CR.NO.1767 OF 2003; The State v Tukal Waninara (No.3) (2007) N3280

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 07 February 2007
• Court: National Court
• Citation: (2007) N3280
• Year: 2007
• Judgement Number: N3280

Full Title: CR.NO.1767 OF 2003; The State v Tukal Waninara (No.3) (2007) N3280

National Court: Lenalia, J

Judgment Delivered: 7 February 2007

N3280

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1767 OF 2003

THE STATE

-V-

TUKAL WANINARA (N0.3)

Kokopo: Lenalia, J.

2006: 5 December

2007: 7 February

CRIMINAL LAW – Wilful murder – Charge of – Trial – Finding of guilty to

a lesser charge – Criminal Code ss.300 and 539.

.

CRIMINAL LAW – Finding of guilty to a charge of murder – Sentencing

principles – Offences of murder – Killing aggravated by application of offensive weapon – Term of years appropriate.

Cases cited:

Wanosa & Others v The Queen [1971-1972] PNGLR 90

The State v Paul Kundi Rape [1976] PNGLR 96

Joseph Maino v The State [1977] PNGLR 404

Acting public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299

The State v Rex Lialu [1988-89] PNGLR 449

The State v Laura (N0.2) [1988-89] PNGLR 98

Lawrence Simbe v The State [1994] PNGLR 38

The State v Joseph Ulakua (23.5.02) N2240

The State v Tom Keroi Gurua & Others (11.12.02) N2312

The State v Kevin Anis & Martin Ningigan (7.3.03) N2360

Mary Bomai Micheal v The State (1.4.04) SC737

Sakarowe Koe v The State (1.4.04) SC739

Simon Kama v The State (1.4.04) SC740

Manu Kovi v The State (30.5.05) SC789

The State v Kila Peter (23.3.06) N3018

Counsels:

Mr. L. Rangan, for the State

Mr. J. Isaac, for the Accused

7 February, 2007

1. LENALIA, J: The accused pleaded not guilty to one count of wilful murder contrary to s.299 of the Criminal Code. A short trial was conducted at the end of which the lawyer for the accused made a no case submission on the basis of the principles enunciated in the case of The State v Paul Kundi Rape [1976] PNGLR 96. On 18th of October last year, the court made a decision and ruled that there was a prima facie case made out against him and the accused was called upon to answer.

2. After the accused gave his evidence he was asked if he had any witnesses to be called. He declined to call any. I heard counsels’ submissions and on 5 December last year, I handed down my decision on which I found the accused guilty of an alternative charge of murder under s.300 by virtue of s.539 of the Criminal Code.

BRIEF OF EVIDENCE ON TRIAL

3. Briefly the evidence on trial from which the court found the accused guilty for the alternative charge of murder is as follows. On 13 July 2003 at Vunadavai village, North Coast area of this Province, the victim in this case Wartoli Votoi Kolis was around with a number of friends in Robin Palaua’s house cooking some food.

4. While they waited for the food, they laid on the bed or a sort of platform to rest and told stories. When they were resting the evidence by the prosecution was that the victim recalled that he had placed some bananas on the fire to be roasted and he got up from where he was sleeping and walked over to the fire place to turn the bananas over lest they were burnt. As he walked over to the fire place, the accused suddenly charged at him and attacked him by using a long bush-knife.

5. The evidence by the State came from three statements which were tendered by consent. Those statements are for witnesses number 4, 6 and 7 (Exhibits “A”, “B” and “C”). The oral evidence came from Mr. Esekia Kaumat and Senior Police Constable David Tomur.

Witness Esekia Kaumat did not actually see what occurred on the scene as he was a distance away. Esekia’s evidence is that, he was sitting down on the road junction with another person by the name of Tobby Sakius. While they sat down and chatted, they were surprised when the accused ran out to them from a little track to the main road and passed them without saying good evening.

6. He did not say anything to them. When he returned a few seconds later, Esekia offered him a smoke but the accused did not accept the offer and did not even say anything to this witness and Sakius. This witness said when the accused came to them, he had a long coconut basket and he had in his possession a long bush-knife.

7. He said while they were talking with the accused, they heard people crying. Having heard people shouting and crying on the scene, they ran up there and found that the victim was lying down on the ground with all his intestines lying beside him outside the stomach on the ground.

