Unreported National Court Decisions
N600
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
MARIANNO WANI SIMON AND ALAN DA KOROKA
Waigani
Wilson J
23 June 1987
29-30 June 1987
2-3 July 1987
6-8 July 1987
14 July 1987
CRIMINAL LAW - circumstantial evidence - use to be made of false alibi and false statements out of court - inference of guilt.
- false statements out of court - capable of strengthening case against accused.
EVIDENCE - false statements out of court - no reasonable explanation - whether such can be taken into account to corroborate an incriminating factor in circumstantial case.
- false statements out of court - desirable to give opportunity for explanation.
Cases
STATE v. TOM MORRIS (1981) P.N.G.L.R. 493
PAULUS PAWA v. STATE (1981) P.N.G.L.R. 498
JOHN JAMINAN v. STATE (No.2) (1983) P.N.G.L.R. 318
Text
Cross on Evidence, 2nd Australian Edition
JUDGEMENT
WILSON J:  On the 21st November, 1985, Sister Perpetual Auchin, a Catholic Nun living and working in Bereina area was tragically murdered. Prior to her death, she had been at Bereina Station opposite the Papua New Guinea Banking Corporation selling second hand clothes. Travelling back towards Waima about two (2) kilometres along the Hiritano Highway from the junction near To’orena village a rock about 6 inches in diameter was thrown at the Blue Suzuki vehicle she was driving, the rock broke the windscreen and struck her on the head. The vehicle ran off the road. She slumped over the steering wheel. She was unconscious and there was blood coming from the wound to her head.
Emelda Olivia Koma was the Sister’s housegirl and was travelling with her. After the incident, she saw two man approach the vehicle, they wore overalls and had their heads covered. One of them came to her side of the vehicle and said: “Where the money?”. This person spoke in English. She gave no reply. The person leant inside the vehicle and took a bag which was on the seat which contained the days takings. The two men went back up into the bush in the direction from which the rock had been thrown.
Emelda waited with Sister Perpetual for some time hoping that some trensport would come by to assist her. No one came and she started to walk to Bereina Station. From her estimate, the incident occurred at about 4 pm. She had been with Sister Perpetuel at Bereina from about 9 am that morning.
Emanuel Aume was travelling from Waima to Bereina on the Hiritano Highway with other people in his truck. At about 4.10 pm, he came upon Sister’s vehicle. He got out and saw Sister slumped in the vehicle. He saw the rock. He saw that Sister was bleeding. She was still breathing. He removed her from the vehicle, placed her in the truck and she was driven to the hospital at Bereina Station.
Sister Perpetuel died shortly after. According to the Post Mortem report of Dr D.J. Barua carried out on 25 November, 1986, she had a laceration on her scalp and a fractured skull. Death had been caused by a heavy blow with a blunt instrument. Her body was identified by Sister Peter Mary Kennedy. Sister Perpetuel Auchin was 66 years old at the time of her death.
CHARGE
The State presented an indictment against Marianno Wani Simon and Alan Oa Koroka, both of Bereina, charging them with the murder of Sister Perpetuel. The charge was brought under S.300 (1)(b) of the Criminal Code Ch. No. 252 on the basis that the death was caused by means of an act done in the prosecution of an unlawful purpose, that is, the robbery, and that the act, that is the throwing of the rock at the vehicle, was an act of such a nature as to be likely to endanger human life.
There were no submissions put to me that the circumstances outlined would result in any other charge but murder and I am of the view that the charge is soundly based in law and describes the appropriate offence in these circumstances.
PROSECUTION AND DEFENCE CASE
Before proceeding to the evidence in this case, I think it is helpful to an understanding of the issues to briefly summarize the nature of the State’s case and the Defence case.
The State’s case is circumstantial. It says that the two accused are shown to have had the opportunity and motive to commit the offence and that their false statements regarding their whereabouts strengthens the case against them. The State argues that on the basis of the evidence presented, I should draw the inference that the two accused are guilty of the offence charged.
