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State v Lahui [1992] PGNC 53; N1111 (3 August 1992)

N1111

PAPUA NEW GUINEA
(In the National Court of Justice)

THE STATE

V

TAU TED LAHUI, GEORGE GADIVA HETAU, MARAKI PATI NOHO
ALL OF BARAKAU VILLAGE, CENTRAL PROVINCE AND
JEFFERY AIRI EKI OF KIVORI POE VILLAGE

WAIGANI: Hinchliffe, J.
3 AUGUST 1992

M Unagui Lawyer for the State
B Takin and R Vaea for the Defendants

JUDGMENT

Hinchliffe J. The four accused have pleaded not guilty that on the 26 October 1991 they did murder one Theresa Mitchell Lutschini.

At the commencement, of the trial on the 17th June, this year the Prosecutor outlined the alleged facts as follows:-

"On the 26 October last year between 10.00a.m. and 10.30a.m. the deceased Theresa Mitchell Lutschini drove her motor vehicle, a blue Toyota Starlet registered number AGD.041 to the Hohola shopping centre. She parked her car in front of the Regal Bakery. In her car was her mother, Lilly Avenall and the deceased's two children Stephen aged two and a half years and Ajesha aged fourteen months. Stephen was in the back seat and the other child was with her grandmother.

After completing her shopping the deceased returned to her motor vehicle. She got into the vehicle, fastened the seat belt and closed the door and was in the process of starting the vehicle when the accused ran to the car with the intention of stealing it. The accused Tau Ted Lahui opened the door on the driver's side. Two others ran to the other side to the front passenger door where Lilly Avenall was sealed. Tau Ted Lahui said "hurry up" and he then forced his way into the car and sat on top of the deceased's lap and he then took the key from the ignition. The deceased struggled and managed to alight from the motor vehicle. She then ran to the other side of the vehicle and tried to help her mother unbuckle her seatbelt. The two other men were struggling with Lilly Avenall. One climbed over Mrs Avenall to the back seat and unlocked the back doors.

The four accused and one other (who is still at large) all got into the vehicle. When they closed the door to the front passenger side part of the seat belt was left hanging outside. At the time both Lilly Avenall and the deceased's hands were caught-up in the seat belt. Tau Ted Lahui then reversed the motor vehicle from its parked position and then drove forward. Both the deceased and Lilly Avenall were dragged onto the road because of the seatbelt.

At some stage Lilly Avenall became untangled and fell away, but the deceased remained entangled and was dragged through various streets of Hohola for a distance of three kilometres.

A post mortem report on the 29 October 1991 revealed fracture and evulsion of the left side of the skull with damage to half of the brain. There were multiple lacerations over all of the body. The deceased was twenty eight weeks pregnant at the time of death. The actual crime of death was brain injury and multiple lacerations over the body."

The State indicates that it was relying on section 300(1)(a) & (b) of the Criminal Code which provides:

"300. Murder

1. Subject to the surrounding 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 the person killed or to some other person; or

(b) if death was caused by means of an act -

(i) done in the prevention of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human 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."
   

The defence case was such that Tau Ted Lahui and Jeffery Airi Eki admitted to being involved in the taking of the motor vehicle by force but submissions were made that at the most they could only be convicted of manslaughter.

George Gadiva Hetau and Maraki Pati Noho denied any involvement in the crime and they gave evidence that they were in their village - named Barakau - at the relevant time. Their mother's and one other gave sworn evidence to support their defence.

First of all I shall deal with Tau Ted Lahui and Jeffery Airi Eki. They were involved in the forceful stealing of the motor vehicle outside the Regal Bakery, Hohola. That is not disputed. It is also undisputed that they were in the motor vehicle when it was driven.

Tau Ted Lahui did not give any verbal evidence at trial but in his record of interview (Ex.5) recorded on the 29 October 1991 he said that he did not know that the deceased was being dragged along behind the motor vehicle.

The relevant part of the said record of interview reads as follows:-

"Q.22. When you were driving around Hohola Three did you know that Theresa Mitchell was tangled with the car?

Ans. No.

Q.23. Did you know that the body of Theresa Mitchell did become untangled with the car near St. Theresa Clinic and that she was already dead?

Ans. No"

But then on the 8 November 1991 there was a scene indication conducted between Detective Senior Constable Peter Senat and Tau Ted Lahui and that record was tendered without objection and became Exhibit No. 6. Various photographs were taken at the scene indication and they were also tendered into evidence by consent.

The records reads, inter alia, as follows:-

"Q.10 Can you indicate where was the baby taken out of the car, and the first attempt to release Mrs Theresa Mitchell from the tangled seat belt.

Ans. Yes, photo taken Satin Street opposite Eki Vaki School. Tau Ted Lahui indicating where the baby was left on the road side and the first attempt to release Theresa from the tangled seat belt of the car. Photo taken photo No. 4.

