The State Andrew Beng

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 July 2017
• Citation: (2017) N6814
• Court: National Court
• Year: 2017
• Judgement Number: N6814

Full : CR NO 637 OF 2012; The State Andrew Beng, Andrew Manga and Hebron Tui Ekil (2017) N6814

National Court: Cannings J

Judgment Delivered: 31 July 2017

-N6814

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 637 OF 2012

THE STATE

V

ANDREW BENG, ANDREW MANGA & HEBRON TUI EKIL

Cannings J

Madang: 11, 17, 18, 20 March, 8 July 2015

Ramu: 13, 14 July 2015

Madang: 24, 25 September 2015

Waigani: 30 September 2015

Madang: 22 October 2015,

3, 8 March, 13 July 2016,

31 July 2017

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether any of the accused killed the deceased – whether killing unlawful – whether the accused who killed the deceased intended to do so – Criminal Code, Section 7 – whether any accused enabled or aided another in committing the offence.

Three accused were indicted for wilful murder following a late-night altercation at a social club, involving two groups of men, in which one man was stabbed and later died from the injury. All accused pleaded not guilty and a trial was conducted. The State alleged that the second accused directly killed the deceased by stabbing him, that he acted unlawfully, intending to cause his death, making him guilty of wilful murder under Section 299(1) of the Criminal Code, and that the two other accused enabled and aided the second accused to commit the offence, making them also guilty of wilful murder under Sections 7(1)(b) and (c) of the Criminal Code. The State presented four witnesses who gave evidence of seeing the second accused stab the deceased, while the deceased was being held by the first accused. All accused gave sworn evidence. All stated that they were present but denied involvement in death of the deceased and denied knowledge of how he was killed.

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 second accused killed the deceased as: there was credible and consistent eyewitness evidence by four witnesses of the second accused stabbing the deceased; the medical evidence was consistent with the eyewitness evidence; the evidence of all accused was not credible and was uncorroborated.

(3) As no excusatory defence was claimed by the second accused, his killing of the deceased was unlawful.

(4) It was proven beyond reasonable doubt that the second accused intended to kill the deceased, given the nature and extent of the injuries inflicted on the deceased. The second accused was therefore guilty of wilful murder.

(5) Though there was evidence of the first accused’s involvement in the assault on the deceased, it was insufficient to prove beyond reasonable doubt that he assisted the second accused with the intention of killing the deceased. The first accused was not guilty.

(6) Though there was evidence that the third accused started the fight that led to the altercation in which the first accused stabbed the deceased, it was not proven that he aided or assisted the second accused in killing the deceased.

(7) In summary, the second accused was convicted of wilful murder, as charged and the first and third accused were acquitted.

Cases cited

The following cases are cited in the judgment:

Fei Stanley v The State (2006) SC1324

The State v Abaya Ulas (2010) N4009

The State v Cain Wosae (2010) N3996

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

The State v Sapik Tommy (2014) N5575

Glossary

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

People

Ambro Pai – Assas resident; Daniel Paul’s uncle

Andrew Beng – first accused, defence witness #2

Andrew Manga – second accused, defence witness #3

Daniel Paul – State witness #3, Engan man

Dr Manna Ario – doctor who conducted post-mortem examination, State witness #6

Ekip Yambi – person involved in the fight with Hebron Tui Ekil

Engan – person from Enga

Hagen people – people from Mt Hagen

Hebron Tui Ekil – third accused, defence witness #1, son of Tui Ekil

Jack Ben – son of Joel Giu, referred to in evidence

Jeffrey Tee – the deceased, Engan man

Joel Giu – State witness #1, club owner, Markham man

MCC Ramu Nickel – company; employer to Daniel Paul

Nan Ambro – person involved in fight with the accused

Paku Waips – State witness #4, person from Enga

Sgt Martin Howley – arresting officer, State witness #5

Steven Joel – State witness #2, regarded Joel Giu as his father

Tui Ekil – father of third accused, Hebron Tui Ekil, defence witness #4

Places

Angau General Hospital – hospital in Lae

Assas – place of incident, between Ramu and Walium

Dei – district in Western Highlands Province

Dumpu – oil palm estate in Ramu area

Enga – Highlands province

Gusap – place within area of incident

Kandep – deceased’s district, Enga Province

Lae – capital, Morobe Province

Madang – capital, Madang Province

Markham – home village of Joel Giu, Morobe Province

Markham Valley – valley in Morobe Province

Menia – village before Dumpu, spot where deceased passed away

Modilon General Hospital – hospital in Madang

Mt Hagen – capital, Western Highlands

Ramu – town along the Lae-Madang Highway

Ramu Sugar – another name for Ramu town

Rumonga – accuseds’ village, Dei District, Western Highlands Province

Walium Station – headquarters, Usino-Bundi District

Western Highlands – Highlands province

Yakambu – village, near Walium

TRIAL

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

Counsel

F K Popeu & M Pil, for the State

B W Meten, for the Accused

31st July, 2017

1. CANNINGS J: The three accused are charged with the wilful murder of Jeffrey Tee (the deceased) at Assas, in the Walium area of Usino-Bundi District, Madang Province, on 23 October 2011. They have pleaded not guilty so a trial has been conducted. The State’s case is that:

· the second accused (Andrew Manga) is the principal offender and he is guilty of wilful murder under Section 299(1) of the Criminal Code as he directly and unlawfully killed the deceased by stabbing him in the abdomen with a knife, intending to cause his death; and

· the first accused (Andrew Beng) and the third accused (Hebron Tui Ekil) enabled and aided the second accused to commit the offence, thus making them guilty of wilful murder under Sections 7(1)(b) and 7(1)(c) of the Criminal Code.

2. The State presented four witnesses who each gave evidence of seeing the second accused stab the deceased, while the deceased was being held by the first accused. All accused gave sworn evidence. All stated that they were present but denied involvement in death of the deceased and denied knowledge of how he was killed.

UNDISPUTED FACTS

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

· An incident in which the deceased was injured occurred at Assas late on the night of Saturday 22 October or in the early hours of Sunday 23 October 2011, at a licensed club owned and run by State witness No 1, Joel Giu, a man from Morobe Province.

· Assas is a small built-up area on the Madang-Lae (Bruce Jephcott) Highway between Walium station and Ramu town in Usino-District. It is 50 kilometres along the highway from Ramu, in the direction of Madang town.

· Joel Giu’s club was on the northern side of the highway. It is no longer in operation. The Court party conducted a site visit and observed that the old club, which was only ten metres in from the highway has been replaced by a new store, further inside, about 20 metres from the highway.

· On the other side of the highway, 150 metres from Joel Giu’s area, is a service station and workshop owned by a Western Highlands man, Tui Ekil.

· Tui Ekil is the father of third accused, Hebron Tui Ekil, and an uncle to first accused, Andrew Beng, and second accused, Andrew Manga.

· On the afternoon of Saturday 22 October there was a birthday party for Hebron Tui Ekil’s son at the Ekil premises. No alcohol was consumed at the party. The three accused were at the party.

· After the birthday party finished, the three accused walked across to Joel Giu’s club and started drinking alcohol and socialising.

· The three accused are from the Ramonga area of Dei District, Western Highlands Province, but they, like many people from that province, were known commonly as ‘Hagen’ people.

· The first accused, Andrew Beng, was employed at the nearby Dumpu oil palm estate, and lived close to Assas. The second accused, Andrew Manga, was a University of PNG student, living at Port Moresby, who was on holiday at Assas (he had been there for a week) at the time of the incident. The third...