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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 743 OF 2013
THE STATE
V
JAMES KANDUI
Wabag: Auka, AJ
2016: 10th, 11th & 18th May
CRIMINAL LAW – Wilful Murder – Not guilty – Trial – Criminal Code s.299
CRIMINAL LAW – Trial – Identification evidence- Issue of Recognition and clear identification by one eye witness –
Found guilty to a charge of Murder
CRIMINAL LAW – Evidence – Circumstantial nature – Accused In possession of a chisel of same size and colour to the
chisel used in stabbing the deceased
Case Cited:
Biwa Geta v. The State [1977] PNGLR 153
Brown and Dunn, 1983 6R 67 (SL)
John Beng v. The State [1977] PNGLR 115
The State v. Cosmos Kutan Kitawal (2002) N2245
The State v. Tom Morris [1981] PNGLR 493
Counsel:
Mr. Joe Waine, for the State
Mr. Robert Bellie, for the Accused
DECISION ON VERDICT
18th May, 2016
1. AUKA AJ: The accused stand charged that on the 26th day of March, 2013 at Laiagam, Enga Province he wilfully murdered Peter Komon contrary to s.299 of the Criminal Code Act chapter No. 262.
2. The accused upon arraignment pleaded not guilty and a trial ensued.
3. The brief facts of the case were that the accused and the deceased were employees of Niugini Builders constructing Police Barrack houses at Laiagam Station at the relevant times. At about 6:00pm and 6:30pm on 26th day of March, 2013 the accused and the deceased had a first fight at a place called Nuik Village within the Laiagam Station. The bystanders intervened and broke up the fight and everything was normal. After a while, about 20 minutes later, the accused suddenly rushed to the deceased and stabbed him on the left chest with a chisel (carpentry tool) which he was in possession of at that time. The deceased sustained a stab wound on the left chest with deep penetration serving the great vessels which caused massive bleeding resulting to death soon after from loss of blood. The state alleged that the accused intended to cause the death of the deceased. The charge was brought under s. 299 (1) (2) of the Criminal Code.
4. The issues in the trial was one of identification and involvement.
5. To prove its case prosecution firstly tendered the following documents into evidence by consent of the defence counsel.
- English Version marked Exhibit “B”
6. There was no admission in the Record of Interview.
7. The Medical Report showed a 20 mm stabbed wound on left chest at 3rd Intercostal space. The internal examination showed the chest arch of Aorta with 5L of blood in both Pleural space and pericardium.
8. The state called its one and only witness in the person of Robert Rapula and gave sworn evidence.
9. Mr. Waine of Counsel for the state after establishing at the beginning of Examination in chief that the witness Robert Rapula had given and signed a statement to the Police Investigator in regard to the incident, tendered the two (2) page witness statement without objection from the defence counsel. That statement was given and signed by the witness on 20th March, 2013 and this was some 6 days after the incident. And as such the statement is marked as Exhibit “D”. In that statement the witness mentioned that he was at the time and place of the incident and he saw the accused James Kandiu as the only person who stabbed the deceased on the left chest with a chisel and as a result caused death.
10. I must say at the outset that what the witness testified in court during examination in chief cross-examination and re-examination are supported by a substantial part of his story in the statement (Exhibit “D”). The court also noted that defence did not cross-examine the witness on his statement.
11. Mr. Robert Rapula is from Kagua area of Southern Highlands Province. He is a carpenter by profession. In 2013 he was still employed by Niugini Builders and was with other carpenters building Police Barrack houses at Laiagam Police Station. He said other carpenters included the accused James Kandiu whom he said he had personally known for 1 year 3 months.
12. As I said, the only witness that was called was Robert Rapula. His evidence is more of recognition than identification. He said in
chief that on the afternoon of 26th March, 2013 between 6:00 pm and 6:30 pm, he was at the scene and saw the accused James Kandiu and the deceased Peter Komon standing
with three (3) girls. He said he saw the deceased holding a bottle of beer and standing near the girls. He said the accused was also
standing there about give (5) metres away from the deceased and the three (3) girls. The accused was wearing a blue collar shirt
and a cut jean. He was not drinking but was seriously looking at the deceased. Then suddenly he heard a noise and saw the girls running
towards him. Then he saw the accused and the deceased had a fist fight. He did not know why they were fighting. Then him and others
such as Ronald Palendo intervened and stop the fist fight and everything became normal.
Then he said about 15 to 20 minutes later he saw the accused rushed at the deceased with a chisel blue in colour in his hand and stabbed
the deceased on his left chest. Then he saw the accused removed the chisel and ran away. He said the stabbing occurred right in front
of him about 5 metres away. Asked in-chief if he saw the incident occurring, the witness said quote “I was there and I saw
it. Further asked In-chief if he saw the deceased and accused fight, the witness said Yes and went on to say that him and others
stopped the fight and a while later the accused rushed at the deceased with a chisel and stabbed the deceased on the left chest.
Further asked in-chief how far was he from the accused when he stabbed the deceased, the witness said he was five (5) to eight (8)
metres away. In court the witness was asked to describe the chisel and the witness described the width as 12 millimetres and length
as 250 millimetres and gave the colour as a blue chisel. Then in court the witness was shown and handed a chisel and asked if the
chisel he saw which the accused used is similar to that, the witness said yes it is exactly the same with 12 millimetres width and
250 millimetres length. That chisel was tendered and marked as “MFI”.
Still In-chief the witness was asked to demonstrate how he saw the accused hold the chisel and stab the deceased. The witness demonstrated
the accused hold the handle and locked the top part of it with his right thumb and in uplifting position used force and stabbed the
deceased on the left chest. Asked further in-chief how was the lighting condition at 6:00pm and 6:30pm on that day the witness said
it was clear and still day light.
13. Asked in cross-examination how well he knows the accused, the witness said quote “He is my workmate and I know him very well as we have worked together for one (1) year three (3) months”.
Still in cross-examination the witness was asked if he saw the accused removed a chisel from his jacket and moved forward towards
the deceased and stabbed him on his left chest and the witness said yes he saw it. Still in cross-examination he was asked how far
away did he stand when he saw the incident, he gave the estimated distance as from where he was standing to the corner of the court
house and gave the distance as five (5) metres. It was put to witness that his back was facing the accused and the deceased and he
said, he didn’t give his back to both. He said both the accused and deceased were at his side but infront.
Further in cross-examination he was asked on which side did accused approached deceased and stab him and he said James came from front
and stabbed deceased. Further in cross-examination he was asked to tell the colour of the chisel and he said it was a blue chisel.
Further asked if he saw with his eyes the chisel going into deceased body and the witness said quote “I saw that with my two
(2) naked eyes”. It was put to him during cross-examination that what he was telling the court was not true and the witness
said that he is telling the truth.
Further put to him that he was never at the scene of the incident and the witness said he was there and witnessed it.
14. In re-examination the witness was asked, did the stabbing take place in front of you or at your back, he said it happened in front of him. Still in re-examination he was asked what happened to the blue coloured chisel after stabbing and the witness said the accused removed it from Late Peter’s body and ran away.
15. I noted that there is no evidence of any animosity pre-existing the incident that could cause the state’s witness to come and falsely testify against the accused. Furthermore, I closely observed his demeanour in the witness box and I did not find any trace of a witness either lying or being evasive. The witness impressed upon me as a truthful witness. In the circumstances, I find the state’s witness as truthful and his testimony also credible. Accordingly I accept the state’s evidence as credible.
16. On the defence case, the accused elected to give sworn evidence. Asked in chief on what actually happened between 6:00pm and 6:30pm
on 26th January, 2013 when he was at Laiagam he said he got his hammer, chisel, pencil and square and went to do some private work at the
hospital. Then he put those tools in a bag and came out onto the road and saw Peter Kumon and three girls and they were drinking
beer. Two girls were sitting ontop of a calvert. He said as he walked along, the lady who was standing with Peter Kumon approached
him and asked him where he was going. Suddenly Peter Kumon sweared at him in Pidgin and said kaikai kan and said go to the house.
Then Peter chased the ladies sitting on the calvert and there was a loud bang. He then said Peter punched him on his gum and he fell
down with his bag. He said he did not know what happened and he was in shock and laid on the road and said if there was a vehicle
it would have run over him. He said while he was lying down he heard people were saying Peter Kumon is already dead you run away.
He said people were telling him in local dialect and he heard them. He said he was confused and he got up and headed for Mulitaka
road between Laiagam and Porgera. He said he was still confused and a car came and picked him up and took him to Mulitaka. He said
he spent four days at Mulitaka from 26th to 29th March, 2013 and after Sabbath he came to Laiagam as he was thinking of his work, his wife and kids. He said when he reached Laiagam,
people regarded him as the suspect and arrested him and took him to Wabag Police Station and was locked up in the cell. In chief
he was asked if he knows the state witness Robert Rapula and he said yes. He was asked how he knows him and he said he was at Laiagam
for three months and he got to know him. He was asked if Robert and him were still employees of Niugini builders and he said yes.
He was asked how long he knew Robert and he said I don’t know how many years or months but later he said 3 months. He was asked
if Robert’s evidence that he knows him for one year, three months and he said not true. Further asked if he know Peter Kumon
and he said yes and went on to say that he lives with him in the same house rented by the company at Laiagam. Still in chief he was
asked if Robert’s evidence that he saw him and Peter Kumon with the girls on the afternoon of 26th March 2013 is true and he said there were about 100 to 200 people and he did not see Roberts face.
Then he was asked if he had a fist fight with the deceased and he said not true. He said it was Peter Kumon who punched him and he
fell down. Still in chief he was asked if Robert’s evidence that he saw him removed a chisel and stab Peter Kumon on his left
chest, he said all his tools were in the bag and he was walking down, he did not hold any tool in his hand. Further he was asked
if he knew that there was a chisel mark on the deceased body and he said he did not know what ever happened. Still in chief he was
asked what type of chisel he was carrying and he said the length of it is 250 millimetres, it’s like the one that was shown
by the state witness. Further asked, so it’s almost similar to that and he said yes. Further asked did Robert and he get cross
at that time and he said none.
In cross-examination he was asked when police asked in the record of interview of where he was on 26th March, 2013 he said he told the police that he was at Laiagam. Then he was asked when police asked him in the record of interview
that he killed someone what did he tell the police, he said he will tell the court. Still in cross-examination he was asked when
police asked him in record of interview on what happened when him and Peter had a fist fight what did he tell the police, he said
he told the police that he will tell the court. He was further asked whether the story he tells the court now was told to the police
at the Interview and he said the CID took bribery that’s why he wants to tell the court. Still in cross-examination it was
put to him that what he is saying to court now have all been made up and he said yes. He was asked how long he was unconscious after
Peter punched him, he said he did not know. Further he was asked again as to how long he laid down and he said 10 to 20 minutes but
he can’t recall. Then, he was asked assuming he was lying down for 20 minutes was it possible for someone else would have stabbed
the deceased with a chisel and he said he did not know that.
Still in cross-examination he was asked if he didn’t stab the deceased whom did he suspect and he said he fell down with his
tools in the bag so he don’t know. He was asked after he fell down and got up and right up to now in court do you have a suspect
to name and he clearly said that he does not know. Further asked up until now, did you find out who was the murderer and he said
he does not know. He was further asked did you care to enquire about the person who did the trouble and he said he is from Wabag
and I don’t know about the trouble. Then he was asked if the punch by the deceased on him was a strong one and he said yes.
He was asked whether he was upset about the punch and he said he did not know he was lonlon so he fell down. He was asked after he
got up, was he upset and he said he was not upset. He was asked why he was not upset and he said he was confused and people told
him that he killed a man so they told him to run away so he ran away.
Still in cross- examination he was asked what is the colour of his chisel and he said it is blue. It was put to him that the state
witness saw him hold a blue chisel and stabbed the deceased on the chest and he said he hold the blue chisel but he didn’t
kill the man. He was asked if he is saying that a suspect held a blue chisel and stabbed the deceased and he said he don’t
know, he only have a blue chisel. State put to him that he used his chisel and stabbed the deceased and he is lying and he said that
is not true. It was put to him that state witness Robert knows him very well and he said yes and agreed that three months was sufficient
time for state witness to know him well. He was asked if Robert is lying when he told the court that you killed Peter Kumon and he
said that is not true. He was asked if it was still daylight around 6:00pm and 6:30pm on that day and he said yes. He was further
asked so why Robert said that you killed the deceased and he said he had no idea and further said that he is not his enemy. He was
asked what he meant by he had no idea and he said he don’t know why he mentioned his name.
Still in cross-examination it was put to him that he held the chisel in his hand and moved forward towards the deceased and stab him
on the left chest and he said he had no knowledge of that. It was further put to him that after he stabbed the deceased, he pulled
the chisel out from the body and ran away and he said no, he did not hold any tools, he was confused and he ran away.
Finally in cross-examination he was asked why he said that state evidence is not true and he said he has no idea about this and why
he is pointing at me. He was asked if he is calling any witness to support his case and he said no.
Then in re-examination he was asked whether Robert Rapula knows that he owns a blue coloured chisel and he said yes he knows it from
the work place. Finally in re-examination he was asked about the answer he gave to the suggestion put to him by the state lawyer
in cross-examination that his story he gave earlier in court were made up and not true and he said yes. He was therefore asked what
did he mean by yes and he said he meant it was not true.
17. I closely observed the accused demeanour in the witness box and I found traces of a witness lying and being evasive. I found all throughout his evidence that he is not a truth witness. He was evasive in his responses to many questions asked both in chief and cross-examination. In his record interview with the police he was asked if he could tell in his own words what actually happened on 26th March 2013 between 6:00pm and 6:30pm at Laiagam. He responded and said that he will tell the court. Still during the record of interview, he was questioned into the alleged wilful murder case whereby series of questions were asked to him and he maintained telling everything to court. During the hearing in court the accused have been asked to tell the court about any attempts he had made on the identity of the murder or to name the suspect in open court if any and he had clearly failed the undertaking he made to the police that he will tell his story to the court. He has not told the court the answers to the series of questions asked by the police during the record of interview. I found that he is not a truthful witness. In the circumstances I find the accused an untruthful witness and his evidence not truthful. Accordingly I reject his evidence.
18. This court has also noted that most of the story given by the accused or his answers to the questions asked by state prosecutor was never put to the state witness by way of cross-examination for purpose of fairness. Therefore I must say that I have difficulty in believing his story.
19. It is settled law that in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the other witness of the other side by way of cross examination. That I note is in effect what is meant by a fair hearing in section 37 (3) of the Constitution which I consider is a qualification of the law in Brown and Dunn, 1893 6R 67 (SL).
20. On address, since the defence called evidence the court called upon the defence counsel, Mr. Bellie to address the court first. Mr.
Bellie’s submission is that according to the prosecution evidence on the aspect of identification, there is sufficient evidence
to establish a prima facie case against the accused on his identity as the person responsible for the killing. And as such he submitted
that it is up to the court to accept it or reject it.
In regard to the charge and most importantly on the element of intention to kill, Mr. Bellie submitted that there is insufficient
evidence to prove that the accused has intention to kill the deceased. He submitted that there is no evidence of pre-planning and
conspiracy to kill the deceased. He submitted that according to the evidence before the court the accused was lured into a sudden
fight and unfortunately he got involved and acted in the way he acted. Mr. Bellie said it was a case that occurred in a spur of moment.
Finally he submitted that state have not proven intention to kill and submitted and urge the court to find the accused not guilty
of wilful murder but may find him guilty on the alternative charge of murder.
21. Mr. Waine of counsel for the state in his final submission said that this was a case of witness Robert Rupula recognising the person he had known very well before the incident and I noted during the trial that the defence did not challenge this aspect of Roberts evidence in cross-examination.
22. Mr. Waine submitted that pursuant to the principle enunciated in the case of John Beng v. The State [1977] PNGLR 15, the identification of the accused by Robert Rapula was good and was of good quality in that it is not a case of Robert having a fleeting glance at the accused.
23. From the close proximity of where Robert stood or was to the scene of stabbing of the deceased by the accused, Mr. Waine submitted that Robert was able to see the first fist fight and the stabbing of the deceased by the accused. There was bright light, infact it was still daylight and Robert Rapula was able to see clearly and recognised the accused. More significantly Robert had a very clear view of the fight and the stabbing of the deceased by the accused.
24. There is a circumstantial evidence before this court which corroborates Robert evidence and that is the evidence of a blue coloured chisel that was actually seen by state witness which he said was used by the accused in stabbing the deceased. The undisputed evidence in court is that the accused had a chisel blue in colour in his possession at the scene. Accused admitted in court that he held the chisel in his hand. However he denied stabbing the deceased with that chisel. The evidence of Robert Rapilla is that at close proximity at 5 metres away, he saw the accused stabbed the deceased on his left chest with a chisel blue in colour. In court the witness was shown a chisel and he said the chisel, he saw the accused used was similar to that. In court the accused admitted that the chisel he was holding at the scene was almost the same one as the one state witness showed in court and it is blue in colour.
25. Under the logic and common sense principle, the accused’s evidence that he did not use the blued chisel must be rejected. He was seen by the state witness stabbing the deceased using a blue coloured chisel and he was the one who pulled it out of the deceased body and ran away.
26. In the case of The State v. Cosmos Kutau Kitawal (2002) N2245 His honour Justice Kandakasi said quote “Logic and Common sense play a major part in accepting or rejecting evidence and the
guilty or innocence of an accused person.
Evidence going against any logic and common sense is unreliable. Illogical explanations coupled with inconsistencies amount to unreliable
evidence which ought to be rejected. “I apply that rule in this case”. Accordingly I reject the evidence of accused that he did not use a blue chisel and stab the deceased. It is the finding of
this court that he used the chisel and stab the deceased on his left chest and he pulled out the chisel from deceased body and ran
away. I find this as more logic and make sense to his own story that he heard people telling him that he had killed someone so he
have to run away.
27. Mr. Waine submitted and urge the court to find that state had proven its case beyond reasonable doubt. He submitted all the elements of the charge including element of Intention was proved and should find the accused guilty of wilful murder.
28. Now on my findings, I find that the issue in the case is one of identification and involvement.
29. The law on identification laid down by the Supreme Court in John Beng v. The State [1977] PNGLR 115 and later laid in Biwa Geta v. The State [1988-89] PNGLR 153 and many other cases both in the National and Supreme Court is that reorganisation is more reliable than identification of a stranger. It was stated in the two (2) case authorities that recognition enhances the quality of identification.
30. I adopt what the Supreme Court said in Biwa Geta v. The State (supra) that where the state relies on the correctness of identification evidence which the defence alleges to be mistaken, the court must warn itself of the dangers of convicting the accused on the identification evidence.
31. I therefore at this stage of the current trial, I must warn myself of the special need for caution before convicting the accused on reliance on the identification evidence adduced by the state.
32. There is logic and common sense in that principle because there maybe a possibility that a mistaken witness maybe a convincing one and any number of witnesses could be mistaken about the identifying of someone they are trying to identify. Mistaken identify may be made even where someone is very close friend or relative John Beng v. The State (Supra).
33. The warning includes close examination of the circumstances of identification or recognition as on the instant case such as the distance at which identification was made, the length of time taken to observe the accused, the conditions of observation done during the day time or at night or had the witnesses seen the accused before, and if so was it occasionally or was there any special reasons why they remembered the accused, Biwa Geta v. The State (Supra) and John Beng v. The State (Supra).
34. It is also settled law in this jurisdiction that the court can either accept or reject evidence both by the prosecution and the defence on the basis of whether the evidence is credible or not. Tom Morris v. The State [1981] SC 528.
35. In the circumstances of the instant trial I observed the demeanour of State witness Robert Rapula who clearly saw what the accused did.
36. I observed that the witness Robert Rapula was a very good eye witness. Mr. Rapula in broad daylight and at a distance of five (5) metres and with nothing obstructing him, he saw the accused used a blue coloured chisel and stab the deceased on his left chest which caused death.
37. The eye witness for the state was firm and gave straight forward answers and he was elaborate and articulately answered questions. As I found already, I take his evidence as very credible. The court does not doubt his evidence on recognition.
38. I find that the accused is no stranger to witness Robert Rappila. He is a workmate with the accused James Kandui for more than three months. Having warned myself of the dangers about the principle enunciated in cases like John Beng v. The State (supra) and Biwa Geta v. The State (supra), I conclude that the accused was vividly recognised as the person who used a chisel blue in colour and stab the deceased on his left chest and resulted in death. Accordingly I find that the accused is responsible for deceased’s death.
39. The next issue to deal with now is whether prosecution have proved the element of intention to kill to warrant the court to find the accused guilty on the charge of wilful murder.
40. Briefly the evidence adduced in court reveals that there was no pre-planning by the accused to kill the deceased. This court finds that this was an incident that was un-premeditated which occurred in a spare of amount. The evidence reveals that on the afternoon of 26th March 2013 between 6:00 and 6:30pm, the accused had packed his carpentry tools including a chisel in a bag and walked out on the road and was on his way to do some private work at the hospital. Suddenly he met the deceased and a fist fight ensued where the deceased punch him to the ground and suddenly he used his very sharp chisel and stabbed the deceased on the left chest. I will say again that this was an incident that was un-premeditated. There was only one stab wound on the vulnerable part of the body.
41. In the end result I find that prosecution have not established the element of intention to kill Peter Kumon and this court finds the accused not guilty of wilful murder but find him guilty on the alternative charge of murder pursuant to section 539 of the code.
Accordingly I find the accused guilty of Murder under s.300 by virtue of section 539 of the Criminal Code.
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused
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