N4359

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1464 OF 2009

THE STATE

V

WILSON MARI

Madang: Cannings J
2011: 4, 5, 10, 16 August

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the accused killed the deceased – whether the killing was unlawful – whether the accused intended to kill the deceased – alternative verdicts, Criminal Code, Section 539(1) – circumstantial evidence.

The accused was charged with the wilful murder of the deceased, who had been stabbed in the chest. The State's case was that the accused intentionally killed the deceased out of jealousy as the deceased had been drinking and socialising with the accused's wife. There was no direct evidence that the accused killed the deceased. The State's case depended entirely on circumstantial evidence.

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)	As to the first element, the question to ask, given that the State's case depended entirely on circumstantial evidence, was whether the proven facts led reasonably only to the conclusion that the accused killed the deceased.

(3)	The proven facts were that the deceased and the accused's wife were in each other's company, the accused was in the vicinity and enquired as to where they were, he followed them, he behaved suspiciously and was carrying a knife and, after the deceased's body was found and the deceased's mother was grieving for her son, the accused apologised to the mother for fighting with the deceased and offered to assist with repatriation of his body to the village. Those facts led reasonably to only one conclusion: that the accused killed the deceased.

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

(5)	There was insufficient evidence that the accused intended to kill the deceased but given the number, nature and force of the stab wounds, the State proved that the accused intended to do him grievous bodily harm. The accused was accordingly convicted of murder under Sections 539(1) and 300(1)(a) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
John Beng v The State [1977] PNGLR 115
Paulus Pawa v The State [1981] PNGLR 498
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 CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512

Dates

The events referred to in this judgment occurred in 2009 unless otherwise indicated.

TRIAL

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

Counsel

S Collins & M Pil, for the State
J Mesa, for the accused

16 August, 2011

1. CANNINGS J: The accused, Wilson Mari, is charged with the wilful murder of a 19-year-old man, Rudolph Pius. The offence is said to have been committed in the Nabasa area of Madang town in the early hours of Saturday 28 February 2009. The accused pleaded not guilty so a trial has been held. The State's case is that the accused intentionally killed the deceased out of jealousy as the deceased had been drinking and socialising with the accused's wife. There was no direct evidence that the accused killed the deceased. The State's case depended entirely on circumstantial evidence. The accused gave no evidence.

2. 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

3. 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	If he did not intend to kill the deceased, should he be convicted of some other offence?

1 DID THE ACCUSED KILL THE DECEASED?

4. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	preliminary assessment of the State's case;
•	summary of defence counsel's submissions;
•	formal determination of the question whether the accused killed the deceased.

Evidence for the State

5. It consisted of:
 
•	photographs and a sketch map, showing that the deceased's body was found in grass on the edge of Lotu Street, close to the corner of Umtan Street, opposite the Lutheran Primary School;

•	a post-mortem report, showing that the deceased died from a right tension pneumothorax (collapsed lung) caused by a stab wound (2 cm x 10 cm) to the right side of the chest inflicted by a sharp metal object, and that there were two other stab wounds to the left side of the chest (2 cm x 16 cm and a 1 cm puncture) and fractured ribs; and

•	oral testimony of nine witnesses, summarised below.

(1)	Snr Const Leo Kaikas was the police officer who first attended the crime scene on the morning of Saturday 28 February after the death was reported to the police. By the time he arrived the body had been removed. He arranged for a police photographer to take the photos that have been admitted into evidence. After investigating the matter he arrested the accused on 24 March.

(2) Clara Possi lives in the Nabasa area. She has lived there all her life and knows the accused and his wife, Dika Wilson. She knew the deceased, Rudolph. They all grew up together in that part of town. At 11.00 pm on Friday 27 February she was at her house with her small brother, Samuel, and Rudolph and Dika, and they walked together to the nearby Gov Stoa settlement to buy beer. They purchased some beer there and walked back to her house at midnight. She sat with the others as well as Hennie Kami and they drank a 12-pack of SP and yawa (home brew). After an hour or so she went to sleep.

(3) Richard Pidik lives in Umtan St, Nabasa. He knows the accused, Wilson well as he lives at Gov Stoa and they play soccer together. He knows the accused's wife, Dika. He knew the deceased, Rudolph. They all lived in the same area. The witness said that he was walking around on the night of Friday the 27th with his friend, Lincoln. He left Lincoln and met Hennie Kami, Dika and Rudolph. They were at the front of Clara Possi's place. Hennie asked him to escort her to Gov Stoa to buy yawa. So he walked with Hennie and also Dika and Rudolph towards Gov Stoa. On the way they heard a disturbance. Dika got scared so she went back with Rudolph and only he (Richard) and Hennie continued on to Gov Stoa. They purchased alcohol at Wilson's house, then went back to Clara's place. Wilson followed them, together with another fellow from Gov Stoa, Aaron Kamai (State witness No 9). Dika and Rudolph were not at Clara's place but they met Richard Galilo (State witness No 5) there and he said that Dika and Rudolph had probably gone to their friend Chris's place. So they (he, Hennie and Aaron, with Wilson following) went to Chris's place. But Dika and Rudolph were not there either, so they then headed to Matson Maligen's house in Third Street. Wilson was still following them. They went into Matson's yard and stayed there for a while. At one stage Wilson lay down asleep on the concrete top of the septic tank. He (Richard) left Matson's place at 4.30 am. He was the first to leave.

(4) Mark Eris is a 16-year-old boy who lives in Umtan Street. He knew the deceased, Rudolph, who was one of the older boys who lived in the neighbourhood. He awoke at about 5.00 am on Saturday 28 February and went to the street corner to wait for his friends as they planned to go hunting for flying foxes. It was still dark and the street lights were on. After a minute or so he saw Rudolph with a woman (whom he did not know) walking from the direction of Third Street. When they saw him they tried to hide and went to where the grass was longer. But then Rudolph came towards him and asked where Richard Pidik was. He replied that Richard Pidik had gone home to sleep. Then Rudolph went away with the woman. Then Richard Galilo (State witness No 5) turned up. Shortly afterwards he and Richard Galilo saw a man following Rudolph and the woman. He observed that man from about eight metres away.

Asked to describe that man and his behaviour, the witness said that he was tall, of medium build with short hair, wearing blue cut-jeans (cut at the knees) and a grey-white shirt, and he was carrying thongs (one thong in each hand) and a small knife. He was walking quickly, almost running, on tiptoe, and he was following Rudolph and the woman but he did not get a good enough look at him to see who it was.

(5) Richard Galilo lives in the Nabasa area and works as a security guard at Rooke's Marine. He knows the accused Wilson well. He knows the accused's wife, Dika. He knew the deceased Rudolph. They all lived in the same area. The witness said that he was walking around the streets in the Nabasa area in the early hours of Saturday 28 February. He had been suspended from work for sleeping on the job. He met Wilson on the street at midnight outside Clara Possi's house. Wilson was with Richard Pidik, Aaron Kamai and Hennie Kami. Wilson asked him where his wife Dika was and he told him that he did not know. Wilson was wearing a grey round-neck shirt and blue-grey cut-jeans (cut at the knees). Then he (Richard) went for a walk to Rookes Marine to collect his overalls.

Around 4.00 or 5.00 am (he had no watch, but it was still dark) he walked to Mamok Road. He saw Mark Eris at the junction and they stood talking for five minutes. The street lights were on. Then he saw Wilson running towards them, and then past them and down the street. Wilson was wearing thongs but took them off and put them in his hands. He is sure that it was Wilson as he knows Wilson and he had met him earlier in the morning and he came close – only about five metres away – to where he and Mark were standing. He was going to follow Wilson, but not long later, Wilson came back and continued past them, heading back up the street from where he had first emerged. On this occasion he was again running, but he was bare-chested and behaving strangely. He looked frightened, as if he feared that he had done something wrong. He put his head down, trying to hide from them.

(6) Naso John lives in the Nabasa area and knows the accused, Wilson, well. He knows the accused's wife, Dika. He knew the deceased, Rudolph, and he found his body lying on the grass in the front of his house in Lotu Street at 6.00 am on Saturday 28 February. At first he thought Rudolph was drunk and he told him to get up. He soon realised that he was dead. He alerted the neighbours, then a lot of people came to look. A pastor was fetched. Sgt Sibolo of Madang Police arrived and then Rudolph's mother was alerted to the news.

(7) Rhonda Galilo is the sister of Richard Galilo (State witness No 5). She lives in the Nabasa area and knows the accused Wilson well. She knows the accused's wife Dika. She knew the deceased Rudolph well. He was her cousin. There was a haus krai established on the afternoon of Saturday 28 February and Wilson attended. He looked frightened and was shaking. He spoke to Rudolph's mother and said 'Sorry, Mama. I was the one who hit Rudolph'. He said that he would assist with the haus krai and would help with arrangements to take the body to the village. He said he felt obliged to assist as Rudolph was with his (Wilson's) wife. He said all this in her presence and other people heard it too. No one said anything in reply. He told them that he was going to Jomba Police Station to see his wife. Then he left. As it turned out, he never provided any assistance to the deceased's family in the ways that he said he would.

In cross-examination Rhonda said that she and her brother, Richard Galilo, felt a great loss when Rudolph died, they were angry about how he died, they wanted someone to be held responsible for his death and they are blaming Wilson for the death.

(8) Arsenia Pius is the deceased's mother. She lives in the Nabasa area. She knows the accused, Wilson, and his wife, Dika. A haus krai was set up on the day that Rudolph died. Wilson came at 4.00 pm. He looked frightened and was shaking. He said to her 'Sorry Mama, I was the one who hit Rudolph. I will help you with the haus krai. When the body is ready to go to the village I will assist and I will accompany the body to the village'. Then he said that he would be going to Jomba Police Station to see his wife. But Wilson did not provide any of the assistance that he promised.

In cross-examination it was put to the witness that the accused did not say that he had fought the deceased and that all that he said was that he was sorry, as his wife, Dika, was with the deceased when he died. The witness denied hearing the accused say those words. He said that he had fought the deceased and that he would provide assistance to his family; but he never did.

(9) Aaron Kamai lives at Gov Stoa and is related to the accused, Wilson, so he knows him and his wife, Dika, well, and he knew the deceased, Rudolph. At 3.00 to 4.00 am on Saturday 28 February he met Richard Pidik and Hennie Kami at the Gov Stoa bus-stop and asked if he could spin around with them. They agreed so they went looking for home brew. They bought some at Wilson's house and then went to Nabasa. Wilson came with them. They went to Clara Possi's house but no one was there. They saw Richard Galilo there. Then they went to Chris's house but no one was there either, so they went to Matson Maligen's house and drank there. Then Wilson fell asleep. After a while Richard Pidik said he was feeling sleepy and he left. He (Aaron) and Heni stayed up, drinking and telling stories and by this time, close to daybreak, they were rather drunk. They woke up Wilson and cracked jokes with him and then they headed back to Gov Stoa, walking along the back street, and singing, with a radio on. At that point Wilson left them. He did not say where he was going. He did not see Wilson again until later in the morning, after daybreak, in Fifth Street, where he was quarrelling with some Maritime College students.

That was the evidence for the State.

Evidence for the Defence

6. There was none. The accused exercised his right to remain silent.

Preliminary assessment of the State's case

7. There is no direct evidence of how the deceased was killed, either from an eyewitness or from someone who was in the vicinity of the alleged incident. The State's case depends entirely on circumstantial evidence. Despite the apparent shortcomings in the evidence, a conviction is still possible as there is no rule of law that states that in a homicide case it is necessary for there to be direct evidence of an incident leading to death.

Defence Counsel's submissions

8. Mr Mesa submitted that the State had fallen short of proving that the accused killed the deceased. The time of death has not been established. The evidence of the State witnesses shows that the accused was in the company of a number of them for an almost unbroken period from midnight (when Richard Pidik and Hennie Kami purchased alcohol at his house at Gov Stoa) until after daybreak (when Aaron Kamai saw him quarrelling with Maritime College students). Far from proving the State's case, the evidence of Richard Pidik and Aaron Kamai in effect supports the accused as it shows that he was with them for most of the time, and for some of that time he was asleep. There was no time for him to kill the deceased. Somebody else must have killed him. There was no evidence that at any time the accused was with the deceased. Nor was there any evidence that the accused expressed any intention to harm the deceased, let alone kill him. The identification evidence of Mark Eris and Richard Galilo is inconsistent and unreliable. Mark Eris does not even know the accused. The man he supposedly saw tip-toeing after the deceased and a woman (and Mark did not say that the woman was the accused's wife) could have been any tall man. Mark did not say anything about the tip-toeing man coming back, whereas Richard Galilo gave detailed evidence of the man coming back, bare-chested. The evidence of so-called admissions of the accused at the haus krai is weak. He made no admissions at all: he was just expressing a feeling of some responsibility for whatever happened to the deceased as the deceased had been with his (the accused's) wife.

Final determination of the question: did the accused kill the deceased?

9. Mr Mesa has validly focussed on the fact that the evidence of the State's witnesses shows that the accused was for a large part of the period between midnight and, say, 7.00 am (which is the time I estimate that Aaron Kamai saw him quarrelling with the Maritime College students) in the company of one or more of the State witnesses and their friends. It is also true that no murder weapon has been adduced in evidence. However, I do not agree that the time of death has not been established as it is reasonably clear that it was between the time that Mark Eris saw the deceased with the woman in Umtan Street (about 5.00 am) and the time his body was found (about 6.00 am). It is not correct to conclude that the accused had no time to kill the deceased. I do not accept the defence submissions about the unreliability of the identification evidence of Mark Eris and Richard Galilo or about what was said by the accused at the haus krai.

10. With those considerations in mind I will now apply the principles about entering a conviction based on circumstantial evidence. These principles were set out by the Supreme Court in 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.

11. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

•	do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

12. The proven facts, based on the testimony of the State witnesses, who are regarded as reliable witnesses and whose testimony remained largely intact after cross-examination, are that:

•	The deceased was in the company of the accused's wife late on Friday night and in the early hours of Saturday morning. They were with Clara Possie, Richard Pidik and Hennie Kami outside Clara's house late on Friday night and then they walked towards Gov Stoa with the others before going back together. It is not clear where the deceased and the accused's wife went.

•	The accused was with Richard Pidik and Hennie Kami and Aaron Kamai from midnight (after they purchased alcohol at his place at Gov Stoa) and he followed them to Clara Possi's place, where he met Richard Galilo and asked him if he knew where his wife was; and Richard replied that he did not know. The accused was concerned about his wife's whereabouts. He followed the group (Richard Pidik, Hennie and Aaron) to the house of a person called Chris, looking for his wife and the deceased. They were not there, so the accused followed the group to Matson Maligen's house in Third Street.

•	The group, including the accused, were drinking and telling stories at Matson Maligen's house. After a while the accused went to sleep on the concrete top of a septic tank. Then Richard Pidik left, leaving Aaron and Heni together, drinking and telling more stories and by this time, close to daybreak, they were rather drunk. They woke up the accused and cracked jokes with him and then they headed back towards Gov Stoa, walking along the back street, and singing, with a radio on. It was still dark. At that point the accused left them. He did not say where he was going.

•	Around 5.00 am the deceased and the accused's wife were seen together by Mark Eris near the junction of Umtan Street and Mamok Road, behaving as if they did not want to be seen together, before walking up the street.

•	Richard Galilo walked to that junction shortly afterwards (having come from Rookes Marine) and after a few minutes the accused arrived on the scene, running, carrying his thongs and a knife, and appearing to follow the deceased and his (the accused's) wife. As the finding that the man, seen by Mark Eris to be following the deceased and the woman he was with, and also seen by Richard Galilo, was the accused is a critical finding of fact to make, I caution myself as to the inherent dangers of relying on the correctness of identification to support a conviction in accordance with the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115. I regard the quality of Richard Galilo's identification evidence as sound, as my assessment is that he was an honest witness, he was identifying someone he knew and recognised, who he had met and conversed with several hours earlier, he was not disturbed emotionally or under any stress at the time, there was ample time for him to recognise the accused (as he ran past the witness and then a few minutes later ran back past him), the person he was identifying did not have his face covered, although it was dark, the streetlights were on, he identified the accused in the dock without hesitation, his evidence was corroborated, by the evidence of Mark Eris (in particular both witnesses gave a similar description of what the accused was wearing) and there were no material inconsistencies between their evidence.

•	After running past Mark Eris and Richard Galilo and heading in the same direction as that which the deceased and the accused's wife had walked, the accused ran back past Mark and Richard, this time bare-chested and behaving strangely, looking frightened, as if he feared that he had done something wrong, with his head down, trying to hide from them.

•	The deceased was stabbed and killed between 5.00 and 6.00 am in Lotu Street.

•	At 6.00 am the deceased's body was found in Lotu Street, which is not far from the junction of Umtan Street and Mamok Road.

•	At 7.00 am the accused was a few blocks away, in Fifth Street, where he was quarrelling with Maritime College students.

•	At 4.00 pm the accused attended the deceased's haus krai. He looked frightened and was shaking. He said to the deceased's mother, 'Sorry Mama, I was the one who hit Rudolph. I will help you with the haus krai. When the body is ready to go to the village I will assist and I will accompany the body to the village'. Then he said that he would be going to Jomba Police Station to see his wife. This was all said in the presence of Rhonda Galilo and other people present at the haus krai.

13. Having recorded those findings of fact, it is apparent that the State has presented a strong case that the accused was concerned about the whereabouts of his wife and the deceased. A motive for his wanting to confront and assault the deceased has been established: jealousy. The State has established the accused's proximity to the place where the deceased was killed (the reasonable inference being that the deceased was stabbed at or very close to the spot where his body lay, there being no evidence of it being dragged there or that the deceased was stabbed anywhere else). The State has also established that the accused had the opportunity to kill the deceased. After being in the company of the drinking group for several hours, he went missing between 4.00 and 5.00 am without indicating where he was going. There was ample time for him to track down the deceased and stab him. The apology the accused offered to the deceased's mother and the promise of assistance he made at the haus krai amounted to an admission that he had killed the deceased and were expressions of genuine remorse.

14. I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused killed the deceased and that he did so by stabbing him in the chest; and that hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts lead reasonably to only one conclusion: that the accused killed the deceased. The first element of the offence has been proven beyond reasonable doubt.

2 WAS THE KILLING UNLAWFUL?

15. The accused did not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is therefore deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.

3 DID THE ACCUSED INTEND TO KILL THE DECEASED?

16. It is at this point of a wilful murder trial that the Court is required to consider the accused's state of mind:

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).

•	If he did not intend to kill him did he intend to inflict grievous bodily harm or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07; The State v Melchior Kapus (2010) N4114; The State v Jenny Dei (2011) N4231).

17. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

18. Having examined the course of conduct of the accused before and after he stabbed the deceased, I am not satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill him. It was a spur of the moment reaction brought about by jealousy and fuelled by alcohol. The third element of wilful murder is not proven.

4 SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?

19. Two provisions of the Criminal Code are relevant here. Section 539(1) (charge of murder or manslaughter) states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

20. Section 300(1)(a) (murder) states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …

if the offender intended to do grievous bodily harm to the person killed or to some other person.

21. The question is whether the State has proven beyond reasonable doubt that the accused intended to do grievous bodily harm to the deceased. I consider that given the number, nature and force of the stab wounds, which was sufficiently severe to fracture some ribs, the State has proven that the accused intended to do grievous bodily harm to the deceased. The accused must therefore be convicted of murder.

VERDICT

22. Wilson Mari, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder but guilty of murder under Section 300(1)(a) of the Criminal Code.

Verdict accordingly.

____________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused