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State v Bai [2018] PGNC 204; N7296 (15 June 2018)

N7296

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 553 & 915 OF 2016


THE STATE

V

PETER BAI & DIANA PALOME


Kimbe: Miviri AJ
2018 : 08th 12th 13th June


CRIMINAL LAW - Trial-Wilful Murder - S299 CCA –conspiracy – deceased lured to secluded area by female accused – fought by male accused – internal injuries- death – circumstantial evidence-other reasonably hypothesis other than guilt–benefit of doubt accorded defendants–acquitted and discharged.

Facts

The Accused conspired to kill the deceased husband of the female accused. Deceased was taken to a secluded area by the female where he was assaulted by the male accused and died. Both intended to kill him and did kill him.

Held

  1. Other reasonable hypothesis other than guilt of both accused.
  2. No evidence linking accused with death.
  3. Not guilty both accused
  4. Both accused acquitted and discharged.

Cases sited
Bonu & Bonu v The State [1997] PGSC 11; SC528
Pawa v The State [1981] PNGLR 498


Counsel:
L Jack, for the State

D. Kari, for Defendant

VERDICT

15th June, 2018

  1. MIVIRI AJ: Peter Bai and Diana Palome are both charged that they on the 23rd September 2016 at Vavua, Hoskins wilfully murdered Thadius Edo Palome contrary to Section 299 (1) Criminal Code.

Brief Facts on arraignment

  1. The State presented the following facts against the defendant Diana Palome and Peter Bai on the charge above. On the 23rd September 2015 Diana Palome wife of Thadius Edo Palome accompanied him up to where oil palm had been burnt by fire to record it. After recording they decided to go to their food gardens. On that day also the accused Peter Bai was working in his garden. He and accomplice Diana Palome conspired to kill Thadius Edo Palome. The former took him there where Peter Bai assaulted him killing him. He died from lack of oxygen. They both intended to kill him and aided and abetted each other in killing him.
  2. Section 299 (1) reads:

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Plea

  1. Both Prisoners pleaded not guilty tasking the State to prove its case.

Issue


(a) Who killed Thadius Edo Palome?

State evidence tendered


  1. The state tendered the following evidence by consent and marked all as exhibits in the trial;
(xxvii) Exhibit S 23 Statement of Ansemus Ruru
  1. These comprised all the evidence that were tendered by consent. The tale of this evidence was that Thadius Edo Palome reputedly 50 years old died from unnatural causes on the 23rd September 2015. He had a right normal lung and a collapsed left lung. He had free and clotted blood 6 litres as a result of a ruptured spleen. He had fractured left ribs 8th and 9th closed fractures. Doctor Lawrence Warangi deposed on oath in court that these were the result of trauma to the deceased, State exhibits 4(a) (b) (c). Importantly he deposed that death occurred 5 days prior to his examination. That death was on the 23rd September 2015. It meant that whoever caused him the trauma intended his death and did cause his death. And he did die by reason of those injuries on the 23rd September 2015 not the 23rd September 2016.
  2. Three young boys, Henry Kaumu, Marcus Kaumu, and Jacob Matalaharo found the body of Thadius Edo Palome lying naked at the village oil Palm Blocks beside the road at Talogogo area on the 24th September 2015 when they were drawn to it by their dogs barking whilst out hunting for bandicoots. Before finding his body they heard people talking between 10am and 12pm and went to investigate who these persons where. They met Diana Palome who asked them if they had seen Uncle Edo. They replied no and she left and went. They reported to Andrew Puli who says occurred on the 23rd September 2015. So the date is the 23rd September 2015 and not as put by this witness. His trousers were located 29 steps from the body. And his pants were located 12 steps from where he lay. The immediate area where both items of clothing were found appeared disturbed as if there was a fight. It is not clear whether the clothes were removed as part of the process to kill him. And if so who removed these off the deceased.
  3. Together with the medical affidavit of Doctor Lawrence Warangi with the annexures of the report and medical certificate of death it was clear, Thadius Edo Palome had succumbed to brutal beating to suffer the injuries that he suffered set out by the medical report leading to his death on the 23rd September 2015.
  4. There was supposed motive as evidence of adultery between the accused Peter Bai and Diana Palome and the deceased, but it was not enough by itself. It was not beyond doubt on the basis of the evidence of the daughter. She displayed that emotion when she gave evidence in court. She was not an independent witness and her observations were not detailed out with clarity to firm out as motive against both accused against the deceased. This included the evidence of all witnesses set out above.

Sworn State Evidence


  1. The first witness on oath was Sativa Edo daughter of the accused Diana Palome and the deceased. She was 15 years old. She was quietly spoken and timid and was in distress with tears from her eyes. Consequently, the State made an application under section 37 B Evidence Act for special measures to assist her to give her evidence. Defence did not object and the application was granted and orders made to have a screen so that she was not looking directly into both accused when she gave evidence. Her evidence was ordered to be given in camera exclusion order made for all other persons to be excluded whilst she gave her evidence. A support personal was also granted to be beside her as she gave her evidence. At times I observed this person to not only support but to sway her to give evidence in a particular manner by her eyes head gestures. It left the impression that the witness was not as credible without independent evidence to verify her version of events. Consequently that was the highest in her evidence and did not add to what was seriously lacking in the state case identification of the perpetrators of the wilful murder of Thadius Edo Palome.
  2. Her evidence established that her parents were always arguing about Peter Bai. Her father suspected that he was having an affair with the mother Diana Palome which led to the argument. She gave evidence of discovering the mother Diana Palome not in bed one night. She went outside and found the mother lying on the ground with Peter Bai sleeping on top of her. It was not taken further as to what these were. Whether they were merely sleeping and were having sexual intercourse is not clear. It was observation made at night and the circumstances of the sighting are not properly set out. She wanted to call out but her mummy closed her mouth and told her not to tell. She also stated that the mother had threatened to kill her outside court if she did not go to her.
  3. She also gave evidence of seeing money in the bilum of the mother Diana Palome which she says was from the accused Peter Bai. She confronted Peter Bai about it with her mother and he chased her with a bush knife. The accused Diana Palome told her not to tell her father about it. Generally it was her evidence that there was ill will and argument between her parents over suspicion of Peter Bai and her mother in an affair. She was a minor then and was able to confront an adult then but could not do the same in court because state made an application to get a screen across her away from sight by both accused to enable her evidence to be given despite the change in her age from then up to time in court.
  4. The next witness on oath was Bertha Kana who gave evidence of the 23rd September 2015 of seeing the accused Diana Palome at the road side with a bush knife. She met and asked her why are you walking like that to which accused replied that she was looking for her husband Edo Palome.
  5. The next witness was Gabriela Kaka who stated that on the 23rd September 2015 she met Diana Palome at the coconut block who asked her for her husband Edo Palome. To which she replied you and Edo walked up already why are you asking. She said he ran in to the oil Palm and she was on the outside.
  6. The next was Rosevitha Bera who gave evidence that on the 23rd September 2015 she was at the block of Jack Bobore with his wife and kids and also her own kids. They were cutting copra when Peter Bai the accused came to them and told them about Edo climbing a betel nut tree with honey bees on it. He wore short trousers that was torn and tied with bush rope. He came from where his garden was. She knew Diana Palome well back when she lived in Wewak when her husband was a soldier and latter’s father was also a sergeant there. She said Peter Bai had washed and had a towel around his waist and was shocked when he was told that Edo Palome had died.
  7. Next witness was Malaga Joachim who gave evidence that on the 23rd September 2015 she was with Rosevitha Bera and her children. Peter Bai the accused came and told that Thadius Edo went to get betel nut at Karapi to sell it. On the second day he went to get buai he went up a tree with honey bee on it. He was bitten and fell to the ground. And that if someone find him they would kill him.
  8. The next witness was Nathalie Bera who gave evidence that on that day 23rd September 2015 she was at the coconut block with her mother, when Peter Bai the accused walked from the oil Palm to them and then backed to his garden.
  9. The next was Roy Jack who stated that on the 23rd September 2015 he questioned Diana Palome as to why she left Thadius Edo to which she replied there were drug bodies there and she was afraid of them who might kill her. she called and he responded.
  10. The next witness was Tracy Roy who gave evidence that on the 23rd September 2015 heard that Thadius Edo had died. That they ran up to the oil Palm and she asked Diana Palome in the morning you went up with your husband now you are with us again. To which Diana Palome responded that he decided to take a short cut but then called out three times for Diana. On each of those times he appeared to be short of breath. And Diana did not go and check she said she was scared to do. Diana was not crying but appeared shocked.
  11. The next witness was Paul Babo who testified that on the 23rd September 2015 he went to see the body of Edo. And questioned Diana that together with the deceased both went together. She replied that he went to get mustard and they killed him. He was concerned about her safety as Edo had died there. He questioned her further about whether she had an affair with Peter Bai. And she admitted. He kept her there and brought her to the police when they came that night. Diana appeared fearful and was nervous. And the villagers were trying to attack her there and then. It was from 6.00pm to 8.00pm when the police came and took her. That relatives of Thadius called out for her to be taken out. And that was why she was scared.
  12. The next witness was Maria Mage who had come to see her brother Justice Batari but he had gone to Port Moresby so she came down and Diana Palome called her to give her some buai. She went and saw her in the Police cells and Diana Palome told her that we are wrong now we have killed a man. The problem with her evidence is that it is not verified by the village policeman she purportedly reported to back in the village. In any case she was at the police Station in Kimbe she did not tell Police there and then so that it was strengthened and verified. Persons charged with serious charges under criminal law do not come out of the cells without permission or assistance by Police. Even then the cell is very confined and restricted and accessibility to the Public is not that easy as she would have the court believe. Without any further evidence in this regard apart from her evidence it does not add to the State case against the accused.
  13. The next witness was Joseph Kaule who denied ever chasing Peter Bai with a bush knife necessitating him to run away to Kapiura and to surrender to the police there. It did not establish or add anything to the issue as to the identity of the person or persons responsible for the wilful Murder of Thadius Edo Palome. A similar observation in view of the statements of Andrew Laga and Ansemus
  14. The last and final witness for the state was Doctor Lawrence Warangi whose evidence and relevant particulars I have set out above.
  15. The State closed its case. Both accused elected to remain silent. They were not obliged to prove their innocence. By the indictment dated the 8th June 2018 it was the State’s allegation and burden to be discharged beyond all doubt not of the accused.

Tale of Evidence


  1. The Tale of all these evidence related to events of the 23rd September 2015 and clearly not the subject of the indictment and did not in any way provide as evidence of the role of the accused in the wilful murder of Thadius Edo Palome. The charge did not stand well with independent medical evidence by Doctor Lawrence Warangi that the death of Thadius Edo Palome was on the 23rd September 2015. The charge was a year later 23rd September 2016.

Law Applicable


  1. The law applicable is circumstantial which is set out in the case of Pawa v The State [1981] PNGLR 498:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v Queen [1975] HCA 42; (1975) 50 ALJR 108 at 117: When the case against an accused person rests substantial upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any other reasonable hypothesis other than the guilt of the accused: Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p634. 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 the only rational inference but that it should be the only rational inference that the circumstances would enable them to draw’: Plomp v Queen [1963] HCA 44; (1963),110 CLR 234 at 252; ...”


Facts


  1. The facts here summarised are that on the 23rd of September 2015 Thadius Edo Palome met a violent death. His naked body was discovered by three young boys who were hunting in the bushes for bandicoot. They came upon his dead body when they were drawn to it by their dog. They had earlier heard people talking and upon investigation saw the Accused Diana Palome talking to herself. Upon seeing them she asked if they had seen uncle Edo Palome her husband. They replied in the negative and continued their hunt. Minutes later their dog made the discovery of the dead corpse of Thadius Edo Palome. It appeared as if the immediate area where the body was found saw what appeared to be fighting.
  2. A very serious deficiency in the State case is the fact that the Indictment charges Peter Bai of Vavua, Hoskins, West New Britain and Diana Palome of Parimbe village, Pagwi, East Sepik Province with the wilful Murder of Thadius Edo Palome committed on the 23rd September 2016. It is clear this date is not the date of the death of the deceased and therefore clearly does not prove the charges against the accused. Because 23rd September 2015 is the date of death. Consequently the indictment is not sustained against the accused on the charge of wilful Murder.
  3. Circumstantially the case is not made out against the accused and the issues raised are answered in the negative against the accused. It has not been proven beyond all reasonable doubt that Peter Bai and Diana Paloma conspired to kill and did kill Thadius Edo Palome at Vavua Hoskins on the 23rd September 2015. That is they have been identified as the persons with intent to kill and did kill Thadius Edo Palome contrary to section 299 (1) of the Criminal Code. This case is not likened in all material particulars to the case of Bonu & Bonu v The State [1997] PGSC 11; SC528.
  4. This is not a situation that can be remedied by adverting to section 535 amendment of Indictment of the Code because this is a material variance or omission and insertion will materially effect and prejudice the defence of the accused. To order would be contrary to law and in this case here there was a gazetted State Prosecutor and Legal Officer in charge of the preparation and prosecution of this matter and no excuse is posed against them to put the indictment in the way it has been put to this court. The court will not step into the shoes of the Public Prosecutor or the State Prosecutor to draw up his charges for him and prosecute. That would be contrary to the Constitution and the law and process of it. Accordingly the Prosecution is what he has made in law and that verdict is in favour of the accused in law for the present.
  5. Accordingly it is the verdict of the court that both are not guilty of wilful Murder and accordingly discharged forthwith.
  6. Verdict of Not Guilty of Wilful Murder. Released forthwith from custody.

Orders accordingly.

________________________________________________________________

Public Prosecutor : Lawyer for the State

Public Solicitors : Lawyer for the Defendant

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