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State v Dire [2001] PGNC 32; N2178 (10 December 2001)

N2178

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 752 of 2000

Between:

THE STATE

And:

KWALE DIRE

WAIGANI: GAVARA-NANU, J

2001: 7th,8th, 20th August, 10th December

CRIMINAL LAW – Evidence – Circumstantial evidence – When to draw guilty inference - Appropriate test – Lies made with consciousness of guilt – Lies pointing to guilt - Inference to be drawn from the overall view of all the evidence presented to the Court.

CRIMINAL LAW – No Case Submission – Where accused could be lawfully convicted on the evidence at the close of prosecution’s case – Accused must be called upon to answer to the Charge

CRIMINAL LAW – Practice and Procedure - Contradictory statements by a witness – Cross examination of a witness on previous statement – Burden of proof - Evidence Act, (Ch. No 48) s.22 – Evidence proving the statement must be cogent and convincing.

CRIMINAL LAW – Evidence - Incriminating factual evidence including statements by witnesses and other facts admitted in evidence against the accused by consent – Application of s.589 of the Criminal Code, Act. Chapter No. 262 - Accused cannot later deny or challenge such evidence – Court has no power to reject such evidence.

The accused was charged with murder, contrary to s.300 of the Criminal Code Act, Chapter No. 262. The deceased was the sister of the accused’s father inlaw. The accused, his wife and child, his wife’s parents and the deceased all lived together in one house in Erima. There was no eye witness to the murder. The evidence against the accused was all circumstantial.

In the morning of the murder, the accused woke up early and went somewhere. When he returned to the house at about 8.00 am, he told his father in law that he drove a work vehicle to Bomana, but the vehicle broke down so he left it there with the other workers.

The deceased also got up early and went to her garden near the airport but not very far from their house. The deceased was brutally murdered near her garden and never returned to the house that morning.

Prior to the day of the murder, the accused had threatened to kill either the deceased or his mother in law if his son got sick. He accused them of practicing black magic on his son. The child was sick but had recovered before the day of the murder. The accused assaulted the deceased and his mother in law when his son got sick.

Very soon after the deceased was killed; the accused was met by a neighbour as he was running to the main road. He told the neighbour that he was going to work. He instead went to 4 Mile and told his brother that he was going to Chimbu for a Court case. He also told his brother that the deceased was a sorcerer and she turned into a dog so he hit her with a coconut shell, and was in great pain and left her in his house, so if the brother had time, he should visit her and take her to the hospital. The accused caught a plane that same day and flew to Chimbu.

The accused told the police in his Record of Interview that he told his wife that he was going to work that morning as he left for 4 Mile. He did not tell her about going to Chimbu.

The accused also told the police in the Record of Interview that he resigned from his work in January, 2000.

Held:

(1) When evidence is all circumstantial; the test is whether the only rational inference that the evidence can enable the Court to draw is that the accused is guilty; if such inference cannot be drawn then the accused is entitled to be acquitted.

(2) In a No Case submission, where at the end of the prosecution’s case, the accused could be lawfully convicted upon the evidence as it stood, the accused must be called up to answer to the charge.

The State -v- Paul Kundi Rape [1976] PNGLR 96 and May -v-O’Sullivan ([1995] HCA 38; 1955) 92 CLR 654 – applied.

(3) When drawing an inference from circumstantial evidence, the inference must be drawn from the overall view of all the evidence before the Court. Such inference cannot be drawn from isolated pieces of evidence.

The State –v- Tom Morris [1981] PNGLR 493,

Paulus Pawa –v- The State [1981] PNGLR 498 and

Leslie Alfred Camilleri [2001] 119 A. Crim.R.106 – applied

(4) When deciding whether the lies told by the accused emanate from consciousness of guilt, the test is whether such lies were made deliberately and are controverted by other material evidence relevant to the issue of guilt.

Allan Oa Koroka -v- The State [1988-89] PNGLR 131- distinguished.

(5) Party cross-examining a witness on his previous statement under s.22 of the Evidence Act, Chapter NO. 48, has the onus to prove that the witness did make the statement with cogent and convincing evidence, if the witness denies making such statement.

