The State v Joseph Viga

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 16 June 2016
• Citation: (2016) N6341
• Court: National Court
• Year: 2016
• Judgement Number: N6341

Full : CR Nos 8 of 2014; The State v Joseph Viga; CR NO. 9 OF 2014; The State v Cecil Viga; CR NO: 11 OF 2014; The State v Samson Viga Jr & CR NO: 866 OF 2014; The State v Freddy Viga (2016) N6341

National Court: Davani, J

Judgment Delivered: 16 June 2016

N6341

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 8 OF 2014

BETWEEN:

THE STATE

AND:

JOSEPH VIGA

Accused

CR NO. 9 OF 2014

BETWEEN:

THE STATE

AND:

CECIL VIGA

Accused

CR NO: 11 OF 2014

BETWEEN

THE STATE

AND:

SAMSON VIGA JR

Accused

CR NO: 866 OF 2014

BETWEEN:

THE STATE

AND

FREDDY VIGA

Accused

Popondetta: Davani, J

2016: 18th, 19th, 20th May

16th June

CRIMINAL LAW – Verdict –Wilful Murder- Co- accused- Defence under s.269 (1) (2) Criminal Code

CRIMINAL LAW- Wilful Murder – intention – a comment by a co-accused – made 3 to 4 hours before killing - not sufficient to establish intention – co accused guilty of lesser charge of murder – s.300 (1) (a) Criminal Code

CRIMINAL LAW- Alibi- person other than accused must be named on Alibi Notice as a witness.

Facts

4 accused, who are brothers, and their father, were charged under s.299 of Criminal Code for wilful murder. A co- accused inflicted the fatal blow during a fight by using a knife to cut the Deceased in the stomach resulting in his intestines falling out and ultimately, death. The State invoked s.7 of the Criminal Code.

Held

1. The filed Notice of Alibi is defective because it refers to the accused Freddy Viga as the only Alibi witness. The Alibi witness must be a person or persons other than the accused, to be an alibi witness;

2. The State relies on a statement made by accused, Samson Viga snr, about 4 hours earlier, to prove intention, where he said that they will cut the deceased in the stomach. That is not sufficient to prove intention to unlawfully kill because the fatal blow was struck several hours later, by Joseph Viga, whilst in a group fight situation.

PNG Case Cited:

• Agiru Aleni v Paul T Tahain [1978] PNGLR 37

• Denden Tom v The State (2008) SC 967

• David Kandakason v The State (1998) SC 860

• Eliza v Mandina [1971]PNGLR 422 at 430

• Michael Tenaram Balbal v The State (2007)

• R v Pari – Parilla (1969) N527

• R v Paul Maren (1971) N615

• Steven Loke Ume &Ors v The State [2006] PGSC 9 SC 836 dated 19th May,2006

• The State v Mannaseh Voeto [1978] PNGLR 119;

• The State v Opi Aiyo (1991) N939

• The State v Geoffrey Edwin Ahupa (1998) N1789.

• The State v David Pandau Huahori (No.1) (2002) N2185

• The State v Alwyn Wani (2010) N3968

• The State v Robin Andolu (2013) N5128

Overseas cases cited:

• R v Coney and Others (1881 – 1882) 8 QBD 534

• R v Russell [1933] VLR 59

Counsel:

Mr D. Kuvi, for the State

Mr F. Kirriwom assisted by Mr E. Yavisa, for the co-accused.

VERDICT

16th June, 2016

1. DAVANI J: On 18th May, 2016, the State presented an indictment alleging that Joseph Viga, Cecil Viga, Samson Viga Jnr and Freddy Viga (‘co-accused’), all brothers and all of Dove village, Tufi, Northern province, had allegedly wilfully murdered one Densley Kariva (‘Deceased’) on 12th November, 2012, at Yagisa hamlet, Tufi, Northern Province, contrary to s.299 of the Criminal Code.

2. The State also invoked s.7 of the Criminal Code, alleging that the co-accused and their father assisted and encouraged each other to commit the crime.

S.299 reads;

“S.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”

3. The co-accuser’s father, Samson Viga Snr, has escaped from custody. A warrant was issued for his arrest on 12th February, 2014 and has yet to be executed.

4. Upon arraignment, the co-accused pleaded not guilty and the matter proceeded to trial.

States allegations

5. The State alleges that on 12th November, 2012, the Deceased went to the hamlet of Yagisa, about a kilometre away from his Yorukode hamlet, to visit his uncle Eric Desegari. However, his uncle Eric was not home so he spent that time talking with his aunt Serah Desegari, Eric’s wife. Serah and Eric Desegari’s house is located near a new house that the co-accused were building, together with their father, Samson Viga Snr. Whilst the Deceased was talking to his aunt, the co-accused and their father, confronted the Deceased and told him to leave, because of ongoing differences between the Deceased and the co-accuser’s family, the State alleges. The State alleges that the Deceased left and returned that day with 2 of his brothers and a sister. The State alleges that they were unarmed. That they went to Yagisa hamlet to discuss some ongoing issues they were experiencing which was all related to why the co-accused and their father had told the Deceased to leave. The State alleges that before the Deceased and his siblings went to Yagisa hamlet, that the co-accused and their father had prepared their weapons to fight the Deceased and his siblings. That they had sharpened their knives and axes and had them ready, in the event the Deceased and his siblings challenged them to a fight.

6. The State alleges that when the Deceased and his siblings approached the co-accused and their father, that they confronted them and a fight erupted. Accused Freddy Viga attempted to stab the Deceased with a spear knife but the Deceased disarmed him and threw it away. Whilst the Deceased was assisting his 2 brothers who were fighting with accused Cecil and Samson Viga jnr, the State alleges that accused Joseph Viga picked up a grass knife that was lying on the ground, then cut the Deceased in the stomach. As a result, the Deceased’s intestines fell out of his stomach because the cut was very deep. When this happened, the State alleges that the co-accused and their father mocked the Deceased, his brothers and his sister, telling them to get up and walk back to their hamlet. The co-accused also chased away the Deceased’s 2 other brothers, leaving his sister, alone with him.

7. The State alleges that the Deceased died the next day. The co-accused and their father, escaped by raft down the Musa River, to Guruguru village. They were later apprehended by villagers and brought to the Popondetta Police Station where they were arrested and charged for the offence.

Evidence tendered by consent

8. Documents were tendered by consent and were marked as exhibits. I will refer to them, where appropriate.

State’s witnesses

9. The state called the following witnesses;

• Roslyn Kariva.

• Serah Desigari

• Erick Kariva

Defence witnesses

10. Each accused elected to give sworn evidence, exercising their Constitutional right. They did not call any other witnesses.

Legal Defence

11. Accused Cecil Viga and Samson Viga Jnr, raise the Defence of Self Defence against an Unprovoked Assault under s.269 (1) of the Criminal Code.

12. Accused Joseph Viga raises and relies on the Defence under s. 269 (2) of the Criminal Code.

S.269 (1) (2) reads;

“269. Self – defence against unprovoked assault

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault. If the force used is not intended to cause, and is not likely to cause death or grievous bodily harm.

(2) If –

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

It is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm. “

13. And where the evidence suggests self-defence, the onus is on the State to show the absence of any one of the requirements of the section. (R v Paul Maren (1971) N615).

14. And the prosecution also bears the onus of disproving self-defence where the evidence discloses self-defence as a defence. (R v Pari-Parilla (1969) N527).

15. I discuss the elements of self-defence and the onus of proof, together with the evidence, later below.

16. Accused Freddy Viga, raised identification as an issue, at trial. However, it became apparent in his evidence that his Defence was more Alibi than identification. A quick perusal of the court file revealed that the Public Solicitor filed a Notice of Alibi on 23rd October, 2014. I discuss this further below when I analyse Freddy Viga’s evidence.

Issues

17. Generally, the issues are basically these;

• Did accused Joseph Viga, unlawfully kill the Deceased?

• Did accused Joseph Viga act in self defence against an unprovoked assault, when he picked up the knife and attacked the Deceased, cutting the Deceased in his stomach, which eventually led to his death?

• Did the co-accused aid and encourage Joseph Viga in the fight that eventually led to the Deceased’s death?

• And...