The State v Michael Nuli (2011) N4198

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 January 2011
• Citation: (2011) N4198
• Docket Number: CR NO 877 OF 2009
• Court: National Court
• Year: 2011
• Judgement Number: N4198

Full Title: CR NO 877 OF 2009; The State v Michael Nuli (2011) N4198

National Court: Cannings J

Judgment Delivered: 19 January 2011

N4198

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 877 OF 2009

THE STATE

V

MICHAEL NULI

Kimbe: Cannings J

2010: 21, 24, 25 June,

2011: 19 January

VERDICT

CRIMINAL LAW – attempted murder – Criminal Code, Section 304 – trial – elements – identification evidence – group attack – whether the accused was involved – whether the accused attempted to kill the deceased.

The accused was charged with the attempted murder of a neighbouring villager. It was alleged that he joined with three others in a bushknife attack on the complainant over an allegation that the complainant had killed one of the assailants’ pigs. The complainant was badly injured and hospitalised. The accused did not dispute that the complainant was attacked and injured in the manner alleged but denied involvement and argued that it was a case of mistaken identity and that he was in his house at the time of the incident. In the alternative he argued that in the event that the court found he was involved, he did not have any intention to kill the complainant.

Held:

(1) Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioned itself, as the tribunal of fact accordingly, the court was satisfied, having regard to the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, that the quality of the identification evidence was sound, as:

· the State witnesses were honest;

· they were identifying someone they knew and recognised;

· they were not disturbed emotionally to the point that they were not in a position to remember who the assailants were;

· there was ample time for them to recognise the assailants;

· light was provided by a lamp.

(2) As to the alibi evidence, the court was satisfied, having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, that its quality was poor and the alibi was, in fact, false, as:

· no notice of alibi was provided to the State, so it is a belated alibi;

· the accused was an unimpressive witness as his demeanour was poor and he gave vague evidence;

· the alibi was uncorroborated.

(3) As to weighing of the identification and alibi evidence, the identification evidence, considered alone, was sufficient to establish involvement of the accused. The alibi evidence did not give rise to any doubt that the accused was one of the assailants and, being so poor, corroborated the State’s case.

(4) The offence of attempted murder has three elements: (a) the accused intended actually to kill the deceased; (b) the accused put his intention into execution by means adapted to its fulfilment; (c) the accused manifested his intention by some overt act.

(5) All elements were proven beyond reasonable doubt as it was a premeditated ambush on the complainant and, given the nature and extent of his injuries: (a) there was an intention on the part of the assailants, including the accused, to kill him, (b) that intention was put into execution by the group attack on him and (c) the accused actively participated in the attack.

(6) Therefore the accused was convicted of attempted murder.

Cases cited

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (No 2) [1983] PNGLR 318

R v Kiki Kau’Au (1970) No 557

The State v Henry Judah Les (2005) N2950

The State v James Pah [1985] PNGLR 188

TRIAL

This was the trial of an accused charged with attempted murder.

Counsel

F Popeu, for the State

D Kari, for the accused

19 January, 2011

1. CANNINGS J: The accused, Michael Nuli, is charged with the attempted murder of Rudolph Laupu at Gatuwore village on Saturday 9 February 2009.

2. The State’s case is that the accused joined with three other young men in staging a bushknife attack on the complainant at his house at 7.00 pm. The alleged motive for the attack was a belief that the complainant had killed the assailants’ pig. The State argues that the accused intended to cause the death of the complainant and that that intention was put into effect and that the complainant suffered serious injury as a result.

3. The accused did not dispute that the complainant was attacked and injured in the manner alleged but denied involvement and argued that it was a case of mistaken identity and that he was in his house at the time of the incident. In the alternative he argued that in the event that the court found he was involved, he did not have any intention to kill the complainant.

ELEMENTS

4. Attempted murder is an offence under Section 304 of the Criminal Code, which states:

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

5. The indictment in this case is based on Section 304(a), which means that the State must prove the following elements of the offence:

(a) The accused intended actually to kill the deceased;

(b) The accused put his intention into execution by means adapted to its fulfilment; and

(c) The accused manifested his intention by some overt act.

(R v Kiki Kau’Au (1970) No 557, The State v Henry Judah Les (2005) N2950.) If the State fails to prove all of the elements, no alternative conviction for another or lesser offence is available. In such a case an acquittal must be entered. The court can only convict of an alternative or lesser offence if an alternative charge is included in the indictment (The State v James Pah [1985] PNGLR 188).

ISSUES

6. As the accused does not dispute that the complainant was attacked and injured in the manner alleged, the first issue that must be addressed is whether he was involved at all. If he was not involved, he will be acquitted. If he was involved the question will become whether there is evidence of every element of the offence.

1 WAS THE ACCUSED INVOLVED?

7. Determination of this issue requires:

· a summary of evidence for the State;

· a summary of evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of the defence counsel’s submissions;

· an assessment of the defence counsel’s submissions; and then

· a final determination of whether the accused was involved.

EVIDENCE FOR THE STATE

8. It consisted of:

· oral evidence by the complainant and his wife;

· a medical report.

Oral evidence

9. The first State witness was the complainant, Rudolph Laupu. He said he is of West New Britain (Gloucester)/Manus parentage. He lives with his wife at Gatuwore in the Talasea area. He has lived in the area for a long time as his father is a long-serving police officer based at Talasea police station.

10. On the evening in question he came back to his house at about 7.00 pm, having spent some time with his parents who were living near the police station, 5 km from the village. His wife and children had already prepared the evening meal and they were eating in the kitchen house, which is in the front of the dwelling house. The kitchen house has no walls at the front. It was only just after dark and they had lit kerosene lamps to provide light. All of a sudden the accused and three of his brothers approached him. He named the accuseds brothers as Hari, Albert and Steven. He first noticed them when they were three metres away. Hari accused him of killing one of their pigs but he replied that he did not know what he was talking about.

11. The first and last born, Hari and Steven, approached from the front left, while the other two, Michael (the accused, the second born) and Albert (the third born), came from the back right. The lead assailant was Hari and he cut him on both legs with a bushknife. The four of them were each armed with a bushknife. He (the complainant) fell in front of the kitchen house and the other two, Michael and Albert, then rushed in and also cut him. Michael and Albert cut him on his back, neck and forearm. Then they all ran away. There was nothing he could do to defend himself. He could not move. He was in a bad way. The neighbours reported the incident to his father at Talasea police station and that night he was taken to Kimbe General Hospital. He lost a lot of blood and almost died. He was in hospital for about two months.

12. He had no difficulty identifying them as the lamps provided light for at least five metres, they all came close to him, and he recognised them as he knows all of them. They all live in the next village, which is only 200 metres from his own village, and he has lived there for 16 years. He used to see them all the time but since this incident...