Q.11 Can you indicate the scene of the second attempt that was made on Mrs Theresa to free her from the tangled seat belt of the car.

Ans. Yes, photo taken along Bomber Street indicating the second stop to free Mrs Theresa Mitchell from the tangled seat belt along side Hohola United Church. Tau Ted Lahui indicated. Photo taken, photo No. 5."

It is quite clear that Tau Ted Lahui co-operated in the scene indication and then has been no complaint about it. He indicated freely where efforts were made on two occasions to release the deceased from the seat belt. It follows therefore that he did know that the deceased was being dragged behind the car in which he was driving even though he denied it in the first interview. Knowing that the deceased was being dragged, he continued to drive the vehicle at high speed. In fact she was dragged in all, some three kilometres. That distance was confirmed when the Court went on a view of the scene. The deceased was dragged along sealed roads with rough edges and some pot holes. On the first occasion the vehicle stopped it had already travelled a considerable distance and the second time even further. When the deceased was not released after the second attempt I am quite satisfied that Tau Ted Lahui knew that she was still entangled. I am also satisfied beyond reasonable doubt that he would have known that she was still being dragged as he sped through the streets of Hohola. People in the car would have told him, he could probably have felt it in the steering and seen it for himself. People on the road were screaming at him to stop. To believe him when he says that he did not know that the deceased was being dragged would on my part he parting company with reality. Therefore I must go back again to the said section 300(1)(b) of the Criminal Code. Clearly death was caused by means of an act done in the prosecution of an unlawful purpose. The unlawful purpose was the undisputed stealing with force of the motor vehicle and driving off in it. Was the act "of such a nature as to be likely to endanger human life?" To my mind the answer must be yes. To knowingly drag a human being along behind a motor vehicle at high speed for three kilometres on sealed roads with rough edges and pot holes is an act which is likely to endanger human life. To think otherwise would be quite unrealistic.

It follows then that I am satisfied beyond reasonable doubt that Tau Ted Lahui is guilty of the murder of Theresa Mitchell Lutschini on the 26 October, last year.

Now to Jeffery Airi Eki. He also elected not to give any evidence at trial. His record of interview dated the 31 October 1991 was tendered by consent and marked Exhibit 8 (the pidgin version) and Exhibit 9 (the English version).

Part of the record of interview reads as follows:-

"Q.32. What route did you take when you drove off the car you took from the woman.

Ans. We drove to Eki vaki Community School, and we tried to drop the small boy who was in the car. When I opened the rear left door to drop the small boy, there I realized the woman was trapped by the left seat belt. She was dragged along with us to Eki Vaki School. Tried to release her from the seat belt, but it was very hard, as I was trying to loose the seat belt from her hand. I saw the public were throwing the stones and running after us. I tried my very best to release her hand from the seat belt, but I could not, and when I noticed that the public were coming closer to us. I hopped in the car, closed the door and drove off with the woman who was still trapped by the s eat belt.

Q.33 Was the woman still alive when you first made an attempt to release the seat belt from her?

Ans. We drove past Admin Hostel, and to Spring Garden Road and turned into Second Street. We stopped again and I opened the door and made the second attempt to release the trapped seat belt from the woman's hand. By this time I saw the woman was unconscious and she was bleeding very heavily. I tried my very best to remove the seat belt from her but without success. We were also chased by two trucks, so we again hopped in the car, closed the door off with the woman still trapped by the seat belt, around Hohola No. 3 and back to Kunai Street Hohola 1 up towards St. Theresa's hospital and along Hibiscus Street. While the car was still running, I opened the door and pulled from the seat belt, and it came out from her. I closed the door and we drove off towards Wards Road and later ended up at Gordons Industrial area.....

Q.43 When you stopped at Eki Vaki school to drop off the victim's on, you realized the victim was trapped by the seat belt, and she was dragged to that distance, why didn't you leave the car and run away in order to save her life rather than you knew that she was still trapped and drove off with her and she eventually met her death.

Ans. My intention was to save her life by releasing the seat belt loose of her hand but as I was attempting to do so we were chased by the public that is why we drove her around and she later died."

I am satisfied beyond reasonable doubt that Jeffery Airi Eki was fully aware that the deceased was being dragged behind the motor vehicle. Indeed he admits it quite openly in his record of interview. He made two unsuccessful attempts to release her. On the first occasion the deceased was still alive but even so the accused decided to allow her to be dragged further because he was trying to avoid being apprehended by the public. On the second attempt to release the deceased she obviously was seriously injured at that time. She was unconscious and bleeding heavily. Still the accused let her be dragged further eventually to her death. She was dragged for three kilometres before eventually being released.

It seems that she was bleeding heavily and unconscious after being dragged several hundred metres. Jeffery Airi Eki saw her condition at that time so it only stands to reason that he would have realized what state she would be in after being dragged three kilometres. He, like Tau Ted Lahui, knew that the deceased was being dragged at high speed on sealed roads with rough edges and pot-holes. He would clearly have known that it was likely to have endangered her life. He did not in anyway disassociate himself from the act that caused the death of Theresa Mitchell Lutschini. I am therefore satisfied beyond reasonable doubt that Jeffery Airi Eki is also guilty of the murder of the deceased.

George Gadiva Hetau and Maraki Pati Noho gave sworn evidence and denied that they were involved in the crime committed on the 26 October last year. They both swore that they were at Barakau Village on the day and did not go away from the village. On that day the Court was told there was a football grand final and that Maraki was captain of one of the teams. George Gadiva said that he had been at a religious gathering all night up on the hill near the village and that it ended with a dawn service. He then went home, had some sleep and then went to support the team that Maraki captained. The State called very strong evidence to prove that the two accused were not telling the truth. The State contended that the both accused were with Jeffery Airi Eki and Tau Ted Lahui at the time and that they were passengers in the motor vehicle that dragged the deceased to her death. The State submitted that they were equally as guilty as the other two accused.

Lilly Avenall, the mother of the deceased, gave evidence in Court and was able to identify Maraki seated in Court as one of the people involved in the crime. Previously, on the 14 November 1991, Mrs Avenall had identified both Maraki and George Gadiva Hetau at an identification parade at Boroko police station. That was only nineteen days after the event. Obviously her recollection would have been clearer and fresher at that time.

During the course of the trial there was criticism from the defence in relation to the conduct of the identification parades. At the parades Maraki and George Gadiva Hetau were identified by three of the four witnesses who took part in the parade. They being Lilly Avenall, Janet Lahui and Kulu Gavu.

I found Lilly Avenall to be a very honest witness who presented well in the witness box. She was not questioned in cross-examination about any irregularities regarding the identification parades. The fact that she only identified Maraki in Court and not George Gadiva to my mind is not all that significant. What is important though is that she did identify the both accused at the parades less than three weeks after the event. The court room tension and pressure would not have been easy for Mrs Avenall who is an elderly woman. Also it must not be forgotten that the trial commenced some eight months after the death. Under the circumstances at the time of trial I am of the view that the fact that she did not identify George Gadiva in court does not take anything from her identification of him at the identification parade. I am satisfied that she was not directed by a police officer as to who to identify and in fact I am satisfied that the identification parades were conducted fairly and properly. To suggest that Mrs Avenall was dishonest in her identification of the both accused to my mind is totally unfounded. After all Chief Inspector Mark Kanawi conducted the said parades and I was very impressed with him as a witness. He asked the both accused whether they had any complaints after being identified and both indicated that they had no complaints. That evidence was not contested at trial. Therefore I am satisfied that the both accused did not complain at the time about the conduct of the identification parade but it was only at trial that they alleged misconduct on the part of the people involved in the parade. It is clear to my mind that it is recent invention on the part of the both accused and I am well satisfied that the identification parades were conducted fairly and properly.

Janet Lahui identified George Gadiva and Maraki at the identification parades at the Boroko police station but was unable to identify them in Court. To my mind she identified properly and carefully at the Boroko police station but for some reason she was not happy in court. I felt she may well have been afraid to identify the two accused in court and refrained from doing so. I am unable to give much weight to her courtroom evidence as I am satisfied that she was not telling the truth. I am satisfied in relation to her identification of the accused at the police station as two of the people she saw get out of the car at F.T. Wimble on the morning of the 26 October 1991. The occupants of that car then took a tipper truck from the yard.

Kulu Gavu also gave evidence for the State. He was also at F.T. Wimble at Gordons on the morning of the 26 October last year and he also saw the four accused arrived in a motor vehicle who then took him and the tipper truck on a journey around parts of Port Moresby.

Kulu Gavu was able to identify all four accused in Court as being the same four who took the tipper truck. He had ample time to observe the four, it certainly was not a "fleeting glance." He was sure about what and who he saw. He gave his evidence with confidence and clarify and I found him to be a good witness who was telling the truth. He said two of the accused got off at Jim Trading and I am satisfied by later evidence that that place is where people get public transport to Barakau Village. As indicated earlier Kulu Gavu also identified George Gadiva and Maraki at the identification parades and I am also satisfied that he was telling the truth when he indicated that the parades were conducted properly.

I can only repeat that this witness was able to get a very good look at the four accused as they got out of the small blue car and then into the tipper truck. He was in the cabin of the truck with George Gadiva and Tau Ted Lahui and he could also see that Jeffery Airi and Maraki were in the back. He had even more time to observe because he was not driving the tipper truck, it was being driven by Tau Ted Lahui who the witness had known in the past. I am quite satisfied, the evidence of this witness that he correctly saw the four accused alight from the small blue motor vehicle and climb into and steal the tipper truck.

To strengthen the State case even further evidence was given that fingerprints of George Gadiva and Maraki were found on the stolen blue car that dragged the deceased. Much examination in chief and cross-examination was carried in relation to the fingerprint witnesses. I say from the outset that I found the fingerprint witnesses to have presented their evidence very professionally. They are definitely well experienced and experts in their field. Their evidence was well prepared and thorough. They were not shifted in cross-examination and I have no doubt whatsoever that the prints found on the motor vehicle were those of George Gadiva and Maraki Pati Noho.

It is quite clear from what I have now said that I am satisfied beyond reasonable doubt that George Gadiva and Maraki were in fact involved in the incident at Hohola on the 26 October last year. Needless to say I will make observations of the defence evidence.

George Gadiva swore that he was at a religious gathering and dawn service in the early hours of the 26 October and as soon as the service had finished he went home to sleep. He called his mother to support his story. I must say that I was surprised that he did not call anyone who was in attendance at the service to support him. An obvious choice would have been Moses Madu the Youth Chairman who was present at the service.

His mother gave evidence to the effect that she was at home when he came back from the service and went to sleep. But as the evidence went it would seem that she did not wake up that morning until some time between 10.00a.m. and 11.00a.m. It was after waking up and sometime later that George Gadiva arrived at the home. It is quite possible therefore that he could have got public transport at Jim Trading at about 10.00a.m.. or so and he is back in his home at Barakau by 11.00a.m. Otherwise the question must be asked as to when he was up until 11.00a.m. The dawn service was well and truly finished at that time. The Court took a view and discovered that the trip from Jim Trading to Barakau takes about thirty five minutes and is a distance of about twenty one miles.

George Gadiva's mother Mune Gou did not impress me as a good witness. She contradicted herself on a number of occasions about conversations she had with her son on the morning of the 26 October and also as to seeing all four but then she said she saw only two. She also said that there was a party after the grandfinal but that was denied by other defence witnesses.

Maraki said he woke up in the village at 7.00a.m. because there was a big clock in his home. Later on his mother said there was not a clock in the home and there never had been one.

He said he and others finished clearing the rugby field about 9.30 or 9.45. But George's mother said she saw Maraki cleaning the field but that could not be so because it seems to me that at that time on her own evidence she would still have been sleeping.

Maraki said George Gadiva arrived at the football meeting on the said morning at 11.10a.m. But it is clear to me that that could not be so if I was to accept the times as given by George Gadiva and his mother.

Maraki also gave evidence of his movements on the Saturday morning and he never mentioned that he went to Gewa Dawa's home and received instructions re cleaning the rugby field. Gewa Dawa, the Chairman of Waema Club, gave evidence that he saw Maraki when Maraki came to his home early on the morning of the 26 October. I found that part of the evidence to be very suspicious.

Maraki's mother Mauri Sere also gave evidence to support her son. I found her to be a very unconvincing witness. She would have the court believe that although there was a football grandfinal on that day, her son did not tell her that his team won the final. She in fact did not know who won the grandfinal. I find that impossible to believe. Of course her son was also the captain of the winning team. Her credibility was severely damaged when answering those questions about the grandfinal. I have taken almost no notice at all of this witness. She was not being honest and I find it quite impossible to sought out the truth from the lies.

Gewa Dawa as previously mentioned, also gave evidence and he also, I am satisfied, was not a witness of truth. Because of my previous findings he could not have spoken to Maraki at about 9.00a.m. or earlier on the 26 October and therefore whatever he said in Court was not convincing. He may well have seen Maraki at a meeting at around 11.00a.m. Maraki, would have had time to return to the village by then. But because I am satisfied that he was purposely telling untruths about happenings before 11.00a.m. I am not in a position to take any of his evidence seriously. To a great extent I ignore his evidence.

I am satisfied beyond reasonable doubt that Maraki Pati Noho and George Gadiva Hetau were passengers in the motor vehicle on the morning of the 26 October 1991 which dragged the deceased to her death. I am satisfied that they were aware of the body being dragged behind the car and would have known that the act would be likely to endanger human life. They did nothing to prevent the act from happening and they did not disassociate themselves from the crime. They remained in the motor vehicle, even thought it stopped twice, whilst it dragged the deceased three kilometres at high speed over a sealed road which had rough edges and pot holes. After the body was eventually released they remained in the motor vehicle and subsequently stole a tipper truck and then returned to their village.

I am satisfied that their role in the crime was no different to that of the other two accused and I therefore find them also guilty of the murder of Theresa Mitchell Lutschini.

Lawyers for the defendants: Public Solicitor
Lawyer for the State: Public Prosecutor