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State v Akoma (No.1) [2015] PGNC 276; N6205 (12 October 2015)

N6205

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 489 OF 2015

STATE

V

ANDAPE AKOMA
(No. 1)
Accused

Tari: Ipang, J
2015: 7, 9 & 12 October

CRIMINAL LAW – Attempted murder – Section 304(a) Criminal Code Act, Chapter 262 – Alternative court of unlawful wounding with intent to commit Grievous Body Harm (GBH) – S 315 of Criminal Code Act, Chapter 262

CRIMINAL LAW – The victim an adult female, walked with her husband. The husband met up with his brother, argued and both fought. The brother fell on the ground. Victim's husband ran away after seeing a group of youths after him. State alleged the accused in support of victims brother assaulted the victim intending to cause her death using a piece of iron bar.

Facts:

On the trial of an accused on a charge of attempted murder, where the accused in a state of anger assaulted the victim a female with a piece of one (1) metre iron bar on her head and on her left abdomen in which the victim sustained life threatening bodily injuries requiring medical treatment.

Held:

The evidence supported the contention that an actual intent to murder was in the accused's mind and the charge of attempted murder under section 304(a) of the Criminal Code Act had been made out.

Cases Cited:

Pike Dambe v Augustine Peri & The Independent State of Papua New Guinea [1993] PNGR 4
State v Wanape Warara [1977] PNGLR 58

COUNSEL:

J. Done, for the State
S. Inisi, for the Accused

DECISION ON VERDICT

12th October, 2015

1. IPANG, J: This is the decision on verdict for the accused Andape Akoma who was indicted on one count of Attempted Murder Pursuant to section 304(a) of the Criminal Code Act, Chapter 262 in that on the 13 day of July 2012, at Wayei village, Komo, Hela Province, the accused unlawfully attempted to kill one Cathy Albert. The State has also indicated the accused on an alternative court under section 315(b) of Criminal Code Act with intent to unlawfully cause Grievous Body Harm to one Cathy Albert.

BRIEF FACTS:

2. The brief facts as alleged by the state are as follow, that on the 13th July 2012, at around 5.30pm, the accused was at Wayei village in Komo. The accused was in the Company of David Palana who was in the process of fighting with Alfred Tapakua. At that time after fighting with David Palana, Alfred Tapakua ran away, leaving behind his wife Cathy Alfred.

3. The accused seeing the victim (Cathy Alfred) immediately set upon her and hit her on the abdomen and her head with a piece of iron bar he had with him. The victim fell on to the ground and whilst she was lying on the ground, the accused kicked her all over her body. The victim was assisted to Tari Hospital then referred to Goroka Base Hospital for medical treatment. She was two (2) months pregnant at that time. It is alleged that the victim sustained injuries and miscarriage as a result of the assault.

THE OFFENCE OR CHARGE: ATTEMPTED MURDER

4. The section 304: Attempted murder

A person who-

(a) Attempts unlawfully to kill another or

(b) With intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do the act or mission being of such a nature as to be likely to endanger human life,

Is guilty of a crime

5. The State bears the obligation to prove beyond reasonable doubt that:

• The accused intended actually to kill the victim
  
• The accused put his intention into execution by means adapted to its fulfilment; and
  
• He had manifested his intention by some act
  

STATE'S CASE:

6. Prior to calling witnesses, the state tendered the following documentary evidence with consent from the Defense and these are:

• English version of the Record of Interview dated 14 January 2014, marked as Exhibit 'A'
  
• Medical Report by Health Extension Officer Cynthia Kayou dated 11 September 2013, Marked as Exhibit 'B'
  
• Police Statement of Constable Elvin dated 28 August 2014, marked as Exhibit 'C'
  
• Statement of Translator dated 28 August 2014, marked Exhibit 'D'
  

7. State called three (3) witnesses, Cathy Alfred (victim), Alfred Takapua Palana and Paul Ayuwale Angi. The victim Cathy Alfred gave sworn evidence that she clearly identified the accused as the person who assaulted her. She told the court she knew the accused as they lived together in one place that is Wayei village. She said the accused and her husband are both from Wayei village and also from the same clan.

