The State v juvenile “GBTD”

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 March 2017
• Citation: (2017) N6683
• Court: National Court
• Year: 2017
• Judgement Number: N6683

Full : CR No 1278 of 2014; The State v a juvenile, “GBTD” (2017) N6683

National Court: Cannings J

Judgment Delivered: 23 March 2017

N6683

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1278 OF 2014

THE STATE

V

A JUVENILE, “GBTD”

Madang : Cannings J

2016: 22 March, 27 May,

8, 13, 14, 15 July, 1 December

2017: 23 March

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) –whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased.

The accused, a juvenile, was charged with the wilful murder of a fellow villager, a 23-year-old man. The State alleged that the accused entered a house in which the deceased and two other young men were sleeping and without warning stabbed the deceased in the chest, killing him. The accused pleaded not guilty and a trial was held. The State relied on the evidence of the two young men who said that they were sleeping alongside the deceased and woke up to find the accused in the house brandishing a knife and behaving aggressively, and the evidence of a woman who said she witnessed the accused behaving aggressively shortly after the death of the deceased. The accused relied on an alibi: he was asleep at his house at the critical time. He gave sworn evidence and his parents also gave evidence in support of the alibi.

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 accused killed the deceased as: the testimony of the State witnesses was impressive; the identification evidence was of high quality; the accused’s alibi was unconvincing; circumstantial evidence led only to the conclusion that the accused killed the deceased.

(3) As the accused did not rely on any specific excusatory defence, the killing was not authorised, justified or excused by law and was therefore unlawful.

(4) It was proven beyond reasonable doubt that the accused intended to kill the deceased as he inflicted a deep stab wound into the deceased’s chest, which would have required great force and after stabbing the deceased the accused set about attacking and wounding another person.

(5) The accused was therefore convicted of wilful murder.

Cases cited:

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153

Devlyn David v The State (2006) SC881

Fei Stanley v The State (2006) SC1324

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (No 2) [1983] PNGLR 318

Paulus Pawa v The State [1981] PNGLR

The State v Abaya Ulas (2010) N4009)

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

TRIAL

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

Counsel:

F K Popeu, for the State

B Tabai, for the Accused

23rd March, 2017

1. CANNINGS J: The accused, “GBTD”, a juvenile, is charged under Section 299(1) of the Criminal Code with the wilful murder of a 23-year-old man, Petrus Yateng, at Yabob village, near Madang town, on Thursday 12 June 2014. The State alleged that GBTD, hereafter referred to as “the accused” or “G”, entered a house in which the deceased and two other young men were sleeping and without warning stabbed the deceased in the chest, killing him. G pleaded not guilty and a trial was held.

2. The State relied on the evidence of the two young men who said that they were sleeping alongside the deceased and woke up to find G in the house brandishing a knife and behaving aggressively, and the evidence of a woman who said she witnessed the accused behaving aggressively shortly after the death of the deceased.

3. G relied on an alibi: he was asleep at his house several hundred metres away at the critical time. He gave sworn evidence and his parents also gave evidence in support of the alibi.

AGE

4. The Court deemed the date of birth of the accused to be 1 June 1999, pursuant to Section 63 (age) of the Evidence Act Chapter No 48 and Section 4(2) of the Juvenile Justice Act 2014. It follows that:

· on the day of the incident the subject of the charge, 12 June 2014, the accused was aged 15 years;

· during the trial, which commenced on 22 March 2016 and has continued over a period of 12 months, the accused has been aged 16 to 17 years;

· the accused will attain the age of 18 years on 1 June 2017;

· on the date of verdict the accused is still a juvenile.

5. As the accused has been at all relevant times a juvenile (a person less than 18 years old but aged 10 years or older) the Court has applied the procedures of Part V (proceedings in juvenile courts) of the Juvenile Justice Act, including conducting the trial as “closed” proceedings under Section 69 (court proceedings to be closed).

UNDISPUTED FACTS

6. A number of undisputed facts have emerged from the evidence, from a site visit conducted after the close of evidence and from submissions of counsel:

· An incident in which the deceased lost his life occurred at Yabob village in the early morning of Thursday 12 June 2014. He had been sleeping on the floor in a small house, built on low posts, known as a hausboi. He was sleeping on the floor alongside two other young men, Yateng Philip and Lawi Wesi (State witnesses #1 and #3).

· Ten metres from that house is a kitchen connected to a house occupied by State witness #4 Jacobeth Philip.

· The accused’s house is located 250 metres along a walking track from the small house in which the deceased and Yateng Philip and Lawi Wesi had been sleeping.

· The accused and the State witnesses (apart from the Police investigator, State witness #2) are closely related, live in the village and know each other well.

· The deceased was killed by a stab wound to the right chest, the cause of death being a “right haemothorax”(the presence of blood in the chest cavity). These were the findings recorded in a post-mortem report and medical certificate of death prepared by Dr Jiuth Gawi, Emergency Medicine Registrar at Modilon General Hospital [exhibits P2 and P3]. Other observations included: the penetrating knife wound was to the right chest, at the 5th intercostal spacing (ie between the ribs), measuring 13 cm x 2 cm with a depth of 13 cm; the trachea was deviated to the left side.

ISSUES

7. 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.

8. The primary issues are:

1 Did the accused kill the deceased?

2 If yes, was the killing unlawful?

3 If yes, did the accused intend to kill the deceased?

4 Is the accused guilty of wilful murder or any other offence?

1 DID THE ACCUSED KILL THE DECEASED?

This is a question of fact, to be determined by applying the definition of killing in Section 291 (definition of killing) of the Criminal Code:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

9. The question is whether G directly or indirectly caused the death of the deceased. Resolution of this issue requires a:

· summary of evidence for the State;

· summary of evidence for the defence;

· determination of the question whether the fourth and/or fifth accused killed the deceased.

Evidence for the State

10. Four witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Yateng Philip	Brother of deceased, cousin-brother of accused; age at trial: 22 years
Evidence
At 6.00 am on 12 June 2014 he awoke in the hausboi in which he had been sleeping since 10.00 pm the previous night – he was sleeping alongside the deceased, Petrus Yateng, and another boy, Lawi Wesi (State witness #3) – he felt Petrus move and he (the witness) woke up to see the accused in the house, standing with a knife in his hand – he (the witness) sat up and yelled ‘G! G! What are you up to?!’ He identified the accused as being the person G he referred to in his evidence. The witness stated that there had been an argument at the village the night before the incident in which the deceased was killed – the argument was about a home-made gun owned by the deceased – the argument, which became a physical fight, was between himself and two other boys, Greg and Dixon – G was not present at the fight. The accused then swung the knife at him...