The State v Raphael Kuanande

• Jurisdiction: Papua New Guinea
• Judge: Injia AJ
• Judgment Date: 28 February 1994
• Citation: [1994] PNGLR 512
• Court: National Court
• Year: 1994
• Judgement Number: N1218

National Court: Injia AJ

Judgment Delivered: 28 February 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

RAPHAEL KUANANDE

Kundiawa

Injia AJ

28 February 1994

CRIMINAL LAW — Wilful murder — Shot deceased with a .22 rifle — Revenge — Earlier attack by the deceased and others upon the accused and his family — Defence of self-defence and extraordinary emergency — Whether intended to kill — Verdict of murder per s 539 Criminal Code.

Facts

The accused used a .22 rifle to kill the deceased. He was charged with wilful murder pursuant to s 299 of the Criminal Code.

The facts appear in the judgment.

Held

1. The charge of wilful murder was not proven, as there was an absence of intent to kill the deceased specifically.

2. An alternative verdict of guilty of murder was entered.

Counsel

F Kuvi, for the State.

K Kot, for the accused.

28 February 1994

INJIA AJ: The accused pleaded not guilty to a charge that on 13 March 1993 he wilfully murdered one Mangua Waugo, contrary to s 299 of the Criminal Code. The State alleged that on the said date at about 6 — 6.30 pm, the deceased and other friends went to the accused's house to inform him that they would solve certain problems between them the next morning. The problem related to claims made by the accused that the deceased's father was about to die. As the accused was not in his house, the deceased relayed the information by shouting out the message and returned to his house. Between 6 — 6.30 pm, the accused armed himself with a .22 rifle and followed the deceased to his house. He stood on the main highway and shouted to the deceased, saying that he was ready to fight with him. As the deceased heard this and came out from the house, the accused shot him in the stomach. As a result, the deceased died shortly later. The State alleged that by firing the gun directly at the deceased, the accused intended to kill he deceased.

COURSE OF THE TRIAL

The State called eight of the 16 witnesses listed in the indictment. Of these, six of them were eye-witnesses. They are Waugo Wena (the deceased's father), Anton Kama (deceased's brother-in-law), Josepha Anton (deceased's sister), Witne Waugo (deceased's elder brother), Kugame Numi (deceased's next-door neighbour and relative), and Joe Koma (a pedestrian on the road who was on his way to Kerowagi at that time). The non-eye witnesses are Sgt Gia Morea Kukuna (police bullet or firearm expert), S/Const Marjie Mazuk (police investigating officer) and S/Const Gerald Bus (OIC of Firearms, Kundiawa Police Station). S/Const. Bus was called at the request of the Court, even though he was not listed on the indictment.

The State tendered by consent the following documentary and other physical evidence:

Exhibit "A" — .22 rifle, serial no: 382306

Exhibit "B" — bullets

"B1" — 2 empty bullets

"B2" — 2 live cartridges

Exhibit "C" — statement of Sgt Kukuna dated 26 August 1993

Exhibit "D" — 500 watt security light belonging to Witne Waugo

Exhibit "E" — sketch map of scene of crime

Exhibit "F" — record of interview (ROI) dated 5 May 1993

"F1" — Tok Pisin record of interview

"F2" — English version of record of interview.

Exhibit "G" — post mortem report of Mr Thomas Kubu dated 13 March 1993.

In addition, the Court visited the scene of the crime at the request of the State. As a guide, the Court used S/Const. Mazuk who drew up the sketch map.

The accused in his sworn evidence admits he was armed with the said .22 rifle and shot the deceased with the first of three shots fired that night. He denies that he aimed at the deceased and fired the fatal shot. He says the fatal shot went off accidentally when he was positioning himself to defend himself from a repetition of an earlier attack by the deceased and others. He denied any intention to kill the deceased or any other person. The accused also raised the defence of self defence against provoked assault, pursuant to s 270 of the Code, and acting in a situation of extraordinary emergency, under s 26 of the Code. I will first deal with the issue of intention to cause the death of the deceased or any other person.

INTENTION TO CAUSE THE DECEASED'S DEATH OR THAT OF ANOTHER PERSON

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. I wish to deal with the evidence in that chronological sequence.

CIRCUMSTANCES PRIOR TO THE DATE OF THE OFFENCE

Almost all the relevant facts here are not in dispute. The accused and the deceased are closely related. They know each other, are part of the same family, same clan, live on the same land acquired by Waugo Wena, and live in the village of Koronogl. This village is situated on the Kundiawa side of the Koronogl river bridge, which is situated on the Okuk Highway.

The accused's house is situated on the north-western side of the Okuk Highway and the deceased lived in his brother's house, which is situated on the south-eastern side of the highway. Their houses are about 115 m apart. Their houses are right on the banks of the Koronogl river and there are no other houses between their houses or on the banks of the said river. The accused's house was completely burnt to ashes after the incident. From the remains of the house, it appears to have been a big modern building measuring some 10 m x 15 m. There was a wire fence about 2 m from the front wall but it is not there now. The accused's house is connected to the deceased's house by a private road.

There is no evidence of any prior differences between the two groups.

The deceased lived in his elder brother Witne's house, as he was only a high school student. The private road branches off from the highway to the gravel loading area and then runs past the accused's house, under the bridge and then stops at Witne's house. This road is used by motor vehicles. Witne's house is also a big modern building. It is fenced by security fencing wire and is about 1.2 m high. There are also other houses inside the fence and next to Witne's house. The front and side door of the house is situated at the southern end of the building. The house is situated along the side of the fence. The back of the house is closer to the highway. The distance between the highway and Witne's house is about 45 m. The distance between the highway and accused's house is about 70m. From the edge of the bridge one can clearly see Witne's house and other houses in that area in full view because the highway or bridge is situated on a short but steep slope. The angle of the slope is 45 degrees. There is a bush trak which leads from the Highway road to Witne's house.

The deceased was a Grade 10 student at Kundi High School. He was liked by everyone including the accused.

The deceased's father Waugo Wena is an old man. Even though there is no evidence as to his exact age, my own assessment when he gave evidence is about 60 years. He appeared to be a physically fit man when I saw him. The evidence is that at the material time, he had been very sick for some time and had visited the Kundiawa General Hospital for treatment. There is no evidence as to the exact type of his illness. Waugo says he was told by Doctors that he had "high blood pressure". His illness was such that it was serious enough to render him physically incapable of doing any physical or manual work.

Waugo did not see any sorcerers in the area to cure his illness. He says he only knew the accused and his wife as sorcerers. At one time they wanted to pray for him and pour "holy water" on him but he did not avail himself to them. The accused denies he or his wife is a sorcerer. The accused says he has night fellowship at his house and he cannot be a sorcerer at the same time. The accused does however admit in cross-examination that his wife used to have visions, and implies that she had the ability to predict future events.

Sorcery or sorcerers, whether good or bad are difficult to identify and prove. The belief in sorcery exists throughout PNG and this fact is recognised by everyone but no-one seems to be prepared to admit he is a sorcerer when everyone in the community suspect him or know him or her to be a sorcerer. In the instant case I am unable to find that the accused was a sorcerer as a matter of fact. Nevertheless, he was suspected as a sorcerer and I will bear that in mind when I consider the evidence where allegations of sorcery are raised by him and his wife or raised against him and his wife in this case. In this context, in view of the admission made by the accused that his wife had visions, it tends to strengthen the suspicion by the community that his wife was a sorcerer in the wider sense of the word — in the sense that she possessed the supernatural power or ability to have visions from which she could translate or predict past and future events.

The accused had in his possession a .22 rifle which is in evidence. He was issued with a firearm licence to possess...