The State v Peter Malihombu (2003) N2365

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2003
• Citation: (2003) N2365
• Court: National Court
• Year: 2003
• Judgement Number: N2365

Full Title: The State v Peter Malihombu (2003) N2365

National Court: Kandakasi J

Judgment Delivered: 29 April 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Admitting into evidence accused's record of interview—Evidence in record of interview inconsistent with State's case—Accused sworn evidence confirming evidence in record of interview—Effect of—Creates doubt in State's case—Benefit of doubt to the accused.

2 CRIMINAL LAW—Willful Murder—Defence of provocation or self defence raised—Inconsistencies in State's case—State's evidence running contrary to any logic and common sense—Sufficient doubt created in case against accused—Effect of—State failing to establish beyond any reasonable doubt accused acted without provocation or in self–defence—Benefit of doubt goes to accused—Verdict of not guilty returned—s266, s267 and s303 of Criminal Code.

3 Supreme Court Reference No 1 of 1980 [1981] PNGLR 28, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, Garitau Bonu and Rosanna Bonu v The State (1997) SC528, The State v Edward Toude (No 1) (2001) N2298, Rosa Angitai v The State [1983] PNGLR 185, R v Agana Guguna (1965) No364 and The State v Tu'uo Ibru (1990) N1940 referred to

___________________________

N2365

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1084 of 2001

THE STATE

-V-

PETER MALIHOMBU

WEWAK: KANDAKASI, J.

2003: 24th, 25th, and 29th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Admitting into evidence accused record of interview – Evidence in record of interview inconsistent with state’s case – Accused sworn evidence confirming evidence in record of interview - Effect of – Creates doubt in state’s case – Benefit of doubt to the accused.

CRIMINAL LAW – Willful Murder – Defence of provocation or self defence raised – Inconsistencies in State’s case – State’s evidence running contrary to any logic and common sense – Sufficient doubt created in case against accused – Effect of - State failing to establish beyond any reasonable doubt accused acted without provocation or in self- defence – Benefit of doubt goes to accused – Verdict of not guilty returned – ss. 266,267, and 303 of Criminal Code.

Cases cited:

SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.

Garitau Bonu and Rosanna Bonu v The State (1997) SC528.

The State v Edward Toude & Ors (No 1) (16/10/01) N2298.

Rosa Angitai v. The State [1983] PNGLR 185.

The State v. Tu'uo Ibru (20/10/99) N1940.

Counsel:

Mr. M. Ruari for the State

Mr. G. Korei for the Accused

DECISION ON VERDICT

29th April, 2003

KANDAKASI J: You pleaded not guilty to one charge of willfully murdering a Philip Fegiwafi (deceased), contrary to s. 299 of the Criminal Code and raise the defence of provocation and self defence. Hence, a trial was conducted to determine whether you acted under provocation or in self-defence. This meant a number of facts were undisputed.

Undisputed Facts

The undisputed facts are these. The deceased came with his blood brothers and others seeking to solve a problem with you. A fight erupted and you used an iron spear to spear the deceased. You speared him at his chest area through his right arm. That led to the death of the deceased. This happened at about 7:30 p.m. on 17th April 2000 at Kininimbongu, Kubalia District, East Sepik Province.

Disputed facts: The Evidence

For the disputed facts, the State called three witnesses, Bill Fegiwafi, James Fegiwafi and Cletus Fugiha. The first two are the deceased biological brothers. The third went with the deceased to your house. Therefore they were not independent witnesses. In your defence you gave a sworn testimony.

(i) Bill Fegiwafi

Bill Fegiwafi’s evidence is this. You and the Fegiwafi’s are first Cousins. The fight between you and the deceased took place. The witness and his other brothers had gone to work on the road during the day while the deceased remained at the village in his house. When he and the rest of them returned to the village, the deceased told them that you and Lawrence, your elder brother, fought him and cut down a number of his (the deceased) banana and cocoa trees. So, the deceased, Bill, James and Jeffery Fegiwafi as well as Cletus Fugiha went to your house, seeking to resolve peacefully the problem that you created. They were not armed with any weapons.

When they got to your house, you and your family were having dinner. Upon arrival at your house, the deceased asked you about the cutting down of his cocoa and banana trees. You responded by asking, “why are you coming to my area and asking?” You then jumped up and down and swung a fist first at the deceased and the deceased and you had a fistfight for a short while. Then Lawrence fetched an iron and hit the deceased on the head and on his back causing him to feel pain and get a knife from where they were fighting and cut Lawrence twice. Lawrence went to his house and at that time, a sister in law of yours, Helen, got a coffee stick and hit the deceased on his head. The deceased then lifted his hands up and you shot him with the same iron Lawrence had used to hit the deceased. The spear was described as the kind usually used to shoot pigs, with 4 corners and 2 meters in length. After the deceased was shot, he and his brother went to the deceased and removed the iron spear.

This witness was on the side watching when the deceased and you fought. He was about 5 to 6 meters away. He said the time was around 4 and 5 p.m. so there was still daylight. Hence he was able to see clearly. But he was not able to say whether the others that went with him and the deceased did anything. He said those others will say what they did themselves and gave no reason for that. He also said he could not do a thing to stop the fight because all these happened in a very short time. Further this, witness said the deceased was fighting you on his own while Lawrence and Helen assisted you. Furthermore, he said the fight took place about a kilometer away from your house and there was no other house close by.

This witness answered in the negative when put in cross-examination that you knocked the deceased down to the ground in the fistfight. But when further suggested in terms of, “when Peter (you) knocked him (deceased) down on the ground, he (deceased) got the knife and cut you” he answered in the affirmative. Further, he answered in the negative to a suggestion in cross-examination that, when Lawrence came to assist you, the deceased cut him. But when asked in terms of Lawrence falling down upon being cut, he answered “yes”. In so doing, he contradicted his earlier claim that Lawrence went to his house and did nothing yet, only to subsequently correct himself upon being reminded of the contradiction. Based on these instances, it was suggested to the witness in cross-examination that what he told the Court were all uncertainties. His response was, this was his first time in Court and as such he was not confident.

The witness denied a suggestion in cross-examination that he and the others supported the deceased by going with him to your house at the first place and when the fight took place they did nothing to stop it. But he was not able to answer a question, “ if you were not supporting him, why didn’t you stay back in your house instead of accompanying the deceased?” Further he was not able to answer a question the Court put to him as to where did the knife and iron spear come from if the fight took place one kilometer away from your house?

(ii) James Fegiwafi

The Second witness, James Fegiwafi gave a similar testimony to that of his brother, Bill. But he differed from Bill’s account in a number of respects. The most obvious ones were in the timing and location of the incident. Contrary to the first witness’ account of the fight taking place between 4 to 5 p.m., James said the fight took place around 6:00 p.m beside your house as opposed to about a kilometer away from your house according to the first witness. The other was in the number of people coming with the deceased. Contrary to the first witnesses speaking of 5 people, this witness spoke of 6...