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State v Ato [2004] PNGLR 16 (22 September 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

ABUA ATO

KAINANTU: BATARI J

21 – 22 September 2004

CRIMINAL LAW – Particular offence – Wilful murder – Evidence – Inconsistency with Medical evidence on nature of attack – Independent evidence – Preference of.

CRIMINAL LAW – Particular offence – Wilful murder – Evidence – General proof – Rebuttal evidence – Failure to rebut defence of alibi may improve the defence case.

CRIMINAL LAW – Particular offence – Wilful murder – Evidence – Evidence of accomplice in support of the defence – Assessment of.

Facts

The accused was charged with unlawful murder under s.229 of the Criminal Code. It was alleged that the accused delivered the first shot with an arrow to the back of the deceased and the last arrow to his chest resulting in the death of the victim. In defence, the accused gave evidence on his alibi that he was not on the scene of the murder when the murder took place. His witness, who pleaded guilty with four others and was convicted of the willful murder of the deceased denied seeing the accused at the time the deceased was murdered at Koputa Village. The issue was whether the accused was one of those men who agreed to kill the victim and did carry out that intention by attacking him resulting in his death from gun pellet and arrow wounds.

Held

1. Where evidence is given by a co-accused which, if believed, would result in the acquittal of the accused, such evidence must be subjected to the same scrutiny as any other evidence called either by the prosecution or by the defence.

2. The weight to be given to such evidence must be assessed together with all the other evidence applying the same test of credibility, reliability, logic, consistency and common sense.

3. Because of inconsistency, the evidence of the co-accused that he was the person who shot the deceased remain unaffected and has not been disproved beyond reasonable doubt and the accused is entitled to the benefit of doubt from that inconsistency.

4. The alibi defence stands uncontradicted as the State has not discharged the onus of proof against the accused on the required standard of prove beyond reasonable doubt.

Papua New Guinea cases cited

No cases cited

Counsel

K Umpake, for the State.
T Ohuma, for the accused.

23 September 2004

Batari j. It is alleged against the accused that, he was amongst his fellow villagers who on the afternoon of 6 December 2001 left their village of Owanda in the Obura District, in Eastern Highlands Province intending to kill one Natio Aru'u at his Koputa village. They were harmed with home-made guns, bows and arrows and bush-knives. The deceased Natio Aru'u saw them approaching his house and when he tried to escape, they shot him with a firearm. The accused and his fellow villagers then set upon their wounded victim and attacked him resulting in his death.

It is on those allegations that the accused now stands indicted on a charge of wilful murder pursuant to s.299 of the Criminal Code. State alleges that the intention to kill is seen in a plan by the accused and his fellow villagers to avenge the death of their relative, Philip Kirihe caused by the victim through sorcery. The intention to kill is also inferred from allegations that the attackers had deliberately armed themselves and had gone in search of the victim as a means to the fulfilment of their intention. It is further alleged that the accused delivered the first shot with an arrow to the back of the deceased and the last arrow to his chest. It was that last shot which State says was fatal, causing the death of the deceased. He is therefore guilty of wilful murder.

The accused denied his presence at the scene of the crime and says in his sworn testimony that he was elsewhere. He only came to know about the killing after some two days when he returned to the village and his sister warned him to stay with the other village men as there had been a killing.

From the alibi defence raised, it is fair to conclude that the facts of the killing except those that implicate the accused are not in dispute and can be summarised quickly as follows. On the date and time in question, villagers from Owanda converged upon Koputa village in search of the victim Natio Aru'u. They were armed with bows and arrows and a firearm. Some of them probably carried bush-knives. It can be stated generally that they entered Koputa village as a raiding party, armed with weapons. The victim Natio Aru'u tried to escape but he was hindered when shot at the back with either an arrow or a gun thereby enabling others to surround and attack him.

The medical findings on the victim's injuries and cause of death is not disputed. The report showed that the deceased sustained:

(1) Three penetrating arrow wounds located in the –

(a) posterior left axillary area, left shoulder;

(b) right loin area;

(c) anteriorly in the right 3rd inter-costal space.

(2) Pellet wounds located as –

(a) 2 in right anterior superior illiac crest;

(b) 1 in the left sub-diaphragmatic area;

(c) 1 in the right deltoids of the limb. (leg or arm)

These findings are contained in the Medical Report compiled by Dr. Thomas Koimbu who only carried out external examination of the body. He concluded from his findings that the cause of death was cardio-respiratory arrest from hypo-volemic shock due to severe primary bleeding from the wounds sustained from arrows and gun pellets.

The doctor was not called. So, there are aspects of the report which will remain uncertain. It will never be ascertained if any one of the arrow or gunshot wounds would have caused death because that evidence is not available. In essence, the doctor if called would have clarified whether the arrow allegedly shot by the accused was the fatal shot that brought about the death of the deceased. The exact location of the wounds on the chest area as mention in the medical report is also crucial and the court is not really assisted in assessing the inconsistency in the witnesses' evidence because the doctor was not called to clarify his findings. But, the medical report speaks for itself and it is conclusive evidence of the doctor's external examination of the body of the deceased. I prefer his findings where medical evidence is in conflict with the oral testimony of the eye witnesses on the number of the wounds sustained, the cause and the locations of the wounds.

I conclude from the medical findings that only two of the arrow wounds were located on the front - one on the left shoulder area and the other on the right loin area while the third injury I think was on the back. The pellet wounds appeared to be concentrated on the back part of the body confirming the evidence that the victim was shot at from the back with a shot gun.

The limited number of wounds and their locations on the body does raise questions on the oral evidence of the State witnesses who testified that the accused shot the deceased at his back and again on the left chest with arrows. It also raises questions of whether the deceased was mob-attacked with arrows from all sides as stated by the State witnesses. It is more likely that the deceased was selectively shot at only three times with arrows as suggested by the defence witnesses and confirmed by the medical report.

On the evidence, it is clear that whoever pulled the trigger and whoever inflicted the arrow wounds intended in the least to cause the deceased grievous bodily harm and because the deceased died, the attacker would be guilty of murder. However, there appeared to be a plan to avenge the death of a Philip Kirihe who allegedly died of sorcery by the victim. That plan manifested itself in the attack on the victim carried out by five relatives of Philip Kirihe who are now in jail serving sentences following their plea of guilty to wilful murder.

The question in the case before me is whether the accused was one of those men who agreed to kill the victim and did carry out that intention by attacking him resulting in his death from gun pellet and arrow wounds.

State's first witness, Beai Muro is the nephew of the victim. On the day in question, he was on his way to attend the funeral of Philip Kirihe at Owanda village with his wife and children when he met a group of men from Owanda coming towards Koputa village. He followed them as they headed towards the victim's house. When the victim fled from his house, he said the group chased him. He tried to stop the group but one Rosio Philip shot the victim with a gun and wounded him. While the deceased was being attacked, he assisted him to avoid the arrows. He said the accused then appeared from the back and shot the deceased with an arrow on his chest and he collapsed from that shot. He knows the accused well and he saw him clearly since it was broad day light.

The second witness, Toaba Biri was also at the scene. He was on his way to a Clarence plantation when he met two groups of men. The one from Owanda came first followed by a second group. He said the accused was in the first group, while the first witness Beai Muro was in the second group. Beai Muro asked for his help, so he joined his group but then proceeded to the first group where he saw those in that group attacking the victim. He said the accused first shot the victim at his back with an arrow and when the deceased staggered onto the road, Rosio Philip shot him with a gun. The victim was then surrounded and attacked with bows and arrows while Beai Muro held onto him in trying to protect him against darting arrows. He then saw the accused shoot the deceased on his chest and the deceased collapsed. He knows the accused well and clearly identified him at the scene as the man who inflicted the first and last arrow wounds on the deceased.

The accused gave evidence on his alibi. He was at Matona village with his mother attending a funeral gathering at the time the deceased, Natio Aru'u was attacked and killed at Koputa village. Upon his return to Owanda village, he was told of the death of Natio Aru'u and it was only then that he learned of the killing that led to his own arrest. He denied being a party and pleaded that he was elsewhere at the time of the killing.

His witness, Karito Kirihe, is serving a jail term for the killing of Natio Aru'u. He pleaded guilty with four others and was convicted of the wilful murder of the victim. The accused was their co-accused. He denied seeing the accused at the time Natio Aru'u was murdered at Koputa village. He further testified that he was the person who shot the victim on his chest. The accused, he said, is being falsely blamed for the killing that he and his own line were responsible and are being punished for.

The evidence of this witness gives a different dimension to the whole of the evidence. His evidence does not directly support the alibi defence. In cross-examination, he conceded that if the accused was present at the scene, he may have missed him because there were many others around while he and his close relatives murdered the deceased in pay back for the death of their relative Philip Kirihe. If I believe his story that he himself was responsible for the last shot from which the deceased collapsed, then I would have to disbelief the State's version. Consequently, his story would indirectly support the alibi defence.

The accused only need to set up his alibi defence on the balance of probability before the onus shifts to the prosecution to disprove beyond reasonable doubt, that defence. In his record of interview, the accused stated explicitly that he was at his village and did not follow those who went to Koputa village. He did not know who went to that village, nor was he aware of their intention or the reason Natio Aru'u was killed. He has given much the same story in his oral testimony but this time, he said he was at Matona village, some 4 – 5 kilometres away from his Owanda village. He cannot be at 3 places at the same time. He can only be at one of the 3 places of Owanda, Koputa or Matona, but which one. If I disbelieve his alibi, the conclusion is clearly that he was at Koputa village, the scene of the murder, as the State witnesses had testified.

But the answer is not that simple because I must also deal with the evidence of his co-accused who had previously pleaded guilty to this killing and has now given evidence of being responsible for the same injury that State witnesses have attributed to the accused in this case before me.

This is a classic case where the evidence of a co-accused seeks to vindicate an accused person who had been initially charged with him but tried separately. It is not a case of evidence being given by one accused against the other, so the principles governing evidence of a co-accused in implicating the other accused does not apply. I have not been referred to any case on the situation as it now arises, but I tend to think that, where evidence is given by a co-accused which, if believed, would result in the acquittal of the accused, such evidence must be subjected to the same scrutiny as any other evidence called either by the prosecution or by the defence. The weight to be given to such evidence must be assessed together with all the other evidence applying the same test of credibility, reliability, logic, consistency and common sense. If the evidence stands those tests and the State is unable to disprove the defence beyond reasonable doubt, the defence then succeeds.

State has not called rebuttal evidence and has not seriously shown why Karito Kirihe would tell lies about his own involvement. It has been suggested that the evidence of Karito Kirihe was for convenience to support the alibi defence, but then why would he do that? Is he merely trying to help a relative, if so, what is the basis for such contention? Or does the witness stand to gain some way or is he being compelled to give evidence for the accused? There are no answers from the State on these issues.

I must assess the Kirie's evidence together with the whole of the evidence. His story is at odds with the State's evidence but I find that, those inconsistencies in the oral testimonies of the State witnesses are in themselves crucial against the State's case.

I am not satisfied that Beai Muro would have seen the accused shooting the deceased on his chest in the manner he had asserted in his oral testimony because, as he demonstrated, he would have had his back to the accused and in that position, it would have been simply impossible for him to see the accused. I think he was assisted on that aspect by hearsay evidence from someone who saw the deceased shot with an arrow on his chest. Then, the version of how Beai Muro held the deceased when he was allegedly shot by the accused raises another issue and that is; how could the accused have possibly shot the deceased on his chest when that part of the body would have been least exposed to the accused in the manner the witness was holding onto the deceased as demonstrated? The two opposite scenarios described by the State witnesses cannot co-exist or occur at the same time. That would be simply impracticable.

Because of that inconsistency, the evidence of Karito Kirihe that he was the person who shot the deceased remain unaffected. That evidence has not been disproved beyond reasonable doubt and the accused is entitled to the benefit of doubt from that inconsistency. The killing possibly occurred as described by Karito Kirihe.

Therefore, even if the evidence of the accused is not reliable, there is some weight to be given to his witness's story. Inferentially, that evidence lends support to his general evidence that he was not at the scene of the killing. His alibi defence is also strengthened by the State's failure to call any rebuttal evidence.

In the end result, the alibi defence stands uncontradicted as the state has not discharged the onus of proof against the accused on the required standard of prove beyond reasonable doubt. I find the accused not guilty and acquit him on the charge of wilful murder. The accused is discharged.

Lawyers for the State: Public Prosecutor.
Lawyers for the Defence: Public Solicitor.