The Defence case is in the nature of alibi. They say that they did not commit the offence and that at the time the offence was committed, Marianno Wani Simon was playing snooker and Alan Da Koroka was playing cards.
SOME PROCEDURAL EVIDENTIARY MATTERS
(1)      At the commencement of the trial, the following evidence was tendered without objection and with the consent of defence counsel.
(a)      Record of interview, unsigned, of Marianno Wani Simon dated 25 November, 1986 - Motu and English translation - Exhibit A and A2.
(b)      Record of Interview, unsigned, of Alan Oa Koroka dated 18 December, 1986 - Motu and English translation - Exhibit B and B2.
(It should be noted that defence counsel indicated that it was not contested that the conversation recorded in these documents took place and were to be relied on as a proper record, although unsigned).
(c)      The Affidavit of Dr D.L. Barua as to a post mortem examination on 26 November, 1986 - Exhibit C.
(d)      Affidavit of C/S Leo Yapri, a police photographer - Exhibit D.
(e)      A series of eleven photographs - Exhibits D1 - D11.
(2)      During the course of the evidence, a Pidgin interpreter was used by the two accused when giving evidence. The use of this interpreter was offered to the two defendants while English speaking witnesses gave evidence, but both accused indicated this was not necessary.
(3)      On Thursday, 2 July 1987, the Court held a view lasting approximately 2 hours at Bereina Station. It was agreed that it was not necessary for both accused to be present. Counsel for the State and the Defence attended on me and we visited every location mentioned in the State’s case and when appropriate illicited further clarification from relevant witnesses.
(4)      Transcript - by the end of the evidence and prior to Counsels’ final submissions, I made available to both Counsel a typed and paginated transcript of my notebook. Where necessary in what follows, page references will be made referring to that typed transcript.
(5)      Abbreviations - for the bulk of what follows in this judgement, I have used the following abbreviations:-
(a)      “Sister” - Sister Perpetuel Auchin
(b)      “Marianno” - Marianno Wani Simon
(c)      “Allan Oa” - Allan Oa Koroka
(d)      “the snooker place” - refers to a location of two snooker tables under a shelter near a blue coloured trade store which is opposite the District Office and just before the small bridge leading to the airstrip.
(e)      “the card place” - refers to a building at the back of DPI which has a roof, concrete floor and the frame of walls, but no cladding.
(f)      “the junction” - refers to the junction of the Hiritabo Highway near To’orena Village, where the Highway turns towards Waima Village.
EVIDENCE
The indictment presented against the two accused listed 25 witnesses to be called for the State. As I have mentioned earlier, certain evidence was tendered by consent in the State’s case. Apart from that evidence, twelve witnesses were called for the State.
Both defendants gave sworn evidence and three witnesses were called for the defence.
Due to the nature of the case alleged against the accused, I will set out a synopsis of the relevant evidence of each witness. All the evidence relates to Friday, 21/11/86, unless otherwise stated.
Vavine Tiu, a housewife, who lives at Bereina Station, gave evidence that she went to the PNGBC. She then went across the road to where Sister was selling clothes. She stayed there for about one hour between 11 am and 12 am. She knew the time because she looked at the clock at the bank. She saw the two accused come to where the clothes were being sold. She said they pestered Sister about T-shirts and finally Sister threw a box of T-shirts to them and they tried one on. She was angry at the attitude displayed towards Sister. She saw many people giving Sister the money for items which were purchased. The two accused were still there when she left.
James Bini is a store-keeper at Bereina Station. His shop is in the single building which also houses the Bank. He said that he saw the two accused where Sister was selling clothes all about 11.30 am. He also says that Allan Oa came into his store at about 5 pm and purchased two drinks. He said Allan Oa was sweating and looked hot. He knew him well. He knew it was 5 pm because he was keeping an eye on the time as he wanted to go home. He denied the proposition put to him in cross-examination that Allan Oa had never come to the store at that time.