(6) Incriminating factual evidence admitted by consent under s.589 of the Criminal Code Act, Chapter No. 262 cannot be later denied or challenged by the accused and the Court has no power to reject such evidence.

The State –v- John Bill White (No.1) [1996] PNGLR 262- referred to.

Cases cited:
The State -v- Paul Kundi Rape [1976] PNGLR 96.
The State -v- Tom Morris [1981] PNGLR 493
Paulus Pawa -v- The State [1981] PNGLR 498
Allan Oa Koroka -v- The State [1988-89] PNGLR 131
The State -v- John Bill White (No.1) [1996] PNGLR 262
Davinga -v- The State [1995] PNGLR 263

Other cases cited:
R -v- Colling [1976] 2 NZLR 104
May -v- O’Sullivan [1995] HCA 38; (1955) 92 CLR 654.
Leslie Alfred Camilleri [2001] 119 A.Crim.R.106

Counsel:
Ms Zurenuoc for the State
Mr F. Pitpit for the Accused

10th December 2001

DECISION

GAVARA-NANU, J.: The accused is charged that he on 7th February, 2000, murdered one Monica Duina outside the Erima settlement in the National Capital District, contrary to s.300 of the Criminal Code Act, Chapter No. 262, (‘the Code’).

Factual Background

The facts are that on 7th February, 2000, the accused got up early and went somewhere. By about 8.00 am, he returned to the house. He was living with his wife, the deceased and his wife’s parents, Peter Taube and his wife Ogan Yoanna. The deceased was Peter Taube’s sister.

The State’s case consisted of the evidence by Clara Clive and Ogan Yoanna, who both gave sworn evidence and the statements by Clive Gideon, Joe Puana, Peter Taube, Joe Mickey and Konii Peter, which were tendered by consent, pursuant to s. 589 of the Code. Besides these were the accused's pidgin Record of Interview and its English translation and the affidavit sworn by Dr Phillip Golpak which were also tendered by consent.

Clara Clive was the first to give evidence for the State, she said, in the morning of 7th February, 2000, she was in
her house, which was near the house the accused lived in, when she heard a scream. When she came out of her house to investigate, she met the accused’s wife, who said something to her which implicated the accused on the death of the deceased, she did not see the accused at that time. Clara, her husband Clive Gideon and some others went to look for the deceased in her garden nearby, based on what the accused’s wife told Clara. They searched for the deceased in her garden but did not find her. Others who joined the search later found the deceased’s dead body in the nearby bush among the tall grass.

The second State witness to give evidence was accused’s mother in law, Ogan Yoanna. She said, in the morning of 7th February, 2000, she was getting ready to go to her garden which was near the airport, when she saw the accused coming back from somewhere. Shortly after, she and her husband Peter Taube, went to their garden. She said as they were going to their garden, they passed the deceased who was working in her own garden which was in the same area but some distance away from their garden. The deceased was planting some corns and sweet potatoes, when they saw her. Sometime after arriving in their garden, she heard the deceased scream several times calling her husband’s (Peter’s) name. She and her husband ran to the deceased’s garden where they thought the deceased was screaming from, but when they arrived at the garden, they could not find the deceased. Later, they found the deceased’s dead body with the assistance of other neighbours some distance away from her garden.

The deceased’s body had multiple stab wounds. A couple of stones and a metal pipe were found lying next to the body. The body was seriously beaten and lost a lot of blood.

Both Clara Clive and Ogan Yoanna told the Court that, the accused had threatened the deceased and Ogan Yoanna many times before the incident saying, if his child was sick, he would kill one of them. Ogan Yoanna also told the Court that every time the accused got drunk, he accused her and the deceased of practicing black magic. She said the accused also accused her and the deceased of practicing sorcery on his son when the child was sick. The accused and his wife only had one child.

Clara told the Court that the accused’s child was sick but had recovered before the day of the incident. She also told the Court, that the accused physically assaulted the deceased and Ogan Yoanna, after his child got sick.

According to Ogan Yoanna, when she went to the garden in the morning of 7th February, 2000, the accused’s wife was in the house, but the child was outside. By then the accused had already come back from somewhere.

Clive Gideon stated in his statement that between 8.00 am and 9.00 am, he was sitting next to a store near the main road, later, as he was walking back towards his gate, the accused ran past him, so he said to him, "Hey Tambu?" to which the accused replied, "Mi go wok" which in English means, ‘I am going to work’ and kept on running towards the main road. Mr Gideon later joined the search for the deceased, after the accused’s wife said something to him and others regarding the deceased, which implicated the accused on the death of the deceased. This was soon after the accused ran to the main road.

Peter Taube’s statement says that on the day of the incident, the accused came back to their house from somewhere at about 8.00 am. When he saw him, he said to him, in pidgin "Hey taim bilong wok na yu olsem wanem?" which in English means: ‘Hey time for work and what is the matter with you?’ to which the accused replied, "Nogat mi kisim wanpela wok kar igo long Bomana na kar I bagarap na ol i wok istap na mi kam" which in English means: ‘No I took a work vehicle to Bomana and the vehicle broke down so, I came, others are still working there’. Sometime later, Peter Taube and his wife left for their garden.

I have given English translations of what was said between the three main State witnesses, namely Peter Taube, Clive Gideon and Clara Clive and the accused because they indicate the conduct and the behaviour of the accused in morning of the murder.

Evidence and the Law

The evidence against the accused is circumstantial. There is no eye witness to the crime. The State argues that the accused had a motive to commit the crime because he had in the past said, that he would either kill the deceased or Ogan Yoanna if his child got sick. The evidence is that the child was sick but had recovered at the time of the offence. There is also evidence that the accused had assaulted both the deceased and Ogan Yoanna, prior to the incident when his child was sick.

Witness Clara Clive was cross examined by the defence counsel about a piece of evidence in her statement where she purportedly said that she actually saw the accused walking past her very fast, and said in pidgin "Taim pinis ia mi go long wok" which in English means, ‘It is already time, I am going to work’, and the crucial part of this statement is where she is alleged to have said that she saw that the accused’s trousers had mud and blood stains. The defence tried to discredit her on this point because, none of the evidence from the other State witnesses could confirm it. She however, denied making such statement, she said, it was probably her husband’s. She said, when the police first interviewed her, they wrote her statement down and later typed it, but the statement was never read back to her. She said, she went to the police station twice to sign her statement. She eventually signed the original hand written statement. When the typed statement was put to her, she said the signature in the first page was hers but was not sure about the signature in the second page. She was adamant that the portion of the statement upon which she was cross-examined was probably her husband’s but the police may have put it in her statement. She said her statement was not read back to her by the police before she signed it. She was not moved on this point.

Section 22 of the Evidence Act, Chapter No. 48, requires strict proof of any contradictory statement, by the party alleging it. Section 22 of the Evidence Act, provides: -

22. Contradictory statements of witness

A witness –

(a) on his examination in chief; or
(b) under cross-examination,

may be asked in any legal proceedings whether he has made a statement relative to the subject matter of the proceedings that was inconsistent with his present testimony (the circumstances of the alleged statement being referred to sufficiently to designate the particular occasion), and if he does not admit that he made the statement proof may be given that he did in fact make it. (my underlining)

In this case, the defence has not produced any evidence to prove that Clara did in fact make the statement she is alleged to have made. The onus is on the defence as the party alleging it to strictly prove that the statement was made by Clara. The evidence proving such statement must be cogent and convincing. The defence has failed to discharge that onus. Clara having denied making the statement, the defence should have called evidence as required by s.22 of the Evidence Act to prove that she made the statement, to discredit her, but they did not. That being the case, the matter cannot be taken any further for the defence. I therefore cannot make any adverse conclusions against Clara Clive’s credibility.

At the close of the prosecution case, the defence made a ‘No Case’ submission. I ruled against that submission, because I found that the accused could be lawfully convicted upon the evidence at it stood at that stage of the trial. See, The State -v- Paul Kundi Rape [1976] PNGLR 96, at p.97, where the Court adopted the principle stated by the High Court of Australia in May -v- O’Sullivan [1995] HCA 38; [1955] 92 CLR 654 at p.658. I therefore ruled that the accused had a case to answer. The Court had no discretion but to call on the accused to answer to the charge.

The defence did not call evidence, and the accused elected to remain silent. The only document, which the defence tendered for it’s case was the statement by Clara Clive which has been discussed above. That statement is of no assistance to the accused because Clara denied making the portion of the statement she is alleged to have made and no evidence was called to prove that Clara made that statement. This means, all the uncontroverted incriminating evidence against the accused remain unchallenged by the accused.

In cases where evidence is circumstantial, the test is - Is the only rational inference that all the evidence can enable the Court to draw is that the accused is guilty? If the accused’s guilt cannot be inferred from such evidence then the accused is entitled to be acquitted. The necessary inference, must be drawn from the overall view of all the evidence before the Court, see The State –v- Tom Morris [1981] PNGLR 493, which was later affirmed by the Supreme Court in Paulus Pawa -v- The State [1981] PNGLR 498. See also Leslie Alfred Camilleri [2001] VSCA 14; [2001] 119 A Crim. R. 106.

I must therefore look at the overall evidence before me; some of which I have already discussed above, in deciding what inference I should draw.

Two other evidence tendered by the State, are the doctor’s report and the Record of Interview. The doctor’s report shows that the deceased suffered six stab wounds on the face and on both her left and right sides. She was also stabbed three times on the side of the left ear. Her jaw was fractured. As the result of all these wounds, she lost a lot of blood. The death is not in dispute nor is the cause of it. But what is in dispute is the perpetrator of the crime. The accused has denied the charge. There is no doubt in my mind that, whoever inflicted the wounds intended to at least cause grievous bodily harm to the deceased. The injuries were obviously inflicted with determination and callousness.

In the Record of Interview, the accused said - at about 7.30 am on 7th February, 2000; he and his child went to a creek to wash. After they washed, they went back to their house to change clothes, while he was changing clothes, he heard his son crying in the kitchen, when he went to check, he saw a black dog pulling his child’s shirt by the collar, so he got a coconut shell and hit the dog. The dog then ran into the garden. He said, at that time, his wife told him that the dog was actually a sorcerer and told him to kill it. He said, while he was talking to his wife, the deceased came out of the garden and went to the accused and his wife. The wife then told the accused that, the deceased went to the house because he hit her with the coconut shell. The deceased did not talk to them, she just went straight into a room. The accused then told his wife to go and see the deceased in the room. That time the accused was outside the house. When his wife came out of the house, he told her to keep any eye on the deceased and told her that he was going to work and left.

The accused said, it was about 9.00 am, when he left the house and went to 4 Mile. This time is consonant with the time given by Clive Gideon who said, he saw the accused ran towards the main road about that time.

The accused also stated in the Record of Interview that at 4 Mile, he went and saw his brother and told him that he was going to Chimbu for a court case. He also told his brother that the old lady was possessed by demons and turned into a dog and he hit her and was in pain in the house, so if his brother had time, he should go and see her and take her to the hospital. The accused was referring to the deceased. The accused then went to the airport and caught a plane to Chimbu.

The accused also told the police in the Record of Interview that he resigned from his work in January, 2000.

From the foregoing, it is clear that the accused had told concocted lies, for instance, in the morning of 7th February, 2000, he told Peter Taube, his father-in law, that he took a work vehicle to Bomana and the vehicle broke down, and left the others working there. He also told his wife and Clive Gideon that same morning that he was going to work. He told lies to them because he did not go to work that morning and he had already resigned from his work in January of that year according to what he told the police in the Record of Interview. He also told lies to his brother at 4 Mile that the old woman was in pain in the house after he hit her when she turned into a dog, because by that time, the deceased was already killed and was lying dead in the bush. He also told lies to the police in his Record of Interview that the deceased went back to the house from the garden and was in the house with his wife when he left for 4 Mile. The evidence is that the deceased never returned to the house after going to her garden because she was killed in the bush near her garden.

The Record of Interview and the statements by Peter Taube and Clive Gideon form part of the State’s case against the accused. They were tendered with the consent of the accused. This procedure is allowed and regulated by s. 589 of the Code, which provides:

s.589. Admissions

An accused person may admit in the trial any fact alleged against him and the admission is sufficient proof of the fact without other evidence. (my underlining).

Pursuant to s.589 of the Code, the Record of Interview and the statements by Peter Taube and Clive Gideon are admissible evidence against the accused. In The State –v- John Bill White (No.1), [1996] PNGLR 262, Doherty J. held that where evidence admitted pursuant to s.589 of the Code is likely to prejudice the fair trial of the accused, and the Court has some doubt on the evidence before it, the Court should direct other witnesses to be called to clarify the issues. She referred to this as the best evidence rule. Her Honour referred to and adopted the comments by the Supreme Court in Davinga -v- The State [19454] PNGLR 263. In The State -v- John Bill White (No.1) (supra), Doherty J, at p.266. said:

"....... I particularly stress this point as the supreme Court in Davinga -v- The State (supra) ruled that statements that are tendered by consent are tendered under the provision of s.589 and are considered as admission by an accused person. The Supreme Court stated "This tendering of evidence by consent is provided for in the Criminal Code s.589". An accused person may admit on the trial any fact alleged against him, and the admission is sufficient proof of the fact without other evidence "but" A trial judge should always consider carefully whether there can be no prejudice to a fair trial by the admission of such evidence"

The Supreme Court in Davinga -v- The State (supra) simply warned the trial Courts to beware of evidence admitted under s.589 of the Code, which might prejudice the fair trial of an accused.

I think if the trial Courts have to exercise their discretion at all to look into evidence or facts outside of those admitted under the provision, it must only be in very exceptional and clear cases where it is necessary for the Courts to ascertain facts to clarify the evidence admitted under the provision. The Courts have no power to reject such evidence or facts, because they are received into evidence by operation of a statutory provision.

The legislative scheme and intention behind s.589 is to facilitate efficient and expeditious disposition of a case. Therefore if the Courts get into the practice of looking into evidence or facts outside of those admitted under the provision which would alter the nature of the evidence or fact admitted, the purpose and the legislative intention behind the provision would be lost and the provision would not have the desired effect.

Evidence admitted under s.589 are invariably by the accused with legal representation who are appropriately advised and instructed by their lawyers before making such admissions. The Courts’ discretion is therefore limited, if not, fettered. After all, the provision says that such evidence or fact require no further proof.

In this case, I cannot see the accused been prejudiced by any of the facts or evidence admitted under s.589 of the Code. He is represented by a competent counsel and must have received appropriate advise before admitting such facts or evidence.

Can I infer from the overall view of the evidence before me that the accused is the person who killed the deceased and is therefore guilty of the crime with which he has been charged? On this point, the defence cited the case of Allan Oa Koroka -v- The State [1988-89] PNGLR 131, to help me decide the issue. In that case, the victim; a catholic nun was driving towards Waima village from Bereina station, when she was hit on the head by a rock thrown by someone that smashed through the windscreen. The victim died at the Bereina hospital from head injuries. Evidence showed that two men who wore white overalls and masks went to the vehicle after it rested after the victim was struck. The two men then removed money from the vehicle. Those two men were never identified.

The evidence against the accused was only circumstantial; these included the two accused been seen where the victim had been selling clothes and had seen the victim collect money before the incident. One of the appellants was seen carrying something which he was covering. The two were also seen walking towards Waima at about the time the victim was assaulted which was about 4.00 pm, and two men were seen fleeing through the bushes towards Bereina. One of the appellant was seen coming from the direction of the Bereina hospital, he was sweating and had some dust on him. The appellants were convicted.

The trial judge said at p.140:

"That fact that they made some false statement of the nature described is in my view, given that they had not 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 independent evidence which they were aware of at the time they gave their records of interview, which pointed directly to their guilt."

The Supreme Court by majority held that the false statements were such that the guilty inference could not be safely drawn. The majority said every care must be taken before convicting on the basis of false statements because, false statements can be made for a variety of reasons, not necessarily because of guilt. In that case, the appellants had explained under cross-examination that they made false statements because of fear of being taken to court for no good reason. The Supreme Court cited R -v- Colling [1976] 2 NZLR 104 at page 116 where McCartley P said.

"....... statements by a defendant, when and only when proved to be lies by other evidence independent of the complainant or their own inherent improbability, may be corroborative if they are attributable to a sense of guilt: they may be regarded as operating as implied admissions proceeding from the speaker’s consciousness of guilt. But there are often other possible explanations for lies, such as fear of facing and unjust accusation of guilt if suspicious circumstances are admitted".

But what about the lies the accused told in this case? Can the accused’s guilt be safely inferred from those lies? And are there other independent evidence which can corroborate the accused’s lies to point to his guilt?

I find the circumstances of this case different to those in Allan Oa Koroka’s case; in that, in this case, the accused did not only tell lies about his work but in other aspects of his evidence as well, for instance, although he said in his Record of Interview that he left the deceased with his wife in their house, the evidence shows that the deceased was already dead before he left to go to 4 Mile and his wife had already gone with Clara Clive to search for the deceased’s body.

Further more, according to the Record of Interview, the accused admitted to his brother at 4 Mile that he had assaulted the deceased. That was just before he left for Chimbu. He told his brother that his wife told him to kill the deceased because she was a sorcerer who had turned into a dog. These features clearly make this case distinguishable from Allan Oa Koroka’s case. More to these, was the fact that the accused had on many occasions said that he would kill either the deceased or Ogan Yoanna. He had accused them of practicing sorcery on his son. He threatened to kill either one of them if his child got sick and whenever he was drunk. There is evidence that he assaulted both the deceased and Ogan Yoanna, when his child was sick. At the time of the offence, the child had just recovered from his illness. He therefore had the necessary motive to commit the crime.

On the day of the incident, he said, he and his child went to water or creek and washed. This is critical because the only water or creek they could go and wash is from the drain water towards the airport, from his house, which is also where the deceased’s garden was. He was therefore somewhere near where the deceased was at the material time. He and his son then came back and while he was changing, he heard the child crying in the kitchen, when he looked, a black dog was pulling the child’s shirt by the collar. That was when he attacked the dog. He said the dog was in fact the old woman who died or the deceased. It is clear that the accused invented the story about the black dog. A deliberate and a concocted lie.

To my mind the only reasonable and logical inference I can draw from all the false statements the accused made is that at the time he made these statements, he knew that the deceased was already dead and that he was responsible for that death, he therefore attempted to divert his involvement in the crime with these lies. The false statements were made due to his guilty conscious of the crime he committed.

The lies were made very deliberately and calculated and they relate to the material issue of guilt, see Leslie Alfred Camilleri (supra).

The other factor that weighs against the accused is that, he did not tell any of his family members including his wife that he was going to Chimbu for a Court case. If he could tell his brother at 4 Mile, I cannot see why he could not at least tell his wife that he was going to Chimbu. The relationship between him and his wife was normal and cordial. There is nothing to suggest otherwise. In my opinion, the accused’s conduct and the movements that morning were of a man who was obviously in a hurry to get away from his crime.

He also made contradicting statements in his Record of Interview, for instance, he first told the police that he told his wife that he was going to work, but later told the police in the same Record of Interview that he had resigned from his work in January of 2000.

Running out of the gate to the main road and telling Clive Gideon that he was going to work, when he in fact was not, and soon after the deceased had been murdered must also point to his guilt.

As noted, the accused had the opportunity to commit the crime because by his own admission, he had been to the area where the deceased’s garden was and where the deceased was before the murder. He was in that area about the time of the murder and before he ran to the main road.

From all these, I find that I can safely conclude that the accused is the one who killed the deceased; and I so find. The accused is therefore guilty of murdering one Monica Duina on 7th February, 2000.
___________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor