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State v Bairom (No 1) [2003] PGNC 92; N2413 (4 June 2003)

N2413

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 546 of 2000

THE STATE

-V-

JACKSON BAIROM (No. 1)

WEWAK: KANDAKASI, J.
2003: 3rd and 4th June

CRIMINAL LAW – PRACTICE & PROCEDURE – Parties agreeing to go to trial on a particular issue only – Effect of – No issue on the other aspects of the case – At the trial, parties entitled to call evidence and cross-examine in relation to the issue for trial only – Good practice in the interest of doing justice not only to the case at hand but other accused person awaiting trial and the society as a whole - Practice not inconsistent with the presumption of innocence – Practice ought to be encouraged and used more often.

CRIMINAL LAW - Verdict – Wilful murder – Cause of death only issue for trial – Issue a factual one and needs to be determined on the facts – Both parties calling one witness each – State’s evidence accepted as credible – Guilty verdict returned.

EVIDENCE – Credibility of witnesses – Whether the evidence given is logical and accords well with commonsense a useful test – Whether the evidence given is illogical and not according well with any commonsense suggest lack of credibility – Inconsistencies in witness’s own evidence casts doubt in the witness’s evidence – Accused conduct following the commission of the alleged offence relevant consideration – If accused conduct inconsistent with that of an innocent person that is indicative of involvement.

Papua New Guinean Cases Cited:
The State v. Kevin Anis & Martin Ninigan (unreported and unnumbered judgement) CR No. 42 and 43 of 2003 (07/04/03).
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
John Jaminan v. The State (No.2) [1983] PNGLR 318.

Overseas Cases cited:
Browne v Dunn (1893) 6 R 67 (HL).

Counsel:
Mr. M. Ruari for the State
Mr. G. Korei for the Prisoner

4th June 2003

KANDAKASI J: Yesterday, the State presented an indictment against you, charging you with one count of wilful murder. You are alleged to have wilfully murdered one Dipre Maim (the deceased) at Kambot village here in the East Sepik Province on the 15th of November 2000.

Issue for trial

The only issue you take in relation to the charge is the cause of the deceased’s death. That is to say, although you agree with the other allegations against you, you deny that you caused the deceased’s death. Given that, you pleaded not guilty to the charge. The matter therefore went to trial to determine whether you or somebody else caused the death of the deceased.

Undisputed Elements

Given the position you have taken, the other elements of the charge such as a person being killed by another person with intent to kill the deceased are not much in issue. I do however, accept that the element of intent to kill is something that can not be taken in isolation from the cause of the death.

Before proceeding any further, let me commend both counsel for their assistance in terms of narrowing down the issue for trial and staying guided by that during the conduct of the trial. They called evidence and cross –examined only on the issue for trial except for one or two departures. This resulted in just half a day being taken to complete the evidence and conclude with the submissions of the parties.

The practice adopted here by both counsel is indeed a practice that is being adopted in many jurisdictions outside our own as a positive response to the backlog of cases that continue to await trial dates. Presently, our Criminal Practice Rules are under serious discussion with a view to adopting the kind of practice that exists elsewhere and now adopted and applied by both counsel and the Court in this case. This is in response to the huge backlog of pending cases in our country, with many accused persons still waiting for their trial for more than one or two years in a large number of cases. This is in direct contrast with the suggestion in s. 37 (14) of the Constitution, which speaks of a trial within 4 months from the date of committal.

In my view, the practice of parties discussing with or without the Court’s direction and arriving at an agreement as to the issues for trial is not contrary to the presumption of innocence under s. 37(4) of the Constitution. I do not consider that that presumption gives a right to an accused person to put the State to the task of proving a charge against him when he has no good defence at all. All it does is that, it puts an obligation on the State to prove a charge against an accused person according to law. This in my view has to do with the way in which Police carry out their investigations, preservation of the relevant evidence and presenting those in a court of law according to the rules of evidence. It also includes according to an accused, his right to be heard in his defence before final judgement on his or her guilt or innocence. I do not consider that it was intended to give a right to an accused person having no defence to unnecessarily force the State and therefore the people to incur substantial costs to establish the charge or charges against him or her.

It is in the interest, not only of an accused person but the whole country that the limited resources of the nation be not wasted in forcing the State to establish a charge against an accused person who has no defence whatsoever to the charge against him or her. The State neither has the money nor all the necessary convenience as do developed states such as Australia or else where to meet the challenges this presents. The number of our judges is limited and they can only do a few cases at a time. If every accused person was to force the State to prove the charges against him or her just for the sake of it, others could be waiting for their trial for years beyond what is presently being experienced.

The concept of presumption of innocence is a foreign concept. In Papua New Guinea, when a wrong is committed the appropriate inquiry starts with a presumption that the accused has committed the offence. In most cases, the issue is always not one of innocence or guilt but one of appropriate compensation to correct the wrong. This is partly why in my view there has been a serious doubt in the ability of our judicial system to appropriately deal with offenders. Recent reports such that by the Institute of National Affairs put confidence in the judiciary at a rate of 4.5 on a range of 0 – 6 with, 6 being not satisfactory. This is due mainly in part to the delay in appropriately dealing with offenders, which inevitably leads to escapes and bench warrants. This situation no doubt has the potential to lead to a total break down in law and order. The onus is therefore on the Courts and lawyers and those seriously concerned with law and order to be proactively involved in developing ways and means to fast track the ability of the judicial system to deal with offenders promptly.

The concept of presumption of innocence was adopted upon independence from countries like Australia and others. Now these countries have seen the problem this concept is having on their society and they have developed means such as plea bargaining and getting the accused to specify his or her defence and going to trial only on the real issues for trial. There is no reason why we should develop and adopt similar practices to meet the challenges the society is placing on the judicial system. I therefore commend the practice adopted by counsel in this case to other counsel and Courts. This will enable the Court to expeditiously deal with a case by inquiring only into the real issues in the case. In so doing, it will enable the Court to utilize its limited time to reach other cases, which could otherwise continue to be on the pending list.

The Evidence

That aside, I now proceed to deal with the evidence in your case. The State called only one witness to give evidence against you. The person called to give evidence against you was Daisy Maim, the deceased daughter, who gave oral sworn testimony. In addition to her testimony, the State also admitted into evidence, a copy of Dr. Michael Lalam’s medical report dated 27th November 2000 (exhibit "A") and your record of interview with the Police both the Pidgin and English versions, exhibits "B1" and "B2".

Daisy Maim’s evidence is this. In the afternoon of the 15th of November 2000, around 5:30 pm, she was at her family’s house with her parents. At about that time, you went to the front of her house and called out if she was home. Her mother, Regina responded with the statement, "Daisy is not your wife." You then broke into the house through the door and said to the witness and her parents, "your lives are in my hands." You then went to the witness’ father, the deceased and assaulted him with a piece of swan timber described as 3x2, 40 centimetres in length. You hit the deceased on his head, his neck and all over his body, including a pulling on the deceased’s balls (testicles). The deceased fell down and died instantly.

After the deceased had fallen down, you turned against the witness’ mother, Regina by attempting to stab her on her virginal area and failing that, you stabbed her on her head twice, using a tiger knife. Thereafter, you turned to the witness and tried to stab her as well but she managed to escape. She stated that, after the deceased fell down following your attack on him, she did not see the deceased alive again.

Although not strictly in issue, the witness positively identified you as the one who attacked her father, her mother and herself. She also said she knew you before the incident and could identify you if she saw you again. This was made clear after there was some uncertainty in relation to a question put to her that seemed to suggest that she would know you again.

When asked about her location in relation to the deceased, her mother and herself, and your attack on the deceased, she indicated that they all stood next to each other.

She also testified that, she was scared as you were armed with a piece of timber and a tiger knife and you looked totally different from the person she had previously known. She said she and her parents called for help but no one came to their help. That enabled you to escape.

In your evidence in your defence, you gave a similar account to that of the State’s witness but with a number of marked differences. First, you said you went to the deceased house to hear from the deceased as to whether you could marry Daisy, who was your girlfriend and how much would be the bride price. That followed a mediation between you and the deceased over your friendship with Daisy and a claim that she was having an adulterous affair with a policeman. The first thing you said once you reached the house was "Daisy, are you there?"

Secondly, when you entered the deceased’s house, his wife Regina tried to hit you with a swan piece of timber. She missed two attempts but in the third attempt she hit you on your mouth area causing one of your teeth to fall and bleed from the mouth.

Thirdly, you said the third attempt also reached the deceased who was at your back and caused injuries to him. But you also spoke of the first two attempts of Regina having landed on the deceased. So it is not clear whether the two attempts hit the deceased before the third attempt or only the third did.

Fourthly, you speak of first being away from your home with your father when the police came to arrest you in relation to the murder of the deceased. Upon finding that you were not present, they burnt down your house and everything you had. Later, you changed that to say that you went to the police because you were a suspect in relation to the deceased’s death.

Fifthly, you admit to shooting the deceased’s wife but you say that was with a piece of bamboo and not a tiger knife on your way out of the scene.

Finally, you admitted under cross-examination that you have a prior conviction for manslaughter for killing your wife. But you were not able to answers questions from the Court as to why you could not realized that the reception at the deceased’s house when you turned up was not good, given Regina Maim’s reaction to your calling for Daisy. Similarly, you were not able to answer the question, "why did you not leave upon the first attempt or the second of Regina’s attempts to assault you?"

The medical report admitted into evidence with your consent states that an examination of the deceased’s body revealed that there were "lots of bruises and swelling all over [his] body especially the face, large swellings over the body of the deceased’s head". It also states that there was bleeding from both his nose and both ears. An internal examination of the deceased body revealed lots of blood clots in the brain area. The report then concludes that the deceased’s death was caused by "internal cerebral bleeding as a result of the blow to his head..."

Your record of interview with the police repeats most of the evidence of the prosecution and to some extent your testimony. But more importantly adds a few additional facts. Firstly, in question and answer 13, you were asked as to why you were in police custody. You said that was in relation to you taking a piece of wood and hitting the three of them (meaning the deceased, his wife and Daisy) and that is all you knew. The rest of the questions and answers particularly, questions and answers 14 to 21 proceed on that premise.

Assessment of the Evidence

I agree with both your lawyer and that of the State that, the only issue presented in this case can be decided by reference to which version of the evidence the Court accepts. This requires an assessment of the credibility of the evidence, which necessarily requires examination of the credibility of the witnesses called by the parties.

As I said in the last Circuit here in the case of The State v. Kevin Anis & Martin Ninigan (unreported and unnumbered judgement) CR NO. 42 and 43 of 2003 (07/04/03) at pages 12 to 14. It is clear law that, commonsense and logic do play a major role in determining whether a witness and therefore his evidence are credible. I noted that in these terms in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and commonsense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeds to convict them, when the defendants failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."

I also observed that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination. That I noted was in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which I considered is a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. The Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J made that clear in the context of a belated claim of alibi.

Present Case

Bearing these principles in mind, I now give consideration to the question of whose version of the evidence before me should I accept. I note that neither of the witnesses called is independent. The State’s witness, Daisy Maim is the daughter of the deceased and was in a way, cause of her father’s death. She was therefore bound if not inclined to give an account favourable to the prosecution. Similarly, you are the accused. Therefore, you were also bound if not inclined to give evidence favourable to your defence.

It is hence necessary to carefully consider the evidence before me. I will approach that question from a logical and commonsense standpoint. First, the State’s case is straightforward. The deceased, his wife and daughter, Daisy, were in their house. You went to their house and called for Daisy. Her mother told you that Daisy was not your wife. You did not accept that and forcefully entered the house. You then went straight to the deceased and hit him on the head with a piece of 3 x 2 sawn timber and continued to hit him on his neck and all over his body until he fell down and died. You then turned against his wife, Regina and attacked her with a tiger knife aiming for her virginal area and failing that, you stabbed her twice on her head. Thereafter you tried to attack Daisy but she managed to escape.

The deceased died from the injuries you inflicted upon him. The medical report, which is the only piece of independent evidence, confirms that the deceased did sustain a number of injuries to his body in addition to a blow to his head. The report concludes that the blow to his head caused the death of the deceased.

There is no inconsistency in the State’s evidence. The only exception to that is Daisy’s negative answer to questions from the prosecuting counsel as to whether she would know you again. But I find that was a misunderstanding of the question. She may have thought that the question was asking her to say whether she would get to know you after the death of her father. The question was instead intended to get her to say whether she would identify you if she saw you again. Indeed, questions and answers in these terms later clarify the misunderstanding. This, I find was understandable and reasonable given that she and you were in a boyfriend and a girlfriend relationship before the deceased’s death.

The only other area in which the witness seemed uncertain was in the area of whether she was scared or not upon witnessing what was happening. She initially said she was not scared but later did say she was and did call for help but help did not come. She also said you were armed with the piece of 3 x 2 sawn timber and the tiger knife and further that you were a totally different person from the one she used to know. I do not consider this critical as it does not go into the issue for trial and in any case does not cast any serious doubt as to the rest of her and the other state evidence.

Your evidence on the other hand does have some inconsistencies and some illogical accounts, which appear not to accord well with any common sense. Firstly, if indeed you went to get your result as you say, you could have gone with a relative. But you did not do that. Usually most people in the kind of situation you claim you were in, would go with a relative or a friend. Also, if indeed you went to get your result, there was no reason to call for Daisy more than once. You could have asked her parents, the deceased and his wife directly for the answer but you did not.

Secondly, if indeed your claimed purpose of going to the deceased house is true, I can not see how, the village councillor or the leaders who mediated could have allowed you to go alone especially when the matter was mediated by them.

Thirdly, I find it hard to accept that the Regina who was the older of the two of you could have swung a piece of wood at you, manage to partly hit you and then hit the deceased who you say was behind you. All the more hard to accept is your claim that Regina hit her husband twice and was striking the third time. If indeed she swung at you and it hit you, the piece of wood could not have then travelled passed you and hit the deceased. It would have stopped upon reaching you.

Fourthly, if not by the first reaction from Daisy’s mother in word was insufficient to make it clear to you that you were not welcomed, the first and the second attempt to hit you by her was more than enough to cause you to leave but you did not. Why you chose to remain is a question you were not able to answer. This was a critical question, which you failed to answer, and that is a factor going against you.

Fifthly, you changed and contradicted part of your sentence quiet frequently. For example, you claimed that Police raided your place and on finding your absence, they burnt your house and your belongings. But you changed this to say you went to Police and surrendered because you were a suspect. Similarly, you claimed that the Police threatened you during your record of interview with them. However, when asked to specify or described the threat, you only said of them telling you, "You must tell them everything and must not withhold anything from them." This could hardly be taken as a threat but you chose to treat it as a threat.

Further, and more importantly, your claim of the deceased sustaining only three blows to his head and or body does not match the medical evidence. The medical evidence is the only piece of evidence that is independent. If what it states is inconsistent with your account, it means one of them is incorrect. You agreed to the admission of the medical evidence. So that meant all of its contents excluding the hearsay part of it stand uncontested. That is being the case, your oral testimony can not be accepted as correct.

Furthermore, you speak of surrendering to the police on one version of your oral testimony. That could only be upon an acceptance of responsibility and to avoid being attacked in retaliation. This is confirmed by part of your record of interview, particularly questions and answers 13 to 21.

Finally, your claim of being hit on your mouth resulting in the breaking of one of your teeth was not drawn to the Police’s attention nor your lawyer as the State’s witness was not cross-examined on this aspect. So you have raised this claim for the first time in Court. That demonstrates your ability to exaggerate and make up a story for the first time in a bid to free yourself of the charge against you.

I have carefully noted both you and the State’s witnesses’ demeanour in Court. I got the clear impression based on the problems in your evidence as outlined above and your general attitude in Court that you were not telling me the truth. This is confirmed by you entering the witness box with a prepared statement, which was later removed on the State’s lawyer informing the Court of it. I have not gathered a similar demeanour of the State’s witness. Instead, I find her to be a truthful witness in the material respects of the issue for trial.

Given the above, I accept the State’s evidence and find that you caused the death of the deceased by hitting him with a piece of sawn timber on his head and hitting him on the other parts of his body. Although it is not necessary to go into the other elements of the offence, given the only issue for trial, I nevertheless find that the number of injuries inflicted upon the deceased’s body until he fell and died as described by the State’s witness, demonstrates in my view, your intent to kill the deceased. You confirmed that when you said to the deceased and his family that their lives were in your hands. The motive for that appears to be connected to your befriending Daisy, the deceased’s daughter.

It seems to me that, after you had killed your wife and served your time presumably, you wanted to marry Daisy. But your desire to do so was frustrated by the deceased and his wife. This could be understandable, given that you had killed your wife. So it appears to me clear that you were unhappy and you wanted to do something about it. You therefore went to the deceased’s house. Then when Daisy’s mother gave you a negative response upon you calling for Daisy, you could have left but you did not. Instead, you forced your way into the deceased’s house and there you attacked the deceased until he fell down and died and you proceeded to attack his wife and later made an attempt on Daisy but she escaped.

In these circumstances, I do not have any doubt whatsoever, that the State has established its case beyond any reasonable doubt. I therefore return a verdict of guilty on the charge of wilful murder contrary to s. 299 of the Criminal Code.
_______________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor