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Warara, The State v [1977] PNGLR 458 (8 November 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 458 - The State v Wanaepe Warara 

[1977] PNGLR 458

N115

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

WANAEPE WARARA

Madang

Prentice DCJ

2 November 1977

4 November 1977

7-8 November 1977

CRIMINAL LAW - Particular offences - Attempted murder - Intent as element of offence - Alternative count available - Advisability of joining alternative counts - Criminal Code s. 554[cdxcvi]1, s. 559.

On the trial of an accused on a charge of attempted murder, where the accused in a state of anger stabbed two men with a knife, one in the stomach and one in the chest, and where in the s. 103 statement the accused admitted that he “wished to end the life of one . . . man at a time,”

Held

(1)      The evidence supported the contention that an actual intent to murder was in the accused’s mind, and the charge of attempted murder under s. 310 of the Criminal Code had been made out.

(2)      Semble, were intent to murder not found, an alternative verdict could have been brought in under s. 554 of the Criminal Code, on the basis that “intent to inflict grievous bodily harm” is “an intent to cause . . . a result of a similar but less injurious nature” than the intended result of “attempt to murder”.

(3)      Semble where other alternative counts could be joined on an indictment, it is advisable that they be so joined.

Trial

This was the trial of an accused on a charge of attempted murder.

Counsel

A. J. Alpine, for the State.

A. K. Amet, for the accused.

Cur. adv. vult.

8 November 1977

PRENTICE DCJ: The accused is charged with the attempted murder of one Mowai Yena.

On 23rd July, 1977 Mowai, a Morobean, reported being molested on the Yabob Road by a gang of Raikos men. It is not denied that he was ill-treated. He rang the Police Station and got no action. He was told to report again next morning. (He also states that he was told to go down and settle it with the Raikos Committeeman himself). Later in the evening he and four Morobean wantoks, most inadvisably, went down to the Raikos compound to take up his grievance with the said Committeeman. They said they went unarmed. In cross-examination it was suggested that the Morobeans were armed with chains, but there was no admission to this effect and no evidence to establish it. The accused in his statement from the dock did not mention such a possibility.

There is a conflict between the State evidence and the unsworn statement of the accused as to the sequence of events after Mowai and his friends arrived in the compound among the obviously drink-affected (they had been drinking seven cartons of beer over some hours) Raikos men. The accused states he was first punched and kicked. Mowai says the accused without provocation first attacked him, with a knife, and that he attempted to defend himself from the knife attack. Mowai was an impressive witness in the box, a large man with a quiet manner. He did not attempt to exaggerate on several points on which he might well have done so, if inclined. Though realizing the strong possibility that the Morobeans came with aggressive intent, and might have been armed, I am inclined to accept Mowai’s evidence and that of David Sese and Woni Raki that they did not.

However, I do not think it necessary to come to firm conclusions on this aspect; because even on the version that the accused gave, as defence counsel conceded, no question of self defence by the use of a knife could be raised, and provocation in law is not applicable in this case (Kaporonovski v. The Queen[cdxcvii]²). The defence relies entirely on the submission that there is no direct admission of intent to kill, and that the evidence is not strong enough to allow such an intent to be inferred beyond reasonable doubt. It is submitted that no alternative verdict is open on the indictment as framed (one count only). In aid of the submission as to lack of intent — support is sought in the evidence such as it is, indicating that the accused was affected by liquor at the time.

There is no doubt that the accused stabbed Mowai Yena in the stomach — causing his intestines to burst forth. (He was lucky indeed to survive by operative surgery). The wound was on the left side of the abdomen and was 2² in depth. The knife used had a blade 16 cms. long and something over 2 cms. wide. Its handle was 11 cms. long. It is I consider, highly significant on the question of knowledge of intent that immediately after knifing Mowai Yena, the accused with the same knife stabbed another man Yeni Kepeti in the left lower chest with a wound 2½² deep and 1² wide.

I am satisfied beyond reasonable doubt that the accused did know what he was doing. He deliberately obtained his knife either from his basket (as State witnesses say), or from his pocket (as a fellow Raikos man says), or from the kitchen — as he himself says. He was angry and he came forward with the obvious intention of stabbing Yena. In a s. 103 statement he, in answer to the question “How did you feel after stabbing the two men?”, replied: “I felt I have killed two men and I ran away”. Asked “Is it correct that you wished to end the life of one Morobean man at that time?”, he replied: “Yes”. Such an intention was not denied in this Court.

The location of the wound in Yena’s stomach rather than in his arm or thigh or some other place less likely to kill, associated shortly after with the stabbing in another equally potentially vital place, the chest, in Yeni’s case, provides strong support for the contention that an actual intent to murder Yena was present in the accused’s mind. The nature of the weapon used also supports this; and I find the s. 103 statement to be a clear admission to this. I therefore come to the conclusion that the charge of attempted murder has been made out and I convict the accused on the indictment.

It was alternatively argued for the Prosecution that if the intent necessary to support the charge in the indictment not be made out, a verdict could be brought in on another charge. Reference was made to ss. 554 and 559 of the Criminal Code. I confess to difficulty in understanding these sections. If, as State counsel concedes, other counts could have been added to the indictment, then I think they should so have been. Indeed, after the opening I invited counsel’s attention to this possibility. It is not, in my opinion, good prosecution practice, to allow the Court to become involved unnecessarily in the construction on circuit of difficult sections of the Code. On reflection, I consider that an alternative verdict could have been brought in under the first branch of s. 554, were intent to murder not found. This would be on the basis that “intent to inflict grievous bodily harm” is “an intent to cause . . . a result of a similar but less injurious nature” than the intended result of “attempt to murder”. On this basis I would have held a verdict of “with intent to do grievous bodily harm — unlawfully wounding” open.

Verdict: guilty of attempted murder.

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

Solicitor for the accused: W. J. Andrew, Acting Public Solicitor.

ence>[cdxcvi]Section 554 of the Criminal Code provides:

Upon an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence which is established by the evidence, and of which an intent to cause that result, or a result of a similar but less injurious nature is an element . . .

[cdxcvii][1973] HCA 35; (1973) 133 C.L.R. 209.