State v Waragu (No 2) [2006] PGNC 161; N3281 (5 December 2006)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – Indictment containing two charges of wilful murder – Evidence – Nature of – Criminal Code s.299.

CRIMINAL LAW – Pleas of not guilty – Trial – End of prosecution case – Submission of ‘no case to answer’ – Submission upheld on behalf of third to the ninth accused.

CRIMINAL LAW – Consideration of evidence and nature of involvement – Degree of participation – Passengers in a vehicle at night - Motive for the attack on the two deceased by the two accused.

CRIMINAL LAW – Charges of wilful murder – Degree of participation – Determinate attack revealing the element of intention to kill – Two accused found guilty.

1. LENALIA, J: The two accused were charged together with eight others for two offences of wilful murder pursuant to s.299 of the Criminal Code. After they were arraigned, they all pleaded not guilty. A trial was conducted and at the end of the prosecution case, a submission of no case to answer was made. On 3rd of October I upheld that submission and acquitted eight co - accused but I found that there was a case for the two accused to answer. (Refer to my ruling dated 3rd October 2006 containing the names of all accused).

2. The evidence upon which this court found that there was a case to answer on the part of the first and second accused is this. The State’s evidence is that on the evening of 17 May 2003 at Malaguna No.1 and No.2 villages, the two accused wilfully killed John Patem and Rebon Taule. Two eye witnesses were called to testify on this short trial. Before calling those two witnesses, the following documents were tendered by consent.

3. All statements numbering from witness N0.3 at the back of the indictment right down to witness N0.21 were all tendered by consent of the defence counsel. To avoid confusion, the court adopted the numbers as put by the prosecution beside the name of each of those witnesses and where reference is made to a particular statement, the witness name will be referred to in the course of the discussion. Such statements appear as follows:

3.	Statement by Nicholas Waigoga
4.	Ebes Jack
5.	Peter Kapinias
6.	Samuel Tioti
7	Kinim Kakadap
8	James Milate
9	Dr. K. Pomat
9.1	Certificate of Death
10.	CST. Willie Mahaut
10.1-4	Set of photos
11.	SGT. Andrew Manamb
12.	FC. J. Baniwab
13.	Agnes Jack
14..	Kasimir Kapinias
15.	Johnny Korong
16.	Andrew Nasala
17.	CST. Paul Bonio
18.	CST. Luke Monie
19.	F/C. Tom Bual
20.	PWC. Esther Butinga
21.	CST. David Paluka

A part from the above statements, all the records of interviews were tendered by consent of the defence counsel.

4. The State’s evidence shows that on the evening of the above date, between 7 and 8 pm, the two accused acted in concert and wilfully killed two deceased John Patem and Rebon Taule. Robert Tito, the first witness on this trial was coming out from the Super Store in Rabaul town at 5 pm and met a person by the name of Peter Wera. The said Peter Wera informed this witness that the two deceased wanted to see him. Peter directed the witness to where the two deceased were sitting.

5. When Robert Tito went to the two deceased, they gave him some beer and they all consumed beer for sometime. The two deceased then asked Robert to get on with them in the vehicle so they could drop off John Patem at Vunamami village in Kokopo. The three of them took off from Malaguna N0.1 village to refuel at Bob Darrah’s Service Station. From there they took off and at a bottle shop at Malaguna N0.2, they stopped to buy 6 packs of beer.

6. When they were ready to drive away, an old man and his wife came and asked Rebon Taule who was the driver of the vehicle. The old man and his wife got into the vehicle and twelve young men also boarded with them.

7. When the men got into the vehicle, the driver asked them where they were going. They indicated that, they were also going to Rapolo village. They then drove to Rapolo village.

8. After the vehicle stopped at the above village, the old man and his wife alighted but the twelve young men did not get out of the vehicle. The gang started to argue with the driver, his off-sider and Robert saying they wanted to return to Malaguna N0.2 village. Rebon Taule and John Patem told the gang that, they were intending to drop off John Patem at Vunamami village. When the gang members heard what the two deceased and Robert Tito said, Robert’s evidence is that, the accused Anton Marko jumped off the vehicle and vigorously argued with the victims and Robert Tito saying that him and his men should be driven back to were they were picked up.

9. Accused Anton Marko then swore at the driver and his crew. After this, he cut the bonnet of the vehicle with a bush/knife and demanded that they be driven back to Malagua N0.2 village. When the driver, John Patem and Robert Tito realized that the gang was serious, they conferred amongst themselves and John agreed that they should return to base.

10. As they were going back, it is the State’s evidence that, because the three victims knew that accused Anton Marko had been an escapee, they knew certainly that they would be held up somewhere along the road on their way back to Rabaul town.

11. Before reaching the Malaguan N0.3 cement bridge, accused Anton Marko and his gang ordered the driver to stop at a dark spot where there was no light nearby.

12. Having heard what was being said from the back of the vehicle, Robert Tito sitting inside the cabin in the middle of the driver and the off-sider all decided to wind up the glasses on each side of the doors of the cabin. They did just that. Instead of stopping where they were ordered to stop, the two deceased and this witness decided to drive straight to Rabaul Police Station.

13. Robert Tito’s evidence reveals that, between the Burma Road junction and Malaguna Primary School, the driver tried to pick up speed. However, on the way, the gang started to attack the driver and those who sat with him in the cabin. The driver and his off/sider were repeatedly stabbed on different parts of their bodies. Even this witness received a number of stab wounds with one to his neck.

14. Witness Robert Tito fully identified the two accused. He referred to them as Anton Marko and Michael Waragu. He also referred to two others who have been acquitted because there is no evidence to implicate them. Robert says when he was sitting in the middle of the driver and his off/sider, he occasionally looked back to the back of the vehicle and saw that, Michael Waragu and Anton Marko were the ones who cut the side screen glasses of the vehicle and repeatedly stabbed the driver and his off/sider.

15. The two deceased were losing a lot of blood. By the time they reached Toboi, the driver was feeling very dizzy. When they approached Malaguna Primary School, the vehicle was going from side to side until it hit a stationary vehicle parked on the left hand side of the road, it skidded and landed on the right side.

16. After the vehicle landed, the gang members got out and the witness once more saw the accused Anton Marko came to Rebon Taule and stabbed him twice. He also saw Michael Waragu stabbed John Patem after the vehicle had stopped. At that stage, villagers came and assisted the three victims and were taken to the hospital. The two deceased died instantly. In case of the first witness, he was treated and he survived the stab wounds.

17. The second witness called was Owen Kiapen. His statement was tendered through him, (see Ex. Statement 2). The deceased John Patem was the elder brother of witness Owen Kiapen. When Kiapen heard the loud noise of the collision, he thought, a container truck had hit something. He ran down from his house to the scene on the road and found that two small vehicles collided by one of them running onto the other one. He then learnt that, his brother was in one of the vehicles and he was being stabbed by robbers.

18. Owen tried to assist his brother by trying to get him out of the vehicle, but accused Michael Waragu prevented him from helping by swinging the bush/knife at Owen. Owen’s evidence shows that, he tried to pull out his brother several times but all the time the accused Michael Waragu kept chasing him with the knife wanting to stab the witness.

19. Owen witnessed accused Michael Waragu stab John Patem twice on the leg and around the ribs. He also saw the same accused lift up his bush/knife and cut John Patem’s neck area leaving a very deep penetrating wound.

20. I have carefully read the statements tendered particularly that of witnesses N0.3 to N0.8. All these documents confirm that there were two main actors in the attack of the two deceased. They all name accused Michael Waragu and Anton Marko to be the main perpetrators of the offence.

21. After the court made the above ruling on the no case submission, I called on the two accused to give evidence and call witnesses to testify on their behalf. The defence evidence merely confirms the prosecution case and the evidence. In their own evidence on oath, the two accused admitted to killing the two deceased. In cross-examination, each of the two accused said they each wanted to kill the two victims because they wanted to obtain the vehicle to use that evening.

22. They also admitted in their evidence that, the reason why the two of them wanted to holdup the vehicle that night was because they wanted to conduct an armed robbery at Hamamas Hotel. Hamamas hotel is situated in the heart of Rabaul town.

23. Mr. Isaac of counsel for the two accused raised the defence of provocation saying that the two accused were provoked into doing what they did to the two victims.
24. The defence relied on Sections 266 and 304 of the Criminal Code Act. The basis of such argument is that, because when the two accused or one of those co-accused who had been acquitted called out for the driver to stop, he did not stop and because the vehicle was on high speed in a life threatening manner which in fact hit another stationary vehicle and landed on the other side killing one of the gang members, the defence of provocation should apply to the two accused cases.

25. Mr. Isaac further submitted that, when the vehicle hit the left side of the road, one of the gang members was killed causing his clients to react the way they reacted as they were then deprived by the provocation and the power of self-control so much so that, they acted on the heat of passion and attacked the two deceased.

26. The defence counsel further submitted that, the essential element of ‘intent’ has not been established. Part of the defence argument relates to an alternative finding. They argue that, if there was an alternative finding, their clients cases would be prejudiced because they would not have been fairly tried thereby denying their clients of their Constitutional rights of being fairly tried under s.37 (3) of the Constitution.

