The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N3842

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 December 2009
• Court: National Court
• Citation: (2009) N3842
• Docket Number: CR NOS 341, 342 & 343 Of 2008
• Year: 2009
• Judgement Number: N3842

Full Title: CR NOS 341, 342 & 343 Of 2008; The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N3842

National Court: Cannings J

Judgment Delivered: 10 December 2009

N3842

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 341, 342 & 343 OF 2008

THE STATE

V

JOHN BAIMO KAOLE, PETER PAPUI & LUCAS PAPUI

Kimbe: Cannings J

2009: 5, 6, 7, 8, 11, 25, 26, 27 May,

10 December

VERDICTS

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – multiple accused – whether any of the accused killed the deceased – evidentiary value of confessional statement and admissions that are admitted into evidence without objection but rebutted in sworn evidence – rules about convicting on uncorroborated evidence of a co-accused – evidentiary value of sworn alibi evidence not preceded by alibi notice – circumstantial evidence – alternative verdicts, Criminal Code, Section 539(1).

Three men were charged with the wilful murder of a fellow villager. It was alleged that they stabbed him and hit him on the head with a piece of timber, killing him instantly, then dragged his body on to the nearby highway where it was hit by a vehicle. There was no eyewitness evidence. The State relied on a confessional statement and admissions by one of the accused, which also implicated the other two, and on circumstantial evidence that put the accused who made the confession in the company of the deceased, behaving aggressively, shortly before the estimated time of death. That accused gave sworn evidence, rebutting his confession and admissions and saying that they were forced upon him by the police who assaulted him. He also denied being with the deceased and said that he was home asleep. Neither a notice of objection to the confessional statement and record of interview nor a notice of alibi were filed before the trial. The other two accused exercised their right to remain silent.

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) The only strong evidence implicating the first two accused was in the confessional statement and admissions of the third accused. However, the court must exercise considerable caution before convicting a person on the evidence of a co-accused and here there was no corroboration of the co-accused’s evidence. Therefore the finding was reached that neither of the first two accused killed the deceased.

(3) As to the third accused, his sworn rebuttal of his confessional statement and admissions was unconvincing, his demeanour in the witness box was poor and there was no formal notice of objection. His confessional statement and admissions therefore carried considerable weight.

(4) Further, his alibi was false. No notice of alibi was given, it was vague and uncorroborated and there was strong evidence that he was with the deceased, behaving aggressively, shortly before the estimated time of death.

(5) As the State’s case was substantially dependent on circumstantial evidence, the court applied the principles about entering a conviction based on circumstantial evidence arising from Paulus Pawa v The State [1981] PNGLR 498: the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

(6) Here the proven facts reasonably led to only one conclusion: that the third accused killed the deceased.

(7) As no specific defence was relied on, the killing was unlawful by virtue of Section 289 of the Criminal Code.

(8) Given the circumstances in which the deceased was killed the State failed to prove that the third accused intended to kill the accused but proved that he intended to do him grievous bodily harm.

(9) The third accused was accordingly convicted of murder under Sections 539(1) and 300(1)(a) of the Criminal Code. The first two accused were acquitted.

Cases cited

The following cases are cited in the judgment:

Abraham Saka v The State (2003) SC719

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

Devlyn David v The State (2006) SC881

Paulus Pawa v The State [1981] PNGLR 498

The State v Ali Kei Paiya CR No 478 of 2004, 09.08.05

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Linus Rebo Dakoa (2009) N3586

The State v Linus Rebo Dakoa (2009) N3587

The State v Martin Maso Naipo CR No 92 of 2004, 21.06.05

The State v Moses Nasres (2008) N3302

The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

The State v Raphael Kuanande [1994] PNGLR 512

The State v Steven Malken CR No 464 of 2008, 07.08.09

Abbreviations

The following abbreviations appear in the judgment:

Const – Constable

CR – Criminal Register

HL – House of Lords

J – Justice

N – National Court judgment

NBPOL – New Britain Palm Oil Limited

No – number

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

v – versus

TRIAL

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

Counsel

A Kupmain for the State

T Gene for the accused

10 December, 2009

1. CANNINGS J: Early on the morning of Christmas Day, Tuesday 25 December 2007, the body of a 27-year-old man, Otto Komeme, was found on the road beside his village, Ubai, on the Kimbe-Bialla Highway in West New Britain Province. Police at the nearby Kapiura Police Station were alerted and attended the scene. It was originally thought the deceased had been hit by a moving vehicle. The village people erected a road block and demanded compensation from NBPOL, which runs fruit trucks along the highway. However, soon afterwards the matter was dealt with as a suspicious death, a CID officer at Buluma Police Station, Const Michael Wande, was called to the scene and he started a murder investigation. This led to the three accused now before the court – John Baimo Kaole, Peter Papui and Lucas Papui – being charged and indicted for the wilful murder of Otto Komeme. They all pleaded not guilty so a trial has been held.

2. The State’s case is that the three accused jointly planned to kill the deceased and that in accordance with the plan one of them – Lucas – enticed the deceased to follow him to a predetermined location in the village – a trade store belonging to Bruno Matolo – in the middle of the night, where the other two – John and Peter – were stationed. The State alleges that it was there that they all started fighting with the deceased. They stabbed him and hit him on the head with a piece of timber, killing him instantly, then dragged his body on to the nearby highway, where it was hit by a truck.

3. There was no eyewitness evidence. The State relied on a confessional statement and admissions by Lucas, which also implicated the other two, and on circumstantial evidence that Lucas was with the deceased, behaving aggressively, shortly before the estimated time of death, which was 6.00 am on Christmas Day.

4. Lucas gave sworn evidence, rebutting his confession and admissions and saying that they were forced upon him by the police, who assaulted him. 5. He denied being with the deceased shortly before the estimated time of death and said that he was home asleep. John and Peter exercised their right to remain silent.

ELEMENTS

6. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

ISSUES

7. None of the accused relies on any specific defence such as accident, compulsion, insanity, provocation or self-defence. Each of them says that he did not kill the deceased. So the first issue is whether any one or more of the three accused killed the deceased. If they did the next issue is whether the killing was unlawful. If it was, was there an intention to cause death? If yes, a conviction for wilful murder will be entered. If no, an alternative conviction for murder or manslaughter must be considered.

8. The primary issues therefore are:

1 Did any of the accused kill the deceased?

2 Was the killing unlawful?

3 Was there an intention to kill?

4 If there was no intention to kill, should an alternative conviction be entered?

1 DID ANY OF THE ACCUSED KILL THE DECEASED?

9. Determination of this issue requires:

· a summary of the evidence for the State;

· a summary of the evidence for the defence;

· a preliminary assessment of the State’s case;

· a summary of the defence counsel’s submissions;

· an assessment of the defence counsel’s submissions; and then

· a final determination of whether any of the accused killed the deceased.

EVIDENCE FOR THE STATE

10. It consisted of:

· medical evidence: a certificate of death and a post-mortem report and oral evidence by the doctor who prepared these documents;

· police...