N5545

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 121 OF 2012

THE STATE

V

GIDION TIBILI NO.1

Vanimo: Geita AJ
2014: 20th, 26th February

CRIMINAL LAW – Trial – Murder - Circumstantial evidence – Need for caution – Accused elected to remain silent –consequences there off – State evidence strengthened - Remains uncontradicted and unexplained on vital matters. 
CRIMINAL LAW – Murder - Element of intention present - Circumstantial evidence – Not mere conjectures- Finding of guilty only inference - Section 300 (1) (a) Criminal Code – Guilty verdict. 

The accused was arraigned on indictment charging him with the murder of his wife Jane Peiwa at Fatima Hill pursuant to Section 300 (1) Criminal Code, Chapter Number 262. 

Cases Cited 
Papua New Guinea Cases:

Jaminan v The State (No 2) [1983] PNGLR 318
Paulus Pawa v The State [1981] PNGLR 493 
R v Pari-Pirilla (1990) N527
The State v Tom Morris [1981] PNGLR 498 

Overseas Cases:
Barca v The Queen (1975) 50 ALJR 108
Peacock v The King (1911) 13 CLR

Counsel: 

Augustine Bray, for the State. 
Baptist Fehi and Ms. Renatta Yayabu, for the accused. 

JUDGMENT ON VERDICT

26 February, 2014 

1. GEITA AJ: On arraignment the accused pleaded not guilty to the charge of murder alleged to have been committed on 13 May 2011 at Fatima Hill, Aitape, West Sepik Province. 

Brief Facts: 

2.	It is alleged by the State that on 13 May 2011 in Vanimo town, the accused was out looking for his wife during the day. Later in the evening and argument broke out between them resulting in the accused stabbing his wife with a screw driver resulting in her death. The State alleges that his actions amounted to causing grievous bodily harm to his wife.

3.	Section 300 (1) Criminal Code Act creates the offence of murder and it is in the following terms:

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

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

Elements of the Offence:

4.	The elements of the offence of murder are:

1)	That the accused killed the deceased.
2)	That the killing was unlawful.
3)	That the accused had the intention to kill.

Undisputed Facts:

5.	There is no dispute that the deceased Jane Peiwa died as a result of stab wounds caused by a screw driver.

Disputed Facts:

6.	The facts in dispute are:

a)	Whether it was the accused who caused the injury resulting in the death of Jane Peiwa;
b)	Whether the accused had an intention to kill.

Evidence 

7.	The following materials were tended into court by consent viz.

•	EXHIBIT "A” – Post Mortem Report dated 23/5 2011.
•	EXHIBIT "B” - Six sets of coloured photographs of the deceased. 
•	EXHIBIT "C” - Accused’s Record of Interview 21/7/2011 both in English and Pidgin.
•	State also called three witnesses who gave oral testimonies

Brief summary of evidence for State and Defence.

State Witness 1- Mrs Vero Mathew. 

8.	The witness gave testimony of meeting the accused on the road near Fatima Hill in Aitape as she was on her way to the market. The accused greeted her and asked her if she had seen his wife Jane and that there would be a haus kry at Fatima Hill. The witness said she does not know Jane’s whereabouts and continue on to the market and later returned to her house. In examination in chief the witness said she heard during the night that Jane had died. She identified the accused in court as Gidion Tibili. 

In cross examination the witness said she did not know how and why Jane died but only heard her death. 

State witness No. 2 Mr. Isaac Paiye.

9.	This witness is married with three children and lives at Fatima Hill Aitape. He said upon hearing about Jane Pieta’s death in her house on 13 May 2011 he went to the house around 6.30 -7.00pm. The house is owned by the accused’s parents. As he stood on the veranda of the house he saw Jayne Peiwa’s father come crying and at the same time damaging the house as a sigh of mourning. The witness said he kicked the table and took possession of Jayne’s’ bag. In it he saw the screw driver wrapped in Jayne’s face towel and handed it over to the police when they come to the crime scene.

In examination in chief he said the accused was nowhere to be seen that night until the next day when they heard that he was arrested and taken to the police station. 

In cross examination the witness said he did not know where the accused was on that day and did not know what he did that day.

State Witness 3 Mrs Leoni Martin.

10.	The witness is married with 4 children and lives at Aitape on Fatima hill. She testified of seeing the accused assist his wife out of their house onto the veranda and ran to assist thinking that his wife was in labour pain and needed female assistance. She said she knew that the accused’s wife was pregnant and was probably in labour pain. Upon inquiring about the situation the accused told her that he threw a screw driver at her. She assisted her down and when she noticed that she was in distress she bit her ears to enhance consciousness. The witnesses said her in-laws came and assist transport the victim to the hospital. She and the accused also went to the hospital.

In cross examination the witness said she gave her story to the police about what had happened and said the accused had told her that he did not mean to kill his wife.

No Case Submission

11.	At the end of States evidence defence made a no case submission which was struck out by court forcing the matter into full trial.

Defence Evidence
12.	In the Defence case the accused exercised his rights to remain silent. No other witnesses were called. Defence Lawyer Ms Yayabu informed court that all due diligence was accorded to the accused and that all three options were explained to his client. The Court having satisfied itself that the accused understood the consequences of his right to remain silent, accepted his position. The accused' rights are well protected under Section 37(4) (a) of the Constitution which provides: 

"(4) A person charged with an offence –

(a) shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge ..."

Submissions on Verdict-State
13.	 State Prosecutor Mr Bray submitted that the State called three witnesses after the accused pleaded not guilty. The witnesses testified of seeing the accused at the crime scene, the murder weapon (screw driver) found at the scene and hearing the accused utter words that there would be a haus kry at Vanimo Hill. All evidence pointing to the accused as the perpetrator although there was no direct evidence. The cause of death is not disputed save for intention however the State submitted that the evidence of Mrs Vero Mathew of being told by the accused that there would be a haus kry at Fatima Hill was sufficient for court to draw inference of intention. Furthermore State submitted that the impact of the stab wound into the chest area was deep enough to cause death hence intention enough to cause death. Mr Bray submitted that all the elements of murder have been made out and the accused must be found guilty.

14.	The accused has exercised his rights to remain silent however the court should find the accused guilty of murder. Alternatively Mr Bray submitted that should the court find the absence of intention the accused should instead find the accused guilty on the alternative charge of manslaughter.

Submissions on Verdict-Defence

15.	Ms Yayabu submitted that the State bears the responsibility of proving the case beyond a reasonable doubt and if some doubt is created in the mind of court, the accused should be acquitted. She submitted that all three State witnesses had not given direct evidence of the death of the accused’s wife. As to whether there was intention Ms Yayabu submitted that Mrs Vero Mathew’s reference to hus kry was qualified by her saying that the accused did not mean to kill his wife. In light of the above Mrs Yayabu submitted that a verdict of not guilty be entered in favour his client with an acquittal.

16.	Mr Bray in response said all reference to haus kry was pointed towards the death of the accused’s wife who lives at Fatima Hill. He said if there were ambiguities the onus was on the accused to clarify them but he has elected to remain silent. 

Application to the case

17.	I consider the issues to be fourfold: 1. Whether or not it was the accused who caused the death of his wife; 2. whether he intended to cause her death; 3. The question of electing to remain silent? and 4. Circumstantial evidence-consequences thereof?

 1. Whether or not it was the accused who caused the death of his wife?

18.	Although there is no direct evidence, there is ample circumstantial evidence showing that the accused was the only person seen with his wife immediately after the incident. An independent eye witness testified of seeing him assisting his wife onto the veranda of their house with the wife visibly distressed and weak, prompting her to bite her ear to cause sensation to return to her weak body. At the time the puncture wound to her body was not visible to the naked eye causing the witness to surmise that probably she was in labour as they knew her to be pregnant at the time.

19.	There is also evidence before court of the accused admitting to throwing a screw driver at his wife to hit her. There is also evidence that the same screw driver was found wrapped with the victims face towel and placed in the victim’s bag in her house. In his record of interview the accused elected to remain silent but only said he will tell court. During trial he remained silent and gave no explanations in his defence on these two points. I have no reason to disbelieve the two State witnesses’ and hold them to be witnesses of truth. They have nothing to gain from this trial save to come to court and tell the court what happened. The same cannot be said for the accused. In the absence of any contradictory evidence the only inference open to me is that the accused was the only person and the last person seen with his wife and so it is he who caused the death of his wife.

2. Whether he intended to cause her death?

20.	The accused has elected to remain silent and so his intention from his perspective remains unknown. I return to evidence before me to make a finding on the presence of his intentions. State witnesses depose that she came across the accused that fatal morning eagerly searching for his wife along Fatima Hill. During the cause of their meeting and exchange of greetings the accused was heard saying that “there will be a haus kry at Fatima Hill”. The obvious connotation of a haus kry is death. True indeed, during the night the witness heard that Jane, the accused’s wife had died. 

21.	I next look at the post mortem report: Dr Trevor Kalebi’s findings suggest that a puncture stab wound to the right upper chest in close proximity at about 20o-30o oblique angle directed medially missing the ribs but puncturing the upper right lung, the pericardium and the ascending aorta. (Emphasis mine). External and internal examinations ruled out all possibilities of foul play either sexual or assault related; signs of resistance and or struggle etc. Inferentially the doctor’s finding point conclusively to a deliberate attack on an unsuspecting victim from behind in a seating position. The attack was within close proximity suggesting a deliberate and with intent to cause harm and not merely throwing the screw driver at his wife as suggested. The 20o-30o oblique angle obviously suggesting that the accused was below the accused when stabbed with the screw driver hence the angle described by the doctor. The absence of any form of resistance suggests either two scenarios: The victim was sleeping at the time of the attack or was stabbed from behind. Again these suggestions and assumptions can only by explained away by the accused however he has elected to remain silent. I am therefore satisfied that the murder was intentional and this crucial element made out. 

3. Accused elected to remain silent – consequences there off?

22.	A myriad of case authorities have stated that the absence of the accused from the witness box is not an admission of guilt: (The State v Tom Morris [1981] PNGLR 493; Jaminan v The State (No 2) [1983] PNGLR 318 and Paulus Pawa v The State [1981] PNGLR 498.) Quoting from the head notes in Paulus Pawa the Court said:

"Where an accused person fails to give evidence or to call witnesses to support his case the Court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified. 

Where an accused person fails to give evidence or call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that: 

(1) The failure of an accused is not an admission of guilt and no inference of guilt may be drawn there from; 

(2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters; 

(3) Failure to testify only becomes a relevant consideration when the State has established a prima facie case; 

(4) The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include: (a) whether the truth is not easily ascertainable by the State but probably well known to the accused;(b) whether the evidence implicating the accused is direct or circumstantial;(c) whether the accused is legally represented and (d) whether the accused has before the trial given an explanation which the State has adduced in evidence."

4. Circumstantial evidence - consequences there off?

This case is built around circumstantial evidence hence I look at what courts have said in this jurisdiction? 

23.	"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v The King (1911) 13 CLR at p 634 to enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only national inference that the circumstances would enable them to draw": (Barca v The Queen (1975) 50 ALJR 108 AT p 117). 

24.	Courts in Papua New Guinea have extensively adopted and applied the above principal in numerous cases. Since the case before me rests substantially upon circumstantial evidence I cautioned myself on the need to be careful in convicting the accused on such evidence (The State v Tom Morris [1981] PNGLR 493; Paulus Pawa v The State [1981] PNGLR 498. 

25.	For the moment the accused's failure to give evidence despite stating in his record of interview that he would tell court in my view has become a relevant consideration in view of credible evidence before court. Furthermore the whole of the States' evidence remains uncontradicted coupled with vital evidence unexplained as a result of his silence.

26.	Applying these principles alluded to above to the facts of this case I make findings that the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused made out. There is no doubt in my mind that the guilt of the accused is the only rational inference that I can draw on and furthermore the guilt of the accused make sense and follow logically from all the facts and circumstances before me.(R v Pari-Pirilla (1990) N527) 

27.	The sum total of all the evidence not negatived by defence including their right to remain silent has strengthen the State case by leaving it uncontradicted and unexplained on all vital matters. Therefore on the evidence before me I find that the accused's case does not wholly rest upon circumstantial evidence and the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock -v- The King (Supra). Having satisfied myself that all inferential evidence in my findings are not mere conjectures hence a guilty finding in my view is the only inference, all facts in evidence considered. Might I add here that the accused selfish act of murder has not resulted in the loss of one life but two lives: At the time of the victims murder a 34/40 weeks gestation foetus (baby) was also removed from the victim's stomach, unfortunately, dead?

I return a guilty verdict against the accused.

 Verdict: GUILTY
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Accused