27. Mr. Rangan argued in reply that, the evidence is clear showing that, the two accused had prior intention of holding up the driver that night so they could obtain the vehicle to conduct a further unlawful act of conducting an armed robbery. He submitted that, due to the nature of both the prosecution and defence evidence, the court should return verdicts of guilty on all counts in case of both accused.

28. The two accused are charged with two serious crimes of wilful murder contrary to s.299 of the Criminal Code. The maximum penalty provided under the above proviso is "death". The defence has argued that their clients acted on the heat of passion when the two accused started to cut the victims when the vehicle was still running on the road. The issue really is can the two accused seek refuge under s.266 of the Code. The above provision states:

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality."

29. The evidence by the prosecution is confirmed by the defence own evidence that, the two accused intended to kill the victims because the driver in this case Rebon Taule did not stop when the gang shouted for him to stop at a dark place where there was no light. According to the two accused own testimonies, the reason for wanting the driver to stop was that the two of them wanted to hold the driver up because they wanted to rob the driver of the vehicle so they could use it to conduct an armed robbery which they had planned to take place at Hamamas hotel later that evening.

30. Evidence by witness Robert Tito is clear that the reason why the driver drove fast was because, the three of them sitting in the cabin realized that, they would be robbed off the vehicle if they had heeded signals for them to stop.

31. Their suspicion was confirmed by the fact that one of the two accused in court was an escapee from Keravat prison and they feared that if they stopped, they would certainly be held up. This was mere suspicion on the part of Robert and the two deceased.

32. However such suspicion was confirmed by the defence evidence. I am of the view that the two accused cannot successfully raise the defence of provocation under s.266 of the Criminal Code as I find that the intention to kill the two deceased did not develop or was not formed after the accident happened.

33. The two accused had started stabbing the victims well before their vehicle hit the stationary one and in fact right from the time the gang wanted the driver to stop. In the two accused’s own testimonies, they said the reason they wanted to attack and kill the driver and his cabin crew was because they wanted to rob them off the vehicle so they could use it to stage the robbery at the place referred to above.

34. In the circumstances of the instant trial can the court return alternative verdicts pursuant to s.303 or s.539 of the Code as argued by the defence in their submission on the verdict? The earlier proviso states:

Where a person who unlawfully kills another under circumstances that but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only."

35. As a tribunal of fact, this court must be satisfied beyond reasonable doubt if the two accused had in fact acted in the heat of passion in terms of s.266. The State has the onus to negative the defence of provocation beyond any reasonable doubt. Committing an act while being "very angry" is not acting in the "heat of passion": R v Oa [1967 – 968] PNGLR 26. But according to the case of R v Manga Kitai [1967 – 1968] PNGLR 1 the defence of provocation may exist even where there exist an intention to kill.

36. The next part of Mr. Isaac’s argument deals with a number of matters. First on the element of intention, he submits that under s.299 of the Code, there must be a clear manifestation of "intent". In fact that is what s.299 is all about.

37. The State must prove beyond reasonable doubt, the element of intention to kill. The wording of s.299 of the Code reflects and speaks for itself about the element of intention in the following terms:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death".

38. In a trial of wilful murder as in the instant case, the death of the victim is an essential element. According to case law authorities, the death can be proved circumstantially: The State v Raphael Kuanande [1994] PNGLR 512, see also R v Pari Parilla (1969) N0.527 and R v Bia Umene (1959) N0.145. I am required by law to look at the actions of the two accused before they savagely attacked the two deceased on the scene of the accident. The two accused had started to cut open the side screens and started to stab the driver and the other deceased who was sitting on the left hand side door.

The reason why the two accused started to attack the driver and his cabin crew was not because by the time they commenced the attack, one of their gang members had been killed by then. No they wanted to stop the driver so they could rob him of the vehicle he was driving.

39. Of course by the time they started to attack the two deceased and Robert Tito there was no accident as yet. They did not attack the driver and the crew because, the driver drove in a very high speed so that it could be said that, the two accused were provoked beyond control and so they could be taken to have acted in the heat of passion. In question 23 in the record of interview with accused Michael Waragu, the accused was asked why he committed the offence. I will quote the question and its answer in the following words:

40. In question 22 and its answer in the record of interview with accused Anton Marko, he was asked the following question:

41. When I look at the set of photographs taken by the police photographer Constable Willie Mahaut and the post mortem report carried out by Dr. Pomat, Dr. Aina and an HEO, it is more than evident that the two deceased late John Patem and Rebon Taule were brutally and savagely stabbed many times. In case of late John Patem, he received eight (8) deep penetrating wounds with two (2) full skin thickness lacerations. In case of Rebon Taule he also sustained numerous stab wounds on his body. On the element of intent, I can only conclude that the repetitious manner under which the two deceased were attacked reveals the two accused had determinate intention to kill the two deceased.

42. The final part of the defence argument on this trial is on the issue of an alternative finding under s.539. The defence contention is that when an accused is committed either for sentence or trial, the Public Prosecutor is required to consider the evidence and decide on any appropriate charge that may be brought in an indictment pursuant to s.525 (1) (a) (b) of the Criminal Code. Mr. Isaac argues that, the State cannot indict the accused on a more serious charge such as in the instant trial and then later seek to secure a conviction under s.539 if some essential elements of such serious charge have not been established.

43. Counsel further argues that, such course would greatly prejudice his clients’ defence and further it breaches the accused persons Constitutional rights to protection of law in relation to the issue of being fairly tried under s.37(3) of the Constitution. Let me quote s.37 (1) to (8) of the Constitution which states:

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(8 No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal."

44. Looking at the legislative scheme in the above Section of the Constitution and Part VIII, Division 3 of the Criminal Code on the effect of indictments, (see Sections 538 to 547) the law is clear in that it is the legislative intent which has been expressly stated that an accused person can be found guilty of a lesser charge than the one on the indictment if the evidence establishes a lesser offence being committed. To start with s.538 generally talks about offences involving circumstances of aggravations and it says that an accused can be convicted of any offence established by the evidence. This proviso states:

Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—

(b) constituted by any act or omission that is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment."

45. Then going over to s.542, it expresses the same notion as found in the above Section only that it talks about charges involving specific results, but does not cover the attempted murder: Supreme Court Reservation No.4 of 1984; Re The State v James Pah [1985] PNGLR 188. The Criminal Code s.542 states:

(1) On 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 of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.

46. The commentary on page 461 of the ‘Criminal Law and Practice of Papua New Guinea’ on the above Section (s.542) says that where a person is charged with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence established by the evidence of which the "causing of that result is an element": The State v Wanaepe Warara [1977] PNGLR 458, see also R v Bawai Pesoi [1965-1966] PNGLR 210.

47. Still on the legislative scheme on possible alternative verdicts, I must cover two other provisions. On indictable offences where a trial establishes evidence of similar nature of another indictable offence, an accused person can be convicted of the charged for which he is indicted for. This is covered by s.547 of the Code which states:

(1) If on the trial of a person charged with an indictable offence the evidence establishes that he is guilty of another indictable offence of such a nature that on an indictment charging him with it he might have been convicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.

(2) In a case to which Subsection (1) applies, the person is not liable to be afterwards prosecuted for the offence established by the evidence, unless the court before which the trial is had directs the accused person to be indicted for that offence, in which case he may be dealt with in all respects as if he had not been put upon his trial for the offence with which he is actually charged."

48. Then I come to the very specific issue on charges of murder and manslaughter under s.539 of the Code. Although the heading of that Section only mentions "murder" and "manslaughter" Subsection (1) states that where a person is charged with an offence of wilful murder, he may be convicted of a lesser crime of murder or manslaughter but not for any other offence. Again the same idea is expressly stated in the above proviso in the following terms:

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(2) On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

(See case of The State v John MacKenzie and Apiari (1990) N861 and R v SM; The Queen v SM, UN, PE [1973] PNGLR 304)

49. Having covered the provisions on the status of the current law on alternative verdicts, unless there are any other statutory provisions to the contrary, the argument by the defence that their clients course would be prejudiced because they would not have been fairly tried for a charge on an alternative verdict, thereby denying their clients’ rights under s.37 (3) of the Constitution is flawed.

50. It is the legislature’s intention that on a trial of an offence of the class of offences referred to in the Criminal Code provisions that I have referred to and elsewhere, an accused may be found guilty on an alternative charge.

51. Of course there may be some cases under the Criminal Code where there may be no alternative findings. An example of that is found in the decision in the case of Re The State v James Pah (supra) where the Supreme Court said that, on an indictment charging the offence of attempting to kill under s.404 of the Code, a verdict of causing grievous bodily harm under s.315 would not be available under s.542 of the Code as such Section provided for alternative verdicts for offences involving specific results. That is referring to an offence of which ‘the causing of some specific result is an element which cannot be applied to a charge of attempting to kill.

52. Having said the foregoing, the evidence adduced by the prosecution in the trial before me clearly reveals that there was an obvious intention by the two accused to kill the two deceased. I find the two accused guilty as charged and convict them each for the charges of wilful murder.

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for Accused

National Court of Papua New Guinea

State v Waragu (No 2) [2006] PGNC 161; N3281 (5 December 2006)