8. The victim told this court that on the date of the incident, she and her husband Alfred Tapakua Palana were walking back from their garden to their house. On their way home, they met up with David Palana who is Alfred's brother. Both Alfred and David had an argument over politics and they fought using their fists. David then fell on the ground. The victim said she stopped her husband and both walked away. About half a kilometre they saw the accused come with some youths. So the victim's husband escaped.

9. The victim told the court that she was innocent. She said the accused came and hit her on her left thumb with a piece of an iron bar. Then the accused hit her on her abdomen (left side of her body) and left rib. She said she fell on the ground. She also told the court that she was pregnant at that time. She said she was assisted and taken to policeman Omae's house.

10. During Examination In-Chief she said she was next to her husband Alfred when he fought with David. She also told the court her husband Alfred and David are blood brothers. She described half a kilometre as from Tari District Court to the Tari Market. She described piece of metal iron bar as one (1) meter long and it is a metal pipe. She said bystanders like Paul Angi took her to constable Omae's house.

11. In cross examination she said they argued over politics and fight started. She was asked to further explain and she said Alfred and David supported different candidates. She told this court she did not support nor assist her husband. When pressed she said she saw the accused hit her and she fell down. She also said she did not lie during mediation but the two (2) brothers were to compensate each other and later it will be her to be compensated. She told the court she was taken to the Health Center in Komo then later to Tari Hospital where she was admitted for one (1) month. She had miscarriage as she was 3 months, 2 weeks pregnant. The miscarriage was at Tari Hospital she also said David Palana tore her medical report. At Goroka base Hospital she was there for a week and later prescribed medicine which she took for 9 months.

12. She also told this court that she did not frame up this story with her husband she also said her husband did not threaten the accused but told the accused to compensate her. She also told the court when pressed by Defense Counsel Mr. Inisi that she was not assaulted by her husband.

Alfred Takapua Palana
13. Alfred told the court that he knew the accused since the accused was a small boy. He met the accused at the market almost every day but don't normally tell stories with him.

14. He said he recalled 12 July 2012, he and his wife were in the bush and came to Komo town. He had argument with David Palana, his brother. He said they (David and him) fought. He said David had plenty of boys with him so he escaped with his wife. Initially he said the accused held a stick. However, he later said he can't tell but the object is about a metre long. He said he was about (6) metres away from his wife and he saw the object. He said 6 meters is like from where he seated in the Witness Box to the Tari Police Station Car Park. Which both counsels agreed to be estimated at around 50-60 meters'.

15. The witness Alfred said as he escaped he looked back and saw the accused hold an object and charged at his wife. He said he did not see how the accused assault his wife. He said he has no problem with his wife meaning he did not assault his wife.

16. He told the court, he was at the hospital when his wife came and went to sleep. Then, he told the court of taking his wife to Health Center at Komo and then to Tari Hospital. Dr. Hewali issued a Medical Report but he left the report with other documents in the vehicle and was stolen.

17. This witness said he was in Komo on the 13 July 2012, when he saw accused before the court assault the victim, Cathy Alfred. He said accused used a piece of iron bar and hit the victim twice on her body. He saw the victim lift her left hand up. First on her head and one at her side. He said he watched for 10 – 15 minutes. He said like in the witness box and the assault took place at District Court Security Gate. Both Counsels estimated the distance to be around 20 - 25 minutes.

18. Paul said he was not at Komo to visit his brother. He told the court he was not related to the victim and has not seen the victim previously so as the round iron bar. The iron landed on the head and side of the accused and blood poured out of victims head.

DEFENSE CASE
19. The Defence called only one (1) witness and that is the accused Andape Akoma. He is married with two (2) children. He recalled on the 13 July 2012, he was chewing buai and smoking. He said David Palana and Alfred Tapakua fought. David fell on the ground. Alfred ran away and went to where the accused was. Accused then questioned Alfred, what happened to David? He said Alfred told him, he (Alfred) fought with David. After the incident, which was on the 3rd day, village elders gathered and mediated but Alfred ran away.

