The State v Glen Ilaisa Laida (2019) N7837

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J
• Judgment Date: 07 May 2019
• Citation: (2019) N7837
• Docket Number: CR NO. 859 OF 2016
• Court: National Court
• Year: 2019
• Judgement Number: N7837

Full Title: CR NO. 859 OF 2016; The State v Glen Ilaisa Laida (2019) N7837

National Court: Toliken, J

Judgment Delivered: 7 May 2019

N7837

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 859 OF 2016

THE STATE

V

GLEN ILAISA LAIDA

Alotau: Toliken, J.

2018: 4th, 5th, 6th December

2019: 7th May

CRIMINAL LAW – Particular offence – Wilful murder – Trial – Deceased attacked accused with axe and bush knife – Accused assaults and kills deceased – Criminal Code Ch. 262,ss. 299, 269,270.

CRIMINAL LAW – Evidence – No eye witness evidence from the State – Only evidence from accused – Medical Report and photographs of deceased tendered by consent – Caution in drawing inferences from medical evidence in absence of eye witness evidence.

CRIMINAL LAW – Self defence from unprovoked assault – No intention to cause death or grievous bodily harm – Reasonable apprehension of death or grievous bodily harm – Accused assaults deceased to preserve himself from death or grievous bodily harm – Defence of self defence shown but further assault on victim unnecessary and excessive – Verdict for wilful murder or murder not available – Alternative verdict – Manslaughter – Criminal Code Ch. 262, s 539.

Cases Cited:

Paliau v The State (2016) SC1537

R v Kaiwor Ba [1975] PNGLR 90

R v Paul Maren (1971) N615

The State v Alphonse Dumui (2009) N3686

The State v Kai Joip Dipa (2007) SC 868

The State v Maria Agua CR No 208 of 2007, 16.07.09

Counsel:

C Sambua, for the State

N Wallis, for the Prisoner

JUDGMENT ON VERDICT

7th May, 2019

1. TOLIKEN J: The accused Glen Ilaisa Laida, was on 04th December 2018, charged on indictment with the wilful murder of Allan Ningilom on 29th December 2015 at Alotau Town, thereby contravening Section 299 of the Criminal Code Ch. 262. (the Code)

THE ALLEGATIONS

2. The State’s allegations are that between 8.00 a.m and 10.00 a.m on 29th December 2015, the accused and the deceased and others were drinking alcohol at the Niugini Compound here in Alotau. An argument arose between the accused and the deceased and a fight ensued. The fight continued for some time. In the course of the fight the accused attacked the deceased with a bush knife, inflicting serious bodily injuries to his back, neck and right leg. The deceased died from loss of blood from the injuries sustained.

3. The State alleged that the accused intended to cause the death of the deceased.

PLEA

4. The accused pleaded Not Guilty and trial was conducted. The accused pleaded self defence from provoked assault under Section 270 of the Code.

ISSUES

5. There is no dispute that the accused caused the death of the deceased. What is disputed though is whether he intended to kill him and whether he had a lawful excuse for doing so.

6. The issues to be determined are:

1. Whether he intended to cause the death of the deceased?

2. Whether he acted in self-defence?

THE OFFENCE

7. Section 299 of the Code provides for the offence of wilful murder as follows:

99. Wilful murder.

(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.

ELEMENTS OF CHARGE

8. The State must prove the following elements for the crime of wilful murder beyond a reasonable doubt to secure a conviction:

1. The accused

2. Intended to cause the death of the deceased; and

3. Caused the death of the deceased; and

4. He had no lawful excuse for doing so.

THE EVIDENCE

9. The State called one witness only (Justin Gilchrist) out of the number of witnesses listed on the indictment. The State also tendered the following:

(1) The accused Original Record of Interview dated 18.01.16) – (Original Pidgin and English translation).

(2) Supplementary Record of Interview dated 11.05.16 – Original Pidgin and English translation).

(3) Statement of Arresting Officer Sergeant Max Irofe dated 11.05.16.

(4) Statement of Corroborator Chief Sergeant Iapeta Natapu dated 18.01.16.

(5) Statement of Policewoman Wendy Amakos dated 18.05.16.

(6) Medical Report by Dr. William Mataio dated 19.05.18.

(7) Eight coloured photograph’s of the deceased showing his wounds.

10. The accused elected to give sworn evidence and did not call any other witnesses.

UNDISPUTED FACTS

11. The undisputed facts from the evidence are these. On the morning of 20th December 2015 the accused was at his garden hut on the hills above Niugini Compound on the outskirts of Alotau Town when the deceased Allan arrived with a litre of illicit spirit (home brew) and wanted to drink at the accused’s place. The accused protested but the deceased persisted and started drinking. The deceased got the accused’s music box and started meddling with the volume and eventually broke the volume control knob. This angered the accused and an argument ensued resulting in a fist fight between the two of them.

13. One Nason Kasore heard them fighting and ran up and tried to stop the fight. He came just in time to stop the deceased from cutting the accused by tackling him to the ground. They both fell to the ground. Nason was on top of the deceased trying to wrestle the knife from the deceased’s hands. Seeing this, the accused joined in to assist Nason to remove the knife from the deceased. During the struggle Nason somehow managed to remove the bush knife from the deceased and threw it down the gulley.

14. That morning between 7.00a.m – 8.00a.m Justin Gilchrist and his wife Thelma and their children were at their garden further uphill when they heard loud music and drunkards singing and shouting from the other side of the mountain. Sometime around 11.00a.m they heard fighting and screaming so Gilhrist and his wife went down to investigate. Gilchrist had his bush knife with him. They arrived in time to see the accused, Nason and the deceased wrestling each other in a pile on the ground with the deceased at the bottom, Nason on top of him and the accused on top of Nason.

15. Gilchrist shouted at them to stop, but Nason replied that this was their fight. Leaving the other two Nason ran to Gilchrist and grabbed him by the shoulders. He removed Gilchrist’s bush knife and then ran down to a creek. After Gilchrist stopped the fight between the accused and the deceased, he and his wife followed Nason down, but could not find him. However, they came upon a lady by the name of Meisy Suau. Meisy had Gilchrist’s bush knife which she said was given to her by Nason. They then left for the Compound following the creek. The accused also left the scene and went to Musa Compound.

16. After sometime the accused came running back up. He met Gilchrist and his wife and wrestled the bush knife from Gilchrist and ran up hill. They followed him up and met a young boy by the name of Dougie just as they were about to reach the top of the hill. They told Dougie to follow the accused. Gilchrist and his wife continued on and when they came to a junction they heard a man screaming, which Gilchrist described as that of someone dying. Leaving his wife there, Gilchrist continued on and heard Dougie call out “Hidomo, haweni!” (“Friend that is enough!”)

17. When Gilchrist reached the top he saw someone dragging another person downhill. His view was obstructed by bushes and betel nut trees so he was not able to see the man properly. The accused admitted that there was no one else around hence the person Gilchrist saw was of course the accused.

18. Gilchrist also observed that some betel nut trees were chopped down and that the accused’s garden house was partly destroyed. Gilchrist did not proceed any further but instead left with his wife to pick up his children from the garden. They later reported the matter to the Compound Chairman. The destruction described by Gilchrist was confirmed by the accused in Q & A 25 of his initial Record of Interview where he said that the deceased had chopped down his betel nut trees and damaged his house which was what brought him back to the scene.

19. The Post Mortem Report by Dr. Mataio shows that the deceased had deep wounds or lacerations on various parts of his body. These were:

Head and Neck

The head and neck region had deep wounds both anteriorly and posteriorly. On the anterior aspect:

- The Rt side of the base of the neck had a 15cm wound extending medially passed the Rt clavicle (shoulder bone) and deep into the muscle of the neck

- The Lt temporal scalp had a deep curving wound from the scalp down to the anterior part of the ear. The wound was degloving extending into the temporalis muscle and exposing the skull. There was no fracture of the skull.

- There were minor lacerations (superficial) on the anterior face ( x 1 at anterior nasal bridge ~ 3cm continuing to the Rt lateral eye ~ 2cm) and x 1 at the frontal face (~2cm)

The posterior aspect of the head and neck showed three major lacerations:

- The first laceration was at the base of the scalp...