Paul Arupu comes from Bereina and is self employed. He was working, building the new house for the Bishop. During his lunch break, he was sitting on his platform at his house, which is adjacent to the site of the house he was working on. Between 1 pm and 2 pm, he saw Marianno and Allan Oa walking along a track which runs between open space which cuts across the vacant land between the old Bishop’s house and the new house. They were about 40 - 50 yards away and were walking in the direction of the junction. Marianno was carrying something under his arm inside his shirt and had a small bush knife held along his arm. He then went back to work.
Later that day, he saw Allan Oa, Paul Arupu was standing on the floor (raised on pilons) on the new house and he saw Allan Oa walking fast along the outside of the fence of the Community School heading in a direction away from the junction and in the general direction of the card place. It was about 4.30 pm. He denied the proposition put to him that he had not seen Marianno and Allan Oa that day.
Philip Aume is a teacher at a local community school. He was giving some people a lift and two people were wanting to go to Waima. He stopped at the junction at about 1.30 pm and he saw two men walking from Bereina Station to the junction. They walked past his vehicle and along the highway towards To’orena Village and Waima. One of them was Marianno who at one stage was about 2 metres away. He then went on to Bereina Station. He left just before 4 pm and saw Sister’s vehicle on his way home.
Emmanuel Aume’s evidence I have already recounted in the main. He also gave evidence of returning to the scene the next day where he located the bloodstained rock which he identified to the Police as the rock he had removed from Sister’s lap. That rock was tendered as Exhibit E.
Allan Warupi is a villager from Pone Pone which is the village between To’orena Village and Bereina Station. Close to 4 pm, he and his wife were returning from their gardens and they saw, about 100 yards away, two men running through the bush in the direction of the road between the junction and the Bishop’s house. One was a bit taller than the other. One wore dirty white overalls and the other had no shirt but had what looked like a white T-shirt wrapped around his left hand and was carrying a knife in his right hand and was wearing long black trousers.
Helen Tapora is a housewife who lives at Bareina Station. She lives a few houses along from where Marianno lives. She was walking towards the hospital when when she saw Marianno walking along the fence at the front of the hospital and their paths crossed. She says Marianno was sweating and he had dust over his body. It was about 4.30 pm. Marianno walked past her and towards his house. He was wearing khaki-type trousers and an army-type T-shirt.
Earnest Naime lives at Bereina Station. At about 1 pm, he went to the store close to the snooker place and bought some cigarettes. He then went to the snooker place. There was no-one there. His brother, John Naime, Wesley from the Highlands and another man joined him and they played snooker until about 4 30 pm and then went home. He says that during the time from 1 pm to 4.30 pm, there was no-one else there and was certain that Marianno was not there during that time. He was asked whether Sebastian Simon, Marianno’s brother was there, and he said no.
Alan Filoua, is a young man aged about 17 or 18 years. He lives at Bereina with his father and is unemployed. At about 1 pm, he went to the card place. He sat down and watched people playing cards. He knew he went there about 1 pm because he saw people going back to work after lunch. At around 2.30 pm to 3 pm, he went on an errand to get K5.00 for one of the men playing cards. He was away for somewhere between 30 minutes and one hour and he came back and resumed his watching. He saw Allan Oa come to the card place at about 5.30 pm, he said it was a time when the sun was beginning to set. It was suggested to him that he was drinking alcohol and further that Allan Oa had been at the card place since around 1 pm. He denied both these propositions. He said that when Allan Oa came he stood for a while, when someone lost, he took his place and started playing.
Thomas Liku is the Station Commander at Bereina Police Station. He took charge of the investigation once he learnt of Sister’s death. After going to the scene and at about 5 pm, he began his investigation. He began to ask around. He had seen Helen Tapora and he then went to Marianno’s house and then to the snooker place. He saw Marianno. He asked him where he was between 3pm and 4.30 pm. Marianno told him he had been playing snooker with Paul Kuga. He left Marianno and on his way to the health Centre, he saw Paul Kuga. He asked him about Marianno’s statement that he had been playing snooker with him. As will be seen from Paul Kuga’s evidence, he was told that Paul Kuga had not been playing snooker at that time and had not seen Marianno that day. He returned to the snooker place and picked up Marianno. He saw Sebastian Simon later and had a discussion with him. He also arranged for clothing to be picked up from Marianno’s house. A K20.00 note was located in a jacket. An army T-shirt was located in a bucket of water.
Marianno had told him that he was playing snooker with Paul Kuga and Sebastian Simon. Sebastian Simon was not at the snooker place when he was talking to Marianno.
Later that evening, he went to Allan Oa’s house, he wasn’t there. Allan Oa was arrested the next day at a rugby match - he was amongst the residents, avoiding the Police.
He said that Paul Kuga was angry when he spoke to him about Marianno’s assertion that he was with him. He also said that when he first went to the snooker place and asked Marianno about his whereabouts, he said he was with Paul Kuga, Simon and Allan Filoua.
Paul Kuga is a driver with Bereina District Office. At 12 noon, he went to the snooker place. He played with some public service people and left at 12.30 pm and went to his house. He returned to work at 1 pm and stayed till 4.06 pm. He heard of the trouble and went to the hospital. On his way back, he saw Thomas Liku. He told him he had not been playing snooker with Marianno. In cross-examination, it was put to him that he’d been drinking. He denied this. He denied that he had seen Marianno or Sebastian Simon at lunch-time. Asked why he responded angrily to Thomas Liku, he agreed that he was angry but this was because of Sister’s death.
The evidence set out todate is the extent of the State’s case, with the exception of the view. Following the day of the view, the defence presented its evidence.
Marianno Wani Simon said that he arose at about 8.30 am. He got 80t from his mother to play snooker. He had a sore on his arm so he went to the hospital first and there he met Allan Oa. They left the hospital and went to where Sister was selling clothes. They tried on T-shirts but they were too small. They left. Allan Oa said he was going to play cards. He was going to play snooker. He went back to his house, had some tea, got his brother Sebastian to come to play with him. He arrived at snooker place at about 12 noon. Some of the people who were working were there, he and his brother stayed till 4 pm and then went back to the house. He saw people at the hospital, went to have a look, came back to the house, ate, washed, changed his clothes and went back to the snooker place. After a while the Police came and took him.
He said that he and Allan Oa didn’t pester Sister and that she handed the box of T-shirts to them to try on.
He said Paul Kuga was at the snooker place from 12.30 pm into the afternoon. He said that apart from Paul Kuga, Earnest, Oa, Telo and Roy and some others he doesn’t know were there.
He said that Thomas Liku only asked him his whereabouts after he was arrested.
He denied the allegations of the witnesses who said they saw him during the day.
In cross-examination, he admitted that he made false statements in his Record of Interview with the Police, particularly concerning whether he knew Allan Oa, who he disowned in the Record of Interview by saying he didn’t know him.
In re-examination, he was asked why he had lied in Record of Interview. He said, “I didn’t tell the Police, they might bring us to Court”. (p.44 transcript).
I thought it important to give Marianno an opportunity to express a view as to why the State witnesses would make false statements in Court about him. Apart from saying that he had once fought with Earnest Naime’s father in-law, he could give no reason as to why they would all give false stories.
Allan Oa Koroka said that he stayed at the village and that morning he arose and went to the hospital to get some medicine. He met Marianno there and went towards the store to where Sister was selling clothes. He tried on a T-shirt but it was too small. He told Marianno he was going to play cards. He went to the store near the snooker place where he saw his grandfather who asked him about doing some work in the gardens. He obtained K5.00 from his grandfather and then went to the card place. He stood for a while and finally got a place. He stayed there all afternoon until night fall and then walked back to the house.
He estimated that after talking to his grandfather for a long time, he got to the card place between 2 and 3 pm. He says he saw Allan Filoua when one of the men sent him on an errand to get money.
He denied that he had been seen by Paul Arupu.
In cross examination, he was asked about his false answers in his Record of Interview (Q & A 19 and 20) where he stated that he didn’t see Marianno that day and when he denied that he had been at the place outside the PNGBC where Sister was selling clothes. His reasons for making these false denials were:-
“I didn’t say his (Marianno’s) name because they would bring us to court together”
and,
“They might bring us to Court” (p.48 Transcript).
Other inconsistences contained in Q and A 21:
“Q21.  The Police witness female had stated that on the 21/11/86 saw you and Mariano went to Sister PERPETUAL (deceased) and asked her about the clothes in the box and you took one T shirt, colour yellow tried but small so you put it back and what are you going to say?
A.       I don’t know.”
and Q and A 27:
“Q27.  Did you meet anyone at the store?
A.       Yes, Steven Oa.”
were also put to him. He said in respect of Q. & A.21, “Yes (I lied), or else they might put us in jail for no reason”. In relation to Q & A 27, he said he had met his grandfather, not Steven Oa. (p.49 Transcript).
When asked as to why State witnesses would give false stories, he said in respect to three of them that they were “cross with me for nothing” and he claimed Allan Filoua was drunk. He said he didn’t mention his grandfather before because “they might mention his name for nothing”.
I asked Allan Oa why he didn’t give his “true” story to the Police and he was confused and didn’t give a coherent reply.
Iova Kaok lives at Bereina and works for DPI. He finished work at 12 noon. He went to his house for lunch, came back to his office at 1 pm and left to play cards. He waited until about twelve people came and then played until 6.30 pm. He said Allan Oa arrived at about 3 pm. He also saw Allan Filoua there and remembers him going away for about 30 minutes. After Allan Filoua went away, Allan Oa came. Late in cross examination, he said that he noticed Allan Oa when he won and that was the time the sun was setting.
I asked him why he didn’t give his story to the Police and he said they didn’t ask him. I also asked him again about when he noticed Allan Oa, because of the apparent inconsistency in his evidence.
“Q.     Is it true that the time you noticed Allan Oa was when the sun was going down and he won the cards?
A.       Yes.”
Oa Hau is Allan Oa’s grandfather and he is from To’orena Village. He said he was at the store near the snooker place at about 1 pm and he gave Allan Oa K5.00 to play cards. He said he left when the children went back to school.
Sebastian Simon lives at Bereina Station and is Marianno’s brother. He awoke and was boiling tea at the house when he says Marianno came back. They had tea, washed and went to the snooker place. They played until the money ran out and then he went back to the house and slept. Marianno came back later and told him to play snooker. They went back to the snooker place and later, the police came.
He says that when they went to the snooker place first, there were plenty of people there and Paul Kuga was one of them. He said Paul Kuga stayed for a long time. He doesn’t know what time it was when he went back the second time.
In cross examination, he said he slept for a time when back at the house. He said he didn’t see Earnest Naime at the snooker place but he did see Telo Koi. He also said that he didn’t hear about Sister’s death until the Police came to talk to Marianno.
I asked him why, if he was saying that Marianno was with him that afternoon, why he didn’t go and tell them so when Marianno was arrested. He said, “I didn’t remember anything, I was just staying” - “I didn’t think of going to Police” - “I don’t know” - (p.59 Transcript).
OBSERVATIONS AND COMMENTS ON EVIDENCE
It is clear from the evidence I have set out that there is an obvious conflict between the State witnesses and the defence case.
In resolving this conflict, there are a number of factors which I take into account. Clearly, both versions cannot stand together, that is, there is no way of considering the evidence which would make both compatible and equally believable.
