N6034

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 3 of 2014

THE STATE

-v-

EREMAS KUVIR
(No 1)

Namatanai: Kangwia, J.
2015: 14 & 16 April

CRIMINAL LAW – Willful murder – Plea of not guilty – Trial – Accused elected to remain mute – Evidence of prosecution stands alone and unchallenged

CRIMINAL LAW – Issue of identification – Key witness daughter of accused – No error in identification of accused as assailant 

CRIMINAL LAW - Element of intention to cause death – Intention goes to state of mind – Test to determine intention – Relied on State v Raphael Kuanande – Accused slept near where deceased lay dead – Error of judgment deceased would not die – Inference drawn from conduct of accused after assault - No intention to cause death but intention to cause GBH present – Not guilty of willful murder but guilty of murder

Cases Cited:

 SCR No 2 of 1981; Re Section 14 of the Summary Offences Act [1981] PNGLR 50; 
John Beng v the State [1977] PNGLR 115; 
State v Raphael Kuanande [1994] PNGLR 512

Counsel:

R. Luman, for the State
A. Tunuma, for the Respondent

16 April, 2015

1. KANGWIA, J.: This is a decision on verdict. I delivered the decision from the draft and said the final copy would be produced later. This is the final copy. 

2. Eremas Kuvir was charged with one count of Wilful Murder pursuant to s. 299 (1) of the Criminal Code (CCA herein). When arraigned he pleaded not guilty to the charge and a trial was conducted. The accused and deceased were spouses of each other. 

3. He was arraigned on the following allegations.
The State alleged that on 11October 2013 at 3-4 am after Lydia John (deceased) opened the door for him the accused assaulted her all over her body. He punched, kicked and hit her on the head with a stick. As a result of the assault the deceased fell down unconscious. She died soon after from the injuries suffered. The State alleged that the accused intended to kill the deceased.

4. To prove its case the State tendered into evidence by consent the following documents;

1. Affidavit of Dr. A. Wanganapi with annexure of his medical report.
2. Statement of Cathy Bongut the corroborator in the Record of interview.
3. Statement of Interviewer in the ROI Steven Lassingan.
4. Original version of ROI in pidgin.
5. English translation of the ROI.

5. The first witness for the State was Lillian Eremas. She is the biological daughter of the accused and deceased. She was the 2nd born in her family. She gave evidence of being woken up by fighting in the early hours of 11 October 2013. She got out of bed and went downstairs to see her father continuously punching her mother. He also kicked the deceased when she was sitting down. He then took a stick and hit the deceased on the neck. The stick was described as big as her arm and a meter long. She also gave evidence of going out in search of help from relatives and the village police.

6. In examination and cross-examination she maintained that it was her father who assaulted her mother; that she was close to where they were; that also in the house were her younger siblings; that the accused went to sleep after he had ended his assault and her mother died soon after that same morning.

7. The 2nd witness for the State, Lina Urban gave evidence of being woken up from sleep by Dina Kuvir to go and see her mother who was dying. Upon arrival she saw the deceased lying naked on the ground and breathing heavily. She lifted the deceased onto her lap and removed sand from her hair and body. 
 
8. She tried to talk to the deceased but when the accused stirred in his bed, she left the deceased on the ground and went outside in fear of the accused. She did not see how the deceased ended up that way but the eldest daughter of the deceased told her of her father assaulting the mother earlier that morning. She also told of hearing the deceased take her last breath and discovering the neck to be unsteady and body turning black.

9. At the close of the case for the State, the accused elected to remain silent. The Defence did not call any other evidence and formally closed its case.
In submission for the State, Mr. Luman asked the Court to return a verdict of Guilty of Wilful Murder as the State had proved all the essential elements of wilful murder under s. 299 (1) of the Criminal Code. 
In the alternative a Guilty verdict for murder was sought.

10. For the accused, Mr. Tunuma asked the Court to give the benefit of doubt to the accused and return a verdict of Not Guilty for the following reasons;

1. That the evidence of the 1st State witness was not corroborated in any way and stood alone.
2. That the demeanor of the 1st State witness was of a confused person.
3. There were inconsistencies in the 1st witnesses' evidence.
4. The 2nd witness went after the incident and did not see what happened.
5. That the State had not met the required standard to prove the essential elements of the offence.

11. The offence of willful murder the accused was charged with and indicted on is created by s. 299 (1) of the Criminal Code in the following manner;

299.	Wilful Murder
(1)	Subject to the succeeding provisions of the Code, a person who unlawfully kills another person, intending to cause his death or that of some other person is guilty of wilful murder.

12. The essential elements of the offence that were correctly identified by Counsels are these;

(a)	There must be a person.
(b)	That person must unlawfully kill.
(c)	Another person must be killed.
(d)	There must be an intention to cause death.

13. It is a general principle of law that the onus is on the prosecution to prove the offence alleged. (See SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50) The State therefore bears the burden of proving all the essential elements of the alleged offence beyond any reasonable doubt.

14. In the present case, the State must prove that Eremas Kuvir willfully murdered one Lydia John in breach of s. 299 (i) of the Criminal Code.

15. The burden of proving all essential elements of an offence emanates from the Constitutional protection pursuant to s 37 (4) (a) availed to all persons charged, where an accused was presumed innocent until proven guilty according to law.

16. In like terms, s 37 (4) (a) would also require that the prosecution disprove each defence put forth or explanation given by an accused.

17. In this case the evidence adduced by the State stands alone and unchallenged owing to the accused electing to remain silent and the defence not calling any evidence.

18. The position taken by the defence is not an admission or indication of guilt, rather it is a matter of choice available to the accused and Defence as a right. It is also not a concession that the prosecution had proved all the essential elements of the offence charged.

19. The Defence purported to have taken issue with the element of identification of the alleged offender and the intention to kill. The element of unlawful killing and death of the deceased were conceded; that the deceased was unlawfully killed.

20. As to the issue of identification of the alleged offender, the evidence for the State came from the biological daughter of the accused who gave oral evidence that it was his father and now the accused who assaulted the deceased who was her mother.

21. She gave evidence that assault on her mother came from her father in her presence and in the presence of her younger siblings. It was an assault in a domestic setting involving the biological parents of the witness. In such a setting the State witness could not be mistaken as to the identity of the assailant even in dim lighting or no lighting.

22. This is not a situation where I should caution myself of the dangers of identification as required in John Beng –v- The State [1977] PNGLR 115. This case did not pose difficult conditions for the daughter to identify her father in their own home. 

23. On the same token there is no evidence that someone else had reason to enter the deceased's house and assault her in the manner described by the daughter. Her evidence was not discredited in cross-examination or challenged by opposing evidence.

24. I am satisfied that the State has proved beyond reasonable doubt that it was the accused who assaulted the deceased that fateful morning.

25. The evidence of the 1st State witness although not corroborated was acceptable as truthful given her demeanor as a witness who maintained her composure despite breaking down while giving evidence. She gave evidence that was logical despite the distressful situation she was in to give evidence of her father assaulting her mother who eventually died. I am unable to find that she had a motive to lie when her parents were involved. 

26. On the element of intention to cause death Mr. Luman correctly submitted that intention involved the State of mind of a person. Intention could be discerned from the facts and circumstances of the offence alleged.

27. In The State –v- Raphael Kuanande [1994] PNGLR 512 Injia AJ, (as he then was) said;

"Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proved 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, at the time and subsequent to the act constituting the offence."

28. The conduct of the accused at any stage of the offence would determine what the accused intended.

29. In the present case, Mr. Luman submitted that the court can infer an intention to kill from the Doctor's report that indicated serious injuries. 
It was further submitted that the heavy blunt object that the Doctor referred to in his report could be attributed to the stick used by the accused to hit the deceased which was part of the evidence by the 1st State witness; that assault by the accused was continuous and relentless and that the deceased was left to die. From those facts it could be inferred that an intention to cause death was present and a verdict of guilty of wilful murder should be returned.

30. In the alternative, Mr. Luman submitted that should the Court find that intention to kill was not present then a verdict of Guilty of murder should be returned.

31. Mr. Tunuma although not specific to the element of intention to cause death submitted that the 1st State witness gave inconsistent evidence in that the statement to police said the deceased fell down unconscious four times while in her oral evidence, she attributed unconsciousness to once only hence she could not be believed.The inconsistency was corrected in cross-examination by the witness when she stated that the deceased fell down four times after being assaulted by the accused. I accept her explanation as the true and logical position and find no inconsistency in her evidence. Even if it was an inconsistency it was a minor inconsistency that did not affect the crucial parts of the evidence.

32. There is no evidence challenging or disputing the evidence of continuous assault with hands, kicking and hitting the deceased with a stick.

33. Can I then be satisfied beyond reasonable doubt that intention to cause death was present under the circumstances described above?

34. As stated in The State –v- Raphael Kuanande it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the assaults.

35. Firstly, there is no evidence of what the accused conduct was prior to the assaults. His conduct at the time of the assault seemed to be the repeated assaults by hand, leg and stick. 

36. His conducts subsequent to the assaults were these;

1. He gave no reasons to anyone for the assault. He made it look like a common domestic problem.
2. He told the deceased to go to her brother's place.
3. He also told two persons to take the injured deceased out of the house.
4. The accused went to sleep near where the injured woman lay.

37. In my view, the combined conduct of the accused at the time of and after the assault as referred to above are not sufficient from which an inference could be drawn conclusively that the accused intended to cause the death.

38. If the accused had intended to cause the death, the common sense and logical thing the accused could have done was to escape or make him absent from the scene of the crime to avoid the repercussions associated with the death. He was living among the deceased line.

39. From his conduct it could be inferred that the accused made an error of judgment that the deceased would not die from his assaults. He went to sleep near where the deceased lay.

40. The accused's relentless assaults were sufficient to draw an inference that he intended to cause the death of his wife. However, his conduct subsequent to the assaults reveals actions from which an inference could also be drawn that intention to cause death of the deceased was not present.

41. Where conflict lay, the benefit of doubt should be given in favor of the accused. I therefore find that the accused did not intend to cause the death of the deceased but he intended to cause Grievous Bodily Harm.

42. In conclusion, I find that it was the accused that unlawfully killed the deceased. I also find that the accused did not intend to cause the death of the deceased but he intended to cause Grievous Bodily Harm.

43. In light of the above findings I return a verdict of Not Guilty of wilful murder but guilty of murder pursuant to s. 539 (1) of the Criminal Code and convict him accordingly.

Verdict of Guilty of murder returned with conviction therefrom.

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence