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State v Wakon [2018] PGNC 434; N7497 (26 September 2018)

N7497

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1710 OF 2016

THE STATE

V

QAKI. WAKON
Lae: Pitpit, J
2018: 24^th , 26^h September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Accused had pleaded not guilty when re-arraigned on the charge of murder – counsels having agreed that the committal depositions to be tendered and received as evidence for purposes of trial and for counsels to submit on the law and such evidence for purposes of verdict - the matter proceeded to trial – whether intend to do grievous bodily harm was commonly shared by the accused – whether the alternative charge of negligent killing was available to be found by the court – whether accused presence at the scene of the crime was sufficient to bring him within the meaning of s.7(1) (c) of the CCA and thus, criminally responsible and therefore guilty under section 302 of the CCA, for the unlawful and negligible killing of the deceased.

Held:

1. Insufficient evidence to prove beyond doubt that the accused shared the intention to shoot the deceased on the back of his head, let alone on the upper region of his body or any venerable part of his body.
   
2. The alternative count of manslaughter pleaded on the indictment in accordance to s 539 is available and the court may convict.
   

Case Cited:

Aigiru Aieni v Paul Tohian [1978] PNGLR 37.

R .v. Fum Boto (no.2) [1967-1968] PNGLR 448

R. v. Waiyape (1974) N796.

R.v. Umarum [1969-1970] PNGLR 190 at p191.

R.v. Tovarula [1973]PNGLR 140

R. v. Witrasep Binengim [1975] PNGLR 95.

Counsel:

Ms. Patricia Matana, for the State

Mr. Joshua Huekwhain, for the Defence

DECISION ON VERDICT

26^th September, 2018

1. PITPIT, J: The accused Qaki Wakon was indicted with one count of Murder pursuant to section 300(1) (a) of the Criminal Code Act 1974 and in the alternative, one count of Manslaughter under section 302 of the Criminal Code Act.
2. Section 300 (1) (a) of the Criminal Code states:
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder –
     
     • (a) If the offender intended to do grievous bodily harm to the person killed or to some other person; or
3. For the State to establish its case against the accused, it must establish by way of evidence the following elements –
   1. That the accused had killed the deceased,
   2. That whatever act the accused had committed or done to the deceased;
   3. He or she must have intended to cause grievous bodily harm either to the person killed or some other person.

Brief Facts

4. The brief statement of fact presented by the State for purposes of arraignment appeared as follows and I quote:

“The State alleges that on the 29^th day of June between the hours of 6.30am and 7.00am, at Baleo Village, Tewai/Siassi here in the Morobe Province, the accused persons unlawfully murdered the deceased Aso Agi.

5. The deceased is a known trouble maker in the community of Kukuya Village, in Sialum.
6. Before the above date and time, the accused persons ( Qaki Wakon, Mangfuru Kilas and Norman Aiyas) have conspired with the community leaders of Kukuya Village and Sialum, and they agreed that they would hold the deceased and bring him to the Police.
7. On the above said date and time the accused persons hid behind some bushes and waited for the deceased. The two accused persons were armed with bush knives while their co-accused Norman Aiyas was armed with a homemade gun.
8. When the deceased walked passed them, Norman Aiyas fired the homemade gun and the bullet struck the deceased on the back of his head.
9. The deceased died as a result of gunshot wound on his head
10. The State alleges that the actions of the accused contravened section 300 (1) (a) of the Criminal Code Act 1974.
11. The State pleads the alternative charge of Manslaughter pursuant to section 302 of the Criminal Code.
12. The State further invokes Section 7 (1) (c) and Section 8 of the Code.
13. When arraigned the accused had pleaded not guilty to the charge. The State had tendered the committal Court depositions and both counsels have then submitted on the evidence as per the depositions and the law.
14. The State had relied heavily on the confessional Statement and the answers of the accused in his records of interview dated 18^th and 19^th July 2016 respectively. In both the alleged confessional statement and the Record of Interview, the accused had stated that during a meeting between the community leaders that they would disable the deceased, capture him and bring him to the Police or the Law to be dealt with accordingly.
15. The undisputed facts I find are as follows:
    1. that on the 28^th day of June there was a community meeting resolving for the community to capture and hand over the deceased to the police to be dealt with accordingly.
    2. That the accused and two others named as Mangfuru Kilas and Norman Aiyas had hid in the bushes on the morning of 29^th June
    3. That they had intended to shoot him on the leg and disable him so that they could capture him and hand him over to the Police.
    4. That whilst hiding in the bushes, the deceased came along and as he went past the accused and his accomplices, the co-accused Norman Aiyas who was armed with the homemade gun fired the home made gun at the deceased and shot him on the back on his head.
    5. The deceased as a result of the gunshot wound to the head.
17. Issues:
    1. Whether the accused killed the deceased. The accused was present at the scene of the crime, his presence was according to their plan, it was therefore willed and not by coincidence or accident.
    2. The act of shooting the deceased again was part of the plan to shoot and disable the deceased so that they could capture him and hand him over to the police.
    3. The co-accused Norman Aiyas however, shot the deceased on the back of the head resulting in the death of the deceased. Shooting the deceased on the head or any venerable part of his body was not part of the plan. The plan was to shot him on the legs. A diversion from the specific plan had occurred which had then lead to the death of the deceased. Clearly, someone must be held responsible for this. To explain as to what had happened and the deceased was not shot as planned.
    4. Intention is a matter that goes to the state of mind of the accused at the time he acted. A distinction must be made between an unwilled act and a willed act the product of a deceased mind which knows not the nature or quality of the willed act (R v Waiyape (1974) N796.
    5. There was no explanation as to why deceased was shot in the head rather than on the leg as initially planned. In the absence of any evidence, the court find that the evidence is insufficient to connect the accused to the shooting of the deceased occurred on the 29^th of June 2016. The accused therefore could not be guilty for murder as charged.
    6. Mere presence or mere prior knowledge of what is intended is in itself not sufficient to bring the accused within section 7 of the Code. Rv Umarum [1969-1970] PNGLR 190 at p191.
    7. It must be proven that the accused intended to give encouragement and that the accused wilfully encouraged. There must be encouragement infact: Aigiru Aieni v Paul Tohian [1978] PNGLR 37.
18. Could the accused be found guilty of manslaughter under S 302 of the CCA.
19. Motive alone does not establish responsibility either as a principals or accessories: RV Fum Boto (No.2) [1967-1968] PNGLR 448.
20. Rv Tovarula [1973] PNGLR 140 Minogue CJ, said, If it is proved that several persons were parties and that there was a pre concerted plan at the time and although they did not actively participate in the attact, keep watch or use any offensive or dangerous weapons there would be caught under section 7 if their presence were willed and they did not unequivocal and in a timely manner expressed their intention to abandoned their assent: R v Witrasep Binengim [1975] PNGLR 95.
21. In the absence of any such evidence of a withdrawal the accused may lawfully be convicted of Wilful murder, murder or manslaughter.
22. In the present case I find that there was a concerted plan between the community leaders and the accused persons; for members of the community including the accused to capture the deceased and hand him over to the Police, that the presence of the accused at the scene of the crime was willed, and that he did not communicate any intension to the contrary. He therefore is guilty of mans slaughter and convicted of the same said charge.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused