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State v Sanamia [2018] PGNC 107; N7167 (23 March 2018)

N7167

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 911, 912, 913, 914 OF 2016


THE STATE


V


PETER SANAMIA
First Defendant


AND
JUNIOR SANAMIA
Second Defendant


AND
ANGELBERTH RAVA
Third Defendant


AND
CHRIS GALAWE
Fifth Defendant


Kimbe: Miviri AJ
2018: 15th, 16th, 19th, 20th March


CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Murder S304 CCA – Trial – group attack –– self defence – provocation– intent to kill expressed –– S7 & 8 aiding abetting –guilty of Attempted murder–

Facts
Four accused fought the victim, two held him and dumped him to the ground. The father came with a bush knife intending to cut the victim on his head but the victim raised his left hand in defence and cut twice. Son came and cut him on his right hand.


Held
Self defence not made out.
Provocation not made.
Intent to murder
Guilty of attempted murder
Aiding abetting common intent
4 defendants.


Cases Cited:

Angitai v The State [1983] PNGLR 185

John Beng v The State [1977] PNGLR 115

Porewa Wani v The State [1979] PNGLR 593

R v. Kopal Wamne (1974) N809

R v Oa [1967-68] PNGLR 26

Tapea Kwapena v The State [1978] PNGLR 316

The State v Amoko Amoko [1981] PNGLR 373
Counsel:


A Bray, for the State
R Bailey, for the Defendant

VERDICT

23rd March, 2018

  1. MIVIRI AJ: This is the verdict of a father and his son and two other relatives who are accused of attempted murder; they brutally attacked and cut both forearms of the victim.

Charge


  1. Peter Sanamia, Junior Sanamia, and Angelberth Rava, and Chris Galawe all were jointly charged with attempted murder pursuant to Section 304 of the Criminal Code Act.

Brief Facts

  1. On the 15th August 2015 at Tamare village, Talasea, Peter Sanamia called out “fight him and kill him” to his boys and they all pursued the victim Malu Aris. When they caught up they jointly assaulted him. Angelberth Rava and Chris Galawe tackled and threw him to the ground, where Peter Sanamia came with a bush knife aimed at his head, swung it twice on each occasion he lifted his left hand to fend and was cut on each occasion there. Then Junior Sanamia came and cut him once on his right hand. He suffered serious grievous injury of both his forearm. He was rushed to the Kimbe General Hospital where he underwent treatment leaving him with 80 per cent functional loss. They had intended to kill him.

Evidence by Consent


  1. The State case opened with the following evidence tendered by consent:-
  2. The tale of all these evidence was that on the 15th August 2015 Malu Aris aged 23 years old was initially presented to the Kimbe General Hospital accident and emergency department diagnosed with knife wounds to his left and right forearm. He had compound fracture of the left and right radius and ulna with nerve injury of both hands. On the 23rd September 2015 He was readmitted to the surgical ward by Doctor Annette Ketalu. On the 24th September 2015 he underwent an operation for rush pin to be inserted to stabilize the bone in his left forearm. Radial nerve was not repaired due to high risk of infection. In his right forearm the laceration was sutured. On the 28th September 2015 he was discharged. On the 9th October 2015 he had attained full range of movement of the right forearm. In the left hand he had 80 per cent of functional loss of that hand. The trauma had caused his educational time and immense physiological stress.
  3. Issue

For my determination the following issues arose:


➢ Whether or not Peter Sanamia had cut Malu Aris on the left hand?
➢ Whether it was only Junior Sanamia who cut Malu Aris on both his hands?
➢ And if so did he act in defence of another?
➢ Whether there was intent to kill Maru Aris?

State case


  1. Malu Aris the victim testifyed it was Saturday 15 August 2015 about 12 0’ clock, we were walking on the road Rodney Timothy and Joseph Tivi and did not hear a red vehicle belonging to one Mathias Loi drive up. A confrontation ensued but subsided when the vehicle drove off. As we were about to go into the house we heard noise behind us. I turned and saw group of boys running after us and I saw Peter Sanamia call out and shout, “paitim ol kilim ol”, interpreted, “fight them kill them”. When they came they fought us. They threw bottles and stones so we fought. My two friends Rodney Timothy and Joseph Tiwi saw we were outnumbered so ran up a small hill and watched from there. I saw that I was by myself so I got a small knife and was swinging trying to scare them off so that I could escape. They surrounded me and Angelberth Rava came in to stop me as I was swinging the knife and he was cut, so too Petrus. I wanted to run away but was prevented by Angelberth Rava who stood in front of me and grabbed me and together with Chris Galawe they both held me dumped me and we fell into the drain. The knife fell off my hand and they both held me and I tried to get up and was facing up. I saw Peter Sanamia came clear he lifted up the bush knife and aiming at my head, so I lifted my left arm to block the knife from cutting me but he cut me and second time he swang the knife and I blocked again with the same hand and he cut me again. I was lying on the ground his Son Junior Sanamia came and cut my right hand because my left hand was already cut. My two hands were cut I could not get up I was sleeping in the drain. Peter Sanamia’s wife came and held me, tore her meri blouse and tied it around my hand. And they brought me to the hospital on their vehicle driven by another person.
  2. The second sworn witness was Francisca Malu from Tamare in Talasea she knew the victim. On that day the 15th August 2015 there was a fight and Malu Aris was chopped. Angelberth Rava, Junior Sanamia, Chris Galawe, Jackson Sanamia, and Charles were all fighting Malu Aris. Malu got a knife and was trying to defend himself and cut Petrus at the back and who ran away to his house. I pulled Malu Aris out onto the road. Angelberth came and pulled him from me and tackled him to the ground. Malu tried to run but together with Chris Galawe they fought him and he fell. As he got up to run a rope trapped his leg and he fell into the drain again. Peter Sanamia wanted to cut his head but he blocked it with his left hand and he cut him twice. And Junior Sanamia took it and cut it only once. Sanamia’s wife came removed her meri blouse wrapped his hand took him to the vehicle and to the hospital. She identified all the four defendants in court describing all by the clothes they wore and by name.
  3. Next witness sworn was Rodney Timothy from Tamare Talasea who confirmed that Malu Aris was involved in a fight and was cut. And this happened on Saturday 15th August 2015. He confirmed that with Joseph Tivi had gone to Peter Sanamias house to charge their phone. And went to the back of the house and saw that they were drinking at the back. It was around midnight Friday going into Saturday. There were Chris Galawe, Charles Aitule, Junior Sanamia, Angelberth Rava, Jackson Sanamia and they gave a can and we drank we sat there till morning and we came out to the road it was around 10 0’clock. Malu Aris came and met us we gave him two cans of beer and we went to the side where custom was on and then we came out to Joseph Tiwi’s house. At the same time it was windy we did not hear the motor vehicle from Talasea heading Kimbe. Malu went to the driver to apologise telling him someone inside swore at us. So Joseph Tiwi got a bread fruit branch and hit the mud guard and the vehicle took off. As we walked along a motor bike came Max a supervisor at Numondo knew Malu so both spoke and then he drove off. Sanamias boys came running up calling out fight them and kill them. They were throwing bottles and stones at us so we fought but we were outnumbered so two of us ran away leaving Malu Aris. Angelberth Rava and Chris Galawe came and lifted Malu Aris and threw him down near the feet of Peter Sanamia who held a bush knife that he swung aiming at the head but Malu Aris lifted his left hand to block and was cut there. The second time Peter Sanamia swang Malu did the same. Then Junior Sanamia again swang the bush knife and he lifted his right hand to block and was cut there on his right hand. Then Batari the wife of Peter Sanamia came and tore her meri blouse and wrapped the wound then took him to the hospital. He knew all accused prior to the date of the incident and identified all in court by name.
  4. Cathy Otto was the last state witness on oath. She gave evidence consistent in all material particulars given by the earlier state witnesses but differed in that she did not see who cut Malu Aris. Though she admitted she saw Peter Sanamia with bush knife standing near Malu Aris on the ground. He was cut and injured. She said that she was not able to see who inflicted the cut to Malu Aris as there was a crowd in front of her.
  5. The State made preliminary examination establishing that she had made an earlier statement signed in which she differed as to the person who allegedly cut the victim. After so establishing state applied to have the witness declared hostile because of that fact. The application was granted to declare her hostile and to cross examine her on her statement.
  6. In the statement exhibit S7 she says she was on the road when the boys Rodney Timothy, Joseph Tivi and Malu Aris came and met her. They stood on the road and were telling stories with their backs to the road. They did not hear the vehicle come up. It sounded its horn and they moved to the side of the road. As they did the passengers on the vehicle said, are you iron man and swore us and took off. The boys said sorry and apologised. 10 minutes after Peter Sanamia sent his boys and said you go fight them and kill them. Together with his boys Peter Sanamia ran up and as they did they were throwing stones and bottles at the three boys, Rodney Timothy, Joseph Tivi and Malu Aris, when they finished they started fighting with them with their hands. Both Rodney Timothy, Joseph Tivi ran away leaving Malu Aris who fought alone with them. He was outnumbered and felt he could not succeed so took a knife to defend himself and cut Angelberth Rava on his hand but Angelberth held his hand and Chris Galawe helped him and threw him down a drain near the road. As they did Peter Sanamia stood with a bush knife and was watching. He swang the bush knife at the head of Malu Aris who raised his left hand to stop the blow but was cut on his left hand. Again Peter Sanamia swang the bush knife at his head and in similar fashion Malu Aris lifted his left hand and blocked and was cut in the same left hand. Then Junior Sanamia got the bush knife from his father and cut Malu on his head and he lifted his right hand to stop the blow and sustained a cut to his right hand. Batari wife of Peter Sanamia stood in between her boys and Malu Aris and was stopping them. She tore her meri blouse wrapped it around his hand and took him to their vehicle and brought him to the hospital in Kimbe for treatment.
  7. I determine that her evidence is consistent with the other witnesses and is immediately made after the offence and therefore is fresh in her mind. She was brought into court on the eve of trial by the defendant Peter Sanamia in his vehicle and also was dropped off at school in his vehicle. The family is close at home all from the same village Tamari. She is also part East Sepik where the defendant Peter Sanamia is from. In my view given there may have been undue influence exerted upon the witness to deviate from her original evidence which is similar in all material particulars as with the other witnesses for the state all present at the scene of the allegation. I hold that original evidence exhibit S7 to be credible and is the truth which I take into account in determining the allegation against the accused.

