The State v Kevin Peteru (2011) N4233

• Jurisdiction: Papua New Guinea
• Judge: Kariko J
• Judgment Date: 11 March 2011
• Citation: (2011) N4233
• Docket Number: CR 1416 OF 2009
• Court: National Court
• Year: 2011
• Judgement Number: N4233

Full Title: CR 1416 OF 2009; The State v Kevin Peteru (2011) N4233

National Court: Kariko J

Judgment Delivered: 11 March 2011

N4233

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1416 OF 2009

THE STATE

V

KEVIN PETERU

Daru: Kariko J

2011: 8 &11 March

CRIMINAL LAW – Particular offence – Inciting to kill – section 308(1)(a) Criminal Code - meaning of “incite” and “incitement”- need for wilful or intentional encouragement or urging to commit an unlawful killing

The accused married two women and he went to and from the wives who lived in separate homes. There were regular fights or arguments between the women over eight years. On 7 February 2009, the first wife stabbed the second wife with a knife causing her death. Earlier that day, the accused had assaulted the first wife. The accused was charged with inciting the first wife to kill the second wife.

Held:

(1) An offence under section 308 of the Criminal Code applies to situations where the prosecution is unable to prove an attempt to kill or an aiding under s. 7 or a conspiracy to murder, and is aimed at “behind the scenes” persons who plan killings: Mauwe Anatape v The State [1981] PNGLR 68 adopted.

(2) To “incite” under section 308 of the Criminal Code means to encourage, stir up, urge or persuade.

(3) Incitement as an offence involves encouraging or urging a person to do a violent or an unlawful act.

(4) For the offence of inciting to kill under section 308(1)(a) of the Criminal Code, there must be wilful or intentional encouragement or urging to commit an unlawful killing

(5) The acts or omissions alleged against the accused did not amount to incitement as required by section 308 of the Criminal Code and the accused was accordingly acquitted.

Cases cited

Papua New Guinea Cases

Mauwe Anatape v The State [1981] PNGLR 68

Porewa Wani v The State [1979] PNGLR 593

R v Umarum [1969-70] PNGLR 190

Agiru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37

The State v John Badi Woli & Pengas Rakom [1978] PNGLR 51

The State v Ben Wafia (No 1) (2003) N2579

Ben Wafia v The State (2006) SC851

Overseas Cases

Browne v Dunn (1893) 6 ER 67

Counsel:

D Mark, for the State

P Palek, for the Accused

11 March, 2011

1. KARIKO J: Ailyn Iosea was a widow when in 1997 she met the accused who was already married to a Dairi Bazi. The relationship between Ailyn and the accused developed to one where they started living together in Daru and they were looked upon as a married couple with Ailyn regarded as the accused’s second wife.

2. Dairi initially agreed to the accused taking on Ailyn as his second wife. The accused would go to and from the two wives but it seems that he resided mainly with Ailyn and her family.

3. After a year or so of this scenario, the relationship between the two wives changed to animosity towards each other and this grew as the two women fought each other from time to time.

4. These fights were more arguments than physical confrontations that involved mostly cursing and swearing. The accused tried to stop these quarrels when they happened in his presence but he otherwise did not seek the assistance of authorities such as the village council or the courts to settle the hostility between the wives. It seems the matter was taken up once in the District Court but the case was not progressed.

5. On 7 February 2009 the accused assaulted Dairi resulting in her attending the Police Station for assistance. Apparently she and Ailyn had been counselled by the Police over sometime for domestic violence by the accused. After she left the station she apparently met Ailyn when yet another confrontation broke out between the two women during which Dairi stabbed Ailyn with a knife resulting in Ailyn’s death.

6. Against this background the accused faces an indictment charging him with inciting Dairi to unlawfully kill Ailyn, a charge under section 308(1)(a) of the Criminal Code.

7. The accused pleaded not guilty to this charge.

Issue

8. There is no dispute that Dairi Bazi unlaufully killed Ailyn Iosea on 7 February 2009. The question is whether the accused incited Dairi to execute the killing?

Prosecution case

9. The prosecution relies on the following evidence to prove the element of inciting:

· That over the course of 8 years he was married to Ailyn, the accused did not treat the fights between the wives with any seriousness because he took no steps to settle their problem.

· Even though this problem had grown over the period and the arguments became regular, the accused did not care to solve the matter. He did not even consider taking the matter up with relevant authorities for assistance.

· On 7 February 2009 he assaulted Dairi which then led to the confrontation between Dairi and Ailyn later in the day.

· He was present when Dairi killed Ailyn.

Defence case

10. Mr Palek for the accused argued that to “incite” means to “urge on” or “stir up”. Simply put, the Defence submission is that the evidence relied upon by the State does not amount to “incitement” as required under section 308 of the Criminal Code.

Whether accused present at the scene

11. The only relevant prosecution evidence that is disputed is whether the accused was present when Ailyn was stabbed. Evidence led by Ailyn’s son Gibson Adara, who was one of the three State witnesses called to testify, was that the accused was present at the scene – that he arrived after the fighting started but his (Gibson’s) mother had already been stabbed. Gibson said the accused tried to stop the stabbing by shouting out but was late. The accused said in evidence he was elsewhere at the time when he received news of the stabbing.

12. The defence version was not put to the witness Gibson during cross-examination, so technically that evidence was accepted by the defence pursuant to the rule in Browne v Dunn (1893) 6 ER 67. However I found this witness most unimpressive. He looked down most of the time, answered after long pauses and mumbled his answers. He was reminded numerous times to look up and answer in an audible voice. The particular evidence about the accused being at the scene came just before the close of examination-in-chief and seemed to me to be an afterthought to give credence to his evidence. But his account offered no details regarding the killing and in particular how the fight started; where and when it happened; what it involved; how the stabbing happened; how the stabbing was perpetrated; and what happened after the stabbing. I therefore disbelieve Gibson on this area of evidence and find the State has not proved beyond reasonable doubt that the accused was present when Ailyn was stabbed.

13. Even if the accused was present when the killing took place, this would not alter my decision, and I will come to that later.

The Law

14. Section 308 of the Criminal Code reads:

(1) A person who—

(a) incites, encourages, urges, counsels or commands the unlawful killing of another person; or

(b) does or omits to do any act for the purpose of facilitating, enabling or assisting the unlawful killing of another person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) For the purposes of Subsection (1), it is immaterial that—

(a) no specific person was incited, encouraged, urged, counselled, commanded, enabled or assisted to kill; or

(b) the killing of no specific person was incited, encouraged, urged, counselled, commanded, facilitated, enabled or assisted; or

(c) no person was in fact killed. (My underlining).

15. In my experience where the facts disclose acts of encouragement of an unlawful killing, the prosecution has opted to pursue a charge invoking section 7 of the Criminal Code (aiding). It is not surprising therefore that there is a dearth of case authority dealing with this provision. It is apparently an offence unique to Papua New Guinea. The Criminal Code of Queensland from which this country’s Criminal Code is based certainly does not contain a similar section. This offence received some discussion in Mauwe Anatape v The State [1981] PNGLR 68 and was briefly referred to in Porewa Wani v The State [1979] PNGLR 593.

16. In Mauwe Anatape’s case, the accused and his brother waited outside the courtroom for the brother to kill an alleged sorcerer. The accused was present to assist the brother in case the relatives of the intended victim retaliated. The accused was in fact charged under now section 308(1)(b) which was then section 315 (1)(b) - Doing an act for the purpose of assisting the unlawful killing of another person. No one was actually killed and the conduct did not amount to attempt murder. While the charge was different to the present case (the charge being laid under section 308(1)(b)), the following observations by the Supreme Court are pertinent:

· The section “seems to be directed towards the situation where the...