The State v Tun Mai Isaac

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 May 2014
• Citation: (2014) N5595
• Court: National Court
• Year: 2014
• Judgement Number: N5595

Full : CR NO 377 OF 2013; The State v Tun Mai Isaac (2014) N5595

National Court: Cannings J

Judgment Delivered: 13 May 2014

N5595

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 377 OF 2013

THE STATE

V

TUN MAI ISAAC

Madang: Cannings J

2013: 24 October, 9 December,

2014: 11, 18 February, 13 May

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – conflicting evidence as to who killed the deceased.

EVIDENCE – dying declaration – Evidence Act, Section 20 – requirements to be established before a statement made orally by a person before his death relating to the circumstances resulting in his death is admissible.

The accused was charged with wilful murder under Section 299(1) of the Criminal Code following an altercation that occurred after a sporting event. The State’s case was that he directly killed the deceased by stabbing him in the back. The defence of the accused was a general denial and an alibi.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

(2) It was proven beyond reasonable doubt that the accused killed the deceased as: there was credible eyewitness evidence, which was accepted by the court; the deceased made a dying declaration to his father clearly stating that the accused had stabbed him, which was admitted into evidence; the accused’s evidence was unconvincing, as was that of the two other defence witnesses who corroborated his story; the accused’s alibi was not credible and was rejected.

(3) As the accused did not rely on any specific excusatory defence, the killing was not authorised, justified or excused by law and was therefore unlawful.

(4) It was proven beyond reasonable doubt that the accused intended to kill the deceased, given the track and length (22 cm) of the wound, which extended from the lower back and exited the right lower chest. The accused was accordingly convicted of wilful murder.

Cases cited

The following cases are cited in the judgment:

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

Kutau v The State (2007) SC927

Paulus Pawa v The State [1981] PNGLR 498

The State v Abaya Ulas (2010) N4009

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Jenny Dei (2011) N4231

The State v Melchior Kapus (2010) N4114

The State v Moses Nasres (2008) N3302

The State v Paul Gambu Laore & 11 Others ((2007) N5026

The State v Raphael Kuanande [1994] PNGLR 512

Glossary

The following people and places are referred to in the evidence.

People

Adrian Malaun – defence witness #3

Dr Vincent Atua – Doctor who prepared post-mortem report

Edward Nenel – man who was stabbed by the accused, before the deceased was killed

Essau Elagon – accused’s cousin, referred to in evidence of Tom Kolia

Feale Laun – State witness # 1, deceased’s father

Lynette Feale – defence witness #2, deceased’s sister

Oilion Feale – the deceased

Snr Sgt Frank Kikoli – Police investigating officer

Tom Kolia – State witness #1, deceased’s cousin-brother

Toro Kauta – man referred to in accused’s evidence

Tun Mai Isaac – the accused

Places

Beon – correctional institution for Madang Province

Jahil – place of soccer grand final, deceased’s village

Madang – provincial capital

Melkuk – neighbouring village, team playing in grand final

Panim – accused’s village

Sisiak – neighbouring village/settlement area

TRIAL

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

Counsel

M Pil, for the State

S Tanei, for the accused

13th May, 2014

1. CANNINGS J: The accused, Tun Mai Isaac, is charged under Section 299(1) of the Criminal Code with the wilful murder of Oilion Feale at Jahil village, near Madang town, on Sunday 9 December 2012. He has pleaded not guilty so a trial has been conducted. The State alleges that the accused unlawfully killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final and that he intended to kill him.

2. The State’s case is based on the evidence of the deceased’s cousin who gave an eyewitness account of what happened and a dying declaration the deceased allegedly made to his father in which he stated that the accused had stabbed him. The accused’s raises an alibi: that he left the scene before the deceased was stabbed and went to a neighbouring village, Panim. The deceased’s sister and a friend of the accused gave evidence that supported the alibi.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

· A soccer grand final was played at Jahil village on the afternoon of Sunday 9 December 2012. The match was between teams from Jahil and Melkuk. The team from Melkuk won. A big crowd was in attendance.

· The accused, aged 21 at the time, is from Panim, a village about 1.5 km from Jahil. Panim and Jahil are in close proximity to Beon Jail, 10 km from Madang town.

· The deceased, aged between 35 and 45, was from Jahil. He was a distant relative of the accused.

· After the match, at least one fight started. The accused was involved. He had been drinking yawa (though he denies that he was drunk). In the course of this fight the accused stabbed a man, Edward Nenel, on the arm, inflicting a superficial injury. (There is conflicting evidence as to whether there was a second fight. The State’s case is that there was no second fight but it was in this first and only fight that the accused stabbed the deceased, straight after he stabbed Edward Nenel. The defence case is that the accused left straight after this fight and went to Panim and did not return and that the deceased was stabbed by a person unknown in a second fight which took place after the accused left the scene.)

· Soon after Edward Nenel was stabbed, the deceased was stabbed in the back, at the sporting field, close to the place at which Edward Nenel was stabbed. He did not die at the scene. He was able to make his way to his house, which was close by, only 30 to 50 metres away.

· When he got to his house the deceased spoke briefly to his father, then collapsed. His father arranged transport to take him to Modilon General Hospital. There was no delay in getting him to the Hospital but by the time he arrived he was dead.

· The post-mortem report, prepared by Dr Vincent Atua, recorded the cause of death as “internal bleeding from knife wound”.

ISSUES

4. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

5. The primary issues are:

1 Did the accused kill the deceased?

2 If yes, was the killing unlawful?

3 If yes, did the accused intend to kill the deceased?

4 If he did not intend to kill the deceased, should he be convicted of some other offence?

1 DID THE ACCUSED KILL THE DECEASED?

6. Resolution of this issue requires a:

· summary of evidence for the State;

· summary of evidence for the defence;

· formal determination of the question whether the accused killed the deceased.

Evidence for the State

7. Two witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Tom Kolia	Age 28, villager, Jahil village
Evidence
He is single and lives in the village with his family – he was at the grand final with the deceased, Oilion – he was staying with him at the time – he (the witness) plays soccer for the Jahil team, he is the captain but he had an ankle injury and could not play, he was on crutches – fight broke out between Panim villagers and youths from Sisiak – the people involved in the fight were drunk – he and Oilion tried to stop the fight – the accused, who is from Panim, was involved in the fight and stabbed Edward Nenel with a ‘US knife’, a bayonet, approx 54 cm long – when the crowd saw that, many people ran away – the accused confronted him, grabbing him by the collar – the accused was still armed with the US knife – he (the witness) talked to the accused, then the accused’s cousin, Essau Elagon, came in and removed the accused – then a few minutes later the accused ran eight metres towards Oilion, who was still trying to stop the fight – neither he nor Oilion did anything to provoke the accused; they were just trying to stop the fight. He (the witness) called out to Oilion to alert him to the danger but it was too late as the accused stabbed him in the back, using the same knife with which he had stabbed Edward Nenel – the knife came out at the front of Oilion’s chest – Oilion was hurting but he made his way to the...