SC2865

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA 59 OF 2022

ENDIP PISIN RAY
Appellant

v

THE STATE
Respondent

LAE: MANUHU J, WAWUN-KUVI J, CHRISTENSEN J
26 March 2026

APPEAL – CRIMINAL LAW – Appeal against conviction – murder of six year of daughter – strike to head with axe – contention that evidence not considered – admissions in record of interview – contention that evidence contradictory fabricated – absence of medical report for evidence of murder – evidence as to intention to cause grievous bodily harm

APPEAL – CRIMINAL LAW – Appeal against sentence – domestic violence – consideration of mitigating and aggravating factors – no remorse – finding as to premeditation – brutal killing of child – life imprisonment – Parole Act s 17 

The appellant was alleged to have struck his six year old daughter to the head with an axe, causing her death.  At trial, he contended that his wife’s evidence was contradictory and fabricated, and that there was insufficient evidence to prove murder in the absence of a medical report.  The appellant made full admissions to the offending in a record of interview.  The appellant was convicted after trial and sentenced to life imprisonment.  He contends that the sentence was manifestly excessive.  

Held

1.	The offence of murder does not necessarily require proof by way of a medical or autopsy report to establish all of the elements of the offence.  

2.	A finding of an intention to cause grievous bodily harm can be based on the drawing of inferences from the evidence.  

3.	A finding of premeditation can be based on the drawing of inferences from the evidence. 

4.	The brutal killing of one’s own innocent child is a particularly vicious and morally reprehensible form of family violence.  

5.	The sentence of life imprisonment was not manifestly excessive. 

6.	Section 17(1)(c) of Parole Act 1991 is applicable to the sentence of life imprisonment for murder that was imposed, providing eligibility for parole after having served not less than 10 years imprisonment. 

Cases cited

Api v The State [2001] PGSC 2, SC684
Erebebe v The State [2013] PGSC 9, SC1228
Lati v State [2015] PGSC 3, SC1413
Manu Kovi v The State [2005] PGSC 34, SC789
Norris v The State [1979] PNGLR 605 
Oakare v The State [2001] PGSC 21, SC1010
Pawa v The State [1981] PGSC 16, SC216
Peacock v R (1911) 13 CLR 619
State v Jacob [2024] PNGC 370, N11042 
State v Manuel (No 3) [2016] PGNC 104, N6291 
State v Wapi [2022] PGNC 54, N9445

Counsel

Self represented appellant for the appeal against conviction 
J Bibilo for the appellant for the appeal against sentence 
P Matana for the respondent 

1.	BY THE COURT: The appellant appeals his conviction for murder and sentence of life imprisonment.   He was initially granted leave to review on 17 October 2022, with a subsequent order made on 7 August 2024 that the leave was to be deemed a grant of leave to appeal.  

The trial 

2.	The appellant was indicted that on 14 July 2013 at Ngusi Village, Morobe Province, he murdered Fidelma Ray.  The allegation was that he intended to do grievous bodily harm and caused death contrary to s 300(1)(a) of the Criminal Code.  

3.	It was alleged at trial that on the way to the garden that day, the appellant, and his wife had an argument and fought.  They returned from the garden between 7pm and 8pm.  The appellant was alleged to have gone straight to the house and to have started calling out their daughter.  The appellant allegedly went into their daughter’s room, pulled his axe from his trousers, and struck their daughter on her head. The force of this strike killed her.  She was six years of age.  

4.	The matter proceeded to trial over three days on 8, 9 and 10 November 2021.  The State called three witnesses, being the appellant’s apparent wife, a Village Court Magistrate from the Ward who attended at the scene, and the arresting officer.    A no case submission was dismissed and the appellant gave evidence.  
5.	The only State witness who gave direct evidence of the circumstances of the alleged offence inside of the house was the appellant’s apparent wife.  She identified the appellant in her evidence as being her husband with whom she bore two children.  Her evidence included that in the lead up to the alleged offence, the accused had said that his daughter was a “bastard child”. The Village Court Magistrate’s evidence related to seeing the child, already deceased, immediately after she was allegedly struck to the head and he saw blood on the bed and in the house.   He was also at the child’s burial.  

6.	In addition, the State relied on a record of interview that the appellant participated in on 28 February 2014.  This was objected to, on a contention that it as unsigned, but it was admitted into evidence after the police officer gave evidence as to the circumstances in which the interview was conducted.  This evidence included that the interview was read to the appellant.  The corroborating officer’s statement was also admitted into evidence.  

7.	In the interview, the appellant said that he was married and has two children, one of them being the deceased child Fidelma Ray.  The appellant said that his daughter was “from the woman who committed adultery” and that he “got angry because [he] found out about the person whom they were having an affair with, and they ran away”.  The appellant said that “the daughter was crying after the mother, I got angry and chopped her .... I turned the axe and hit her on her head”.  He said this happened at 7pm at night at the verandah of the house.  The appellant further explained that “the little girl cried and all my anger I rested upon her and got the axe and hit her on her head on its back”.  The appellant said it was true that he killed his daughter Fidelma Ray with the blunt side of his axe.  He further said that it was true that he meant to do this because he was angry with his wife.  

8.	In his evidence, the appellant denied that the woman who gave evidence in court was his wife and that he had two children with her.   He named another woman as his wife, and denied that he knew the Village Court Magistrate who gave evidence.  In his evidence in chief, the appellant denied that he killed his daughter.  In cross examination, the appellant maintained his denial that he was married to the woman called in the State case and maintained his denial that he had killed the deceased child.  

9.	On 14 June 2022, the appellant was convicted of the offence of murder.  

Appeal against conviction 

10.	The appellant was self-represented for his appeal against conviction.  He alleges two grounds in the notice of appeal filed 17 October 2022.  These grounds can be understood as being: 

(1)	The court did not consider his ‘statement’ but based the finding of guilt on witness statements which were contradictory and included a fabricated medical report.  

(2)	It was not established that he had an intention to commit the offence, with no proper evidence presented by the State such as a medical report.  

11.	By way of supplementary notice of appeal filed 4 March 2026, by the Office of the Public Solicitor who was then representing the applicant, the appeal grounds are set out as being: 

(1)	The trial judge erred in law and in fact by failing to consider the appellant’s statement, rather relied on the contradictory and fabricated witness statement and medical report;

(2)	The trial judge erred in law and in fact by failing to establish the intention of the crime; and 

(3)	The trial judge erred in law and in fact by relying on the contradictory and fabricated statement by the State witness.  

12.	In oral submissions at the hearing of the appeal, the appellant expressed that the National Court did “not consider” and that he is worried about his life.  He submitted that the Constitution provides that to convict a person there has to be sufficient evidence, with a medical report, photographs, and key witnesses.  He asked for the court’s mercy.  

13.	Noting that the appellant is self-represented for the purposes of the appeal against conviction, and to give effect to the various basis upon which appeal and purported review have been contended, we determine that the appeal grounds are best understood as being:  

(1)	The trial judge erred in law and in fact by failing to consider the appellants statement;

(2)	The trial judge erred in law and in fact by relying on contradictory and fabricated witness statements and medical report; and 

(3)	The trial judge erred in law and in fact in finding intention was established.  

14.	The State submitted on the appeal against conviction that the evidence adduced at trial sustains the conviction.  

Law on an appeal against conviction 

15.	It is well recognised that an appeal against conviction is governed by s 23 of the Supreme Court Act, being that the Supreme Court shall allow an appeal against conviction if it thinks that:

(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)	the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)	there was a material irregularity in the course of the trial.  

16.	In the event one of these grounds is established, the Court is then to consider whether a miscarriage of justice has actually occurred.  If not, the appeal may be dismissed: Beng v The State [1977] PNGLR 115.  

Consideration

17.	We have carefully reviewed the trial proceeding and readily find that there is no merit in the appellant’s contentions on the appeal.  As to each of the grounds, and the matters contended by the appellant at the hearing of the appeal, we observe the following.  

18.	Firstly, contrary to the submission of the appellant that the trial judge erred in law and fact by failing to consider the appellant’s statement, the trial judge did just that and appropriately relied upon admissions made by the appellant in finding the offence proved.  That is, the appellant’s ‘statement’ was considered.  The appellant, neither at trial nor on the appeal, denied that he was the person who participated in this interview with the police.  The trial judge carefully considered the circumstances of the interview and appropriately placed weight on there being full admissions to the offending.  

19.	If instead the appellant’s submission as to the ‘statement’ is with reference to his evidence in court that he was not married to the woman called in the State case, and did not kill his daughter, this was also considered by the trial judge.  Her Honour appropriately observed that the appellant’s evidence in this regard was “fanciful”.  Her Honour gave careful and thorough consideration in an assessment of the appellant’s wife’s evidence and found the witness to be credible and reliable.  This was a reasonable finding open to the trial judge.  

20.	In addition, the trial judge appropriately had regard to the direct evidence of the appellant’s wife that he struck the child on the head with an axe.  This evidence was not contradictory, nor is there any basis to conclude that it was fabricated evidence.   While the appellant’s wife was not able to recall when they were married, she accepted that they did not live in the same house, and she gave evidence of having two different names, it was also made clear in her evidence that she was illiterate.  Her evidence was not contradictory or fabricated but rather was consistent with the evidence to be expected of an unsophisticated person.  More relevantly is that she consistently maintained her account as to the circumstances of her daughter’s death, and the person responsible.   This account was entirely consistent with the appellant’s own admissions in his record of interview.  

21.	Secondly, as to a medical report being a necessary aspect of the evidence if the State was to prove its case, this contention by the appellant is misconceived.  The Constitution does not provide what the appellant contended it does.  It requires, inter alia, that an accused person has the full protection of the law (s 37(1)) and that they be afforded a fair hearing within a reasonable time (s 37(2)).  The trial of the appellant here was in accordance with the Constitution.   

22.	The offence of murder does not necessarily require proof by way of a medical or autopsy report to establish all of the elements of the offence.  As with any offence, and proof of their elements, the State can rely on direct or circumstantial (indirect) evidence.  A medical or autopsy report is an example of direct evidence as to the elements in murder of a person being killed and the cause of death.  It is usually a conclusive form of direct evidence of such elements in a murder trial.  

23.	In this matter, instead, the State relied on direct and indirect evidence in the form of witnesses who observed the mechanism of injury and the deceased state of the child immediately afterward.  There is no reason such evidence cannot be relied on to establish the subject elements: Peacock v R (1911) 13 CLR 619, recognised in Pawa v The State [1981] PGSC 16, SC216 as coinciding with the law as to circumstantial evidence in Papua New Guinea.  

24.	It was open, and appropriate on the evidence that was adduced, for the trial judge to find that the element that the child had died from an injury to the head was established to the requisite standard.  

25.	Thirdly, that the appellant’s act was done with an intention to cause grievous bodily harm was a finding plainly open and an appropriate finding on the evidence.  The evidence established that the child was struck to the head after an argument in which the appellant’s apparent disdain towards the child was expressed by him.  An axe was used to strike the child with sufficient force to cause a grave injury.  In addition, the appellant admitted in his evidence that he meant to do the act he did because of his anger towards his wife.  The only reasonable inference to be drawn from this evidence was that the appellant held an intention to cause grievous bodily harm to the child.  The evidence established the requisite intention for the offence of murder.  

26.	None of the grounds of appeal on conviction are established and the appeal must be dismissed.  

Appeal against sentence 

27.	The matter proceeded to a sentence hearing on 21 June 2022 and on 6 September 2022 the appellant was sentenced to life imprisonment.  

28.	At the sentence hearing, the appellant elected to remain silent in the allocutus.  

29.	It was submitted on his behalf at sentence that the mitigating factors were that he was a first time offender, the attack was not premeditated, some form of compensation had been paid, and the appellant had been on remand for some time.  It was submitted that the offending fell within category two of the categories established in Manu Kovi v The State [2005] PGSC 34, SC789, and that a sentence of 20 to 30 years imprisonment was appropriate.  

30.	We pause here to observe that while it was submitted on the appellant’s behalf that he was a first time offender, the antecedent report that formed part of the appeal book records that he “has prior convictions”.  No further details were provided, and this notation in the antecedent report was not expanded on in submissions at the sentence hearing, or on appeal.  Accordingly, we will approach the matter by giving the appellant the benefit of the uncontested submission on sentence, and appeal, that he was a first time offender.  

31.	The State submitted at sentence that the offending was within the worst category of the offence of murder, submitting that it fell within category four of Manu Kovi v The State. It was submitted that the offence was premediated, brutal and coldblooded, involved the killing of an innocent child, and demonstrated a complete disregard for human life by the appellant.  

32.	At the sentence hearing, both parties relied on authorities said to be comparative.  These demonstrated a range of sentences for murder, from death through to 12 years imprisonment.  The authorities relied upon on behalf of the appellant involved murders of adults in circumstances distinguishable from the current matter.  Some of the authorities relied upon by the State were more relevant and involved the killing of children (Oakare v The State [2001] PGSC 21, SC1010; Api v The State [2001] PGSC 2, SC684; Erebebe v The State [2013] PGSC 9, SC1228).  Sentences of 20 years imprisonment, life imprisonment, and death were imposed.  

33.	From the various documents filed for review and appeal, it is apparent that the sole ground relied upon in the appeal against sentence is that the sentence was manifestly excessive.  The supplementary notice of appeal also provides that it is sought that the sentence of life imprisonment be quashed and substituted by a term of 30 years imprisonment.

34.	It is well recognised that in order to succeed on an appeal against sentence the applicant must demonstrate that the sentencing judge committed an error, which has the effect of vitiating the discretion on sentencing. The error may be identifiable, in that the sentencing judge may have made a mistake as to the facts, or acted on the wrong principle of law, or taken into account matters that should not have been taken into account, or failed to take into account matters which should have been taken into account, or clearly given not enough weight or too much weight to a matter properly taken into account: Norris v The State [1979] PNGLR 605 at 612.  

35.	At the hearing of the appeal, on behalf of the appellant it was submitted that a sentence other than life imprisonment and one in the order of 35 to 45 years imprisonment ought to be imposed.  During the course of the oral hearing, after the effect of the Parole Act 1991, was brought to the attention of counsel for the appellant, it was submitted that a sentence in the order of 18 to 25 years imprisonment was appropriate.  It was submitted that manifest error arose in the sentence decision by little regard having been given to the mitigating factors, and that the finding that the offending was premeditated was erroneous.    

36.	The respondent submitted on appeal against sentence that there were no errors, with premeditation an available and appropriate finding.  It was submitted that the appeal be dismissed.  

Consideration

37.	We are not persuaded that the exercise of the sentencing discretion was occasioned by error.  

38.	The sentencing judge considered and appropriately balanced in the sentencing exercise mitigatory and aggravating factors. The mitigatory factors were uncompelling given the seriousness of the offence.  The mitigatory factors did not include any remorse.  

39.	Further, the sentencing judge gave careful and comprehensive consideration to the sentencing submissions made on behalf of the appellant.  This included as to the submission that it was not a premediated attack.  The State submitted otherwise.  

40.	It was open to the sentencing judge to be satisfied that the offending was premeditated. The evidence at trial included that there was a fight about the legitimacy of the child in the lead up to the attack, and the appellant expressed this grievance in advance of his offending conduct.  

41.	The findings otherwise of the sentencing judge that the conviction was after a trial, that a dangerous weapon was used to kill a defenceless child in cold blood, that it was unprovoked and brutal killing with a strong desire to cause grievous bodily harm with a complete disregard for human life, were also plainly open.  A medical report was not required to be satisfied as to this.  They were the only reasonable inferences available to be drawn on all the circumstances of the evidence.  On this basis, it was not erroneous for the sentencing judge to conclude that the offending fell within category four of Manu Kovi v The State.  

42.	As to the authorities relied upon at sentence (see above at [32]) and those relied upon on appeal involving the killing of children (State v Jacob [2024] PNGC 370, N11042 (life imprisonment); State v Wapi [2022] PGNC 54, N9445 (life imprisonment); State v Manuel (No 3) [2016] PGNC 104, N6291 (50 years imprisonment); Lati v State [2015] PGSC 3, SC1413 (30 years imprisonment)), the most that can be said is that every case is to be considered with reference to its own facts and circumstances.  As observed in Norris v The State the “sentencing power is a discretionary judicial power”. The sentencing discretion in this matter was exercised well within the range of sentencing for this form of offending.  

43.	The appellant attacked his own six year old daughter in her home with an axe.  He struck her to her head violently and callously caused her death.   He has no remorse and limited factors in mitigation.  A brutal killing of one’s own innocent child is a particularly vicious and morally reprehensible form of family violence.  It is a form of offending that is denounced and not tolerated by the community, involving as it does causing the death of a vulnerable child who was entitled to be safe from the very person who is meant to protect her from harm.  It is offending that warrants stern punishment and deterrence in the sentence imposed.  As the sentencing judge observed “incarceration should also be seen as a deterrent to other men out there that such behaviour is unbecoming of fathers and partners who should be protecting their children and not prematurely terminating their life”.   Further, her Honour appropriately observed:

This sort of crime is prevalent and behaviour which does not value and protect life must be dealt with.  Too often the women, children and vulnerable members of the community are subjected to uncontrollable and physical abuse of their husbands, partners, and fathers.  Thus, there has to be stern punitive actions taken to protect the vulnerable from such brutality.  

44.	Additionally, having regard to the position of the appellant in the supplementary notice of appeal that a term of imprisonment of 30 years was appropriate, it warrants recalling what s 17 of the Parole Act 1991 provides, namely:

s 17	Eligibility for Parole 

(1)	Subject to this Act, a detainee who – 

(a) having been sentenced to a term of imprisonment of less than three years–has served not less than one year; or

(b) having been sentenced to a term of imprisonment of three years or more–has served not less than one third of the sentence; or

(c) having been sentenced to life imprisonment or detention during Her Majesty’s pleasure–has served not less than 10 years,

is eligible for parole.

45.	This means that whether the appellant is sentenced to life imprisonment or to a term of 30 years imprisonment as was sought in the notice of appeal, he becomes eligible for parole at the same time.  That is, once he has served not less than 10 years of the sentence.  This confirms and consolidates our view that the sentence imposed was not manifestly excessive.  

Conclusion

46.	The appellant has not established any merit in the appeal against conviction and, on his behalf, no error in the sentencing discretion has been established.  

Orders

47.	For those reasons, the following orders are made:

(1)	The appeal against conviction is dismissed.
 
(2)	The appeal against sentence is dismissed. 

(3)	The conviction for murder contrary to s 300(1)(a) of the Criminal Code and sentence of life imprisonment is confirmed. 

________________________________________________________________
Lawyer for the appellant on the appeal against conviction: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor