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State v Evere [2016] PGNC 408; N6720 (30 September 2016)

N6720

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1380 of 2016

THE STATE

V

MARTIN EVERE

Kerema: Koeget, AJ
2016: 21^st, 22^nd, 27^th & 30^th September

CRIMINAL LAW - Conviction after a trial – Acquittal on Attempted Murder – Guilty on an alternative count of Grievous Bodily Harm under Section 315 of the Criminal Code Act – Exercise of Court’s discretionary powers under Section 19 of the Criminal Code Act – Sentence wholly suspended – Orders to keep peace and be on Good Behaviour Bond for a fixed period of time – Orders for payment of compensation pursuant to section 2 of the Criminal Law (Compensation) Act.

EVIDENCE – The State must prove an intent actually to kill – the accused intended to kill the deceased – accused put his intention into execution by means adapted to its fulfilment – the accused had manifested his intention by some overt act.

Held:

1. The evidence in the trial fell short of establishing the elements of intention to kill under Section 304(a) of the Criminal Code Act, particularly when the accused assaulted the victim, stopped and did not pursue the victim into the house.
   
2. When accused used the bush knife and fishing spear to inflict injuries on the victim he did nothing more to harm the victim even though the victim stood momentary close to him before fleeing to his house seeking assistance from his immediate family members. The evidence demonstrates the accused’s intention to cause Grievous Bodily Harm to the victim.
   
3. The Prisoner is to pay to the victim customary compensation under section 2 of the Criminal Law (compensation) Act the sum of K2, 000.00 in cash and 1 pig.
   

Case cited:

Manu Kovi –v- The State (2005) SC789
The State –v- Ota Api (2016) N6400.

Counsel:

R. Koralyo, for the State
B. Popeu, for the Accused

1. KOEGET, AJ: Introduction: The accused is charged with Attempted Murder under section 304(a) of the Criminal Code Act and an alternative count of Grievous Bodily Harm under section 315 (b) of the Criminal Code Act.
   

FACTS:

2. On Saturday 6^th February 2016, Martin Evere was at his village in Ihu District of Gulf Province. He was sleeping at the haus-win when Moses David went in search of Nipi Evere, the younger brother of the accused.
   
3. It is alleged that the victim Moses David suffered loss of betel nut trees in the garden when someone set fire to the betel nut trees. The victim heard from other villagers that Nipi Evere set fire to the dry grass along the road and the fire spread to Moses David’s betel nut garden and the betel nut trees were burnt by the bush fire so the victim was angry and scolded Nipi Evere. As he was returning, the accused suddenly appeared behind with a fishing spear and a bush knife. It is alleged that the accused threw the fishing spear at the victim and shot off the skin with him in the abdomen, around the belly button. He then swung the bush knife and chipped off skin with hair on the right hand side of the victim’s head slightly above the right ear lobe.
   
4. The victim ran to his house and sought assistance from immediate family members. The accused did not pursue the victim when he ran to his house.
   
5. The victim was taken to the village aid post and later referred to the Kerema General Hospital. The victim was treated for the injuries he sustained and discharged after the injuries healed up.
   

ARRAIGNMENT:

6. The accused pleaded not guilty so a trial was conducted to determine the State’s allegations against him.
   

EVIDENCE:

7. At the commencement of trial, the following documents were tendered into evidence by consent.
   
   • (1) Record of interview between accused and the police investigator dated 19^th April, 2016 (Ex “1A, 1B”).
     
   • (2) Statement of Police investigator.
   • (3) Victim’s clinical book – cover copy.
   • (4) Record of attendance by victim at Muro Aid Post.
     
8. The facts not in dispute in the trial are as follows:
   
   • (a) Some unknown person set fire to the dry grass and the bush fire spread to the betel nut garden owned by Moses David and it destroyed the betel nut trees.
     
   • (b) On 06^th February, 2016 Moses David scolded Nipi Evere.
   • (c) The accused was in the haus-win when he took fishing spear and a bush knife and perused Moses David and confronted him. He threw the fishing spear and shot Moses David in the abdomen. Then he swung the bush knife at Moses David and the knife chip off skin on the right hand side of the head slightly above the right ear lobe. The scare is visible todate.
     

Evidence for the State

9. The victim Moses David suffered loss of betel nut trees when the bush fire burnt them down. He was told by some villagers that Nipi Evere set fire to the dry grass and the fire spread to the betel nut garden and so he was angry and scolded him on 6^th February 2016.
   
10. As Moses David was returning to his house, the accused followed. When the victim turned to face the accused, the accused shot him in the abdomen with a fishing spear. At that Moses David dropped the bush knife to the ground and used both hands to pull out the fishing spear. The accused then held the handle of the spear and pulled it towards him and swung the bush knife at the victim’s head. The victim evaded the bush knife but it struck him on the right hand side of the head slightly above the right ear lobe and chip off the skin.
    
11. The victim ran to his house and sought assistance from his family members and he was assisted to the village aid post where he received treatment on the wounds then later transferred to the Kerema General Hospital.
    
12. On that day when Moses David scolded Nipi Evere, he did not argue with the accused nor fight with him and so the assault upon him by the accused was unprovoked.
    

Evidence for Defence

13. The accused stated that he was sick with Malaria sleeping in the haus-win when Moses David arrived with a bush knife and a lighted stick in his hands and he shouted “you burnt my betel nut trees so now it’s my turn to burn yours”.
    
14. The victim Moses David set fire to the betel nut garden of the accused and the fire was extinguished by his second wife, the younger sister of Moses David. The accused feared his own life and that of an infant in a bilum hanging on the side of the “haus-win”, so he picked up the fishing spear from the bearers of the “haus-win” and shot Moses David in the abdomen. He then continued to struggle with Moses David over the bush knife and eventually disarmed him by using left arm to remove bush knife and held it while he held Moses David with his right hand.
    
15. During the struggle Moses David’s head came into contact with the bush knife and the knife chipped off the skin with hair on the right hand side of the head slightly above the right ear lobe. The victim ran to his house and the accused did not pursue him but instead returned to his house.
    
16. The accused was firm in his evidence that the victim Moses David instigated the incident when he set fire to his betel nut garden and so the victim provoked him when he approached him with lighted stick and a bush knife and shouted “you burnt my betel nut trees so now it’s my turn to burn yours”.
    
17. The accused stated that the fight in which he injured the victim with the fishing spear and the bush knife was over argument involving his second wife, the younger sister of Moses David and not over burning down of victim’s betel nut trees.
    
    • There was no evidence from Moses David that he set fire to the accused’s betel nut trees as pay back for the destruction of his betel nut trees by bush fire set by the accused’s younger brother.
      
    • The defence counsel did not cross examine David Moses on whether he set fire to the betel nut trees of the accused in revenge for destruction of his betel nut trees by fire lit by Nipi Evere. This indicate that Defence counsel was not instructed by the accused prior to the commencement of the trial to raise this fact so in this case such evidence is a “recent invention“ by the accused so it is rejected.

LAW:

Section 304(a) of the Criminal Code Act
“Attempted, murder, etc.

A person who –

(a) Attempts unlawfully to kill another person is guilty of a crime.

Penalty: subject to section 19, imprisonment for life.”

18. In attempted murder cases under this section, the State must prove an intent to kill. Thus, the onus is on the State to prove beyond reasonable doubt:
    • (a) the accused intended actually to kill the deceased.
    • (b) the accused put his intention into execution by means adapted to its fulfilment.
    • (c) the accused had manifested his intention by some overt act.
      

Section 315 of the Criminal Code Act:

“Acts intended to cause grievous bodily harm or prevent apprehension.

A person who, with intend –

(a) to main, disfigure, or disable any person; or
(b) to do some grievous bodily harm to any person; or
(c) unlawfully wounding or doing a grievous bodily harm to a person; or ..........”

19. A person can be convicted under this section for causing grievous bodily harm if evidence establishes it.

Analysis of evidence in the trial

20. It is difficult to infer from evidence the reasons why the accused took the bush knife and a fishing spear and attacked the victim. On that day the victim did not argue nor assault or fight with the accused. So there was no reason for him to assault and wound the victim with the fishing spear and the bush knife.
    
21. As soon as the victim ran to his house the accused did not pursue him nor assault or insult him anymore and in my view this demonstrate that he had no intention to further assault or kill the victim.
22. The accused used fishing spear to injure victim in the abdomen. Then he swung the bush knife to chip off the skin of the right hand side of the head of the victim. When the accused stopped and did not pursue the victim to his house after inflicting the injuries, such actions demonstrates that he had intention to cause grievous bodily harm to the victim.
23. In my view, the victim gave credible evidence in the trial so I believe it to be the truth of what the accused did to him on 6^th February 2016 at Ere village.
    

Finding of the Court:

(a) Accused had no intention to kill the victim in this case.
(b) However, accused had intention to cause grievous bodily harm to the victim.

VERDICT:

24. The accused is found not guilty of Attempted Murder of Moses David at Ere village in Ihu District of Gulf Province on 06^th of February 2016. So he is acquitted on the charge of Attempted Murder under section 304(a) of the Criminal Code Act.
    
25. However, on the evidence in the trial, I find the accused had intention to cause Grievous Bodily Harm to Moses David with a fishing spear and a bush knife on 06^th February 2016 at Ere village, Ihu District in the Gulf Province. So the accused is found guilty on the alternative count of causing Grievous Bodily Harm and is convicted accordingly.
    

ALLOCATUS:

“My name is Martin Evere and I am from Ere village. I have 2 wives and 2 children. If court have mercy on me. I am sorry for what I did and I am a first time offender. I am willing to pay compensation to the victim to mend our relationship to where it was previously”.

PERSONAL PARTICULARS:

26. The prisoner is 31 years of age and is married with 2 wives and 2 children. The ages of the children are 8 months and 10 months respectively and he resides with family in the village. The prisoner attended Muro Primary school and completed Prep. He returned home to live as a villager.
    
27. The prisoner does subsistence gardening and surplus of food are sold at Kerema town market. He also has betel nut gardens and he sells nuts for cash in Kerema town and in Port Moresby as well.
    
28. Both his parents are deceased and he has 2 brothers and a sister in the family. He is the third born in the family.
    

AGGRAVATING FACTORS:

29. The prisoner used weapons to commit the offence and the victim sustained multiple injuries to his body.
    

MITIGATING FACTORS:

30. The prisoner is a first time offender. He expressed remorse and has apologised to the victim and he is willing to pay compensation to mend the family relationship that was destroyed when he committed the offence.
    
31. He has been in custody at Kerema Police station cells for eight months, three weeks and one day. He appears from custody.
    
32. The victim has fully recovered from the injuries sustained and there are no recurrence of the wounds.
    
33. The prisoner acted alone so the attack on the victim was on a spree of the moment when he saw the victim scold his younger brother, Nipi Evere.
    
34. The prisoner cooperated well with the police during the investigation into the allegations.
    

SENTENCE:

35. The suggested tariff of sentences for Manslaughter set by the Supreme Court in the case of Manu Kovi –v- The State (2005) SC789 is a custodial sentence ranging between 7 – 12 years. The National Court nowadays use these tariff of sentences in Manslaughter cases in this jurisdiction. I do not intent to sentence the prisoner to a term within the range of sentences suggested by the Supreme Court in this case.
    
36. This year, I imposed lesser sentence for such offender in this province during the circuit here in Kerema and I intend to use this sentence as guide line so that the court is consistent in imposing similar sentence on such offenders.
    
37. That particular case is The State –v- Ota Api (2016) N6400. The offender was found guilty of Grievous Bodily Harm in Kerema and I imposed the sentence of 3 years In Hard Labour. The pre-trial custodial period was deducted and the balance of the sentence was ordered to be wholly suspended on condition that the prisoner enters into recognisance and promise to be on Good Behaviour Bond for 3 years.
    
38. In this case, the prisoner is sentenced to 3 years In Hard Labour. The pre-trial custodial period of 8 months is deducted and the balance of 2 years and 4 months are wholly suspended on condition that the prisoner enters into recognisance and promise to keep peace and be on Good Behaviour Bond for 2 years and 4 months.
    
39. Should the prisoner breach this condition, he shall be brought to Court to be dealt with for the suspended portion of the sentence.
    

ORDER:

40. The Prisoner is to pay to the victim customary compensation under section 2 of the Criminal Law (compensation) Act the sum of K2, 000.00 in cash and 1 pig. The compensation is to be paid to the victim by the end of December 2016 and shall be witnessed by the Kerema Police Station commander, the arresting officer (CID officer) and the Probation Officer stationed at Kerema.
    

Ordered Accordingly.
________________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyer for the Defence