The State v Ilai Bate of Vakuta, Alotau, Milne Bay Province (No 1) (2008) N3555

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 19 September 2008
• Court: National Court
• Citation: (2008) N3555
• Docket Number: CR 1147 OF 2007
• Year: 2008
• Judgement Number: N3555

Full Title: CR 1147 OF 2007; The State v Ilai Bate of Vakuta, Alotau, Milne Bay Province (No 1) (2008) N3555

National Court: Davani J

Judgment Delivered: 19 September 2008

N3555

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1147 OF 2007

(NO. 1)

THE STATE

V

ILAI BATE of VAKUTA, ALOTAU, MILNE BAY PROVINCE

Accused

Alotau: Davani .J

2008: 17th, 18th, 19th September

CRIMINAL LAW – Wilful murder – trial – no legal Defence – whom to believe – weighing of evidence – s.299 of Criminal Code Act

CRIMINAL LAW – Element of intention – not proven – conviction on alternative charge – manslaughter – s. 539 of Criminal Code Act

Facts

State alleged that the accused stabbed the deceased with a steel yam digging stick. Accused denied the charge claiming to be in his house with his parents and brother. However, the main State witness said in evidence that it was the accused who attacked him, then chased him for about 50m, using the steel yam stick as a weapon which he swung at the witness on 3 occasions and missed. State witness also recognized the accused as the man who fought him because he had been his neighbour for about 7 years. The State witness also said that it was that same steel yam digging stick which the accused swung at him, which missed him and struck the deceased on the head, causing serious injuries and instant death.

Issues

i. In the absence of a legal Defence, how can the Court deal with the accused’s version of evidence?

ii. Is the accused guilty of wilful murder?

Held

i. The Court gave careful consideration to the accused and witnesses’ evidence and struck a balance between what is logical and more probable of human comprehension and what is illogical or plain fallacy.

ii. The Court found the accused guilty of the alternative charge of manslaughter.

Cases cited:

Papua New Guinea Cases

State v Tu’Uo Ibru (1999) N1940

John Ben v The State [1977] PNGLR 115

State v Raphael Kuanande [1994] PNGLR 512

State v Kauva Kavau and Kamo Kauva (1996) N1523

State v Sapera Kaki CR 225 of 2000

Overseas Cases

Woolmington v DPP [1935] AC 462

Counsel:

P. Kaluwin, for the State

R. Yayabu, for the Accused

VERDICT

19 September, 2008

1. DAVANI .J: This matter proceeded to trial after Ilai Bate (the ‘accused’) pleaded not guilty to one count of wilful murder, charge laid under s.299 of the Criminal Code Act (‘CCA’). This provision 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 in the early hours of the morning on 5th May, 2007, Daniel Bate, the accused’s brother was assaulted and chased towards the direction of his house. Daniel Bate then called out for help and several people came to his aid, chasing those who had assaulted Daniel Bate. Then, the victim and others, one of whom had assaulted Daniel Bate, then got into a vehicle to drive out. The State alleges that this was when the accused, threw a crowbar he was holding, at one Trent Wesley (‘Deceased’). The crowbar struck the deceased on the left side of his head, protruding through to the right side. The State alleges that the deceased died as a result of this injury.

3. The State alleges that the accused intended to cause the deceased’s death.

State’s evidence

4. The State called one Michael Dulo, the person who was chasing Daniel Bate and who was later chased to a truck, where the accused then attacked him with a crowbar.

Defence

5. The accused’s Defence is that he was never at the scene of the crime. He elected to give sworn evidence together with his mother and father. Their evidence is that the accused’s brother was beaten up by some people, after which his brother and the accused together with the accused’s parents, then took their brother and son, Daniel back to their house. The accused’s contentions are that he was not the one who wielded the crowbar that struck the deceased because he was never there.

Analysis of evidence and the law

6. The State’s evidence is that it was the accused who struck the deceased with the crowbar. But the accused said he was never there. I will review the evidence for a determination as to what actually happened.

i. Events leading up to the fatal “spearing”; Michael Dulo, the State’s witness, said that evening he was at a canteen buying some drinks, when the accused’s brother, Daniel Bate came up to him. He was swearing and being abusive. That was when Michael Dulo and him grappled and fought. They fought along Kirriwina Street, when others came in to aid Daniel Bate and chased Michael Dulo. He retreated by running back to the vehicle that he had parked in front of the canteen in which the deceased and two others were.

Michael Dulo said amongst the people who gave chase were the accused, his mother and brother.

ii. The fatal “spearing”; Michael Dulo said whilst running back to his parked vehicle, he sometimes had to stand and fight with the accused. He said that was when the accused, whilst armed with a crowbar, swung at him, three times, which he had to duck to avoid.

Michael Dulo said as they were outnumbered, he called out to the boys to get into the vehicle. They all got into the vehicle when he saw the accused throw or swing the crowbar at them. He said he managed to push one of the occupants down which the crowbar missed. He could not do the same to the deceased, who received the full force of the blow in his head.

iii. Accused’s involvement in the fight; The accused maintains that he was never at the scene of the fight or never gave chase to Michael Dulo all the way to Michael Dulo’s vehicle. He said he left when his mother called out to him to help his brother who was lying on the ground after the scuffle with Michael Dulo.

iv. Identification or recognition; Michael Dulo said he recognized the accused because he used to reside for 7 years on the same street as the accused. He said that night the canteen lights and the street lights were on so he could see who his attackers were.

The accused however said there were no street lights on that night. Neither party have brought independent evidence on the existence or not of street lights that night. So whom can I believe? It means that I must then have recourse to the law of identification. The principles on the law of identification is well established in this jurisdiction, more particularly the case John Beng v The State [1977] PNGLR 115 where Kearney. J held that recognition is not the same as identification although the weight to be granted to it depends on the length and degree of prior acquaintance. In that case, Kearney. J developed the principles to be taken into account when assessing the accuracy of witnesses’ evidence;

“What opportunities the person identifying had to form a judgment of the identity of the person who committed the crime…position of the parties, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.”

Although there are dangers inherent in identification evidence, I also remind myself that recognition is more reliable than identification of a stranger (State v Kauva Lavau and Kamo Kauva (1996) N 1523 but mistakes in recognition of even close relatives and friends can be made (John Beng v the State (supra)).

v. Accused’s parents’ evidence; Generally, both of them say their son, the accused, was assisting them take their other son into their house so he could not have been the deceased’s attacker because he was not at the scene of the crime.

vi. Who “speared” the deceased Trent Wesley?; Although Michael Dulo is adamant that he recognized the accused as being the wielder of the crowbar that inflicted the fatal blow, the accused maintains that he was with his parents when that occurred. His parents maintain the same story.

First, no doubt this is a case that rests very much on whom the Court should believe. It is also a case of the weighing up of evidence and drawing inferences where necessary.

For the State, Michael Dulo is the only witness and also the person who was actually involved in the fight. Before I make conclusions on his evidence in relation to identification or recognition of the accused, I will review the accused’s parents’ evidence, who were the accused’s only witnesses.

They say Michael Dulo chased their son Daniel Bate, assaulted him and he fell to the ground. Then, Daniel Bate called out for help which prompted his parents and the accused to come out of their house. They said at that point, Daniel Bate was exchanging punches with Michael Dulo when his mother heard Daniel Bate call out to them for help. The accused said his dad and him helped his brother into the house. He said his mother was not with them. However, in her evidence, the accused’s mother, Priscilla Bate said she assisted her son into the house also. That is an inconsistency in their evidence.

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