria, a large Roro man, and a man Michael Anton who is a young Hagen/Siassi mixed race man, a workmate of Aria’s and who refers to Aria as his “Papa”. That the house owner cleared everybody out — at which time all was sweet reasonableness between Michael Anton and his “papa” — they were arms-around-shoulders. That the group proceeded along the street with Leo Miria, another Roro man rather older (a man now in a managerial position), some little distance ahead. That the accused then seized Aria by the shirt collar — pulling it up in such a way (it had been tied at his waist in Cuban musician fashion) that Aria was held and had his vision obscured. That the accused then called to Michael Anton to come and fight Aria. That as he (Michael) came towards where Aria was struggling in the accused’s grasp he (Michael) received a push which sent him to the ground. That the deceased then received the fatal blow from the accused, who was still holding Aria by the shirt collar. That as he was struck the deceased called out in Kairuku language “Leo run — Willie (‘the accused’) has stabbed me with a knife” or words to that effect. That the deceased fell down but picked himself up. That Aria broke away from the accused. That the witness Miria was then coming back towards the scene of the struggle, which he had been observing. That the deceased having run a few yards dropped down dead. That Miria and Aria then went about getting police and ambulance. That the accused, somewhere between six and fifteen minutes after leaving it, went back to Jimmy’s house, picked up his watch and torch and went home.

The accused agrees that he returned to Jimmy’s house, after leaving it, to get his watch and torch — but said this occurred 1 ½ minutes after they had all been ejected by Jimmy from his house. I pause to note that in his record of interview he denied that he came back for his watch — it was only for his torch, he said. In the later stages of his examination-in-chief he admitted that just outside the house he had been holding Michael by the collar — that, he explained, was because he was trying to stop the fight (between Michael and Aria) which he says, was continuing outside the house. He contended that he stopped the fight but “it was too strong”, so he left the others as they started to walk away. It was then, he says, that he recovered his watch and torch. This piece of evidence was in answer to his counsel’s question “You heard the Papua man say you held him, Aria. Is this true?” The question seemed to me designed to abstract a negative answer. It came in the midst of questions designed to show that he did not own a knife, had had no quarrel with Warupi the deceased, had not taken any of his clothes off in the house; and to negative other matters that counsel wished to be put in issue. The matter of his holding Michael by the collar had not been put in cross-examination to State witnesses — either that it occurred at all or that some such act occurred at a different spot — close to Jimmy’s house. It was, however, suggested in cross-examination of Iripa, who had spoken of Willie’s holding Aria’s shirt, that this might have occurred immediately after leaving the house. The witness replied “yes”. In answer to cross-examination by the State Prosecutor, the accused denied he had held Aria’s collar.

The accused’s story continued to the effect that he did not proceed along the street to that part of the street where the State witnesses said a scuffle occurred, in which the wound was received. He did not encourage Michael Anton to fight Leo. He did not strike the deceased. He said that some considerable time later he had been asleep with his wife in his own house, an unnamed Papuan man came to his house and threatened him with an axe (trying to “kill him for nothing”) until an unnamed Sepik disarmed the enraged Papuan. His wife corroborated him on this story, and says that Willie looked normal when he came home that night; but the Papuan man looked scared. To his counsel, the accused said he did not know the Papuan man’s name — but it is clear from his record of interview that he therein named him and referred to him as Leo — meaning Leo Aria.

No evidence has been led for which a motive or reason existed, other than possible affection by drink and a general heated and aggressive condition, for an attack by the accused upon the deceased. The accused suggests as a motive for lies told by the State witnesses, resentment at his having won K13-15 in the card game. The accused stated he had not seen the deceased before this night nor had he seen Miria or Aria. He knew Iripa Waino’s name but was not a friend of his. That the winning of K15 by the accused should prove a motive for a number of people to try to pin the blame for a killing on the accused — seems sufficiently improbable to be dismissed.

[His Honour then dealt with the evidence of the various State witnesses.]

I am required to be satisfied beyond reasonable doubt before I might convict the accused of any offence.

I accept the State witnesses’ evidence that Willie had gone some distance along the street with the others — that he then grabbed Leo Aria and held him — that he excitedly and loudly urged “the Chimbu”, Michael Anton, to fight Leo Aria, and that Warupi came back to help his cousin brother. It is, I think, inconceivable that Aria could have stabbed the man, his brother, who was trying to help him — even if his vision was obscured. I can see no motive for Michael Anton stabbing his papa’s brother nor opportunity. He was seen by Miria at one time to be standing apart on the road. I believe not that he pushed Warupi down, but that he was himself pushed down by Willie. I do not think the evidence establishes the possibility that Raka Rigiva was near enough to have done the deed. I believe Miria was some 30 yards away. I think the evidence establishes that the only possibility is that the accused who was aggressively trying to provoke a fight and pinioning one man whose brother came to that man’s aid, did the deed.

If the accused’s story that a Papuan man came shortly afterwards to his house threatening him with an axe be true, this would be consistent with a strong belief being held by that Papuan man that he, Willie, had just killed a wantok of his.

I reject the accused’s story that he was outside Jimmy’s house for only 1½ minutes before returning to get his watch and torch. I accept the State evidence that an appreciable time elapsed — between six and fifteen minutes. I accept Rigiva’s evidence that when the accused so returned he was running, sweating and in a disturbed (scared) state. In accepting the State evidence that the accused was positioned right at the centre of the scuffle in which the deceased was killed, I find that his evidence contains false denials as to a vital feature.

I accept that the deceased called out in the words evidenced by Leo Miria, who impressed me, as a responsible witness — even if some details of his evidence in the almost two year period that has elapsed had become hazy. In this he is supported by the other State witnesses. In accordance with what used to be called the “res gestae” rule; but under the new guidance offered by the Privy Court in Ratten’s case[dlxi]¹, because the spontaneity of the screamed remarks discounts the possibility of concoction or fabrication, I regard the words of the deceased as admissible. In accordance with that case, though hearsay, they are admissible not only as to the fact of their having been said but as to the truth of the facts they purport to describe. In saying so much I have not lost sight of the disability the accused labours under of not being able to cross-examine the speaker of them and the possible unreliability of reported speech. I do think, however, the report of the screamed remarks here is reliable. They are in accord with inferences that can be drawn from what was seen to happen. They are supported by the evidence of Iripa Waino — unreliable as that would probably require to be held if standing alone. Of all those present, the deceased should have been able to see who stabbed him — difficult though it may be for the Court to reconstruct the detailed sequence of movements and positioning of the members constituting the scuffle.

The accused, of course, maintains that the State witnesses are lying, which involves some sort of conspiracy among them. If they are lying then it is peculiarly inept lying, which does not construct either a striking motive or a weapon in the hand of the accused. For a party of Papuans lying in concert with the Hagen-Siassi man to whom one Papuan was “Papa”, it would have been comparatively easy to agree that all saw the accused to have been either habitually, or on this night, in possession of a knife; or indeed to have seen him use a knife.

I am satisfied the evidence establishes to the necessary standard of proof that the accused killed Anton Warupi. Evidence of an intent to murder has not been shown — but intent to have caused grievous bodily harm must flow from the use of whatever weapon inflicted the wound shown and by the wound itself. The accused is convicted of murder. I might add that this case seems to have been very poorly investigated when one considers that a C.I.B. officer was on the scene a very short time after the event. That no record of interview was made for four days after the event is one instance.

Verdict: Guilty of murder.

Solicitor for the State: K. B. Egan, Acting Public Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

[dlxi]1 [1971] UKPC 23; [1972] A.C. 378.