The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (2002) N2245

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 15 May 2002
• Court: National Court
• Citation: (2002) N2245
• Year: 2002
• Judgement Number: N2245

Full Title: The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (2002) N2245

National Court: Kandakasi J

Judgment Delivered: 15 May 2002

N2245

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 758 & 760 of 2000

THE STATE

-V-

COSMOS KUTAU KITAWAL

AND CHRISTOPHER KUTAU ( N0.1)

WEWAK: KANDAKASI, J.

2002: 9th, 10th, 15th May

DECISION ON VERDICT

CRIMINAL LAW - PRACTICE & PROCEDURE - Need to put defence case to prosecution in cross-examination – Failure to do so – Effect of – Evidence called in defence without putting it to the prosecution witness treated as recent inventions and unreliable.

CRIMINAL LAW – Evidence – Assessment of evidence - Logic and common sense play a major part in accepting or rejecting evidence and the guilt or innocence of an accused person – Evidence going against any logic and common sense unreliable – Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected.

CRIMINAL LAW - Verdict – Willful murder – Dead resulting from deep penetrating sword knife wound – No dispute of death and the accuseds causing the death – Only dispute on intention to kill and availability of the defence of either provocation or self-defence - Earlier fight leading to retaliatory attack on deceased – One of the accuseds expressed his intention to kill the deceased – Accuseds armed with a sword knife against an unarmed man – Deceased fighting with one of the accuseds and the other stabbing him from the back after three earlier failed attempts despite counsel against the attack – Defence of self-defence abandoned during submissions – Apart from the deceased and his friends being closer to the accuseds’ gate, they did nothing to provoke the attack on him and his eventual death – Accuseds not deprived of self control and did not act in the heat of passion - Defence of provocation not available –Guilty verdict returned on willful murder – Criminal Code ss 299, 266, 267 and 303.

Cases cited:

John Jaminan v. The State (N0.2) [1983] PNGLR 318

Browne v Dunn (1893) 6 R 67(HL)

The State v. Theo Raphael ( ) N

The State v. Raphael Kewangu (12/03/020) N2189.

The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48.

Garitau bonu & Rosanna Bonu v. The State SC528.

Paulus Pawa v. The State [1981] PNGLR 498.

Rosa Angitai v. The State [1983] PNGLR 185.

Counsels:

Mr. M. Ruari for the State

Mr. R. Saulep for the Accuseds

15th May 2002

KANDAKASI J: You stand charged that on the 7th of April 2000, here in Wewak at the Kairuru Wharf area you willfully murder a Ray Nangel, contrary to s.299 (1) of the Criminal Code (“the Code”). You claimed the defence of self-defence or provocation in the alternative and pleaded not guilty. That resulted in a trial on 9th and 10th of this month followed by submissions. I reserved a decision on the verdict to today.

The State’s Evidence

The State called a total of three witnesses to support the charge against you. In addition to that, it admitted into evidence with your consent, a medical report by Dr. Joseph Sand dated 18th April 2002 (exhibit “A”). It also admitted into evidence with your consent, your respective records of interview in both the Pidgin and English versions as exhibits “B1 and “B2” and “C1” and “C2” respectively.

There is no dispute that there was a fight on the night of the 6th of April 2000, between you and the deceased, which led to another fight on the following night of the 7th of April 2000, resulting in the deceased death. The only issue is whether you acted in either self-defence or failing that provocation without any intention to kill the deceased. This question can correctly be answered by having regard to who started the fights as may be revealed by the evidence before the Court. You claim that it was the deceased and his gang or friends that started both fights and you were only acting in self-defence or were reacting to the deceased and his group’s provocation.

The State’s first witness, Sam Navi says he was with the deceased on the 7th of April 2000. They both had consumed about six bottles of beer but were not drunk. They went in a vehicle driven by a Jeremy Power to pick up Jeremy Power’s mother who was at the Yacht Club. When they got to the Yacht Club, he and the deceased jumped down and stayed outside the Yacht Club’s gate talking with some Wosera boys while Jeremy and the other person went into the Yacht Club for Jeremy’s mother. He says where he and the deceased were standing was not far from your gate. It is just next to that of the Yacht Club’s. He says you must have heard them talking from your house, which was on an elevated land and about 40 meters away and came down to, fight the deceased because of a fight with the deceased the previous night.

He said Christopher opened your gate and came out to fight the deceased saying, “you held my father’s neck” and he started a fight and was fighting with the deceased using their fists. Then, Cosmos came from behind the deceased and stubbed the deceased at his back. That was after three earlier attempts, which the witness says he managed to prevent saying to Cosmos, “father do not do that”. He goes on to say that the deceased was at that time, facing Christopher and fighting with Christopher. After the deceased was stabbed, the deceased took a few steps before collapsing and dying, while you two ran back into your house. The deceased was then taken to the Boram Hospital in Simon Joe’s vehicle but he passed away in the vehicle on the way to the hospital. At the hospital he was pronounced dead.

The witness said he was able to see all of these clearly because of the lights from the Yacht Club and the surrounding. He also says he was only a meter away from you and the deceased, trying to break the fight and was able to see Cosmos stab the deceased with a knife.

Mr. Linius Natio, the second State witness said (under cross–examination) that, he was at the Mango Club at Moem on the night of 6th April 2000. When he was just about to drive back home into town, the deceased who was at the club on his own earlier asked him for a lift on his vehicle. Since the deceased was a neighbor and someone he knew well, he allowed him to board the vehicle with other boys as well. When they reached town, they decided to go and buy some smoke from the Seaside 24 hours trade store, which is owned by Simon Joe. Upon reaching the store, he parked the vehicle in front of the store and the deceased jumped out of the vehicle to buy some smoke. As soon as the deceased was at the counter of the store, Christopher got a grass knife and started to hit the deceased. The deceased bought his smoke and returned to the vehicle without fighting back. Just as the deceased was reaching the vehicle, Cosmos who was in his house came down and was trying to help Christopher fight the deceased. The witness says he asked Cosmos to explain the reason for the attack on the deceased but Cosmos was more interested in helping his son that he did not respond. At about that time, the boys on the vehicle jumped down and shouted at the two of you and you both went back to your house.

From your house, you took some sort of a weapon, a fishing gun or something like that and you were trying to use them against the deceased and the other boys. That is when the boys picked up stones and sticks that were there and chased the two of you back into your house. The witness saw this was not good so he called the boys back to the vehicle and they left.

Under further cross-examination, the witness agreed to a suggesting that the fight of the 6th broke out when the boys in his vehicle got down. He also agreed to a suggestion that he felt that the fight was not good so he went and apologized to you. Again under further cross-examination the witness agreed to a suggestion that sometime after the fight, the boys took some stones and sticks and threw them at the two of you.

In this witness’ evidence in chief this witness said no one from...