The view which took place on the 2 July, 1987, gave me a good sense of the physical environment from which the evidence arose. The proximity of the various key locations strengthened my capacity to understand and appreciate the significance of the sightings alleged by the State witnesses. In terms of the likelihood of the scenario asserted by the State case, I considered that it was clearly possible to cover the distance required to commit the offence and be back in Bereina Station within the time limits prescribed by the State’s case.
There was no substantial or concerted attack made on the capacity of the State witnesses to identify the two accused. Indeed, I was left with unquestioned certainty as to the fact of identification. It was not put to any State witness that a mistake had been made or to put it another way, that they may have seen what they allege but that they made an error in identifying the two accused.
The State witnesses were all independent. There was no common linkage between them which may be suggested of some form of complicity to raise false allegations against the two accused.
As I have previously mentioned, there was no substainable challenge to any of them which may have been persuasive as to why they would not be telling the truth. They had no reason to lie.
The only State Witness whose evidence I cannot accept in its entirely is Vavine Tiu. I consider that she was prone to some exaggeration and was quite emotional when describing what I have termed, the ‘pestering’ of Sister by the two accused. This part of her evidence I reject, but as will be seen, this has no relevance to my overall findings.
Both accused gave sworn evidence. Marianno was quite committed to his version but I sensed a degree of uneasiness in some of his replies. He was quite calculating. I found his explanation of his false denials and false statements to the Police unconvincing. It seems to me that he would have every reason, knowing as he did that he was suspected of such a serious crime to tell the truth and raise his alibi immediately so that it could be checked by the investigators.
Allan Oa was less impressive than Marianno. I observed him closely. He was uncomfortable. He was sitting directly opposite Marianno and was regularly looking to Marianno in a way suggestive to me of the fact that he was seeking assurance that he was keeping to a consistent version with what Marianno had said. He was unconvincing in his reasons for telling lies in his Record of Interview. In his record of Interview which was held more than three weeks after the incident and by that stage, he knew he was a prime suspect. One could reasonably expect him to be pressing his version of events with vigour not denying such simple matters as whether he was with Marianno that day. He was totally incapable of dealing with the logic which followed from his assertion that he had told the Police both versions of his story. At the end of his evidence, he was left with little credibility.
In respect of both accused, there was no comprehensive or reasonable attempt to deal with the obvious difficulties raised by their previous false statements in any way that would persuade me that there was an acceptable explanation for such conduct. This was of central importance to their credibility and they both suffer from the delitirious impact that resulted.
Iova Kaok was seemingly of assistance to Allan Oa until it became clear that he only noticed him at the card place around sunset. This was most important and I made a point, by my own questioning, to ensure he was given every opportunity to clarify his position. This fact of the time Allan Oa was at the card game became consistent with Allan Filoua’s recollection.
Oa Hau was of little assistance. I formed the strong view that he was not credible. I find it hard to believe that he showed no interest in telling the Police previously, what he told me in court. There is also a clear discrepancy between the time he says he left the store, about 1 pm, and when Allan Oa says he left at between 2 pm and 3 pm after talking to his grandfather. It is also again relevant that when Allan Oa was giving his story to the Police on 18 December, 1986, he said he was at the store with Steven Oa, not his grandfather. I can think of no reason why he should say this when his grandfather would have been able to tell the Police he was with him. I am led to the conclusion that Oa Hau’s evidence is not to be believed.
Sebastian Simon suffered from similar problems. If he was with Marianno, I find it totally unreasonable to accept that although he knew his brother was being falsely accused (accepting his version), he would make no attempt to clear him by the simple step of telling the Police. The real flaw in his story becomes apparent when one considers his evidence that he didn’t know of Sister’s death until the Police first came to Marianno at the snooker place. Marianno, it will be recalled, said that in the afternoon, he stopped playing about 4 pm. He went back to the house but saw the commotion at the hospital. He went over and saw Sister’s body being taken in. He then went home, ate, washed and got Sebastian and went back to the snooker place. I find it inconceivable that Marianno would not have told him of such an important event as the Sister’s death. I was left with little confidence in his evidence, both as to content and veracity.
Although I do not place much reliance on the fact that other seemingly relevant witnesses for the defence were not called, for example, Marianno’s mother and sister and the various other persons alleged to have been at the snooker place and the card place, the failure to call Telo Koi deserves mention. Before doing so, however, I accept that it is often difficult for the defence through the mere logistical hurdles to make appropriate arrangements. In this case, however, the Court travelled to Bereina and such witnesses would have given evidence if necessary at the time. No such application was made.
According to Marianno, (p.30 transcript and record of interview Q & A 59) and Sebastian Simon (p.58 transcript), Telo Koi was at the snooker place when they say they were there. He was not called by the State although he was listed in the indictment. Importantly, however, he was a witness listed on the indictment which meant that the State would have to produce him if so requested by the defence. No such request was made.
Before concluding, I wish to make one observation regarding certain evidentiary matters which came before me which by their nature may be seen as prejudicial to Marianno. These were relating to Marianno’s character and are contained in Paul Arupu and Philip Aume’s evidence and in Marianno’s record of interview. None of these matters were considered by me in my assessment of the evidence and I was careful to specifically exclude them from my consideration. Such a course is available to a judge sitting alone, but would be difficult for a jury so to do, because of their prejudicial nature. In pointing these matters out to defence counsel, no application was made that I should adopt any other course than that which I have disclosed.
Apart from the observations I have made, I conclude that I accept the evidence of the State witnesses and I reject the version of events alleged by the defence.
FINDINGS OF FACT
As a tribunal of fact and in view of the exposition of the evidence and my comments and observations, I find that I am satisfied beyond reasonable doubt as follows:-
1.       Marianno and Allan Oa were at the place where Sister was selling clothes at about 12 noon. They were there for sometime, they tried on T-shirts and they had ample time to observe the cash transactions taking place.
2.       Between about 1 pm and 1.30 pm, they were walking along the track between the old Bishop’s house and the new Bishop’s house heading in the direction of the junction. Marianno was carrying something which he was concealing under his shirt.
3.       At about 1.30 pm, they were at the junction and walking in the direction of Waima, that is towards the scene of the incident, along the Hiritano Highway.
4.       Sister was assaulted and robbed sometime between 3.45 pm and 4 pm.
5.       Sister died shortly thereafter, either on the way to the hospital or on arrival. She died from the impact on her skull of the rock which was thrown.
6.       At about 4 pm, two men were seen fleeing through the bush in the direction of Bereina Station.
7.       Shortly after 4 pm, Marianno was seen coming from the direction of the bush near Pone Pone village, along the fence of the hospital and heading towards his house. He looked to be sweating and had some dust on him, although I don’t find he was covered with dust.
8.       Allan Oa was at the store alongside the PNGBC at about 5 pm. He was sweating.
9.       Allan Oa was seen at about the same time walking at a place close by the store, along the fence near the community school, heading in the general direction of the card place.
10.     Allan Oa arrived at the card place between 5 pm and 5.30 pm.
11.     Marianno went home and changed and went to the snooker place and arrived there at about 1 pm.
12.     When first questioned by the Police as to his whereabouts, Marianno said, he was with Paul Kuga which was untrue.
13.     Marianno had not been at the snooker place during the afternoon.
14.     Marianno and Allan Oa had the opportunity and the motive to commit the offence.
15.     Both Marianno and Allan Oa gave false denials as to their whereabouts and to their knowledge and friendship with each other.
THE LAW
As I indicated at the outset, the State’s case is circumstantial. The State submits that the circumstantial evidence provides clear proof that the accused had the opportunity and the motive to commit the offence. It is further submitted that their false denials and false statements made out of Court strengthen the case and on the whole of its case, so considered, I should draw the inference that the two accused are guilty of the offence as charged.
The guiding principles on circumstantial evidence are well settled. The principles are finely stated by Miles, J. in State v. Morris (1981) PNGLR 493 at 495 where the following statement appears:-
“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. The Queen (3):
“When the case against accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King (1911), 13 C.L.R. 619 at p.634. 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 a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen (1960), 102 C.L.R. 584 at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. The Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.”
It is clear however that it is the tribunal of fact that has to decide whether the guilt of the accused is the only rational inference that the circumstances would enable it to draw. It should be obvious that a jury should not be told that merely because there are a number of competing inferences then they are bound to acquit. It is for them to decide which inferences they draw and which they reject and which inferences they regard as reasonable and which they regard as mere conjecture, whether those inferences are in favour of the prosecution or in favour of the accused, if either.”
This approach was adopted and approved by the Supreme Court in Paulus Pawa v. State (1981) PNGLR 498. As I indicated in State v. Jupui Kapera (unreported N567), I adopt this statement as the law in Papua New Guinea.
From an examination of this principle, two questions immediately arise:-
1.       Does the evidence raise a reasonable and rational inference as to guilt?
and
2.       Is the evidence inconsistent with any reasonable hypothesis other than guilt of the accused?
In relation to the first question, I am satisfied that the evidence does allow such an inference to be drawn. As to the second question, no alternate hypothesis has been placed before me. In this case, the accused sought to refute the State case by raising alibi, which as I have stated, I do not accept. As a result, no other propositions, such as an assertion that they were on their way to To’orena village to work or visit friends was proposed. On the evidence, I can find no other reasonable hypothesis which would detract from my leaning to draw the inference of guilt against the accused.
That is not the end of the mater. The issue of the accused’s false denials and false statements needs to be addressed. Great care must be taken in a case such as this concerning the use to be made of false statements. As a general proposition, it must be accepted that a false denial does not prove guilt. For good reason, it has been said that people confronted with allegations of wrong doing may have other reasons not to tell the truth, apart from hiding their guilt. For a useful discussion of this area, particularly as it relates to corroboration, see the comments and cases noted by Pratt, J. in John Jaminan v. The State (No.2) (1983) PNGLR 318 at 325 -327. See also Cross on Evidence, 2nd Australian Edition, p.205, 206.
In this case, the false statements by their nature and content operate against the accused in two ways.
First, the statements having been shown to be untrue corroborate an incriminating feature of the evidence. That feature is the actions of the two accused as having the opportunity to commit the offence and importantly their behaviour subsequently seeking to remove themselves from any implications in the events. An example of this is the fact that they denied even seeing each other that day when being questioned by the Police.
Second, the fact that they have made some false statements of the nature described is in my view, given that they had no reasonable, sensible or persuasive reason to do so, can only lead, in common sense, to an adverse inference. I consider that their falsehoods were designed solely to escape the natural and logical conclusion which they knew could be so readily drawn from the independent evidence which they were aware of at the time they gave their Records of Interview and which printed directly to their guilt. While this approach is not, nor should it ever be, conclusive of guilt alone, it is a factor which can be relied on to strengthen the case against the accused.
Cases such as this, mounted against the two accused, contain obvious difficulties in resolution. I am aware that great care is needed especially where the case rests on circumstantial evidence which by its nature requires inferences to be drawn. I have paid great attention to the various factors which this case raises and at the end of my consideration, I am of the firm view that the inference of guilt is one that I am entitled to draw on the evidence and the law as I conceive that it applies to this case.
VERDICT
I find the case against the two accused proved beyond reasonable doubt. Marianno Wani Simon and Allan Oa Koroka are found guilty of the offence of murder of Sister Perpetuele Auchin, as charged.
Lawyer for the State: A/Public Prosecutor
Counsel: Sarea Lausi
Lawyer for the Accused: Public Solicitor
Counsel: Luther Wenga.