The State v Michael Nema Melpa (2003) N2450

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 08 July 2003
• Citation: (2003) N2450
• Court: National Court
• Year: 2003
• Judgement Number: N2450

Full Title: The State v Michael Nema Melpa (2003) N2450

National Court: Jalina J

Judgment Delivered: 8 July 2003

N2450

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 525 of 2001

THE STATE

-V-

MICHAEL NEMA MELPA

Mt. Hagen : Jalina J

2003 : 1, 2, 3, 4, 7 & 8 July

J. Kesan for the State

P. Kumo for the Accused

DECISION ON VERDICT

8th July 2003

JALINA J: This accused was charged that he on 6th day of December, 2000 at Kombakena village, in Papua New Guinea, murdered one Kimb Tamel, a national male. He pleaded guilty to the charge but upon application by his lawyer Mr. Kumo for a plea of not guilty to be entered on the basis that the accused acted in self-defence and would raise such a defence in his trial, a plea of not guilty was so entered. This case then proceeded to trial with the State calling oral evidence from the deceased’s wife Kenken Kimb and his daughter-in-law Dakan Robert who are eye witnesses to the crime. The State also called Constable Paulus Bubu the Investigating Officer for cross-examination by Defence Counsel Mr. Kumo.

The evidence of the deceased’s wife, Kenken Kimb was to the effect that on the day of the incident the accused arrived at their premises while she and her husband were in their house with their children and their daughter-in-law Dakan Robert. She met him at the gate and he told her that he wanted them to repay some K2,000.00 that he had lent them some time ago and that he was in need of K400.00 but she told him that they had no money at the time. She further said that she was raising some chicken which would be ready for sale in two weeks and that if she gets some money from the sale she could give him the K400.00 he needed.

While she was talking to the accused the deceased left their house and walked over to them. After greeting the accused, the deceased told him that when he had money he sent word for him to come but did not come but now that he (the deceased) had no money the accused had been sending messages through other people for his loan money which was embarrassing to him but since the accused had come he forgave him.

The deceased then referred to assistance he had given to the accused with such things as cassowary, pig and money during the accused’s time of need and that it was better for the accused to issue summons and take him to court. The accused then slapped the deceased on one cheek and the deceased told him to slap the other cheek just as Jesus said in the Bible that people should do and the deceased told the accused that since he was a pastor he would not retaliate.

The accused then pulled the deceased by the collar of his shirt and she separated them by pushing the accused to the front and the deceased to her back and at the same time calling out for help. Her little daughter was pulling her skirt.

The accused then went and grabbed a stick and she observed as to how the accused would come with the stick. The deceased left her and put up his hands in front of the accused and the accused lifted the stick and hit the deceased on the head. The deceased fell on her and they both fell to the ground. She demonstrated this in court.

According to her evidence there was no fight between the accused and the deceased let alone the deceased being the instigator of the fight. She denied on cross-examination that the deceased instigated the fight by first holding on to the collar of the accused’s shirt and tearing it in the process of a struggle and then stabbing the accused on the back with a screw driver followed by an attack on the accused’s head with a shifting spanner after the accused fell to the ground.

She further denied on cross-examination the accused receiving injuries from the attack by the deceased with a screw driver and the spanner.

Apart from her 3 young children aged 9, 6 and 3 years respectively and Dakan Robert, there were no other people present at the time.

The witness Dakan Robert is the daughter-in-law of the deceased. On the day in question she was in the deceased’s house when she heard Kenken Kimb call out and cry so she ran out and stood at the gate and saw the accused pick up a stick and hold it with both hands and hit the deceased on the head. She went on to say that the deceased running towards the accused when he hit him with the stick.

However when questioned later by the Court as to how far the accused was from the deceased when he was hit with the stick she said that the deceased was in front of Kenken when hit and he fell on Kenken and then they both fell to the ground. There were no angry words exchanged between the accused and the deceased immediately prior to the accused hitting the deceased with the stick.

After the accused hit the deceased, Kenken Kimb told her to go and fetch water and spoon out of the house so she did as requested by Kenken. When she was going to the house the accused followed her to the back of the toilet and then climbed over the fence and escaped.

She further stated that the deceased did not have anything in his hand at the time he was hit by the accused on the head. On cross-examination it was pointed out by Defence Counsel after putting to her that she did not mention in her statement to the police about the deceased falling on Kenken and then both falling to the ground after being hit by the accused but she insisted that she did say that. On cross-examination she also denied that the accused received injuries let alone the attack on him by the deceased.

The Police Investigator, Constable Paulus Bubu was called by the State Prosecutor only for cross-examination by Defence Counsel as the confessional statement of the accused, the record of interview and his own statement had already been tendered by consent.

When Defence Counsel cross-examined him about the time of arrest of the accused, Constable Bubu stated that he saw the accused, on 7th December 2000 at the Mt. Hagen Police Station cells at about 10 am. He found the accused to be in a state of shock as he (accused) was concerned about his ministry as a pastor and he tried to comfort him.

As to the injuries the accused appeared to have sustained during a fight, he said that he saw a scratch and swelling on the head and that when the accused lifted up his shirt he saw scratch marks on his back with some dried blood stains. He said that it was not a stab mark. It was not a wound. Upon request from the accused he requested medical attention at the cells because the wound was not serious as well as the personal safety of the accused. When the medical officer arrived, he escorted him to the accused in the cells where the medical officer examined and treated the accused.

Constable Bubu denied that the injuries were serious and that the accused was quite sick because of the injuries. He went on to say that the medical officer did not provide him with a medical report to include in the file even though he requested him to provide same.

The accused gave sworn evidence on his own behalf. His evidence was totally opposite to that of State witnesses Kenken Kimb and Dakan Robert. His evidence was to the effect that after he arrived at the deceased’s premises he was talking to their mother in-law when the wife Kenken Kimb arrived. The deceased and himself were married to two sisters. They were Kenken Kimb, the deceased’s wife who was the younger sister and his wife although he and his wife did assist in raising Kenken before she married the deceased. They have lived as brothers for up to 10 years prior to the incident.

While he was talking to Kenken, the deceased called him to go to him. He told him about the assistance he had given and that now he was in need of K400.00 to buy roofing iron from AgMark. But the deceased complained about the accused telling other people about the money the accused lent him and that it made him feel embarrassed. The deceased went on to say that if the accused wanted the money then he should take the matter to court. This upset the accused so he called the deceased “rabisman” and they exchanged some words to the effect that the accused gave money to the deceased in his time of need and it was not good for the deceased to say that kind of thing when he (accused) was in need of money.

Then the deceased told the accused that he would not repay the money and that the accused should leave. So the accused again called the deceased “rabisman”. The deceased became angry and swung his hand at him twice. He missed the accused the first time and when he swung the second time the accused put up his hands and the deceased’s hand hit the accused’s hands. The accused also swung at the deceased.

The deceased then held the collar of the accused’s shirt and then pulled out a screw driver from...