20. The accused said, after the incident Alfred too ran him down with the vehicle, so he went over to Alfred's house and chopped his crops. He said the victim arrested him and he was shocked. The accused maintained that he did not see the victim and did not assault her with iron bar. When questioned why would the victim lie? He answered it's up to her. He said Alfred would lie because he fought with her.

SUBMISSION BY DEFENSE:

21. Defence submitted that they raised the defense of general denial in that the accused never committed the alleged offence (s. 304 (a) Attempted Murder)

22. Mr. Inisi of Counsel for the Accused submitted that the issue is, whether state has proven its case beyond reasonable doubt.

• The victim's husband Alfred did not see how the victim was assaulted
  
• Victim arrived late in the house and went straight to sleep
  
• Medical Report by Dr. Hewali of Tari Hospital. The victim said was torn by David Palana. Alfred Takapua said was stolen by thieves when he left it in the vehicle. It was not established whether there were two (2) or more copies of the Medical Report or just one.
  

SUBMISSION BY STATE

23. State submitted that the victim's husband as states witness saw a mere long object held by the accused positioned to strike the victim but did not actually see how the victim was assaulted. Mr. Done for the state submitted that the accused was seen by victim's husband and is known to the victim and victim's husband. The accused is a relative to victim's husband as a cousin brother.

24. State submitted that witness Paul confirmed the object as a piece of iron bar and confirmed the assault on the victim being hit on the parts of her body twice, on head and the abdomen.

25. That the accused has given inconsistent statement in court and during the Record of interview (ROI) Exhibit 'A'.

ANALYSIS BY THE COURT

26. There is evidence confirming that the accused was at the scene of the offence. This was confirmed by the accused person and the three (3) of the state witnesses.

27. Whether the victim was present at the scene of the offence. The accused strenuously denied the presence of the victim. From the oral evidence given in court and from the Record of Interview (ROI) conducted with Police Investigations. This is contrary to the evidence given by the three (3) State Witnesses. The victim, her husband Alfred and Paul Angi. Alfred confirmed he was with his wife coming back from their garden. The victim said she was close by when Alfred fought with David. Paul said he saw the accused assault the victim.

28. Victims evidence was not discredited so as Alfred and Paul. Paul's evidence is one of direct eye witness account of what he saw. Paul is not related to the victim nor the victim's husband. He gave the exact description of the iron bar just as how the victim described the type of iron bar used in the commission of the offence.

29. Due to the assault on her body, the left thumb, the head and left abdomens, the victim required medical attention and was referred from Komo Health Centre to Tari Hospital then to Goroka base Hospital, the Medical Report by Cynthia Kayou dated 11.09.13 from Goroka Base Hospital states that. As a result of the assault the female adult has lost her baby through miscarriage and has dysfunctional uterine bleeding, menorrhagia and permanent post traumatic osteo arthirities with multiple soft tissue injuries.

30. The accused when interviewed during Record of Interview (ROI) give answers in Questions 19, 20, 23, 24, 25, 26 and 27 in No answers, but did not go further to justify his answers. This was the same trend he took when he was answering questions in court. For example, In Re-examination, the Defense Counsel questioned him, "Why would the view Cathy Alfred lie in Court? The accused answered, "It's up to her." All this revealed the character of the accused and as to whether he can be believed.

31. Summing up all the evidence together, I am satisfied beyond reasonable doubt that:

(i) The accused Andape Akoma intended to actually kill the victim Cathy Alfred

32. He (Andape Akoma) had put his intention into action by assaulting the victim with a piece of iron bar on the vital parts of victim's body, eg; on her head and left lower abdomen (See Pike Dambe v Augustine Peri & State [1993] PNGLR 4) The Court in State v Wanape Warara [1977] PNGLR 458 at pp.460 the court observed:

"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 stabbing in another equally vital place, the chest, in Yena's case, provides strong support of the contention that an actual intent to murder Yena, was present in the accused's mind. The nature of the weapon used also support 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."

(ii) As a result of Accused's over act, the victim suffered life threatening bodily injuries as per Medical Report

33. Given the above findings, I return the verdict of guilty on the charge of Attempted Murder pursuant to Section 304(a) of the Criminal Code Act, Chapter 262.

VERDICT

34. The accused is found guilty of Attempted Murder

_______________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Accused