The State v Kevin Anis and Martin Ningigan (2003) N2360

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 07 April 2003
• Court: National Court
• Citation: [2003] PNGLR 344
• Year: 2003
• Judgement Number: N2360

Full Title: The State v Kevin Anis and Martin Ningigan (2003) N2360

National Court: Kandakasi J

Judgment Delivered: 4 or 7 April 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Defence consenting to admission of witness statements as evidence for the State—Effect of—Defence going into evidence making a claim not fully disclosed to the State and its witnesses not given the opportunity to comment upon—Fair hearing within the meaning of s37(3) of the Constitution means fair notice of defence to the State and its witnesses—Rule in Browne v Dunn (1893) 6 R 67 (HL) considered and applied—Defence evidence not put to State witness loses credibility—Court at liberty to find in terms of the uncontested evidence without or with little regard to defence evidence—s37(4) Constitution.

2 CRIMINAL LAW—Murder and unlawful wounding from failed armed robbery on highway—Two different vehicles and two different victims—Defence of compulsion raised—Whether the accused acted under compulsion only issue for trial—State's case uncontested and statements of witnesses and records of interviews admitted into evidence with consent of the accused—Accused giving sworn evidence raising defence of compulsion with details for the first time—Defence of compulsion not put to the State witnesses—Rule in Browne v Dunn (1893) 6 R 67 (HL) considered—Inconsistencies in accused evidence and records of interview—No logical explanation offered by accused for being approached by accomplices in the first place—Accused evidence rejected as not being credible—Verdict of guilty returned—s37(3)Constitution—s32(1)(d) Criminal Code.

3 CRIMINAL LAW—Sentence—Murder and unlawful wounding from failed armed robbery on highway—Two different vehicles and two different victims—Defence of compulsion raised—Conviction after a trial—No prior conviction only clear mitigating factor—Pleas of youthfulness rejected due to prevalence of offence by youthful offenders—Claim of not playing a major part in the commission of offence rejected because of s7 of the Code—Mere utterance of "sorry" after conviction following trial meaningless—32 years concurrent sentence less time spent in custody awaiting trail and sentence imposed—s7, s300 and s322 Criminal Code.

4 The State v Micky John Lausi (2001) N2091, Tapea Kwapena v The State [1978] PNGLR 316, The State v Angela Colis Towavik [1981] PNGLR 140, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Edward Toude (No 1) (2001) N2298, The State v Tony Pandau Hahuahori (No 1) (2002) N2185, Vaii Rocky Maury v The State (2001) SC668, The State v Ngetto Rex Rongo (2000) N2035, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Lawrence Simbe v The State [1994] PNGLR 38, The State v Joseph Ulakua (2002) N2240, The State v Tom Keroi Gurua (2002) N2312, The State v Wesley Nobudi and Others (2002) (Unreported and Unnumbered judgment delivered on 19 December 2002) in CR 1174 of 2000, Peter Naibiri and Kutoi Soti Apia v The State SC137, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Tumu Luna (2002) N2205, The State v Kauva Lavau and Kamo Kauva (1996) N1523 and Browne v Dunn (1893) 6 R 67 (HL) referred to

___________________________

N2360

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 42 and 43 of 2003

THE STATE

-V-

KEVIN ANIS and MARTIN NINGIGAN

WEWAK: KANDAKASI, J.

2003: 1st, 2nd, 4th and 7th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Defence consenting to admission of witness statements as evidence for the State – Effect of – Defence going into evidence providing making a claim not fully disclosed to the State and its witnesses not given the opportunity to comment upon –Fair hearing within the meaning of s. 37(3) of the Constitution means fair notice of defence to the State and its witnesses – Rule in Brown v. Dunn considered and applied – Defence evidence not put to State witness loses credibility – Court at liberty to find in terms of the uncontested evidence without or little regard to defence evidence – s. 37 (4) Constitution.

CRIMINAL LAW – Murder and unlawful wounding from failed armed robbery on highway – Two different vehicles and two different victims – Defence of compulsion raised - Whether the accused acted under compulsion only issue for trial – State’s case uncontested and statements of witnesses and records of interviews admitted into evidence with consent of the accused – Accused giving sworn evidence raising defence of compulsion with details for the first time – Defence of compulsion not put to the State witnesses – Rule in Brown v. Dunn considered – Inconsistencies in accused evidence and records of interview – No logical explanation offered by accused for being approached by accomplishes at the first place – Accused evidence rejected as not being credible – Verdict of guilty returned – s. 37(3)Constitution - s. 32 (1)(d) Criminal Code.

CRIMINAL LAW – Sentence - Murder and unlawful wounding from failed armed robbery on highway – Two different vehicles and two different victims – Defence of compulsion raised – Conviction after a trial – No prior conviction only clear mitigating factor – Pleas of youthfulness rejected due to prevalence of offence by youthful offenders - Claim of not playing a major part in the commission of offence rejected because of s. 7 of the Code – Mere utterance of sorry after conviction following trial meaningless – 32 years concurrent sentence less time spent in custody awaiting trail and sentence imposed - ss. 7, 300 and 322 Criminal Code.

Cases cited:

The State v. Micky John Lausi (16/02/01) N2091.

Tapea Kwapena v. The State [1978] PNGLR 316.

The State v. Angela Colis Towavik [1981] PNGLR 140.

The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v Edward Toude & Ors (No 1) (16/10/01) N2298.

The State v Tony Pandau Hahuahori (No 1) (19/02/02) N2185.

Vaii Rocky Maury v The State (20/07/01) SC668.

The State v. Ngetto Rex Rongo (20/12/00) N2035.

The State v. Laura (No. 2) [1988-89] PNGLR 98.

Simbe v. The State [1994] PNGLR 38.

The State v. Joseph Ulakua (23/05/02) N2240.

The State v. Tony Pandau Hahuahori (No 1) (19/02/01) N2185.

The State v Tom Keroi Gurua & Ors (11/12/02) N2312.

The State v. Wesley Nobudi & Ors (unreported and unnumbered judgement delivered on 19/12/02) in CR 1174 of 2000.

Peter Naibiri & Anor v. The State SC 137, 25th October 1978.

Allan Peter Utieng v. The State (unreported judgement of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.

The State v Tumu Luna (20/05/02) N2205.

Overseas Cases Cited:

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

Counsel:

Mr. M. Ruari for the State

Mr. G. Korei for the Accused

DECISION ON VERDICT

4th April, 2003

KANDAKASI J: The two of you pleaded not guilty to one charge each of murder and unlawful wounding contrary to ss. 300(1)(b)(i) and 322(1)(a) of the Criminal Code. A trial therefore took place on 2nd of April after having arraigned both of you the previous day.

You claim to have acted under compulsion or in simple terms, at the threat and or force of another person. That was the only issue for trial. This meant that everything else about these offences stood uncontested.

The uncontested evidence is this. In the early hours of the 21st of October 2001, between 12:00 midnight and 2 AM, an armed gang of six men attempted to hold up two motor vehicles travelling on the Sepik Highway at Maringe, in the Yangoru District of this Province. The first motor vehicle was a Mitsubishi Canter truck, white in colour. The second motor vehicle was a “PMV”, a Toyota Dyna truck. That vehicle followed shortly the first vehicle in the same direction as the first, heading for Wewak from Maprik way. The gang’s aim was to hold up the trucks and steal from their occupants’ vanilla and other properties.

A John Yuibiri and another only identified as a Sakarias appear to be the leaders of the gang. They were the ones who had a 303...