Defence Case


  1. And in their defence each of the accused gave sworn evidence apart from the tender of their records of interview set out above. I set out relevant excerpts of their records of interview with their individual sworn evidence.
  2. Peter Sanamia admitted in his record of interview that they Malu Aris, Junior Sanamia, Jackson Sanamia, Charles Kamong and Lawrence Hukau were drinking at his house. They had started drinking in the night. And Rodney Timothy, Joe Tivi joined in the morning. He denied fighting Malu Aris with the help of Angelberth Rova and Chris Galawe. But admitted that Junior Sanamia cut Malu Aris on his left hand. And said that he deserved that injury because he was the initiator of the trouble. He signed his record of interview stating that all within was the truth.
  3. On oath Peter Sanamia said: It was Saturday 15th August 2015 I drove my PMV and at about 1 0’clock I dropped passengers and stopped at my house Tamare and wanted to relieve myself. Malu Aris Rodney Timothy and Joseph Tiwi blocked the road and Malu Aris pulled out a bush knife a black handle and was arguing and started to cut the vehicle went around and started to cut it again. Rodney Timothy and Joseph Tiwi were standing and Malu was cutting the vehicle. The vehicle drove slowly and they were still trying to cut the vehicle but it took off. As a leader I have to tell them to stop what they were doing.
  4. I was struggling to pull out the knife out but could not and my wife came and helped me and tickled his underarm and he let go off the bush knife. He went and got a second bush knife from the house of Joseph Tiwi. Then he swung at my wife, Jackson my son and Chris Galawe and then to Angel berth Rava and she fell as a result. He went and cut Petrus on his shoulder and then on his hand. I was two meters standing with my wife. He turned to Junior Sanamia tried to stop it but he swung twice. Angelberth was also trying to stop him. Thirdly Junior twisted his hand, grabbed the bush knife off him and cut him instantly. Malu Aris fell and call to me please Peter help me so my wife took a piece of cloth tied around his wound and took him to the hospital.
  5. In his record of interview Junior Sanamia said that on that day 15th August 2015 he saw Malu Aris, Rodney Timothy, and Joseph Tivi were drunk and they damaged the vehicle of Mathias Loi. There was mark from the bush knife on the tyre and side of the vehicle. They were drinking until 3.00am in the morning when they were stopped by father Peter Sanamia. Like his father he denied that both Angelberth Rava and Chris Galawe had tackled Malu Aris and threw him into the drain where his father came and cut him twice on the left hand.
  6. In his evidence he said after his father Peter Sanamia and mother Batari had got off the first Bush knife off Malu Aris he went and got a second bush knife which was short with its edge sharp and he was waving it berserk almost cutting a number of people as he swung it. Angelberth Rava was cut together with Petrus Sanamia or highlands, who sustained a wound on the shoulder. And it was swung at him twice and third he grabbed hold of Malu Aris hand and twisted it and removed the knife and cut him with it. And this was only on the left hand but the blade also cut the right hand in the process. Had he not acted as he did many others there would have been hurt by that bush knife held.
  7. Angelberth Rava recounted in his record of interview that there was a fight between Rodney Timothy, Joseph Tiwi, Malu Aris on the one side against Junior Sanamia, Jackson Sanamia and Charles Sanamia. The latter three had gone to stop the former from trouble brewing with a motor bike but they fought back causing the fight. And Peter Sanamia had told them to stop them. He did not tell them to fight and to kill them. Together with Chris Galawe they did not tackle down Malu Aris. Asked as to who had cut Malu Aris on his left and Right hand, he stated that at that time Malu Aris cut him with the bush knife. Peter Sanamia and his wife ran up held the bush knife and removed it from Malu Aris. But he went and got another bush knife chased Jackson Sanamia, Mrs Sanamia, with his wife Freda Rava and after that he cut Petrus on his back. Peter Sanamia and Junior Sanamia never cut Malu Aris together, only Junior Sanamia did and he was the only one who caused the injury upon Malu Aris no other. He signed acknowledging that what he told was the truth. On oath his evidence was similar adding that he too was taken to the hospital.
  8. Chris Galawe said he was asleep and was awoken at 2.00pm by noise and saw Malu Aris was chasing people and swinging the bush knife at them. He came and swung at me almost cutting me so I went home and never returned back. He denied that he helped Angelberth Rava in tackling down Malu Aris. He signed his record of interview.

Findings of Fact


  1. I find the following as facts on the evidence led that on Saturday 15th August 2015 a red vehicle belonging to one Mathias Loi of Kulingi drove through Tamare village en route to the direction of Kimbe. It was driven slowly and Malu Aris, Rodney Timothy, Joseph Tivi and Cathy Otto were in the way. The driver sounded his horn to clear them from the road. As he did passengers within uttered, “yupela ol iron man o” and also swore at them, “Kaikai kan’, to which Joseph Tiwi reacted angrily and hit the side of the vehicle with a piece of wood from a bread fruit prompting the vehicle to drive off.
  2. Then a motor bike came and passed through where there may have been similar inappropriate behaviour on the part of Malu Aris, Rodney Timothy and Joseph Tivi prompting Peter Sanamia to call out to his boys to fight them and kill them. To which Junior Sanamia, Jackson Sanamia, Angelberth Rava, Charles heeded and ran to Malu Aris, Rodney Timothy and Joseph Tivi. A fight erupted in the course of which both Rodney Timothy and Joseph Tivi ran away leaving Malu Aris fighting with a bush knife that was disarmed of him when he cut Angelberth Rava and Petrus Sanamia or Highlander who ran away. Angelberth Rava blocked off and grabbed Malu Aris and was supported by Chris Galawe who both tackled him falling into a drain near the side of the road where the bush knife came out of his hand.
  3. He was disarmed there and was not a threat to anyone there so for the defendants to act over and above would be in breach of the law which is the case here if Peter Sanamio’s evidence is to be accepted that he had disarmed Malu Aris of his bush knife. There was no need for him to swing the bush knife he held at Malu Aris who did not pose a danger to anyone.
  4. Co accused and son Junior Sanamia was faced with bush knife that could have killed him Peter Sanamia stood back and was watching his son fend for himself, two times the bush knife was lashed out by Malu Aris and could have hurt him, yet he stood back and watched as if it did not matter. He explained that he was looking for something to stop him yet he had in his possession the bush knife that he removed off Malu Aris who was the assailant and he was closest to him, he did nothing to stop the berserk attack he described. Tapea Kwapena v The State [1978] PNGLR 316, stands for the proposition that if you are faced with a deadly weapon there is no time for niceties you react instantly, you do not reason as to what to do, it is either your life and limb or that of your assailant. If I am to believe him as a witness these are matters that should be carefully considered as to his credibility and the defence that he argues and available to him.
  5. Further as to whether or not there was provocation as in R v. Kopal Wamne (1974) N809: R v Oa [1967-68] PNGLR 26; Angitai v The State [1983] PNGLR 185, Essentially, (1) they were individually deprived by the provocation of the power of self-control; (2) and had acted on the provocation on the sudden; (3) before there is time for their passion individually to cool; and provided further that the force used by the person charged; (4) is not disproportionate to the provocation; and (5) is not intended to cause death or grievous bodily harm and (6)(the force used) is not likely to cause death or grievous bodily harm,”
  6. What was happening on the road between Malu Aris, Joseph Tivi, and Rodney Timothy was a fair distance, whether or not he was provoked from that distance and if so what were the provocative words or gesture that prompted him to react as he did, and whether or not there was reaction to it on the sudden before there was time to have his passion cool, and whether or not the cutting of Malu Aris’ left hand and then his right hand was proportionate to the provocation and not intended to cause death or grievous bodily harm, and that the force was not likely to cause death or grievous bodily harm are serious matters that must be considered at the outset of the defence that the defendants each have raised against the allegation individually against each of them. This is the protective seal that the law bestows upon a defendant which when raised is the duty of the prosecution to negative beyond all reasonable doubt.
  7. And in the light of the evidence that has come out in broad day light viewed by persons from either side of the case all known by name and relationship, there is no issue of identification in line with John Beng v The State [1977] PNGLR 115. Nor is there any motive of a pre existing axe to grind. The presence of all accused at the scene is not denied by all in the evidence before excerpts I have set out above. I am satisfied that the State has negatived that there is no provocation applicable here. That is at the relevant time each of the defendants were not provoked to act as they did. They are not excused in their criminal conduct against the victim.
  8. It would seem that all four accused are doping in only one out of the four of them Junior Sanamia contending that he had acted in self defence of the others and all who were there at the scene. And therefore was justified in cutting the victim on the left hand as he did the blade going through to the right hand instantly as he wrestled the bush knife off the victim.
  9. What is incredible about this evidence is that medical evidence confirms that the left hand is 80 per cent dysfunctional after being cut twice not once as he contends here. And that both forearms left and right have both ulna and radius bones within broken, to use the terms of the doctor “compound fracture”. In my view considering the angle that he describes in the way he delivered the blow with the bush knife only once makes his evidence here hard to believe and to comprehend against this expert medical evidence. These are lies which have been told out of the guilt that is imminent upon him and his father together with Angelberth Rava and Chris Galawe.
  10. He is an accused together with Peter Sanamia, Angelberth Rava and Chris Galawe and for them to contend there must be independent and corroborative evidence supporting what they are saying: The State v Amoko Amoko [1981] PNGLR 373. In all the circumstance having regard to all the evidence before the court there is no independent evidence that would in my view be held as corroborating their accounts and evidence. Their evidence are self serving and do not bring their cases any further against that of the State.
  11. The evidence is that all four accused and others were all consuming alcohol from early in the night of Friday 14th August 2015 to the morning of Saturday 15th August 2015 and were heavily effected by it immediately leading up to the offence. That they did not finish as Junior Sanamia put it at 3.00am but continued to the morning of Saturday 15th August 2015 leading up to moments before the offence. That two of the State witnesses Rodney Timothy and Joseph Tivi had also consumed beer together with the accuseds when they went to the house of Peter Sanamia to charge their mobile phone. That they had also given some of these alcohol beers in the morning of Saturday 15th August 2015 to Malu Aris who consumed it and was also effected by alcohol which behaviour was sufficient to draw Peter Sanamia to call out to his boys to go fight him and kill him to which together with his boys they chased Malu Aris, Rodney Timothy, and Joseph Tivi.
  12. They threw bottles and stones at them and when they caught up there was fighting between them in the course of which Malu Aris, Rodney Timothy, and Joseph Tivi were outnumbered, both Rodney Timothy, and Joseph Tivi ran away leaving Malu Aris who defended himself by getting a bush knife from Joseph Tiwi’s house and swinging it to stop the accused from fighting him. In the process of that swinging he cut Angelberth Rava and also Petrus Sanamia or highlands who ran away to the house because he was injured in the shoulder and the arm. Angelberth Rava persisted together with Chris Galawe tackling Malu Aris to a drain on the side of the road where the bush knife he held fell.
  13. I find that Malu Aris was no longer a threat to the life or safety of anyone there and then including the four accused. That at that time Peter Sanamia who was holding a bush knife used it aiming it at the head of Malu Aris who lifted his left hand up to protect his head and was cut on the forearm. Second time he swung the bush knife also aimed at the head of Malu Aris who lifted his left hand to protect his head and for the second time was cut in that hand.
  14. I further find that Junior Sanamia armed with the same bush knife held by his father Peter Sanamia aimed at the head of Malu Aris to cut him and swung the bush knife and Malu Aris lifted his right hand in defence and was cut there.
  15. I find on this evidence that Peter Sanamia had expressed,” Paitim ol na Kilim ol”, interpreted,” fight them and kill them” to his co accused Junior Sanamia, Angelberth Rava and Chris Galawe who complied immediately by attacking Malu Aris, Rodney Timothy and Joseph Tivi in fulfilment of that call. All gave their evidence in pidgin so they knew what was meant by that term and expression and by their conduct and all the evidence before me satisfied beyond all reasonable doubt that element intending to kill Malu Aris was satisfied beyond all reasonable doubt: Porewa Wani v The State [1979] PNGLR 593.
  16. Peter Sanamia himself led that intent to kill by aiming to cut Malu Aris on his head who tried to protect his head by lifting his left hand up twice and in the process being cut twice on that hand.
  17. I further find that in fulfilment of intent to kill Junior Sanamia followed his father Peter Sanamia, aimed the bush knife at the head of Malu Aris and swing but he raised his right hand in protection of his head to sustain the cut to his right forearm.
  18. And that in fulfilment of that intention Angelberth Rava and Chris Galawe aided and abetted in fulfilment of section 7 and 8 of the Criminal Code in blocking and tackling Malu Aris to the drain where the bush knife he held fell off allowing Peter Sanamia to aim at his head but stopped twice on the left hand that he raised in protection only to sustain very serious life threatening injuries for which he is now 80 per cent dysfunctional in that hand. And the right which has scaring visible with the hand deformed.
  19. And that Junior Sanamia also aided and abetted pursuant to section 7 and 8 of the Criminal Code when he aimed at the head of Malu Aris with the bush knife but blocked with the right hand sustaining yet another life threatening injury to Malu Aris.

Verdict


  1. In all the circumstances, I am satisfied beyond all reasonable doubt and I find each of the defendants Peter Sanamia, Junior Sanamia, Angelberth Rava and Chris Galawe all guilty of attempted murder contrary to section 304 of Criminal Code of Malu Aris and I convict them accordingly.
  2. All accused are guilty of attempted Murder pursuant to section 304 of the Criminal Code.
  3. I order that bails moneys of Peter Sanamia, Junior Sanamia and Chris Galawe be refunded forthwith and all will be remanded in custody to await sentence.

Ordered accordingly.


__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant

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