The State v Alex Kango (2006) N3083

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 25 August 2006
• Citation: (2006) N3083
• Court: National Court
• Year: 2006
• Judgement Number: N3083

Full Title: The State v Alex Kango (2006) N3083

National Court: Kirriwom, J

Judgment Delivered: 25 August 2006

N3083

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO.1515 of 2000

THE STATE

v

ALEX KANGO

Lae: Kirriwom, J.
2006:18 & 19 July, 25 August

CRIMINAL LAW – Particular Offence – Unlawful killing – Defence of insanity – Burden of Proof shifts to the Accused – Balance of Probability – Psychiatric Medical Evidence shows unsoundness of mind – Accused suffering from Schizophrenia before and during the time he committed the offence - Verdict of Not Guilty By Reason of Insanity – Accused is ordered to be confined at Laloki Psychiatric Hospital pending determination by the National Executive Decision for his release - ss. 28 and 592 of the Criminal Code.

CRIMINAL LAW – Evidence – Admissibility – Exception to Hearsay Rule - Dying Declaration – Statement made by the deceased seven hours before his death – Reliable Evidence – Evidence Act, s.20.

Held:

(1) Accused is found not guilty by reason of insanity and acquitted of the charge of unlawful killing.

(2) Accused was suffering from schizophrenia; a serious mental illness or disorder of the mind that impaired his brain both before and during the time of the commission of the offence and as such he was unable to judge the right from wrong or vice versa or even to control his actions.

(3) By reason of his acquittal on ground of insanity, the accused is confined to a mental asylum at Laloki Psychiatric Hospital to be kept there at the pleasure of the Head of State acting on advice until he decides otherwise.

Cases cited:
The State v Enakuan Salaiau [1994] PNGLR 388

Counsel:
J. Wala, for the State
M. Norum, for the Accused

DECISION ON VERDICT

25 August, 2006

1. KIRRIWOM, J.: The accused Alex Kango also known as Apaso of Tetsena village, Okapa, Eastern Highlands Province is charged with one count of unlawful killing. He is charged under Section 302 of the Criminal Code.

2. The charge states that on 9 day of June 2000 at Lae, Alex Kango Alsp known as Apaso unlawfully killed one Mark Nava.

3. This case took six years to actually have its day in court largely due to the accused exhibiting apparent signs of mental disorder and even unfitness to make a plea when he first appeared before the National Court on 6 February 2002 following his committal on a charge of wilful murder on 2 November, 2000. I observed the accused during several call-overs that he attended while awaiting his trial that he did not look normal. I agreed with counsel that the accused needed medical attention and treatment. The record and history of this treatment are explained in the doctor’s three separate medical reports marked as exhibits D1 – D3.

4. For purpose of arraignment the State alleged that between 7 and 8 p.m. on the night of 9 June 2000, the accused and the deceased were seen heading towards Bugandi High School from where they ordinarily reside which is Papuan Compound. Along the way near the Bugandi High School gate, using a kitchen knife, the accused allegedly stabbed the deceased in his stomach. The wound was described to be long and the knife estimated to be about a foot long was left imbedded in the deceased’s stomach when the accused left him from dead and headed towards Salamanda Street. Some residents found the deceased with his intestine pouring out from his stomach and immediately raised the alarm.

5. Police were alerted and they attended the scene where the deceased was found. He was still conscious when they reached him and took him to Angau Hospital. He told them that ‘Apaso’ was his attacker, gave them the description of the clothes he was wearing and where he was going or headed. The Police eventually caught him that same night.

6. The deceased underwent emergency surgery but died some seven hours later. The accused was subsequently charged with this offence.

7. The accused pleaded not guilty and raised the defence of insanity under Section 28 of the Criminal Code. Once insanity is raised as defence, the onus of proof immediately shifts to the accused to satisfy this court on the balance of probability that at the relevant time that he is alleged to have done the act that killed the deceased, he was suffering from a mental infirmity or disease of the mind such as to deprive him of the capacity to understand what he was doing, or to control his actions or to know that he ought not do what he was doing.

8. The State case consisted of the accused’s own record of interview with the Police conducted on 22 August 2000, both Pidgin and English translation [Exh.1a and 1b], Post Mortem Report of Dr. Thomas Koimbu who performed the autopsy on 22 June 2000 at Angau Memorial Hospital [Exh. 2], Certificate of Death [Exh. 3], undated but signed statement of Russel Egimbari, Police Investigator from CID Serious Crime Squad [Exh. 4] and sworn testimony from Cony Winjan, former Police Investigator and officer in charge of the case until retired from the Force and replaced by Russel Egimbari and one Peter Mareva, a resident of Papuan Compound.

9. There is no dispute about the death of the deceased. He died at 3.00 a.m., on 10 June 2000, less than 10 hours of being stabbed as confirmed by the Medical Certificate of Death (Exh. 3). The cause of the deceased’s death is also undisputed as disclosed in the Post Mortem Report. The deceased died as the result of hypovolemic shock from internal loss of blood due to injuries caused by a sharp object penetrating into the abdomen causing injuries to the major abdominal organs which included the liver and the spleen.

10. There is undisputed evidence from Russell Egimbari in his statement before the Court of talking with the deceased while he was still alive and lying at the scene of the stabbing near Bugandi High School Gate. He and Cony Winjan had driven earlier in a Police vehicle to pick up Cony Winjan’s son at Papuan Compound when the residents expressed concerns of an imminent danger that the deceased was being seen in the company of the accused that evening as they were last seen together heading towards Bugandi way. According to the residents at Papua Compound the accused was mentally sick and had stabbed another resident the previous night. They felt strongly that whoever was with the accused was in real danger. After picking up Cony Winjan’s son they left Papuan Compound and headed out towards Bumbu Police Barracks when Mobile Police came on the radio with the news of spotting a stabbed victim outside Bugandi High School Gate. They proceeded immediately to the scene where they saw the deceased lying on the ground with knife still stuck in his stomach and intestines pouring out. He was still conscious and talking. He told them his name was Mark and he came from Finschafen. He told them he was attacked by Apaso and described the clothes Apaso was wearing as green shorts and blue colour shirt and told the Police where Apaso was heading to.

11. After removing the knife from the deceased’s stomach the Police then rushed him to the hospital as they radioed other members to locate the accused by giving him the description of his clothes. The story in Russel Egimbari’s statement is supported by sworn oral testimony of Cony Winjan.

12. This is the only evidence of attack of the deceased implicating the accused as the sole assailant. Although this evidence was given uncontested, its admissibility, albeit hearsay, falls under one of the exceptions to the general hearsay rule which is that of a dying-declaration under Section 20 of the Evidence Act. I am satisfied that, although admissibility of this evidence is not an issue, for purposes of being correct in law, this evidence clearly qualifies for admission as a dying declaration as it was a conversation the deceased had with Russell Egimbari, Cony Winjan and his squad members some seven hours before he died.

13. Section 20 of Evidence Act provides:

20. Dying Declaration

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceeding if –

(a) at the time the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not –

(i) he entertained at that time any hope of recovery; or
(ii) he thought that legal proceedings might eventually; and

(b) at the time the person made the statement he would have been a competent witness in the legal proceeding; and

(c) The person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

14. State also tried to connect the deceased’s death to the accused by adducing indirect evidence of a similar incident or attack on another person, Peter Mareva, by the accused on the previous night before this incident. This is in the sworn testimony of Peter Mareva. Peter comes from Unggai also from Eastern Highlands Province and has been a resident of Papuan Compound for over 24 years. The night before this incident Peter went drinking with friends at Hagen Club. About midnight he returned home and ran into group of boys from the Compound playing guitar. Amongst them were his sons and one of them asked for some money? The accused was also with the boys. He gave some coins to his son and headed home to sleep. He noticed the accused leave the boys and followed behind him. His sixth sense warned him to take precaution so instead of heading straight for his house; he went to another house belonging to a Samarai man and pretended to knock...