State v Peter [2005] PGNC 135; N2813 (17 March 2005)

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CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, Homicide: Suicide: Concealment of Birth etc – Section 313, concealing the birth of children – accused pleaded not guilty – prosecution’s case consisted of six exhibits, tendered by consent – submission of no case to answer – application that case should be withdrawn from the tribunal of fact – rule in Rape’s case – two limbs or tests – question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred – question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused – elements of the offence of concealing the birth of a child – application of tests in Rape’s case – ruling – acquittal – remarks on accused unnecessarily being brought before the court – gap in evidence.

Cases cited:
Dirk Leopold Schuiling v Alphonse Krau [1977] PNGLR 176
Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212
The State v Atau Gore (No 1) (2004) N2639
The State v Eddie Sam (2004) N2521
The State v Gwen Maika (2004) N2605
The State v Henry Osare Kales (2001) N2115
The State v Kwale Dire (2001) N2178
The State v Lasebose Kuriday (1981) N300
The State v Meli Heti [1977] PNGLR 173
The State v Michael Herman and Albert Paul (2003) N2475
The State v Nerius Patrick (2004) N2611
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Robert Tamtu (2001) N2166
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Tauvaru Avaka (2000) N2024
The State v Tolly Amindi (2004) N2683
The State v Tom Kakawi and Others (2002) N2229

This is a ruling on a no case submission by a woman who is facing an indictment that she unlawfully concealed the birth of her child.

The incident giving rise to the charge allegedly took place at Hahalis village, Buka Island, Bougainville, on the morning of 12 June 1999. It was alleged that the accused endeavoured to secretly dispose of the dead body of a child to whom she had recently given birth.

On 15 March 2005 she was brought before the National Court and faced the following indictment:

Jenny Kebana Peter of Hahalis village, Buka Island, Bougainville, stands charged that she ... on the 12th day of June 1999 at Hahalis ... endeavoured by secret disposition the dead body of a child of which Jenny Kebana Peter had then lately been delivered, to conceal the birth of that child.

The following allegations were put to the accused for the purpose of obtaining a plea.

On 10 June 1999 the accused gave birth to a child at her village, Hahalis. The baby was still-born. Two days later, on Saturday 12 June 1999, she wrapped the dead body of the child in a piece of cloth and put it in a blue plastic bag and then went to a spot some distance from her house, and threw the plastic bag, with the dead body still inside it, into a hole. By that action she was secretly disposing of the dead body of her child, which was fully developed, so as to conceal its birth.

She was arraigned in Halia tok ples. She pleaded not guilty. Then the prosecution presented its evidence. This consisted of six witness statements and the record of interview of the accused, all tendered by consent. No oral evidence was called.

Mr Siminji then made a no case submission, based on The State v Lasebose Kuriday (1981) N300, which I treat as being based on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96. Mr Rangan responded.

I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. They each require the court to consider the state of the evidence so far presented and to compare it with the elements of the offence with which the accused is charged. I will summarise the evidence the prosecution has presented. I will set out the elements of the offence that must be proven. Then I will summarise the actual no-case submission and apply the principles in Rape to this case.

In Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.

If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.

If the answer to question 2 is no, ie there is insufficient evidence, the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed.

The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.

Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire (2001) N2178, Gavara-Nanu J; The State v Tom Kakawi and Others (2002) N2229, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick (2004) N2611, Sevua J; The State v Atau Gore (No 1) (2004) N2639, Manuhu AJ; and The State v Tolly Amindi (2004) N2683, Kandakasi J.

Strictly speaking it is only the first limb of Rape’s case that gives rise to a no case submission. However, it has become the norm to refer to and rely on both limbs when a no case submission is made (see Roka Pep (No 2) per Kidu CJ).

The prosecution’s evidence consisted of seven exhibits, the contents of which are described in the table below.

Column 1 of the table gives the exhibit number; column 2 describes each witness, and column 3 summarises their evidence.

Exhibit	Witness	Evidence
A	Evette Sakwin	Statement by village girl – made on 21.07.99, then aged 16 – says that on 12.06.99 she was sitting under her house at Hahalis – saw accused come past her house carrying a blue plastic bag – had something inside – did not know what it was – accused crossed road and went to the gardens – witness stood on the veranda and watched her – accused followed the bush track to a big hole (cave) – some minutes later the accused came back, without the plastic bag – thought she had thrown away rubbish – the next day her aunty told her that the accused had given birth to a child and thrown it at the hole (cave).
B	Maria Tobasi	Statement by village woman, married to accused’s husband’s brother – made on 21.07.99, then aged 25 – at 7.00 pm on Saturday 12.06.99 she had a conversation with her husband – asked him where had he been – husband replied that he had made a funeral feast for the accused and her husband – feast was for accused – accused had given birth to a child and she and her husband had buried the child.
C	Hona Goalenn	Statement by village girl – made on 21.07.99, then aged 18 – on Sunday 13.06.99 she was at the beach and met Grace Sira and Maria Tobasi – Grace told her that accused had given birth to a child and threw it at the hole and that accused should have done proper burial – on the way back to the village with Sakwin Evette, she told her that Grace and Maria said that the accused had given birth to a baby and thrown it at the hole.
D	Lawrence Kasira	Statement by Police Officer, Sergeant, Buka Police Station – made on 11.10.99 – on 21.06.99 a report of concealing birth was received from a Special Constable – witness and Constable Michael Kukubak went to Hahalis next day – two special constables showed them the hole into which accused had allegedly thrown dead body of the baby – Constable Kukubak went inside – took photos, retrieved corpse, took some remains to send to police forensics – interviewed accused on 20.09.99.
E	Philip Nako	Statement by Police Officer, Constable, Buka Police Station – made on 11.10.99 – was corroborator at interview of accused
F	Michael Kukubak	Statement by Police Officer, Buka Police Station, undated – accompanied Detective Sergeant Kasira to Hahalis on 22.06.99 – led by informant to scene – searched with torches – found the body covered with bedding and placed in blue plastic – took plastic out of the hole – confirmed with sunlight – took bone samples – handed remains to relatives for proper burial – took photos – referred for analysis – results yet to be received.
G1/ G2	Accused	Record of interview of Jenny Kebana Peter – Tok pisin version (G1)/English version (G2) – she is married with two children – gave birth to another child after second child, but it was dead on delivery – it was premature – she put the dead baby in a hole, which was said to have been a grave – her father-in-law told her that that hole was a grave, so she put it in that hole – she did not ‘make a proper burial at the cemetery’ as she thought that that hole is a cemetery – she wrapped the dead baby with some laplap and put it in a plastic bag and threw it in the hole – she and her husband were not ashamed of having a new baby – that was not the reason she threw it in the hole – it was unfortunate that it died – on 5 June 1999 she and her husband had gone to fetch water in the bush – she was carrying a full 5-gallon container of water – when she got back to the village she felt blood flowing, as if she had a menstrual period – blood still flowing out until 10 June 1999, when the baby was delivered – on Saturday 12 June 1999 she left the corpse in the hole – on Saturday they made the funeral feast and asked for forgiveness from God – ‘But U-Vistract has not opened so that we can bet some money to make feast to get the corpse from the hole so that it can be buried in the cemetery. But the police went and got it’.

A person who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, is guilty of a misdemeanour whether the child died before, at or after its birth.

In D R C Chalmers et al, Criminal Law in Papua New Guinea, 3rd edition, Lawbook Co, 2001, at page 312 it is suggested that there are three elements to this offence. I consider, however, that the elements are better expressed by saying that a person must be proven to have done the following:

That is, Section 313 can be divided into six elements. I agree, however, with the Chalmers commentary as to the meaning to be given to the word "child" in this section. When Section 313 speaks of a woman having delivered a child and it being necessary to prove that a person endeavoured to conceal the birth of a child by secret disposition of the dead body of the child, the "child" being referred to must be a child, as distinct from a foetus. The child must be such that, if he or she had not died at or after birth, he or she had a capacity in the ordinary course for a continued existence. Generally if a woman is 28 weeks pregnant or more, she will have delivered a "child" for the purposes of the section. (See The State v Meli Heti [1977] PNGLR 173, National Court, Kearney J.) This is the meaning of "child" that has been developed by the courts in the interpretation and application of this special provision. It does not mean that if a person does something in relation to a foetus, as distinct from a child, he or she escapes criminal liability. Nor have the courts attempted to enter the moral debate about when a foetus should be regarded as a child. There are other provisions of the Criminal Code aimed at protecting a foetus, eg Section 225 (attempts to procure abortion). (See The State v Gwen Maika (2004) N2605, National Court, Cannings J.)

Mr Siminji submitted that a no case submission should be upheld in two situations. First if there is no evidence or no more than an iota of evidence to support one or more of the elements of the offence. Secondly, if there is more than an iota of evidence, but the Judge really has no weighing of evidence to do by reason of the State’s evidence being so tainted or so obviously lacking in weight or credibility that no reasonable tribunal of fact could safely use it as the basis of a conviction.

Mr Siminji relied on the first of the two situations, which equates to the first limb of Rape’s case. His principal arguments were:

Mr Rangan submitted that all that the prosecution needs to establish at this stage is that there is some evidence of the elements and it is more than a scintilla and is not shaky and unreliable. He said that the evidence met those low standards, in that:

Therefore, the safest course of action, Mr Rangan submitted, is to refuse the no-case submission and allow the trial to proceed.

I will now apply the principles of Rape’s case. I will not concern myself, in the first instance, with whether the evidence is contradictory or unreliable. That will become relevant if the second limb of Rape is applied. In the first limb I will simply search for some evidence of each of the elements; evidence which, if accepted, would either prove the existence of the element or enable its existence to be inferred.

The evidence of witness A reveals what she saw happening. The evidence of witnesses B and C seems largely hearsay, but as this is a no case submission it will not be discounted at this stage. The evidence of witnesses D and E is that of police officers, who depose about the police investigation. Their evidence is indirect only. The evidence of witness F, another police officer, is potentially significant. He refers to photos and bone samples being sent away for analysis, but not coming back. The evidence of witness G, the accused, in her record of interview has also been taken into account.

That leaves one aspect of three of the elements remaining. The one highlighted by Mr Siminji. Is there evidence that she was endeavouring to conceal the birth of a child? Had delivered a child? Was secretly disposing of the dead body of a child? A child, as distinct, for the purposes of Section 313, from a foetus?

I find myself persuaded by Mr Siminji’s submission. There is no evidence of what was in the plastic bag. Witness A saw the accused carrying the bag and throwing it into the hole, but did not see what was in the bag. Witness F took photos and bone samples, but the prosecution’s case is missing those two pieces of evidence. Witness F does not state what he observed in any detail. No results of the forensic analysis are available. I am not persuaded by Mr Rangan’s argument that because the accused referred to what she had thrown away as a "child", that is evidence that what she was referring to falls within the legal definition of a child.

There is a serious gap in the prosecution’s case. There is no evidence of a critical aspect of three of the elements.

I conclude that there is no evidence that all of the elements of the offence are present. Going back to question 1 in Rape’s case – is there some evidence of each element? – the answer is no. That means as a matter of law the accused cannot be convicted. The no case submission is upheld. There is no need to consider question 2 of Rape. The accused is entitled to an acquittal.

This is a disconcerting case. One only has to read the record of interview to discern a feasible explanation of what has happened. A few days before she gave birth the accused was carrying water – a five-gallon container. She had a miscarriage. The baby was still-born and, perhaps, premature. She perhaps felt some embarrassment over what had happened. So she disposed of the baby’s body in a cave, which she had been told by her father-in-law was a cemetery. She was doubtless upset at losing her baby. In any event later that day there was a moderate funeral feast and it became well known that she had given birth and disposed of the body in the way reported to the police.

This seems a case of a woman in a difficult, stressful situation, who has tried to cope and done something, under pressure, that some members of her community did not think was right. Then she suddenly finds herself the subject of a criminal investigation. She is arrested, charged and committed by the District Court. The case eventually comes to trial almost six years after the incident. This strikes me as a village problem, that should have been sorted out at the village level or by engaging counsellors or welfare workers. I echo what was said by Kearney J 28 years ago in Meli Heti’s case, where another village woman was brought before the National Court on a similar charge:

... bearing in mind the surrounding circumstances, I must say, with respect, that I do not think the prisoner should have been prosecuted at all for this or any other offence. She was entitled to the compassionate solicitude and the concern of society rather than to the rigour of the criminal law.

One week later, in a different case altogether, Kearney J referred to his decision in Meli Heti’s case and made another comment apposite to the present case. A Dutch entomology student was given wrong information by Indonesian authorities and entered Papua New Guinea at Vanimo without an entry permit. He went to the police station for assistance but instead of being given assistance he was arrested. He was prosecuted before the District Court and sentenced to three months imprisonment. On appeal to the National Court in Dirk Leopold Schuiling v Alphonse Krau [1977] PNGLR 176, Kearney J upheld the appeal and stated:

The fact that the conviction was sound in law, does not mean that it was proper to have instituted the prosecution ... one of the most important, sensitive and difficult tasks in the administration of justice, is the proper exercise by prosecuting authorities of their discretion to prosecute.

Twenty-eight years later the question must be asked whether anything has been learned from such cases. The justice system is struggling to cope with long lists of remandees in many parts of the country. There is a backlog of cases involving very serious criminal allegations such as murder, rape, sexual abuse of children, fraud, corruption and armed robbery. Daylight robbery is occurring at an unacceptable level on the country’s highways and byways. Serious thought must be given by all those involved in the criminal justice system to consider whether their priorities are right. Are we chasing the real criminals?

The order of the National Court is that Jenny Kebana Peter is acquitted of the charge of concealing the birth of a child by secret disposition of its dead body.
__________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the accused : Public Solicitor

National Court of Papua New Guinea

State v Peter [2005] PGNC 135; N2813 (17 March 2005)