The State v Alwyn Wani (2010) N3968

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 13 April 2010
• Citation: (2010) N3968
• Docket Number: CR 390 OF 2008
• Court: National Court
• Year: 2010
• Judgement Number: N3968

Full Title: CR 390 OF 2008; The State v Alwyn Wani (2010) N3968

National Court: Davani J

Judgment Delivered: 13 April 2010

N3968

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 390 OF 2008

THE STATE

V.

ALWYN WANI

Accused

Wewak: Davani .J

2010: 12th, 13th April

CRIMINAL LAW – Wilful murder – s.299 - different weapons used – aiding and abetting – s.7 of Criminal Code.

CRIMINAL LAW – aiding and abetting – accused verbally encouraged others – accused involved in chase up to the killing.

CRIMINAL LAW – intention to kill – consideration of surrounding circumstances – wilful murder – killing in horrendous circumstances – mitigating factors rendered nugatory - life imprisonment.

Facts

Accused and three others chased deceased and one other, after a fight. Deceased ran to the river, where whilst in a canoe, he was speared, then axed in the head. A paddle was then used to repeatedly prod him in the head. He was pushed into the river and did not surface. He was found the next day, the spear tip still lodged in his left arm.

Issues

1. Did the accused aid and abet in the killing of the deceased?

2. Was there an intention to kill the deceased?

Reasons

1. Yes, the accused aided and abetted the deceased’s killing.

2. Yes, there was intention to kill the deceased.

Case cited

Papua New Guinea Cases

Agiru Aieni v. Paul T. Tahain [1978] PNGLR 37

John Anis Pok v. The State (1983) SC 254

John Beng v. The State [1977] PNGLR 115

John Jaminan v. The State (No.2) [1983] PNGLR 318

Luingi Yandasingi v. The State [1995] PNGLR 2687

Manu Kovi v. The State (2005) SC 789

Porewa Wani v. The State [1979] PNGLR 593 (SC 170

State v. John Bill White (No. 1) [1996] PNGLR 262

The State v. Robert Wer [1988-89] PNGLR 444

The State v. Yapes Paege [1994] PNGLR 65 (N1234))

The State v. Godfrey Edwin Ahupa (1998) N1789

The State v. Stanis Gala (2005) N2846

Thomas Arthur McCallum v. Gregory Bubui [1975] PNGLR 439

Ure Hane vs. The State [1984] PNGLR 105

Willy Kelly Goiya v. The State [1987] PNGLR 51

Overseas Cases

Barrington v Austin and Others [1939] S.A S.R. 130

Browne v Dunne (1893) 6 ER 67:652

Dennis v Pight (1968) 11 F.L.R 485

George Donald Allan, James Joseph Boyle, Albert Ballantyne, Michael Mooney (1963) 47 Cr. App R.243

Fabinyi v. Anderson (1974) 9 S.A. S.R. 336

R v. Coney and Others (1881-1882) 8 QBD 534

R. v. Russell (1933) V.L.R 59

United States v. Peonic (1938) 100 F. 2d 401

Rice v. Hudson [1940] S.A.S.R. 290

R. v. Clarkson and Others [1974] 3 All ER 344

Counsel

A. Kupmain, lawyer for the State

M. Yawip, lawyer for the Accused

13th April, 2010

VERDICT

1. DAVANI .J – On 12th April, 2010, the State presented on indictment against Alwyn Wani (the ‘accused’), charging him with one count of wilful murder, charge laid pursuant to s.299 of the Criminal Code. The accused pleaded not guilty to this charge and the matter proceeded to trial. Section 299 of the Criminal Code reads;

“299. WILFUL MURDER.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.”

State’s allegations

2. The State alleges that on 2nd November, 2007 at Mamare Village, Angoram, in the East Sepik Province, the accused together with several others, killed one Jilsco Huande (the ‘deceased’).

3. The State alleges that the accused aided and abetted in the killing when he urged others to perpetrate this crime where they used an axe, a spear, a paddle and later, drowned the deceased.

Accused’s Defence

4. The accused denies he committed his offence. No formal Defence was raised by the accused before the trial, however, his lawyer made known to the Court during a brief status conference before commencement of trial, that the issue is one of identification.

Analysis of evidence and the law

5. The matter proceeded to trial with the State calling 2 witnesses to prove its case. It also tendered through these witnesses, several items which I marked as exhibits, including the purported murder weapons being a spear and a paddle.

6. Only the accused gave evidence. He elected to give sworn evidence after the Court explained to him the 3 alternatives available to him.

A. State’s evidence

7. The 2 witnesses called by the State were Basil Singavi and Thomas Kam. Basil Singavi’s evidence is in relation to what he saw and heard that night, more particularly, the events leading up to the killing, the killing itself and events after the killing.

8. Thomas Kam’s evidence is in relation to the retrieval of the body from the river and a description of the murder weapons used.

(a) Scene of the crime; The offence occurred at about 3:00 am to 4:00 am on 2nd November, 2007, whilst the deceased was in a canoe, paddling away from the accused and others. The river on which the killing occurred is called the Kurasmeri, a tributary of the Sepik River.

(b) Events leading to the killing; On the evening of 1st November, 2007, there was a dance at Mamare Village, located on the Kurasmeri River. Villagers from the neighbouring village of Mindimbit, attended the dance as well. It was not until about 2:00 am on 2nd November, 2007, that a fight started at a hauswin at Mamare Village. It involved youths from the Mindimbit and Mamare Villages.

9. The deceased was one of 2 youths from Mamare Village, who were allegedly chased by the accused and others. The deceased then attempted to get away from the mob by getting into a canoe and paddling off. However, whilst paddling, the accused and others caught up with him and attacked him. I describe the attack further below.

(a) Weapons used in attack; The accused and accomplices allegedly used a spear, an axe and a paddle to kill the deceased. Firstly, the deceased was struck in the left arm by a spear, normally used to hunt crocodiles, large fish and pigs. He was later struck in the head by an axe wielded by one of his attackers. Then he was repeatedly struck in the head by the blade of a paddle.

10. The spear is about 3 to 6 metres in length. At the tip of the spear are 3 pronged steel/metal rods about a feet in length. Each are about a centimetre wide. These are held together by a very taut string or rope tied in such a way where the prongs will not be dislodged when used. About 6 inches of the base of the 3 pronged steel/metal rods are inserted into a hollow bamboo and again, tied up very tightly to the tip of the spear. The edges of the 3 pronged steel/metal rods are all sharpened with jagged edges, much like whaling harpoons, only smaller. These 3 pronged steel/metal rods when used, are intended to remain lodged in the animal or fish or crocodile until the hunters either track it down as in a crocodile or pig or until it stops its death throes and is dead. Or, as is the practice amongst a lot of rural Papua New Guineans, who are hunters or fishermen, to be sure that the animal or fish has succumbed, the hunters use an axe or knife or at least, a heavy object, to hit the animal on the head.

11. The blade of the paddle used to beat the victim on the head and to strike his body with, is a paddle used only on the Sepik River. It is about 2 ½ to 3 metres in length. The blade of the paddle used to stroke the water, is very unique in that instead of the traditional, flat semi-circle or oval or elongated shape, it has an upward curved centre, leaving 2 prongs on either side, shaped more like an oval shaped head with elongated ears or horns. That is the bit that is dipped into the water when paddling and which ‘horns’ were used to strike the deceased in the head, with ‘prodding’ actions.

(a) The scene of the crime; The eye witness to the crime, one Basil Singavi, said on the evening of 1st November, 2007, he was at a dance at Mamare Village. He said he went there with a couple of other young men, left them, then proceeded to Ricky’s hauswin, which is not far from the dance venue. He said there were already people in the hauswin, people from Mindimbit Village. An argument started between him and young men from Mindimbit Village. This then led to or escalated into an all out battle between the Mindimbit and Mamare Villagers.

12. The witness said he was then chased by the accused and others so he ran down to the river’s edge and started releasing canoes owned by the Mindimbit villagers, which had been left at the river’s edge. He set two canoes adrift when the Mindimbit villagers came upon him.

(a) Identification; The witness said when he ran from the scene of the fight to the river’s edge, the deceased accompanied him, running behind him. Running behind them in pursuit were Kelvin Wani, Cliveson Ban, Wain Gai and the accused. The deceased had a torch which the witness Basil took from him and which he used when releasing the canoes.

13. He said when the Mindimbit villagers came or set upon the deceased and him, he turned the torch on them. He said in the torchlight, he saw Wain Gai holding a 1 metre long bush knife, which he used to...