N2573

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1413 of 2002

THE STATE

-V-

BEN SIMAKOT SIMBU
(No. 1)

VANIMO:	KANDAKASI, J.
2004: 11th and 18th March

DECISION ON VERDICT

CRIMINAL LAW – PRACTICE & PROCEDURE – Conduct of voir dire on admissibility of record of interview – Unnecessary waste of time to conduct a separate hearing – Court can hear all the evidence on the main issues for trial and the voir dire ruling on the admissibility to the record of interview take precedent.

CRIMINAL LAW - Verdict – Double wilful murder – No dispute as to death of deceased on date, time and place alleged –Only issue whether accused was the offender? - One eyewitness’s testimony against accused – Record of interview admitted into evidence after voir dire – Accused not able to rebut strong prima facie case against him – Guilty verdict returned – Criminal Code s. 299.

EVIDENCE – Of a possible co-accused – Court need to be cautious with his evidence - No indication of lying– No break down under cross-examination - No reason provided to doubt or find witness making up a story – Evidence accepted as credible and reliable.

Cases cited:
SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266. 
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (unreported judgment delivered on 24/07/97) SC528.
Paulus Pawa v. The State [1981] PNGLR 498.
The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.

Counsel:
F. K. Popeu for the State 
D. Kari for the Prisoner 

18th March 2004

KANDAKASI J:	You pleaded not guilty to two charges of wilful murder of Wupiano Kame Menapol and her child a Francisca Kame Menapol on 19th July 2002 here in Vanimo. You took that position claiming a lack of knowledge or involvement in the commission of these offences. As such, at the outset of the trial you had no real basis to dispute the occurrence of the two deaths in the way the State put to you upon your arraignment. Hence, the issue for trial was whether you murdered the deceased as alleged. A trial was therefore conducted on 11th March 2004 and a decision on your verdict was reserved. This is now the decision of the Court.

The State called one eyewitness and sought to admit into evidence your record of interview with the police. You opposed the admission into evidence on grounds of involuntariness. This necessitated the State calling two additional witnesses specifically on your objection to the admission of the record of interview. In your defence, you alone gave a sworn testimony. 

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that it prosecutes. The Supreme Court in SCR No. 1 of 1980; Re s. 22A (b) of the Police Offences Act (Papua) confirmed this. What this means in your case is that, the State had the burden to prove each of the elements of the charge against you beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of wilful murder against you?

The elements that the State was required to prove beyond any reasonable doubt are as provided for in s. 299 of the Criminal Code in theses terms: 

"299.	Wilful murder.

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder."

From the language used by Parliament, the following are the elements that make the offence of wilful murder in my view:

(1)	A person who:
(2)	Unlawfully kills;
(3)	Another person;
(4)	With intent to cause his death or that of some other person.

A failure to prove beyond any reasonable doubt each of these elements has to result in your acquittal. Therefore, it becomes necessary now to consider the evidence that the State has produced against you and your response to that evidence.

The Evidence

(i) First Witness – George Richard Yabiwan

The first State witness was George Richard Yabiwan. This witness’ evidence is short and simple. He originally comes from the same village as you, Yuwil, Yangkok, Nuku Sandaun Province. At the time of the offence, he was residing at the Palai camp, where you also resided. Accordingly, he was not a total stranger to you. 

He recalls in the morning of 19th July 2002, he was initially at his house at the camp. He then went to town market. There, he bought two cigarettes and some betel nuts. Thereafter, he was heading back when he met you at the road junction where the Catholic Church is. Upon meeting you, he asked you "where are you going?" You responded by saying, you were going to the Vanimo General Hospital. He told you that he was heading the same way and so the two of you walked toward the hospital. 

At that time, some of your boys were working near the hospital, in particular, cleaning the drainage. When you got to where the working party was, you asked one of them for a bush knife and received it, while the witness gave the cigarette and betel nuts to the boys. 

After taking the bush knife from one of the boys, you asked the witness and he followed you. The two of you went passed the Vanimo Correction Service, where you passed two warders, said good morning, and continued the journey through Waraglass and eventually arrived at Hugo’s house. You continued to walk from there and finally arrived at a house belonging to a man from Green River. A woman with her child was there on the verandah. You asked the women for a chicken, twice without success. You asked the third time, also unsuccessfully, and after that you went and grabbed the woman. 

The woman struggled with you but you overpowered her and threw her on the ground. As she was on the ground, you put your shorts and pants down and then proceeded to have forceful sexual intercourse with her. After you finished your forceful sexual intercourse with the woman, you picked up an old but still strong piece of iron that was nearby and hit the woman across her head as she lay on the ground. You then used the same piece of iron and proceeded to hit the woman’s child hard on her head. Both the woman and her child died instantly at the scene. The murder weapon is in evidence as exhibit "C".

As this happened during broad daylight, the witness was able to see very clearly. He did try to help the woman and her child but fear overtook him, as you looked very fearful. Therefore, the witness resolved to get back to his house. When the witness was in his house, you returned to the camp saying trouble, picked up your bag and ran away. 

Subsequently, the police took the witness to the police station for questioning and was kept in custody for sometime until he gave a statement. The witness also said, whilst he was there, the police brought you into the police cells and you stayed together for a short while before he was released. Whilst in the cells, he did witness, police assaulting you.

Under cross-examination, your lawyer tried his very best to get this witness to admit that he gave a false story implicating you as the perpetrator to the police to safe himself from prosecution. He maintained up to the last of this line of questions that he was telling the Court what he saw with his own eyes and that he was not making up any thing. 

(ii)	The Second and Third Witness

The second and third witnesses are the police investigator and his corroborator for the conduct of the record of interview with you. They both gave evidence in terms of according you your constitutional rights and not using any force or threat to get your statement. You also put to these witnesses, your claims of being threatened and before that, beatings by the police, which they denied. They also denied that the use of any force or threat against you.

One of the witnesses admitted to being angry with you over your alleged commission of the offence but he denied any beating by him or the investigating officer during or before the conduct of the record of interview.

Defence

In your defence, you called only yourself. You gave a sworn oral testimony in Court. You agreed with most of the first State witness’ evidence at least up to the point of getting to the house belonging to a man from Green River. You then differed by saying you continued walking and ended up in your house. You went on to say, once you got to your house, you picked up your bag and went looking for a way to get home quickly because you received word of your father’s death in the village at Yuwil. 

You gave no reason as to why the first State witness could have testified against you, except for the suggestion that he was protecting himself. However, that suggestion has no support from your own evidence. You agree that you went with him and that both of you went to your camp. Hence, as far as your own evidence goes, that person did not commit the offence. 

Ruling on Admission of Record of Interview

I reserved a ruling on the admissibility of the record of the interview until you adduced your evidence both in your defence and in support of you objection to the admission of the record of interview but before going into submissions on the main issues for trial. The Court took that course rather than running a trial within a trial (a voir dire) on its own with the agreement of all the parties. This was purely to avoid wastage of the Court’s time and to avoid the usual pattern of stopping the main trial to conduct such a trial and then have it restarted after the completion of that process. 

At the end of your evidence, I received submissions on the admissibility of the Record of Interview. I then considered those submissions and ruled in favour of admitting the record of interview into evidence for the State. I came to that decision, because I did not find your evidence credible for a number of reasons. Firstly, you claimed that the police assaulted you with the use of gun butts, boots, a piece of iron and punches from the point of your apprehension in Aitape all the way up to Vanimo and it continued in the police cells prior to the conduct of the record of interview. In the process, you claimed that you suffered paralysis of your legs because of blows or hits to your knees with a piece of iron. If this was true, than, it was reasonable to see you with some evidence of the kind of assault you described, even in the absence of a medical report. Yet you show no signs of that, for example, you did not limp into Court.

Secondly, in your notice of objection to the admission of the record of interview, you stated the grounds as follows:

"… [P]rior to the Record of Interview, the corroborator, Aree Kabilo armed with a piece of iron uttered the words to the effect; ‘You must follow the version given by witness George and tell it the way it should be. If you don’t then we will take you to the sea, kill you and dump your body in it.’"

In your oral evidence, you introduced a ground not specified in your grounds for the objection. In it is your claim of assaults from the point of your apprehension up to just before your record of interview. Our system of justice is one of fairness and not one of surprises. Accordingly, you were under an obligation to specify all of your grounds when you gave notice of your objection, but you did not. Your claim outside the notice, in my view, amounts to a recent invention and therefore not reliable. The Supreme Court in John Jaminan v. The State (N0.2) sufficiently covered in my view, the need to give early notice. I consider what the Court said there in the context of a belated claim of alibi relevant and should apply with appropriate modification to challenges to records of interview. There, the Court said:

"Firstly, the alibi was never put to the key State witnesses, particularly the prosecutrix and Maria who gave evidence … The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v. Saka Varimo [1978] PNGLR 62 (Prentice J) and The State v. Manasseh Voeto [1978] PNGLR 119 (Wilson J). If it is not done, the weight of the evidence given by the party in this case the accused is reduced." 

Thirdly, in your own evidence, you were not able to recall and state exactly or describe the threat issued against you by police. You only recalled the first part of the quotation in your grounds for the objection but not the second part, which is the important part for the purpose of your objection.

Fourthly, the police had already obtained a Statement from the first State witness clearly implicating you. Therefore, there was no need and reason for them to threaten you and obtain a confession from you. I note your claim through your lawyer, that it was necessary for police to obtain your confession to corroborate the case against you. However, the problem with this argument was that no corroboration is required in murder cases. Accordingly, the police could have proceeded only on the evidence of the first State witness. 

Finally, you spoke of having received news of your father’s death in the village. Yet, you did nothing about it until you have walked around in Vanimo as if nothing had happened to your family that day. Then after the offences had been committed, you decided to leave town as quickly as you could by first looking for a boat, then an airplane and finally a motor vehicle, the mode you managed to use. This was certainly not in tune with any sense of logic or commonsense, which play a key role in determining whether a witness is truthful or not. I noted this in The State v Cosmos Kutau Kitawal & Anor (No 1) in these terms:

"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." 

This was in fact a restatement of the law as adopted and applied initially by the National Court in The State v. Gari Bonu Garitau and Rossana Bonu, and subsequently affirmed on appeal by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State. Earlier on, Paulus Pawa v. The State adopted and applied the test.

Main Issue

After the ruling on the record of interview, both your lawyer and that of the State’s made submissions on the main issue for trial as to whether you committed the murders as alleged. Your lawyer argued that the admission into evidence of your record of interview does not entitle the prosecution to an automatic finding of guilt. Instead, the Court must assess the credibility of the totality of the evidence before it and come to a decision. He argues thereupon that, if the Court believes you, it must acquit you. The State on the other hand, argues that, it has established all of the elements of the offences you have been charged with, based on the evidence now before the Court. Proceeding on that basis, the State asks for a return of guilty verdict on both charges.

I agree that the admission of the record of interview into evidence does not automatically follow that you are guilty. Rather, the Court is under an obligation to assess all of the evidence before it and come to a decision on the main issue in this case. This requires a careful assessment of the evidence before the Court. As noted earlier on in this judgment, this process must start with an assessment of the State’s case first given that the burden always rests with the State to establish each of the elements of the charge against you beyond any reasonable doubt.

Turning then onto the State’s evidence, I first note that, there was no serious challenge to the credibility and or the reliability of any of the State’s key witness, George Richard Yabiwan and his evidence. I could not detect nor did your lawyer demonstrate any evasion or a serious inconsistency in his testimony. He instead, gave me the clear impression that he was telling the truth in most of the material respects.

There is no evidence of any reasons why he might have come to Court and falsely testify against you. There is no evidence or suggestion for example, of a relationship between the deceased or his relatives and that of the witnesses, thereby suggesting an interest in the outcome of this case. Similarly, there is no evidence or a suggestion that he has something personally against you. The only suggestion there is, is the claim you made through your counsel that, the witness had to give evidence implicating you as the offender to save himself. However, as I already stated in the context of the admissibility of the record of interview, there is nothing implicating the key State witness, even in your own evidence so there is a serious doubt as to why he could have tried to come and testify against you falsely for the reason you advanced.

The evidence does in fact, show clearly that you and the first State witness originally come from the same village, and lived in the same camp here in Vanimo. It is an established tendency for people in the country being very slow to accuse there own relatives or people coming from the same area or village except in the clearest of cases of something in fact being done by them.

Further, the key witness’ evidence does not have any trace of an illogical or out of commonsense account to raise doubts as to the credibility of his evidence. Furthermore, the offences were committed during broad day light. There is no evidence of any obstruction or such other factors that might have caused the witness not to see clearly or make a mistake as to what or whom he might have seen. Similarly, there is no challenge as to his sight and memory.

In these circumstances, I have no difficulty in finding that, this witness was truthful in his evidence and that his evidence is credible and reliable. The Record of Interview supports this. In the record of interview, you confirm having asked the deceased woman, three separate times for a chicken from her family poultry on credit purchase. The first was upon arrival at her house. The second was after leaving George at a river as he was taking a wash and you returned to the deceased woman and repeated your request. The third time was after you had gone back to George and were returning to your house when you decided to go back to the deceased and ask her yet again. You made this requests because you really wanted to eat a chicken. You also state that the deceased answers were consistently "go and eat your mother’s vagina."

On the third occasion, you grabbed her in the way described by George and took her into the chicken house. There you told her that because she swore at you, you were going to have sexual intercourse with her. Thereupon, she told you to move a little and you did. Then she proceeded to remove her skirt and pants. You then told her that you two would have to move to the back of her chicken house. She complied walking naked and once you reached the spot you preferred, you proceed to have sexual intercourse with her. However, in answer to subsequent questions, particularly question and answer 47, you spoke of raping the deceased woman.

The record of interview further states that after you had raped the deceased, you asked her again for a chicken and you received a similar response. Therefore, you got mad and got a piece of iron that was nearby and hit the deceased on her head and she fell on the ground. While she was on the ground, you hit her again on her head with the same piece of iron and she died instantly. When you did that, you intended to kill her.

Upon seeing what was happening to the mother, her child cried and went toward the mother. You took the same piece of iron and hit the child twice on his head and he died instantly. You then fled the scene and got to your house at the camp. From there, you took your bag and got on a company truck fled from Vanimo heading for your village. You eventually got to Aitape and there the police apprehended you.

There is clearly some variation between your oral testimony and the record of interview in the details of how the offences were committed. The variations I note are only attempts at trying to create a reason or justification for your killing the mother and child and to down play the seriousness or the way in which the crimes were committed, such as the removal of the suggestion from the State witness that the child was watching what you were doing to the mother. The record of interview otherwise does not change or contradict the main prosecution case that, you intentionally killing the two deceased, with a piece of iron after failing to get a chicken from the now deceased despite three repeated requests and after having raped the mother. 

Based on these evidences, I find that the State has established a prima facie case against you. Hence, I now need to find whether you in any away rebutted the case against you. In that regard I adopt my reasons for my ruling in favour of admitting into evidence your record of interview. Based on those reasons, I find your evidence unconvincing in any way. Instead, as noted already, your conduct subsequent to the commission of the offence is consistent with having committed the offences and fleeing from the scene and the locality to avoid arrest.

In the end, therefore, I find that the State has established the charges against you on the required standard of prove beyond any reasonable doubt. I thus return a verdict of guilty on both charge of wilful murder under s. 299 of the Criminal Code. Consequently, I order that you be remand in custody awaiting your sentence. A warrant of commitment will issue forthwith in those terms.
_________________________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Accused:		Public Solicitor