CR NO. 38 OF 2010; State v Famundi Badi Moibamo (No.2) (2011) N4344

• Jurisdiction: Papua New Guinea
• Judge: Ipang, AJ.
• Judgment Date: 02 August 2011
• Court: National Court
• Citation: (2011) N4344
• Year: 2011
• Judgement Number: N4344

Full Title: CR NO. 38 OF 2010; State v Famundi Badi Moibamo (No.2) (2011) N4344

National Court: Ipang, AJ.

Judgment Delivered: 2 August 2011

N4344

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 38 OF 2010

STATE

V

FAMUNDI BADI MOIBAMO (NO. 2)

Accused

Goroka: Ipang AJ

2011: 20th July& 2 August

CRIMINAL LAW – Wilful murder – trial – accused stabbed deceased and killed her – state relied on documentary evidence tendered to court by consent and evidence of key witness (eye witness).

CRIMINAL LAW – Practice and procedure – whether corroboration is required to confirm version of credible, impressive key witness and when is the corroboration, required and under what circumstances.

Cases Cited:

Papua New Guinea cases

R v Philip Ulel [1973] PNGLR 254

State v John Kasaipwaloa [1977] PNGLR 257

State v Minjipa [1977] PNGLR 293

State v Steven Torila & Bernard Okole (1980)

State v Amoko Amoko [1981] PNGLR 373

State v Simon Ganga [1994] PNGLR 323

State v Kidung [1996] PNGLR 355

State v Malepo (No.2) [1996] PNGLR 252

State v Kidung [1996] PNGLR 355

State v Ali Kei Paiya CR 478 of 2004

State v Kokara Fova CR 1494 of 2006

Overseas Cases Cited

Browne v Dunn (1893) 6 R 67 (HL)

DPP v Hester [1973] AC 296

Counsel

Mrs. V. Mauta, for the State

Mr. R. Kasito, for the Accused

DECISION ON VERDICT

20 July, 2011

1. IPANG AJ: The accused Famund Badi Moibamo pleaded not guilty to one count of willful murder under section 299(1) of the Criminal Code Act, chapter 262.

Brief Facts

2. The brief facts of the case are as follows: The State alleged that on the 13th of September 2009 at around 4.00 pm near the YWCA Hall in Goroka, the accused was walking along the road with the deceased Dorcas Pepeto, his wife. Both had an argument. The accused who had a long sharp knife in his possession, pulled the knife out and stabbed the deceased on her right (side) lower abdominal area.

3. The deceased fell down on the ground and called out in pain. One Sailas Araupa who was walking along the road ran to her aid. Sailas asked the accused why he stabbed the deceased. The accused replied, “she misbehaved having affairs with other men, so I intend to kill her so I killed her.” After saying this, the accused left the scene with the knife in his hand. Sailas was with the deceased at the road side. Sailas stopped a white double cab ute belonging to G4S Security firm and assisted the victim to the Goroka Base Hospital. However, the victim was confirmed dead on arrival. Sailas remained with the body till one of the deceased relatives came and Sailas left and reported the mater to the police. The accused was apprehended, arrested and charged.

4. At the commencement of the State’s case, the State through counsel Mauta tendered the following documentary evidence with consent from the defence counsel. The following were the documents tendered;

(i) The Record of Interview (ROI) dated 29 of September, 2009 conducted by Sgt. Peter Kafare and corroborated by Rex Dala on the accused. The original pidgin version of the ROI is marked as Exhibit “A” and the English translated version is marked as Exhibit “B”.

(ii) A one (1) page English statement of the investigator Sgt. Peter Kafare, marked as Exhibit “C”.

(iii) A one (1) page English statement of the corroborator Rex Dala, marked as Exhibit “D”.

5. A part from the three (3) documentary evidence tendered by consent in court, the State called one (1) witness namely Sailas Araupa. This witness gave sworn evidence in pidgin. He said on the 13 September, 2009 in the afternoon at around 4.00 pm, he was in Goroka town at the YWCA. He said he was walking down to the market when he saw a couple, a man and a lady were walking and arguing at the same time.

6. The witness said the couple were walking on the right side of the road and were going towards North Goroka. Witness said he was walking on the left side of the road. The witness said the distance from where the couple were walking to where he was walking would be from where he (the witness) was sitting in the witness box to the entrance door to the court room number one (1). Both counsels have agreed that the distance is around five (5) metres.

7. Witness Sailas said as he walked he saw the accused held the deceased on her left shoulder with his left hand. He said the accused then pulled the knife with his right hand and stabbed her and pulled out the knife again. The witness said the lady shouted out in pain and blood spilled out. He said he went to the aid of the lady. He said the lady slept on his lap and the blood poured out. The witness said he held the accused and asked him, why he stabbed the lady. He said the accused replied, “she had affairs with other men, so I intend to kill her so I killed her. She is my wife”.

8. The State witness said he does not know the lady but wanted to save her life. He said he saw the accused clearly. During the examination in chief, the witness was asked to look around inside the court room and to identify the person, who stabbed the lady on the 13th of September, 2009. The witness replied, “the man is in court”, and he pointed directly to the accused person. The witness said he only knew of the accused person at the time of the commission of the alleged offence.

9. State’s counsel put to the witness, that he (the witness) had told the court, that when he (the witness) asked the accused why he stabbed the lady, the accused replied, “she (deceased) had affairs with other men so I wanted to kill her, so I killed.” The witness said that’s true. The witness also said that after the accused made that statement, he (the accused) got his knife and walked towards the town.

10. State witness said in examination in chief that he then tried to find a vehicle and save the woman. Fortunately the Protect Security (G4S Security) vehicle came from North Goroka, and he (the witness) stopped the vehicle, put the lady on the vehicle and took her to the Goroka Base General Hospital. The witness said at the hospital, the doctors tried to save her but she died.

State witness Sailas Araupa during cross examination

11. During the cross-examination by the defence counsel, the State witness was pressed with the language used by the couple (accused and the deceased) in their conversation. The State witness said he knew the couple were arguing as they were talking in Unggai dialect. He (witness) said he is from the Eastern Highlands Province and he could therefore quite easily recognize the Eastern Highlands languages. In this case he said he understood the Unggai language that was spoken.

12. On been cross-examined on how the accused stabbed the lady, the State witness said the accused held the lady with his left hand. The witness said the accused held the lady on her right shoulder and stabbed her on the right side stomach. He, the witness said he saw the accused once at the scene of the offence. He said police never took him to identify the accused at the police station. He also told the court when questioned that he has no eye problem and he wasn’t drunk. He said he can easily identify the accused person.

13. During the time of the alleged offence he said that the victim (now deceased) did not attack the accused. The witness also said he did not see the lady (deceased) walking with another man. He (witness) also said he did not see the accused slip-off and also it was a sunny day. He also said he did not see the deceased fell on top of the accused. He said though the lady (deceased) took out a pocket knife, she did not use it to threaten the accused. The witness said the accused wasn’t scared and so did not defend himself. Witness also said there was no scuffle between the accused and the deceased. He (witness) also told the court that the deceased did not cut the accused’s fingers.

14. The State closed its case after witness Sailas Araupa gave evidence. Defence counsel made a no case submission on the 14 July and on the 15 July, 2011 I delivered my ruling. I over-ruled the no case...