The State v Willie Wafi (2013) N5237

• Jurisdiction: Papua New Guinea
• Judge: Gabi, J
• Judgment Date: 10 May 2013
• Citation: (2013) N5237
• Docket Number: CR NO. 998 OF 2011
• Court: National Court
• Year: 2013
• Judgement Number: N5237

Full Title: CR NO. 998 OF 2011; The State v Willie Wafi (2013) N5237

National Court: Gabi, J

Judgment Delivered: 10 May 2013

N5237

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 998 OF 2011

THE STATE

V

WILLIE WAFI

Lae : Gabi, J

2013 : 10 May

Facts

The son of the accused was murdered, and in the early hours of the following morning the mother of the man, rumoured by some to be responsible for the murder of the accused son, was murdered. The issue for trial was whether it was safe to accept the State witnesses’ identification of the accused as the man who murdered the woman, against the accused’s alibi that he spent the whole night at his house with the body of his son.

Held

1. The only evidence of light available to aid in identification was given by the two witnesses for the State, at [32];

2. A judicial officer is bound to accept the only evidence available unless there is some reason to find it not fit to be accepted, at [32 – 33];

3. Found as a fact that the area in which the crime was committed was well lit, at [34];

4. The identification evidence of one State witness rejected as he only had a back view, at [37];

5. The evidence of the other State witness, assessed on the tests laid down in the cases (cited at [38]) was strong, credible and capable of supporting a finding beyond reasonable doubt that the accused is the person who killed the deceased, at [40];

6. The alibi of the accused is false, the supporting witnesses evidence conflicting, at [41 – 47];

7. The accused is found guilty as charged.

Cases Cited

Alphonse Kopi vs. The State [1994] PNGLR 475

Bewa Gita vs. The State (1988-89) PNGLR 153

Ila Bate vs. The State (2012) SC1216

Jimmy Ono vs. The State (2002) SC698

John Beng vs. The State [1977] PNGLR 115

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

Rabaul Shipping Limited vs. Peter Aisi 2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

Regina vs. Holland [1974] PNGLR 7

Reference

Chalmers, Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd edition (Law Book Co. Ltd 2001) page 638.

Counsel

L. Kleinig, for the State

M. Maburau, for the accused

VERDICT

10th May, 2013

1. GABI, J: Introduction: Willie Wafi, the accused, has been charged with one count of wilful murder contrary to s. 299 of the Criminal Code. The accused has pleaded not guilty.

2. It is alleged that on 16th May 2010, at about 3.40 am, the accused and a large group of men, went to the Dugumari house at Raicoast Compound and surrounded it seeking revenge for the death of the accused’s son, Andy Marus. Wilma Dugumari, the forty-six (46) years old mother of the household, was approached by the group, and one of them asked where her own son was. Before she could answer, the accused swung a bush-knife at her head injuring her, and then did so again, this time chopping her fingers off. The accused pushed her to the ground and put his foot on her neck, holding her down. Then an unknown offender carrying a home-made gun entered the house where Sharon Dugumari was with her baby. He told her to hurry up and leave. Amongst the group, there was talk about burning the house and its contents. As Sharon Dugumari was leaving the house, carrying her baby, she saw and recognised the accused. She said to him “Hey, mi save long yu, ya!” He immediately swung his bush-knife at her. She twisted to avoid the bush-knife chopping her baby and lifted her left hand to shield the baby. His blow severed her left forearm, leaving it hanging by the skin. She ran into the nearby tall grass and lay on top of her baby, and the accused chopped her on the head, fracturing her skull, and on the back. He left her there to die. She eventually gathered her strength to stand up and seek help. She saw her house had been burnt to the ground. She got some first aid from a community member at about 5.00 am. She was then taken to hospital where her injuries were treated and recorded.

3. Wilma Dugumari’s body was taken to the hospital. A post mortem was conducted and it was discovered that she died from severe multiple head injuries. In particular, the doctor noted a 17 cm long and 4 cm deep cut from the nose through the face to the right jawbone, and a 21 cm long and 4 cm deep cut to the rear of the skull, exposing brain tissue. Additionally, the deceased’s right hand had two fingers amputated.

The evidence

The witnesses for the prosecution

4. Sharon Dugumari is the daughter of Wilma Dugumari, the deceased. She said that in 2010 she lived at Raicoast Compound towards the back of Malahang Industrial Centre in a high post house with her family. On 15th May 2010, at about 7.00 pm, she was at home with her mother when two boys, from Busu Compound, came to the house looking for Shane Dugumari. The boys told Sharon and her mother that Shane had taken their radio so they came to collect it. Shane was not home at that time so her mother told them to go back and return in the morning.

5. Later that evening, some people came by their house and yelled out that they should run away as there had been a fight and Shane had killed someone. After having heard that news, Sharon took her baby and her mother and went to the gate of the Malahang Industrial Centre and stayed there until the early hours of the next morning. They walked back to the house. Shane was in the house when Sharon and her mother arrived. She took her baby to the girls’ bedroom to lay him down. While she was in the bedroom she heard some men talking in Kubalia language outside the house. This was about 3.40 am according to her mobile phone. She picked up her baby and went to the window opening in the girls’ bedroom to observe.

6. She looked down and saw the accused and a group of men, asking her mother Wilma Dugumari where Shane was. Her mother did not answer. The accused swung the bush knife he was holding and cut Wilma Dugumari’s head. Wilma knelt down and raised her hands, and the accused struck her again, with the bush knife cutting in between the fingers down to the palm. The accused then pushed her to the ground and stepped on her neck.

7. Soon after a man with a homemade gun went up the house to set it on fire and told Sharon to leave. Sharon came down and saw and recognised the accused. She called his name and said to him, “Hey, mi save long yu, ya!!” Immediately the accused swung his bush knife at her and her baby. She switched her baby to her right hand and held up her left hand in a defensive position. The accused struck her left hand with the knife, severing it through the forearm above the wrist. The left hand was held by a piece of skin.

8. Sharon ran into the kunai grass near the house and lay down on top of her baby. The accused ran after her and struck her two more times with his knife on the back of her head and on the rear of her left shoulder. At that point, someone in the group said in pidgin “yu kilim mama pinis, nau yu laik kilim pikinini, nau yumi go.” The accused then left her. Her left hand and forearm fell off at that time.

9. The accused and others set fire to the house and went away. She saw the house burnt to the ground. Eventually she got up and walked to Malahang Compound where she got assistance to go to the hospital.

10. Sharon knew the accused since 1997 as they were drinking mates or friends at Seth Daniel’s beer garden in Lae and had seen him at Malahang market since that time. She also knew that he lived at Busu Compound, that he was from the Kubalia area of East Sepik Province, that he was married to a Markham woman who worked at Trukai Industries, and that he wore a green Trukai shirt that night.

11. Sharon’s evidence with regards to the light was that the light pole with

two (2) sets of light from the Industrial Centre shone on the house. The light pole was higher than the fence and the trees near the house were small. She was able to see clearly what was happening that night.

12. In cross-examination, Sharon said she recognised the person who attacked her and her mother as Willie Wafi, that Willie Wafi was wearing green Trukai shirt, that she was not afraid of the group of men that night, that there was a group of men around the house but it was Willie Wafi who attacked her while she was on the third step of the ladder and that there was sufficient light around the house and she was able to see clearly.

13. Shane Dugumari is the son of Wilma Dugumari. In May 2010 he lived in an incomplete high post house at Raicoast Compound in the Malahang area with his parents and big sister Sharon and her baby. Shane recalled 15th May 2010, he was in the house. He went to the toilet and felt that someone was coming to the house. The toilet, which was about 10 to 15 metres away from the house, faced the house. He looked up and saw a man with a bush knife coming to the house. The man argued with his mother and cut her with the bush knife. He saw the man cutting his mother from the back and identified him to be Willie Wafi. She yelled out saying “Jesus” and called Stanley’s name three (3) times. Stanley lived in a kunai...