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State v Nicholas [2002] PGNC 68; N2270 (19 June 2002)

N2270

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 404 OF 2002

THE STATE

-v-

LASI PALE NICHOLAS

Wabag : Jalina, J.
2002 : 13th, 18th & 19th June

CRIMINAL LAW – Evidence – Wilful Murder – Circumstantial Evidence – Accused alleged to have killed a 6 year old stepson by pushing him into a fast flowing river – No eyewitnesses – Evidence of history of child abuse – Conflict in evidence of prosecution witnesses and the accused – Both counsel failing to challenge respective witnesses’ evidence - Whether accused’s words and conduct consistent with guilt – Inferences to be drawn – Criminal Code s.299 (1).

Papua New Guinea cases cited:
Paulus Pawa –v- The State [1981] PNGLR 498.

Counsel:

S. Kesno for the State
P. N’dranoh for the accused

19th June 2002

JALINA, J: This accused has been charged that she on 29th October 2000 at Sakarip Village, Wabag in the Enga Province wilfully murdered one Brian Nicholas who was then aged about 6 years.

Following her plea of not guilty, all the evidence for the prosecution were tendered by consent of Defence Counsel except for Kambuas Kainakali whose statement was tendered by consent but was subjected to cross-examination after a brief evidence in chief. In the course of Kambuas’ evidence, the Court visited the scene of the alleged crime.

The accused gave part of her oral evidence at the scene of the alleged crime at Sakarip and completed it in court yesterday.

From all the evidence adduced by both the prosecution and the defence, it is clear that there is no direct evidence. That is that no one saw her throw or push or did whatever to the deceased except of course the Almighty God who knows and sees everything. So as correctly pointed out by both Counsel, the case against the accused is based on circumstantial evidence.

The law on circumstantial evidence is as enunciated by the Supreme Court in Paulus Pawa –v- The State [1981] PNGLR 498, which is that when the case against an 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.

In Papua New Guinea we do not have juries so the judge performs both functions. So I have to decide on the basis of the circumstantial evidence before me whether that evidence is such that no other reasonable hypothesis than the guilt of the accused can be inferred.

So I propose to consider the defence aspect of this case as well as the prosecution aspect of the case at the same time. May I also point out that as correctly stated by both Counsel, the prosecution and defence evidence are in direct conflict in the sense that what the prosecution witnesses allege in their respective statements the accused has denied in her evidence.

The first prosecution evidence that tends to provide some link in the chain of circumstances and events that may lead to the accused being the perpetrator of the crime is from the accused’s husband Phlilipus Nicholas.

Apart from speaking of being with the accused, the deceased and their young daughter that evening and leaving the house to look for betelnuts after they finished their meal, he speaks of the accused behaving strangely that afternoon and also prior to that of her speaking of the deceased constantly going to the Lai River as well as her mistreating the deceased after she gave birth to their daughter and learnt of the deceased’s mother giving the deceased some money.

He goes on to speak of the accused’s mistreating of the deceased being so bad that he had to take the boy to one of his sisters in the Ambum area. Whilst the evidence would appear to support the charge in so far as the accused’s state of mind and conduct may be concerned, the prosecution failed to put that aspect to the accused during cross-examination.

The prosecution also failed to call Philipus Nicholas’ sister with whom he left the deceased in the Ambum area to give evidence to support Nicholas’ evidence about mistreatment by the accused of the deceased resulting in him taking the deceased to her.

The next prosecution witness, who is also a key witness, was Kambuas Kainakali. He speaks of being in his house that day whilst it was raining and looking out from his house and seeing the accused holding the deceased by the hand and going out of the fenced area to the road leading to the Lai River. The accused then returned 10 minutes later shivering and telling him that the deceased was in the house but was not there anymore. He then forms the opinion that the accused pushed the deceased into the river and runs to the river and raises the alarm. It was getting dark at that time. The accused denied going in front of Kambuas’ house and also denied holding the deceased as well as saying what he said she said.

The defence failed to put to this witness the accused’s side of the story when the Court visited the scene last Thursday including the failure to put to him the accused’s assertion that there was a track near the toilet that the deceased usually took to go to the Lai River as well as the accused’s assertion that she never went to the area in front of his house that afternoon holding the deceased’s hand.

The prosecution also failed to challenge the accused on those aspects as well as the aspect about her husband hearing a call about his son having gone missing and not being told about it by the accused when she went to the main road and the video house in search of the deceased.

There is then the evidence through the statement of Helen Paipi. She speaks of the accused saying something about the deceased’s constant trips to the river and the risk of him falling into the river which the accused mentioned to her in front of the door to Kambuas’ house where she was. She also speaks of being with Kambuas that day, cooking some rice, eating and then going to sleep as she felt sick. She was woken up in the middle of the night when she heard calls about the disappearance of the deceased.

Defence Counsel has submitted that it was surprising that she was with Kambuas but has said not said anything about seeing the accused holding the deceased in her hand and walking in front of Kambuas’ house and going towards the road leading to the Lai River. That is true but Defence Counsel has failed to require her to appear for cross-examination. Likewise the State Prosecutor has failed to put or challenge the accused during cross-examination on the matters stated by Helen Paipi. Both counsel with respect, have failed to play their respective roles also in regard to the evidence as contained in the statement of Jacob Willy. Defence Counsel should have challenged Jacob in cross-examination. The State Prosecutor should have put or challenged the accused in cross-examination on the aspects of her statement which she made within the hearing of Mr. Willy regarding the deceased being pushed into the river by Lai Litapis’ pig to demonstrate to her and to the Court that her denials were false and that she was trying to shift the blame to Lai Litapis’ pig.

It is trite law in our system of administration of criminal justice that the primary duty to prove a criminal case against an accused person rests on the prosecution from the beginning to the end.

Taking into account the submissions by both counsel in light of the evidence and the aspects of the evidence from both sides that were not satisfactorily brought before the Court, I am not satisfied beyond reasonable doubt that the only reasonable hypothesis is that the accused is guilty of committing the alleged crime. There is also the possibility that the deceased may have accidentally fallen into the river without anyone seeing him. Another possibility is that someone else could have pushed or thrown him into the river.

I consider in all the circumstances of this case that for me to convict on the current state of the evidence would be unsafe and unsatisfactory. I accordingly find the accused not guilty.

I order that she be discharged from custody forthwith.

_________________________________________________________________
Lawyer for the State : Public Prosecutor

Lawyer for the Accused : Public Solicitor