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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 339 OF 2009
THE STATE
-v-
GENESIS SIMBA
(NO.1)
Wewak: Geita J
2015: 8, 9, 16 April
CRIMINAL LAW – Trial – Not Guilty-Wilful Murder – Only issue is intention of the accused- Accused doused his wife with petrol and set her alight.
CRIMINAL LAW – Trial - Wilful Murder – Section 299 (1) Criminal Code – All elements made out – Intention inferred
circumstantially – Sufficient circumstantial evidence for court to draw intention of the accused – Guilty verdict of
wilful murder entered.
Cased Cited
Jaminan v The State (No 2) [1983] PNGLR 318
Paulus Pawa v The State [1981] PNGLR 498
R v Woods (1966) N399
The State v Raphael Kuanande [1994] PNGLR 512
The State v Tom Morris [1981] PNGLR 493;
Counsel
Paul Tusais, assisted by Sabine Dusava, for the State
John Alman , for the accused
JUDGMENT ON VERDICT
16th April, 2015
1. GEITA J: The accused was arraigned on indictment for the wilful murder of the deceased Benis Simba, his wife. The charge is laid pursuant to Section 299 (1) Criminal Code, Chapter Number 262. He pleaded not guilty to the charge alleged to have been committed on 16 December 2008 at Nuigo Settlement in Wewak.
Prosecution Evidence
2. The following materials were tended into court by consent viz.
Brief summary of evidence for The State
State Witness 1 - Arnold Jimeri
3. The witness gave testimony that his house is situated some 10 -20 meters away from the accused’s house but did not hear any noise or argument coming from the accused’s house on that fatal day. In his own words he was alerted by the sound of fire burning and went to help put the fire out. He attempted to put out the fire with water but was stopped as the deceased’s clothes she was wearing were burning. The house was not burning only the deceased and they managed to put out the fire with bed sheets. The witness said he does not know the full story of how the fire started. The deceased was rushed to Boram General Hospital around 10pm that night. He learnt later from some boys the next day that the deceased was in the morgue.
4. During examination in chief the witness said during the day they were drinking some beer with the accused and said at the time he did not hear or see the accused and the deceased arguing etc. He only heard the sound of fire and ran to help put it out.
5. In cross examination the witness said he drank between 12 to 13 bottles of beer with the accused consuming the equal amount. He said some evidence given to police in his statement were not from him saying he just signed his statement. The witness said the accused did not assist them take the deceased to the hospital.
State witness No. 2 - Repes Ruben Pame
6. Witness Repes testimony was centered around his involvement in assisting the accused and two other boys in building the accused chicken house but was disrupted by rain that day. They retired indoors and started drinking beer until the accused left them. They then returned to Meni around 4 pm that day. The next day they heard through Thomas what the accused had done to the deceased.
7. In examination in chief the witness said the deceased was cooking for them that day. The deceased was arguing with Ishmael that day and refused to have him come into her residence due to an earlier incident in which Ishmael bad mouthed the deceased and her daughter. The witness said Thomas was trying to stop Bennis from arguing with Genesis.
8. In cross examination the witness said he went along to Nuigo to assist build the chicken house on 16 December 2008 and did not know where the accused was on that day and did not know what he did that day. He said they drank some beer but not enough to get drunk.
State Witness 3 - Dr. Jimmy Kambo
9. The witness is the Director of Medical Services at Boram Hospital with 16 years of work experience. His role was to assist court in confirming the primary findings of Dr Brian Galungim who conducted the post mortem but had left the province and unable to give evidence. The witness affirmed that the initial prognosis of the victim with 80 % burns to her body was not good. This resulted from severe burns and complications resulting in the death of the victim.
10. In cross examination the witness said water was not the best treatment for burns. He said with a prognosis of 80 % burns on the victim’s body her chances of survival were 50-50 % however in this case any chances of survival were very slim due to the onset of infections.
State witness 4 - Thomas Yuka
11. The witness is the brother in law of the accused. He testified of joining the accused and Repes at home when they returned from town with some food and beer. Due to the rain that day they put off their plans to build the chicken house, sat around and had some beers. He said as they were drinking Bannis protested that she didn’t want Ishmael to join them due to an earlier incident in which Ishmael bad mouthed her and her daughter. The witness said Bannis prepared food and they ate and she later walked down to the road and did not return until around 4 pm. They were than told to return to their houses by Genesis. He said they did not know about the couples domestic problems. He testified of returning to her sister’s house the next day but was not greeting by his sister and children and became suspicious. He saw pieces of skin and clothes near the water tap. It was then that Arnold arrived and broke the news that Genesis had set Bannis alight. He heard the next day that Bannis had died.
12. In cross examination the witness said they all drank some beer, about 12 – 14 bottles but not enough to get them drunk. He could not tell how many bottles of beer the accused and Repes drank. He said he drank about 4 bottles of beer. When questioned on inconsistencies detected in his statement given to police and oral evidence, the witness said the incident happened very fast and he was in a state of panic when he made these statements. When quizzed that he was not present on that fatal day he maintained that he was there that day and the next.
State witness 5 Senior Constable Paul Edipau
13. Paul Edipau’s evidence was academic. He was called to tell court that he obtained statements from the state witnesses and also obtained their signatures. A couple of witnesses denied recordings of certain parts of their respective statements.
Defence Evidence
14. In the Defence case the accused exercised his rights to remain silent. No other witnesses were called. Defence Lawyer Mr. John Alman 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 also relied on a written statement received into court and marked exhibit 1. The gist of the statement was founded on sorcery and called for the accused to be let off and the matter resolved within his family.
Submissions on Verdict-Defence
15. Mr. Alman correctly submitted that the State bears the onus of proving the case beyond a reasonable doubt and if some doubt is created in the mind of court, the accused should be acquitted. He submitted that all three State witnesses had not given direct evidence on the death of the accused’s wife and that there were inconsistencies contained therein. Mr. Alman submitted that the crucial element of intention was amiss and added that the accused’s admissions in setting his wife alight after pouring petrol over her body fell short of attesting any intention to kill her prior too, at the time and subsequent to the act. In support of his arguments he referred the court to the case of The State v Raphael Kuanande [1994] PNGLR 512. Defence Counsel advanced that a conviction of manslaughter be preferred instead of wilful murder: R v Woods (1966) N399.
Submissions on Verdict-State
16. State Prosecutor Mr Paul Tusais conceded that save for the intention of the accused there was ample uncontested primary evidence showing how the victim met her fate that fatal day: She was doused with petrol and set alight by her husband, resulting in her death the next day. Mr. Tusais submitted that in the absence of any form of provocation and assault resulting from sexual jealousy it was open to the court to draw circumstantial inference on the intention of the accused: Why go to the extreme of dousing his wife and setting her alight as opposed to employing other non life threatening measures, he submitted. There is no evidence of sexual jealousy, no evidence of argument or fighting between the both of them. A witness living nearby attested to this fact however was only attracted to the scene by the noise of fire.
17. Mr Tusais submitted that the court was entitled to draw inference on the intentions of the accused killing his wife from the magnitude and seriousness of the wounds inflicted: Uncontested evidence reveals that she was burnt on 80% of her body which was described by medical opinion that any chances of survival was 50-50 basis however allowing for the onset of infection associated with such petrol burns death was imminent and avoidable. He advanced that petrol was highly inflammable and the manner it was used by the accused was with one intention in mind i.e.: to kill the victim and kill he did.
18. State submitted that Thomas Yaka’s statement fell short of proving anything and should be disregarded. Likewise the inconsistencies nit picked by Defence Counsel were all insignificant and would not disturb the State’s case as all essential elements remained intact. He advanced against the court settling for alternative charges under section 539 of the Criminal Code saying that the murder was not accidental nor trivial but was intentional. A finding of wilful murder should be returned.
Issues
19. The only issue before the court was the intention of the accused. There is no dispute that the deceased Bannis died as a result of her husband, the accused dousing her with petrol and setting her alight, resulting in her death.
The Law
20. Section 299 Criminal Code Act creates the offence of wilful murder and it is in the following terms: S. 299 Wilful Murder.
“Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder. A person who commits wilful murder shall be liable to be sentenced to death.”
Elements of the Offence
21. The elements of the offence of wilful murder are:
Application to the case
Whether the accused had the intention to kill the deceased?
22. The Defence Counsel has correctly referred this court to the often quoted case on the intention of the accused prior, at the time and subsequent to the act constituting the offence: (The State v Raphael Kuanande [1994] PNGLR 512.) to which I am grateful. Notwithstanding the absence of any direct evidence attributable to his intentions, there is ample circumstantial evidence showing how and who caused the victim’s death: the accused. Similarly there is ample evidence showing the seriousness and magnitude of the injuries occasioned on the victim: dousing with petrol and setting her alight. Likewise there is no direct evidence before court pointing to the presence of sexual jealousy and or provocation warranting the use of the horrific, painful and this deadly mode of killing.
23. There is also evidence before court of the accused consuming beer with his brother in law and some other boys that afternoon; The deceased was cooking for them and protested against Ishmael joining the menfolk due to any earlier incident in which Ishmael bad mouthed the victim and her daughter; witness Thomas Yaka attempting to stop her sister from creating a fuss over Ishmael; After serving the menfolk their food Bannis walked away and did not return home until around 4pm that afternoon; The accused then told his brother in-laws and the boys who were with them to take their leave soon afterwards. In his record of interview the accused elected to remain silent and gave no explanations in his defence on all these points. I have no reason to disbelieve all 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.
24. The accused has elected to remain silent and so his intentions from his perspective remain unknown. Similarly if there were ambiguities the onus was on the accused to clarify them but he has elected to remain silent. I now return to all the evidence before me to draw inferences and make finding on the presence of his intentions circumstantially. First the accused was aware of an earlier incident, four days ago involving his wife and Ishmael. Secondly Ishmael had fronted up in his yard on the fatal day amidst protests by Bannis with Thomas trying to calm her down. Thirdly any reasonable men finding himself with his/her dirty laundry now discussed in public within the hearing of his in-laws and friends in any Papua New Guinea setting was cause for great humiliation and anger. Enough for one to go to the extreme of assaulting or even maiming the doer. Inferentially therefore the accused was greatly incensed and humiliated in front of his in-laws but could not show his frustrations at the material time. Couple with his humiliation his wife had walked off down the road in protest and returned to the house late in the afternoon at 4 pm, again cause for any husband to be infuriated. By then he had consumed enough beer which affected his sense of judgment and control. As soon as his wife returned from her walk he told his in-laws and guests to take their leave which they did. The scene was now set, his pent up humiliation and anger was now primed to be unleashed.
25. In the absence of any reasonable explanation to the contrary it was open for me to circumstantially draw inferences in the manner described above and safely rule that the accused state of mind prior too, during and after the incident was to kill the accused and none other. He employed the most deadliest, painful and cruellest form of homicide. Inferentially therefore I am satisfied that he was out to kill the accused and be rid of her rather than to maim: petrol was used. True indeed his intentions were manifested in the most cruellest form of homicide on his own wife, Bennis. The post mortem findings revealed almost 80% burns to her body including face. Inferentially therefore it is also open for court to draw conclusions that a substantial amount of inflammable substance was used to douse the victim’s body. Circumstantially therefore it is open for me to take into account what any reasonable man in Papua New Guinea would do under such circumstances. Similarly it was also open for this court to consider what intentions would normally be inferred from such actions and or inactions. (R v Ward [1956] 1 QB 351.)
Accused elected to remain silent – consequences there off?
26. 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."
27. For the moment the whole of the States’ evidence remains unchallenged coupled with vital evidence unexplained as a result of his silence. Since this case does not rest substantially upon circumstantial evidence alone I see no utility to caution 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). There is overwhelming and unchallenged evidence before me save the accused's intentions, now explained away in this findings.
Findings
28. The sum total of all the evidence not negatived by defence including his right to remain silent has strengthened the State's case
by leaving it un-contradicted 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. 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.
I return a guilty verdict on the indictment of wilful murder against the accused.
Verdict: GUILTY
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the accused
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