[1997] PNGLR 305

PAPUA NEW GUINEA

[national court of justice]

THE STATE

V

NELSON TULI

waigani: batari aj
1, 2, 4 April 1997

Criminal law – Murder - Circumstantial evidence - Accused admitted throwing missile at deceased - Inferences drawn from circumstantial evidence

Evidence – Circumstantial evidence.

Criminal law - Murder - Intent to cause grievous bodily harm – Section 300(1)(b) Criminal Code Act Chapter No. 262.

words and phrases – "Act" done in the prosecution of ‘unlawful purpose" – Meaning of.

Facts

The deceased was standing in the middle of the Hiritano Highway section of Erima and obstructed the flow of traffic. The accused that was his brother approached him with a view to dissuading him. The deceased instead attacked the accused and his vehicle. A fight broke out. In the course of the fight, the accused hit the deceased on the back of his head. The deceased fell to the ground unconscious. The deceased was then taken to the hospital. He died the next day. The accused stands charged for murder under section 300(1)(b) Code. At the trial, evidence against the accused was largely circumstantial.

Held

1.	When the case against an accused person rests substantially upon circumstantial evidence, the question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw. Such inference, to be reasonable, must be based on something more than mere conjecture: The State v Tom Morris [1981] PNGLR 493, Barca v The Queen (1975) 133 CLR 82; 50 ALJR 108 followed.

2.	By drawing inference from the available circumstantial evidence, accused found guilty and convicted.

3.	For purposes of section 300(1)(a) and (b) Criminal Code, the ‘act" which is done in prosecution of the unlawful purpose is separate and distinct from the "unlawful purpose". In the circumstances of this case, the assault on the victim could not constitute the "act" and the "unlawful purpose": Paisi & Others v The State [1991] PNGLR 254 followed.

Papua New Guinea cases cited

Pasi & Anor v The State [1991] PNGLR 254.
The State v Tom Morris [1981] PNGLR 493.

Other case cited

Barca v The Queen (1975) 133 CLR 82; 50 ALJR 108.

Counsels

D Mark, for the State.
M Kua, for the accused.

4 April 1997

Batari aj. The accused stands trial on an indictment charging one count of murder of one Kelly Tuli under s 300 1(a) and (b) of the Criminal Code Act.

State alleges that on 17 April 1996 at about 4.30 pm, the deceased stood in the middle of Hiritano Highway section of Erima and obstructed traffic flow on the road. The accused told the deceased to move off the road. The deceased instead attacked the accused’s vehicle and a fight between the two ensued. State alleges further that the accused hit the deceased on his head with a piece of sawn timber and he fell down unconscious. The deceased was taken to Port Moresby General Hospital where he died the next day.

The evidence against the accused is partially circumstantial. But first, I refer to the facts which are substantially uncontroverted. The accused and the deceased were related as brothers. On the day and time in question, the accused confronted the deceased at Erima in an attempt to dissuade him from obstructing traffic along the main highway. They exchanged punches when the deceased resisted. The deceased then threatened to hit the accused with a piece of timber, but others disarmed him. The accused picked up that same implement and swung it at the deceased. Whether or not this was in a throwing motion and whether or not the timber impacted on the deceased are matters in dispute. I will cover those issues later. The deceased was admitted to Port Moresby General Hospital the same evening. He died the evening of the following day from brain injury due to extensive sub-dural haemorrhage. The medical report showed the bleeding was caused by an impact to the left occipital, which fractured the underlying bone.

I also accept the evidence of Christina Kelly that, when told of a fight between her husband, Kelly Tuli and the accused, she came to where the fight had occurred. I infer also that she proceeded to that location as soon as she heard of the incident. Upon arrival, she saw the deceased lying on the ground. I infer from her evidence that the deceased was in an unconscious state. The accused did not know what happened to the deceased after he swung the timber at him. So that leaves Christina Kelly’s evidence on this aspect, which I accept.

The crucial issue is whether or not the accused struck the deceased on his head with a piece of timber. If I find that he did, the next question is whether or not he intended to cause the deceased, grievous bodily harm under s 300(1)(a) of the Criminal Code. On the evidence before me, I rejected State’s submission that s 300(1)(b) applies in the alternative. For the purpose of that provision, the "act" which is done in prosecution of the unlawful purpose is separate and distinct from the "unlawful purpose". In the circumstances of this case, the assault on the victim could not constitute the "act" and the "unlawful purpose". See Pasi & Ors v The State [1991] PNGLR 254.

There is no direct evidence that the accused struck the deceased on the head with a piece of sawn-off timber. State witness, Christina Kelly said some people told her that the accused hit her husband and he fell. As this evidence is hearsay, it is insufficient to prove the guilt of the accused. She went on to say, "I went and saw he was lying on the ground." This is consistent with what she heard from others, which gives that uncontested hearsay evidence some weight. She described that his eyes turned white. I concluded that the deceased was in a state of unconsciousness. When she came to the scene, the accused was still there. In his own evidence he was talking to the police. She took a stone to attack the accused, but he escaped into the police vehicle. The accused on the other hand said that he escaped into the police vehicle because of the presence of tribal enemies.

I do not accept the accused’s explanation on this aspect. I think he probably sought refuge in the police vehicle because of threats from Christina Kelly. This evidence and the uncontested evidence of Christina Kelly smashing the windscreen of the accused’s vehicle could only mean that she was angry at the accused. I infer that her anger arose from the state she found her husband in, after she was told that the accused attacked her husband.

The accused has denied inflicting the injury on the deceased’s head and has given evidence to that effect. There are two possibilities (i) the injury was inflicted by others or by other causes or (ii) the injury was caused by the accused.

I find the accused evasive and unimpressive as a witness of truth. In his record of interview, he said in answer to Q. 28, "I got the timber and hit Kelly Tuli on the back, but somehow the timber landed on his head." And in answer to Q.40 he said, "No, I was at that same place and swung the timber on his head." In court he said that he threw a stick at the deceased, but did not see where the stick landed. If he told lies to the police, what evidence is there that he is telling the truth in court? His story to the police is at least consistent with the medical report on one aspect. The medical report states that the impact was at the left back part of the head. The accused admitted to the police he hit the deceased on the back of his head. I think that the accused told the police the truth and has shifted from that admission. 

I also find his version and the evidence of his conduct subsequent to his confrontation with the deceased quite remarkable. He said that he threw a stick at his brother who was standing some 20 meters away aiming his feet. There were a lot of people. He did see where the stick landed. In cross-examination, he conceded subsequently the ‘stick’ was a piece of sawn timber. Granted that it was a piece of timber, why would he recklessly hurl it at the risk of hitting other people? There is in any event, no evidence or suggestion that anyone else besides the deceased was injured at that time. His sudden need of police protection also begs the question of why would he be frightened of tribal enemies. There was in fact no evidence or suggestion that he was threatened or attacked by any other person, other than the deceased’s wife, Christina Kelly. Further, his evidence that he did not know of the deceased’s injury or how his brother’s death was met adds to the mystery of his conduct. It is reasonable expectation that as a blood relative, he would have been the first to know or be concerned. His surrender to the police station also suggests his involvement in his brother’s death. The evidence of compensation further implicates him. His subsequent admissions in the record of interview were more likely the manifestation of his sense of guilt. I conclude that he lied in court about not hitting the deceased with a timber.

In reaching this conclusion, I do not, in the least, suggest that the accused has the onus to proof his innocence bearing in mind the State has called only one witness. The onus is always on the prosecution to prove the guilt of the accused on the standard of proof beyond on all reasonable doubt.

As State’s evidence against the accused is partially circumstantial, the law on such evidence says that, when the case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw. Such inference, to be reasonable, must be based on something more than mere conjecture. See The State v Tom Morris [1981] PNGLR 493 which followed Barca v The Queen (1975) 133 CLR 82; 50 ALJR 108.

In this case, the only issue, which must be resolved on circumstantial evidence, is whether or not the accused struck the deceased with a piece of timber.

I draw inferences against the accused on the following circumstantial facts:

1.	The accused was the only one who fought with the deceased on the day in question.

2.	The accused was armed with a timber. I consider he deliberately lied about not hitting the deceased with it, solely to escape the natural and logical conclusion which he knew could be readily drawn from his admission to the police, and which could be drawn from other independent evidence that he was aware and that pointed to his guilt.

4.	The deceased was found unconscious at the scene immediately after the fight with the accused. 

5.	Christina Kelly attacked the accused and the accused’s vehicle after she saw her husband lying on the ground.

6.	The accused’s escape into safety of police vehicle within a short time of attacking the deceased.

7.	The deceased was taken to the hospital the same afternoon. He died the next day of brain injury to the back of his head.

8.	The conduct and demeanour of the accused subsequent to the death of the deceased.

When I consider these factors, the only reasonable hypothesis I conclude is that the accused hit the deceased on the head with a timber.

The injury according to the medical report was evidenced by laceration with bloodied swellings on the external left back part of the head. I infer from the fracture of the underlying bone that the impact must have been forceful, possibly from a heavy blunt object. Such findings are in my view open on the evidence. I conclude from the location of the injury being on the back part of the head and nature of the injury that whoever inflicted it intended to cause the deceased grievous bodily harm.

I am satisfied that the State has established on the standard of proof beyond reasonable doubt, the guilt of the accused. I return a verdict of guilty of murder and convict him accordingly.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Joe Wal Lawyers.