The State v Tony Tomong

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 17 June 2011
• Citation: (2011) N5140
• Court: National Court
• Year: 2011
• Judgement Number: N5140

Full : CR 1305 of 2010; The State v Tony Tomong (2011) N5140

National Court: Kawi, J

Judgment Delivered: 17 June 2011

N5140

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1305 OF 2010

THE STATE

-V-

TONY TOMONG

Bialla: Kawi, J

2011: 16th – 17th June

JUDGMENT ON VERDICT

CRIMINAL LAW- Practice- Criminal Code section 299- Accused indicted with one count of wilful murder- Accused raised the defence of self Defence- section 269 of Criminal Code- Defence case riddled with a lot of Inconsistencies- Principle of Inconsistency and Logic and Common Sense also applied to test evidence of defence witnesses- demeanor of witnesses- Evidence of defence witnesses unreliable- No prior assault – evidence of accused concocted and coached – cannot rely on evidence of accused- medical evidence very consistent with State evidence- Self defence fails – Accused guilty of wilful murder as charged.

Facts

The accused was indicted with one count of wilful murder. In his defence, he raised the defence of self defence. Medical evidence showed that the deceased died of massive parietal skull fracture. This is very consistent with the evidence as given by the State witness namely that the accused was standing upright when he hit the deceased straight on the head with a heavy piece of timber. In those circumstances applying the principles of inconsistency and principles of logic and common sense to test the evidence of both prosecution and defence witnesses:

HELD:

(1) The evidence of the single State witness when properly assessed is more logical and consistent with the medical evidence. Medical evidence corroborated the evidence of the single State witness.

(2) The defence evidence on the other hand is riddled with inconsistencies. Major aspects of the defence evidence defies logic and common sense and is therefore totally unreliable.

(3) Medical evidence that the cause of the death is due to massive parietal skull fracture is consistent with the State evidence of a person standing upright and using a blunt object to hit a person on the head. It is very and illogical with the defence theory of a person lying on the ground so exhausted and out of breath and lifting a small piece of stick and unintentionally and wildly throwing at a person running towards the person on the ground.

(4) Such evidence is concocted and is highly speculative. It is simply manufactured and designed to exculpate criminal responsibility.

The accused is therefore found guilty and convicted as charged.

Case cited:

R-v- Nikola Kristoff [1967] No. 445

Mecklina Kar Poning v The State [2005] SC 814

The State v Lenny Banabu [2005] N2871,

The State v Takip Palne [1976] PNGLR 90,

Tapea Kwapena v The State [1978] PNGLR 316,

The State v Leonard Masiap[1997] PNGLR 610,

R v Korongin [1961] N204.

R v Muratovic [1967] Qd R 15

Mecklina Kar Poning v The State [2005] SC 814

The State v Cosmos Kutau Kitawal (No. 1) [2002] N2245 in these terms

Jimmy Ono vThe State [2002] SC 698

The State v Peter Malihombu [2003] N2365

The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.

Gari Bonu and Rossana Bonu –v– The State [1997] SC 528.

Paulus Pawa –v–The State [1981] PNGLR 498.

The State –v- Angela Colis Tovavik [1981] PNGLR 140.

Counsel:

Mr Anthony Kupmain, for the State

Mr Trevor Potoura, for the accused

17th June, 2011

1. KAWI, J: INTRODUCTION: Tony Tomong pleaded not guilty on arraignment to one count of willful murder contrary to Section 299(1) of the Criminal Code. He raised the defence of self-defence to the charge.

THE STATE ALLEGATIONS

2. To sustain the charge, the state called only one witness, one Alik Kuri who gave sworn evidence. His evidence was that that night just before 9:00 pm, a fight broke out in the middle of the village. The fight was between the Lomnge and Kondorou villages, all of the Kabwum District in the Morobe Province. The fight started over argument concerning a young Kondorou woman who had befriended the accused Tony Tomong. There were a lot of men fighting each other.

3. When Alik Kuri came out of his house, he saw Tony Tomong’s father, Tomong Wamoke and Tony’s elder brother, Posin, fighting the deceased Sevic Nis (also known as Wando Nis).

4. As the father and elder brother continued to fight the deceased, the accused Tony Tomong having armed himself with a piece of sawn timber came to the aid of his elder brother and father who were still fighting the deceased. Alik Kuri stated that he saw Tony Tomong lifted up the timber and hit the deceased Sevic Nis right on the head causing the deceased to fall down immediately “half dead”. He was taken away and washed and cleaned up by his wife and other women in the village. He was taken to the Bialla Health Center that night and died the next morning on Sunday 16th May 2010.

5. Witness Alik Kuri who watch the fighting and the killing also saw the weapon used by the accused Tony Tomong to hit the deceased right in the middle of the head. After hitting the deceased on his head, the accused left the timber where the deceased fell. The witness picked up the timber that same night and took it to his own house for safe keeping.

6. On Sunday he heard that the deceased had died. Than on Monday morning he took the piece of timber to the CID Police in Bialla. In his evidence in chief, he clearly stated that he identified the timber as the same one used by the accused Tony Tomong to hit the deceased on his head. After the timber was identified by the deceased, I had absolutely no hesitation at all in admitting the timber into evidence.

7. In cross-examination, this witness confirmed that although it was dark, where he stood and watched Tomong Wamoke and Posin fought the deceased, there was enough light. First there was a kerosene lantern hanging in Harry’s house which was some 7-8 meters away giving enough light for everyone to see clearly what was going on. Then there were many people who also flashed their lights from their mobile phones. Alik Kuri himself had his torch flashed on and from all three sources there was sufficient lighting for everyone to see just what was happening.

8. This witness also said in cross-examination that the deceased Wando Nis was doing his best to stop the fight, as he (deceased) was married to a woman from Kondorou village. He denied a suggestion that the deceased was himself heavily involved in the fight and was on the side of his in-laws fighting his own Lomnge people. The State closed its case after this witness.

9. The accused Tony Tomong gave sworn evidence in his own defence. The trust of his evidence is that he was assaulted by the deceased who assaulted him first by kicking him with a black company issued safety boots, which has a metal cap on its tip. When the deceased assaulted the accused, he (accused) ran away and as he was running away from the grasp of the deceased, he was very exhausted and was falling very short of breath. In that state he fell to the ground.

10. When he fell to the ground, he described himself as “my arms and legs were dying.” He fell near a small piece of wood, which was left behind by people who were building a new house. In that half conscious state, he picked up the wood, which he described as a one meter long light piece of wood, threw it at the deceased as he (the deceased) was running full steam towards him and shouting “I will kill you.” He stated that he did not know where the stick hit and landed on the body of the deceased.

11. After hitting the deceased, he got up and ran away to safety. He maintained that it was pitch dark and people could not see what was happening. There were no form of light whatsoever. Missiles, sticks and stones were flying everywhere. He denied seeing the witness Alik Kuri anywhere near at the scene of the fight.

12. During cross-examination he was asked as to whether, anyone saw the deceased assaulted him. He mentioned the name of Tien Woso, as being the person who was by him when the deceased assaulted him by kicking him.

13. Tien Woso was then called as the second witness for the defence. He confirmed being involved in the fight. He said that it was a big fight in the dark. During the fight people were throwing missiles everywhere. This included missiles such as sticks, bottles and stones. He stated that the fight claimed the life of one man, Sevic Nis and other man whom he identified as Eric Sam was injured. Eric sustained a broken jaw. He further stated that mobile phone torches were switch on and also people flashed on torches for lighting. He was specifically asked:

Q: Did you see how the deceased died?

A: No, I did not see how he died.

14. He denied being with the accused when he was assaulted by the deceased who kicked him with his metal cap safety boots.

The last defence witness was Tomong Wamoke, the father of the accused. He denied fighting with the deceased together with his elder son Posin Tomong. He mentioned that being an old man it was in his interests to remain in his house, lest he might be injured in the event that he ventures out of the security and confines of his house...