The State v Wesley Yanduo

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 22 October 2018
• Citation: (2018) N7524
• Court: National Court
• Year: 2018
• Judgement Number: N7524

Full : CR No 627 of 2016; The State v Wesley Yanduo (2018) N7524

National Court: Miviri AJ

Judgment Delivered: 22 October 2018

N7524

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 627 OF 2016

THE STATE

V

WESLEY YANDUO

Kimbe: Miviri AJ

2018 : 18 & 22 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death proved – intent to kill proved – Identification – deceased cut with bush knife – right wrist – head and scalp – severed brain matter – massive bleeding – unarmed innocent 14 year old boy deceased – circumstances of identification good – identification not in difficult circumstances – known identity of neighbour – close quarters –alibi unsupported false – recent effect of – corroboration of – accused identified beyond doubt – guilty.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – father of accused – witness in support of alibi – sitted in the court hearing of State and defence case – objection by State – high probability of influence in view – evidence tainted by hearing evidence in court – Section 59 Constitution Justice done seen to be done – reasonable man test – high probability of biasness – high probability of influence exerted sitted in court althrough prosecution defence case combined – objection upheld – witness disallowed – Section 37 Constitution Protection of law according to Law not without.

Facts

Accused chased and cut victim a 14 year old boy on the wrist he fell to the ground where accused cut him on the head causing massive bleeding killing him.

Held

Killing undisputed

Intention to kill

Identification of accused

Beyond doubt

Accused killed deceased

Guilty wilful murder

Cases Cited:

Nilkare v Ombudsman Commission of Papua New Guinea [1999] PNGLR 333 Rooney (No 2), Public Prosecutor v [1979] PNGLR 448

State v Mai and Avi, [1988-89] PNGLR 56

The State v Angosiwen [2004] PNGLR 432

The State v Balbal [2007] PGSC 16; SC860

The State v Bonu and Bonu [1997] PGSC 11; SC528

The State v Boateng [1990] PGSC 7; [1990] PNGLR 342

The State v Bulen, [1990] PNGLR 43

The State v Davinga [1995] PNGLR 263

The State v John Beng [1977] PNGLR 115

The State v John Jaminan [1983] PNGLR 318

The State v Kandakason [1998] PGSC 20; SC558

The State v Ono [2002] PGSC 10; SC698

The State v Tubol, [1994] PNGLR 378

The State v Veisame [2004] PGNC 132; N2648

Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

R. Galama, for the State

B. Takua, for the Defendant

VERDICT

22nd October, 2018

1. MIVIRI AJ: This is the verdict of the accused charged with Wilful Murder. He cut the victim on the wrist felling him then cutting him on head causing him to bleed to his death.

Charge

2. The charge is contrary to Section 299 (1) of the Criminal Code Act Wilful Murder, Accused intended to kill Naegel John Las and did kill him. It reads as follows ;

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person intending to cause his death or that of some other person is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Background

3. On the 6th December, 2015 Naegel John Las died after being cut on the wrist with a bush knife when he lifted his hand to defend himself from Wesley Yanduo who swang it at his head. He fell to the ground and Wesley Yanduo continued and cut him on his head through the scalp involving the brain matter. He bled to his death as a result. He intended to kill him at the time he swung the bush knife and killed him.

Undisputed evidence

4. The following evidence were undisputed and admitted as exhibits in the matter. Exhibit S1A the medical certificate of death dated the 18th January, 2016 signed by Doctor William Toua Medical Registrar of the Kimbe General Hospital detailed Naegel Las was 14 years old Male originally from Sepik resided at Galai 16. He was viewed on the 23rd December, 2015. He had severed brain matter, hypovolaemic shock and death. There were two deep larceration on skull with linear fracture.

5. Exhibit S1B was the Post Mortem Report of Naegel John Las Male 14 years old. It set the time of death as 6th December, 2015 at Galai 1 Section 16 Block number 1560. The cause of death was hypovolaemic shock. There was severe traumatic penetrating head injury. The summary was the deceased received knife wounds to his head and face and also on his left hand causing death (as adapted from police report). Notably the evidence of injuries was deep larceration x2, to the skull, extending through the scalp to the skull and involving the brain matter (1) At Sagittal Sinus 13 cmX 3cm deep (2) Temporal region 8cm X 3cm deep also severed right wrist hanging by the skin.

6. The head and neck deep lacerations X2, to the skull, extending through the scalp to the skull and involving the brain matter At Sagittal Sinus 13 cmX 3cm deep (2) Temporal region 8cm X 3cm deep.

7. The eventual cause of death could be due Hypovolaemic shock leading to death secondary to deep traumatic penetrating skull injury with severed right wrist.

Facts established beyond all doubt

8. This evidence established beyond all reasonable doubt that Naegel John Las a 14 year old boy died from being cut on the head and the right wrist which was severed. The extent of this injuries showed that whoever inflicted the injuries did not intend that he survive from it. The head with the brain a major organ of the body and survival was minimal to none when injury was inflicted in this way to it.

9. It was also established beyond all reasonable doubt that earlier there had been a death of a youth Issac Vitalis who was assaulted by youths from section 16. His dead body was carried there to the gathering place on the end of section 13 near section 12. Where the intention was to get compensation from section 16 youth. There was dispute over it that lead to a fight involving those who were from section 13 and 16. They were throwing stones the deceased with the witnesses were blocked from the back so ran into the block of one Erick Ben Mando intending to escape the fighting that had erupted. They were from Section 16 and he and those who were with him were blocked from escaping and he succumbed to a bush knife attack upon him.

Issue

10. The question for the Court was who was this person that caused these injuries upon the victim deceased from which he died?

Law on Identification

11. This raises what the law is on identification. Which is set out in John Beng v The State [1977] PNGLR 115 (2 May 1977):

“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made....

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”

What is the evidence on identification called by the State?

Evidence

12. To satisfy the State has the sworn evidences of four witnesses Jackson Imialas, Brody Takura, Douglas Simon and Elizabeth Klabasa.

13. Jackson Imialas gave sworn evidence he was from East Sepik resident at Buluma SBLC. On the 6th December, 2016 I was at the block Galai 1 Section 16. There was a fight in the Community and Issac Vitalis was beaten by our boys he came to the hospital and died. We heard that they would bring the body to section 16 and ask for compensation. We left our block came to a hill waiting for them and watched them brought the body and threw stones on the...