8. It is the prosecution evidence that, when the accused charged at the victim the accused either intended to cause grievous bodily harm or that he caused the death of the victim by means of an act which was done in prosecution of an unlawful purpose. The unlawful act in the circumstances of this case was the charging toward the victim and assault caused to him by the accused. As stated in the case of Joseph Maino v The State [1977] PNGLR 404, the dangerous act relied upon by the prosecution and unlawful purpose are distinct actions which the State must show in evidence. Such distinct criminal act was proven to the required standard of proof beyond reasonable doubt when the prisoner was found to have charged or rushed at the victim with the intention to cause grievous bodily harm.

ALLOCUTUS

9. When the court administered allocutus to the prisoner on 7 December last year, the accused said although the court had found him guilty, he feels that, he is not guilty of the charge because he did not intend to kill the victim and the victim was his real cousin. He said that after the killing, the relatives of the victim broke down five (5) houses belonging to the accused and his relatives and carried them away. For what they did, the prisoner said that his relatives did not report such action to the police.

10. He further submitted that ten (10) blocks of cocoa and coconut were taken away by the deceased’s immediate relatives. Further that, his relatives assisted the victims’ relatives by buying the coffin for the burial of the victim and they also paid shell-money and cash to the victim’s family by way of compensation.

11. He said he is now worried about his old mother who is now very old and he does not want the Almighty God to punish him for not looking after his own mother who cared for him while he was small. He asked the court to exercise leniency to him on sentence.

ADDRESSES

12. On the accused’s background history, Mr. Isaac submitted the following antecedents on behalf of their client:

- Accused is married with one child,

- 23 years old,

- he had no formal education,

- he is the fourth born in a family of seven siblings,

- his wife has left to another man while accused was in custody,

- that all this time he has been a subsistent farmer,

- a member of the United Church of Papua New Guinea and Solomon Islands and

- that the accused is a first offender.

13. Mr. Isaac on his final address on sentence submitted that the court should take into account the fact that the accused is a first offender and the fact that their client has been kept in custody for some three (3) years four (4) months by the time the court was addressed, awaiting his trial. He asked the court to take into account the fact that the accused’s relatives have paid compensation. He sought to tender a statement written by a person named at the bottom of that statement as Towalaun Waninara.

14. This person does not give any information on what his position is in the village. That is to say whether he is a church pastor, a councillor, a committee or a member of the Local Level Government. That statement was addressed to the O.I.C C.I.D office in Kerevat.

15. Though Mr. Rangan objected to the tender of this letter, I decided to accept it on the basis that, it might help the court to determine whether what the accused stated on his allocutus was true or not.

16. Strictly speaking, if the defence wanted a pre-sentence report, they should have requested for an adjournment to enable the court to give direction to the Probation Officer to compile a means assessment report or a pre-sentence report to comply with ss.2 (2) and 4 of the Criminal Law (Compensation Act 1991) and ss. 13, & 25 of the Probation Act, Ch.N0.381.

17. In the future, I urge counsels particularly defence lawyers to apply the above provisions to pursue their clients’ cause in accordance with the terms of the above legislations.

18. Mr. Isaac submitted that having regard to the evidence adduced by the State against the accused, an appropriate sentence should be in the vicinity of eight (8) to ten (10) years imprisonment.

19. For the prosecution Mr. Rangan replied to the address by the defence counsel that, the accused is stubborn in the sense that he knew that he had caused the death of the victim but yet he chose to run a trial when he was fully responsible for the death of Wartoli Votoi Kolis.

LAW

20. The maximum prescribed penalty for the offence of murder under s.300 of the Code is subject to s.19 life imprisonment. That means the court has discretion to impose a term of years lesser than imposing a life sentence. The defence counsel cited the case of Sakarowe Koe v The State (2004) SC739.

21. I do not want to rely on the authority of the case because that was a case of manslaughter.

22. It might not appear clear from the beginning of the above judgment if it was a murder or manslaughter case but as you go to page eleven (11) of that judgment, the Court was critical a little bit about why the Public Prosecutor had chosen to present the indictment for the offence of manslaughter rather than for wilful murder and failing that, murder.

23. In your case Tukal,...