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State v Dakoa [2009] PGNC 13; N3587 (20 February 2009)

N3587


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 77 OF 2008


THE STATE


V


LINUS REBO DAKOA


Kimbe: Cannings J
2008: 9, 10, 14, 16 October;
2009: 9, 10, 11, 16, 17, 18, 20 February


VERDICT


CRIMINAL LAW – trial – wilful murder – circumstantial evidence – alibi – Criminal Code, Section 299.


The accused was indicted on two counts of wilful murder, the victims being a 27-year-old woman and her 2-year-old daughter. The State presented no direct evidence and rested the case entirely on circumstantial evidence: that the accused was the custodian of the land on which the deceased were living and had a motive for killing the woman as she was making food gardens on the land; he was in the vicinity of the crime scene shortly after the bodies of the deceased were discovered; he behaved abnormally and suspiciously shortly after the bodies were discovered; he was identified by a bystander as the killer; he was found armed with a bush knife, which was confiscated by the police, shortly after the bodies were discovered; he made admissions to the police at the crime scene; and he made further admissions to police while in custody. The accused gave sworn evidence, denying that he killed either of the deceased, that he bore any animosity towards them, that he behaved abnormally or that he made any admissions to the police. He said that he was with his family at their house on the morning of the incident.


Held:


(1) The principles to apply when a case is dependent on circumstantial evidence are:

(2) It was proven that the accused was the custodian of the land on which the deceased were living but not proven that he had a motive for killing the woman. It was proven he was in the vicinity of the crime scene shortly after the bodies of the deceased were discovered but not proven that he behaved abnormally and suspiciously. It was proven that he was identified by a bystander as the killer but not proven who that bystander was or why he identified the accused as the prime suspect. It was proven that he had a bush knife but not proven that it was the murder weapon. It was not proven that he made admissions to the police.

(3) There were many gaps in the State’s case. It was not proven where, when or why the deceased were killed or that the accused’s bush knife was the murder weapon. There was no forensic evidence connecting the accused to the deaths (e.g., no evidence of blood or human tissue on the accused’s person or his clothes or on his belongings or in his house). There was no evidence that other persons or houses in the vicinity of the crime scene were checked for evidence or that any other hypothesis was followed.

(4) Having applied the principles regarding cases dependent on circumstantial evidence: there were reasonable hypotheses available other than guilt of the accused; guilt was not the only reasonable inference to be drawn; the proven facts did not lead only to the conclusion that the accused killed the deceased.

(5) The accused was accordingly entitled to an acquittal.

(6) Remarks: on the quality of the police investigation and the manner in which the case was prosecuted.

Cases cited


The following cases are cited in the judgment:


Devlyn David v The State (2006) SC881

Paulus Pawa v The State [1981] PNGLR 498

The State v Linus Rebo Dakoa (2009) N3586


Abbreviations


The following abbreviations appear in the judgment:


CID – Criminal Investigation Division

cm – centimetres

Const – Constable

CR – criminal case

J – Justice

N – National Court judgment

No – number

OIC – officer-in-charge

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

SCR – Supreme Court Reference

Sgt – Sergeant

Snr – Senior

v – versus

WNB – West New Britain


Dates


The events referred to in this judgment occurred in 2007 unless otherwise indicated.


TRIAL


This was the trial of an accused charged with wilful murder.


Counsel


F Popeu, for the State
M W Norum, for the accused


20 February, 2009


1. CANNINGS J: On the morning of Saturday 20 October 2007 Kimbe police were alerted to the discovery of the bodies of two deceased persons at Morokea, near Kimbe. They were a mother, Maria Willie, aged 27, and her daughter, Jessica Willie, aged two years. When the police arrived at the scene, they found only the body of Maria Willie. The police were told that the body of Jessica Willie had been removed by relatives. Maria and Jessica Willie lived close to where the body of Maria Willie was lying.


2. Both appeared to have been brutally killed. Maria Willie suffered multiple knife wounds, including amputation of her left arm, and multiple skull fractures. Jessica Willie suffered a knife wound to the skull and a skull fracture.


3. The accused, Linus Rebo Dakoa, a 27-year-old Bali Island man, who was also living close to the spot where Maria Willie’s body was lying, has been indicted for the wilful murder of both Maria and Jessica Willie. He has pleaded not guilty and a trial has been held to determine whether he should be convicted.


4. Seven witnesses gave oral evidence for the State. Two are residents of the area in which the accused and the deceased were living. The rest are police officers involved in the accused’s arrest or subsequent investigation. The post-mortem reports, a sketch of the crime scene and a bush knife alleged to be the murder weapon were also admitted into evidence. A confessional statement by the accused and a record of interview were, for various reasons, refused admission, following a voir dire (The State v Linus Rebo Dakoa (2009) N3586).


5. The accused gave sworn evidence, denying that he killed either of the deceased, that he bore any animosity towards them, that he behaved abnormally or that he made any admissions to the police. He said that he was with his family at their house on the morning of the incident. He was preparing to go to work at Hamamas Trading where he was a carpenter. He was the only witness for the defence.


6. After closure of the defence case and before submissions, the court viewed the crime scene, i.e. the place where the body of Maria Willie was found and the surrounding area.


ISSUES


7. The offence of wilful murder is created by Section 299 of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt, in respect of each count, that:


8. All of these elements are in issue as the accused does not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. He says simply that he did not kill either of the deceased. His defence is a general denial coupled with an alibi.


9. The primary issue is therefore whether the accused killed either or both of the deceased. If he did, it will be deemed an unlawful killing (as no specific defence has been raised) and the court will proceed to consider whether he intended to cause the death of either or both of the deceased. If he did not have that intention, an alternative conviction for murder or manslaughter can be entered.


10. The State presented no direct evidence and rested the case entirely on circumstantial evidence. The prosecutor, Mr Popeu, agreed with the defence counsel, Mr Norum, that the principles to apply when the State relies on circumstantial evidence are those set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:


11. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:


12. The issues calling for immediate determination therefore are:


WHAT ARE THE PROVEN FACTS?


The State’s case


13. Mr Popeu submitted that the following were proven facts:


  1. On the morning of 20 October 2007 the deaths of Maria and Jessica Willie occurred at Morokea on a block of land owned by the accused’s uncle, Patrick Giru. Their bodies were found at the block.
  2. The deceased persons were killed as a result of being cut by a sharp objects, such as a knife.
  3. The accused was living on the block, in a house about 60 metres from where the bodies were found.
  4. The accused was the custodian of the block and had been so throughout 2007, as his uncle had gone to Rabaul to work and left him in charge.
  5. The accused had a motive for killing Maria Willie as she was making food gardens on the accused’s uncle’s land without the accused’s permission.
  6. On the morning of 20 October, the accused was in the vicinity of the place where the bodies were discovered, behaving abnormally and suspiciously.
  7. The accused was identified by a bystander as the killer.
  8. The accused was carrying a bush knife, which was confiscated by the police, shortly after the bodies were discovered.
  9. The accused made admissions to the police at the crime scene.
  10. The accused made further admissions to police while in custody.
  11. No one other than the accused had a motive to kill the deceased.

14. Mr Popeu submitted that the only reasonable inference to draw from the above facts is that the accused was the person who killed Maria and Jessica Willie. Mr Norum agreed with only some of the propositions of fact and submitted that no reasonable inference that the accused was the person who killed the deceased could be drawn from the proven facts.


15. I will now test each of the propositions of fact and determine which ones have been proven. Then I will summarise the proven facts and then apply the principles regarding circumstantial evidence to those facts.


  1. Deaths occurred on the morning of 20 October 2007 at the accused’s uncle’s block.

16. Mr Popeu submitted that the deaths occurred at the accused’s uncle’s block on the morning that the bodies were found. He appeared to base this submission on the fact that the bodies were found on that block and there was little or no evidence that they had been moved there from another location.


17. I query whether there is sufficient evidence before the court on which to base such conclusions. The police crime scene specialist, Const Francis Dalman, who went to the scene on the morning of 20 October, made no assessment of the time of death of either of the deceased. If he had given such evidence, it would have been contentious whether he had sufficient expertise to give his evidence much weight. But there was no evidence at all.


18. Const Dalman said that the body of Jessica Willie had been removed from the scene by the time he and other police officers arrived. Const Dalman gave no evidence about whether it appeared that the body of Maria Willie had been dragged or otherwise moved to the place where it lay. He also gave no evidence of his assessment, given the appearance of Maria Willie’s body, of how she died, whether, for example, she had been hit with a blunt object or whether she had been cut with a sharp object. He took no photographs of the bodies of either Maria or Jessica or of the place where Maria’s body was found. Mention was made by one of the police witnesses that someone took photos but no photos were tendered in evidence.


19. Const Dalman gave evidence that one of the accused’s wantoks (the name of whom was not provided) told him, when he arrived near the place where Maria’s body was lying, that ‘this is the fellow who did the murders’. He then asked the accused if he was the one who did it, and he said yes. He admitted it straightaway.


20. Const Dalman confiscated a basket made of coconut leaves that the accused was carrying, which had inside it a bush knife, about 70 cm long, with a wooden handle and a piece of rubber tightened into it. Const Dalman said he took no fingerprints off the bush knife or any other item as he had no powder. He just gave the bush knife to Chief Sgt Sege, the OIC of the Kimbe CID, who also attended the crime scene on the morning of 20 October.


21. A bush knife has been admitted into evidence and the State’s case is that it was the bush knife confiscated by Const Dalman and that it is the murder weapon. The accused gave sworn evidence that he did not have a bush knife on him when he was apprehended that morning. Be that as it may, if it is his bush knife, there is no evidence that it was subject at any time to forensic examination. Nobody has given evidence that it had blood or human tissue or hair or bits of clothing on it or that it bore any irregular features suggesting that it might have been used to cut or assault anyone. Chief Sgt Sege said he saw no stains on it. There is no evidence at all connecting the bush knife that has been admitted into evidence with the death of either of the deceased.


22. There is no evidence that the accused’s house, which is only 60 metres from the place where Maria Willie’s body was found, was searched for any evidence of blood or human tissue or anything that would have connected him with the deaths. Nor is there any evidence that any houses in the vicinity were searched. It appears that none of the local residents were formally interviewed. There is no evidence that anyone heard any screams or any other noises on the morning of 20 October or at any other time, which would give an indication of the time that the deceased were attacked or the place or the manner in which they were attacked.


23. None of the people who were living with the deceased gave evidence, to shed light on whether Maria and/or Jessica Willie were at home on the morning of 20 October or whether they were seen somewhere else or what they were doing.


24. There is no evidence that the accused was physically examined to see if there were traces of blood or human tissue on his body or clothing or whether it appeared that he had recently washed (perhaps in an attempt to remove evidence). There is no evidence that the accused’s clothing was examined for telltale signs of a struggle or an attack. No official record of what he was wearing is in evidence.


25. The only thing that Const Dalman appears to have done which would qualify as being part of a forensic investigation of the deaths was to draw a sketch of the area in which he observed Maria’s body. The sketch, however, is vague and not drawn to scale and indicates only in oblique terms where things such as "child victim’s brain" and "blood like" substances were found.


26. The post-mortem examinations were conducted on the morning of 25 October – five days after the bodies were found – by Dr K Samuel of Kimbe General Hospital. Dr Samuel reports that both of the deceased suffered knife wounds and skull fractures but does not posit a view on the cause of the skull fractures. As to the time of death, Dr Samuel states "20/10/07 at 7.00 am" but provides no basis for that estimate. Dr Samuel did not give oral evidence so the court did not get the benefit of a more detailed elaboration of the findings. The impression gained from the manner in which the pro-forma post-mortem reports have been completed is that Dr Samuel inserted information conveyed by the police officers who requested the reports to be prepared.


27. In Devlyn David v The State (2006) SC881 the Supreme Court pointed out that in a wilful murder trial, especially where the State’s case relies on circumstantial evidence, it is important that the court be able to make clear findings on:


28. At this stage, I am focussing on the first two of those questions. Mr Popeu is asserting that both the deceased were killed where Maria Willie’s body was found, or close to that place, and that they were attacked and killed early in the morning of 20 October. Having considered all the evidence, I am not satisfied that the State has proven where they were attacked or killed or the time at which they were attacked and when they died. The time and place of death is therefore unclear.


2 The deceased persons were killed as a result of being cut by sharp objects, such as a knife.


29. This is borne out by the post-mortem reports and the defence does not dispute it. I find that Maria and Jessica Willie suffered knife wounds that directly caused their deaths.


3 The accused was living on the block, in a house about 60 metres from where the bodies were found.


30. This is correct, at least in relation to Maria Willie’s body. But it is not clear where Jessica’s body was found. Both Const Dalman and Chief Sgt Sege said that when they arrived at the scene, only Maria’s body was observed. They presumed that Jessica’s body had been taken away by relatives.


4 The accused was the custodian of the block and had been so throughout 2007, as his uncle had gone to Rabaul to work and left him in charge.


31. This is correct. It emerged from the accused’s sworn evidence.


5 The accused had a motive for killing the woman as she was making food gardens on the accused’s uncle’s land without the accused’s permission.


32. It was alleged at the start of the trial that the accused, who was looking after his uncle’s block, had been having problems with people making food gardens without permission and that on the morning of 20 October he became angered by Maria Willie’s presence on his uncle’s land, harvesting food to sell at the market, and that after exchanging words with her, swung his bush knife at her and her daughter, Jessica, who was with her. The motive for the killings was thus said to be the animosity the accused bore towards Maria and his anger over seeing her in the garden on the morning of 20 October.


33. This is where the State’s case is seriously deficient. No evidence was presented of any animosity the accused bore towards the deceased. The State provided no evidence of any motive. Mr Popeu tried in his cross-examination of the accused to extract admissions of ill-will between him and Maria. But the accused denied this, rather effectively I thought. He said that he was on friendly terms with Maria. He did not really have a problem with any of the people who were making gardens on his uncle’s land. He was only looking after it reluctantly. His uncle had to insist on him going there to live as he did not want to go in the first place. It was not his land, and it was not as if he was growing cash crops on it. His uncle had allowed people to make gardens on his land. This was credible evidence.


34. Not only was there no evidence to support the contention that there was a history of trouble between the accused and the deceased, there was also a lack of evidence that the accused was a short-tempered or violent person or that there had been any previous incidents involving anybody in which he had become violent.


35. I agree with Mr Norum who submitted that, even if it had been proven that there was ongoing conflict over the use of the land, it is very hard to believe, in the absence of any evidence to support this version of events, that this would lead to the brutal killing of a mother and her young child.


36. I find that the State has not established any motive for the accused killing either Maria or Jessica Willie.


6 On the morning of 20 October, the accused was in the vicinity of the place where the bodies were discovered, behaving abnormally and suspiciously.


37. The State presented two witnesses who gave evidence of the accused’s behaviour.


38. George Mara was a grade 8 school student, living in the area at the time. He was in his house when he heard that something had happened so he went to the place where Maria’s body was lying. He went with two friends, Wesley and Henry. On the way, they saw the accused and asked him if he had seen anyone carrying a bush knife. He said no. Then he said ‘you must not burn down my house, my family has already run away’. He said the same thing three times. Then he went with them to the house of a Kerema lady [the second State witness]. They told her about the deaths and she said that she would go with them to the spot where the bodies were. Then the accused went into the vanilla garden and left his basket. The accused did not want to follow them. He said ‘I am holding a bush knife and they might suspect me’. The Kerema lady commented that it ‘must have been one of us’ and then he ran away. George soon afterwards heard that it was the accused who was responsible, so they started to look for him but could not find him.


39. In cross-examination George said he did not notice any blood on the accused’s bush knife and there was nothing peculiar about the bush knife. It was clean.


40. Hildagard Sapun lives not far from the accused’s house. She knows the accused very well and treats him like a son. Like many of the other young people living in the area, he used to call her Mum. Between 6.50 and 7.00 am on 20 October she was outside her house chewing and smoking, and the accused passed by. She said good morning but he was not in the right frame of mind. He was unsettled. He asked where his wife was and Hildagard replied that she had gone to fetch water. He told her there had been a killing in the garden, close to his house. She asked who did it. "Ol mangi’, he said. ‘Why?’ ‘Drugs’. He was wearing long trousers and a new shirt and carrying his basket but she could not see what was in it. He offered to take her to where the body was and as they were talking, George and two other small boys came along. They were also very scared. They did not say much but made gestures with their eyes, suggesting that the accused might be a suspect.


41. They all left her house and headed to the spot but when they got close the accused stopped. Hildagard and the others kept walking. She called out for him to come. He initially refused. He just stood there like a rock. He said he was concerned that he was going to be suspected of the killing. He eventually came towards them. She observed the body of the woman – she was from Kandrian – but did not want to go close. There was only one body. It was lying sideways. There were less than ten people looking at it. He disappeared again. Then he came back. He said something like ‘did the mother come with the child?’ Then he walked away without another word.


42. She was concerned about the accused. He was restless and she did not like to see ‘her son’ like that. His eyes were bloodshot and he was very unsettled. His eyes were talking and his body language was strong. But she was not suspicious of him. She thought maybe he could lead them to whoever was responsible for the killings.


43. She was sure all this happened between 7.00 and 9.00 am. It was at about 9.00 am that the police took the accused away. George had said in his evidence that the events happened in the afternoon but Hildagard dismissed that: ‘George is a small boy and his recollection is wrong’, she said.


44. Mr Norum submitted that the evidence of George Mara and Hildagard Sapun was in conflict. They gave inconsistent evidence about where they had first spoken to the accused and about the time of the events and about what the accused was wearing. This is correct but I do not think the inconsistencies are significant. I do not consider that either witness knowingly gave false evidence. To the extent that any significance is to be attached to their different versions of events, I favour Hildagard’s version. She was an impressive witness.


45. What findings of fact flow from this evidence? The accused was unsettled, restless and expressed concern that he might be a suspect. He was worried about his wife and where she was. He was concerned that his house might be burned down. Is this, as the State wants the court to find, abnormal or suspicious behaviour? I suppose it is. I am prepared to make a guarded finding to that effect. What inferences should be drawn from that, however, is another matter, which I will address later.


7 The accused was identified by a bystander as the killer.


46. Four police officers gave evidence as to how the accused came to be identified as the prime suspect.


47. Const Dalman said that one of the accused’s own wantoks told him ‘this is the fellow who did the murders’. Const Dalman then asked the accused if he was the one and he admitted it straightaway. He did not caution him about his right to remain silent before he asked him. The accused was then taken from the scene to the police station for his own protection. Const Dalman later told the arresting officer, First Const Yakoyagi, that the accused had admitted to the killings.


48. Chief Sgt Sege said that he went to the scene on the morning of 20 October with a number of uniformed personnel. On the way to the spot where the woman’s body was lying they met the accused and one of his in-laws who told him that the accused was the main suspect. Const Dalman was right behind him and was asked to search the accused. The accused had a basket containing a bush knife and Const Dalman took possession of it. Chief Sgt Sege then instructed the uniformed personnel to take the accused into custody.


49. In cross-examination Chief Sgt Sege said he did not hear any conversation between Const Dalman and the accused in which the accused admitted to the killings.


50. Const Peter Wende also went to the scene on the morning of 20 October. When they were walking to the place where the woman’s body was lying, an informant tapped him on the shoulder and pointed to the accused and said ‘this is him’. He observed that the accused had a basket with a bush knife inside. He does not know whether the informant is a wantok of the accused. Const Wende said he was the first officer to whom the informant spoke about the accused being the prime suspect. It was not Const Dalman. It was not Chief Sgt Sege. He did not ask the accused anything, he said. He only confiscated his basket. Then he apprehended the accused and handed him over to Const Dalman. He did not hear the accused say anything to Const Dalman.


51. First Const Petha Yakoyagi, who took over the investigation on 25 October, was not present on the morning of 20 October. He denied being told by Const Dalman that the accused had made admissions at the scene.


52. There are a number of unsatisfactory features of this evidence:


53. I find that the accused was arrested and detained and treated as the prime suspect – indeed he was treated as the only suspect – on flimsy grounds.


8 The accused was carrying a bush knife, which was confiscated by the police, shortly after the bodies were discovered.


54. This is a proven fact. However, as I indicated earlier no forensic examination was conducted of the bush knife. There is no evidence to connect it to the deaths.


9 The accused made admissions to the police at the crime scene.


55. The only evidence of this is provided by Const Dalman’s testimony. But there is no corroboration of it. Indeed, Chief Sgt Sege, who was standing close to Const Dalman at the time did not hear any conversation between Const Dalman and the accused. The accused denies making admissions to anyone at any time. First Const Yakoyagi said that Const Dalman did not tell him about any prior admissions by the accused.


56. If any admissions were made, it was not preceded by any caution, and would have had little weight.


57. However, I find it not proven that the accused made admissions at the scene.


10 The accused made further admissions to police while in custody.


58. Mr Popeu acknowledged that the court had already ruled that the accused’s confessional statement and record of interview were not in evidence. So those documents cannot be relied on. But there is still evidence, Mr Popeu contended, that the accused admitted to the killings. That evidence is contained in the testimony of First Const Yakoyagi and Snr Constable Rhema Luckie and their account of what the accused said to them. The argument is that a distinction must be drawn between what is stated in the documents that the accused signed (which documents have been ruled inadmissible) and what the accused said to the officers who recorded the accused’s statements.


59. I reject this argument. The reason that the documents were ruled inadmissible is that they were obtained unfairly, in breach of the accused’s constitutional rights. The same unfairness and the same human rights breaches operate to prevent evidence of what the accused stated orally being admitted into evidence.


60. Even if the evidence of what the accused said were to be admitted into evidence, the question of what weight would be attached to it would inevitably arise, given the length of time and the conditions under which the accused was unlawfully detained and the fact that he gave sworn evidence that he was not in a balanced state of mind at the time.


61. However, I refuse to consider the evidence of what the accused allegedly said to the officers. The distinction Mr Popeu seeks to draw between the two bodies of evidence is artificial and contrived and would make a mockery of the court’s voir dire ruling.


11 No one other than the accused had a motive to kill the deceased.


62. Mr Popeu attempted to argue – I say attempted as I am not sure that I have understood the argument – that part of the circumstantial evidence against the accused is that no one other than him has been shown to have a motive to kill Maria Willie and her baby daughter.


63. With respect, this is a bizarre argument. No one else has been shown to have a motive because the accused was arbitrarily arrested and treated as the prime suspect on very flimsy grounds, acting on vague allegations made by persons unknown and unidentified. No proper investigation has been carried out. No one other than the accused has been regarded as a suspect. No alternative leads have been followed. Next to no forensic investigation has been undertaken.


64. It was not up to the defence to point to anyone else as being a suspect or to show that someone else had a motive to kill or that some other person killed the deceased. If the court starts to expect that of accused persons than we will be reversing the onus of proof and violating an accused person’s right under Section 37(4)(a) of the Constitution to be presumed innocent until proved guilty according to law.


65. It has not been proven that no one other than the accused had a motive to kill.


Proven facts


66. They can be summarised as follows:


Unproven facts


DO THE PROVEN FACTS LEAD ONLY TO THE CONCLUSION THAT THE ACCUSED KILLED EITHER OR BOTH OF THE DECEASED?


67. It is correct to draw the inference that the accused was rightly regarded as a suspect. The body of Maria Willie was found not far from his house. He behaved abnormally and suspiciously soon after the body was found. He was seen to be carrying a bush knife and the post-mortem reports show that both Maria and Jessica Willie suffered multiple knife wounds. The accused was identified by someone as a suspect.


68. However, that is about as far as any reasonable inferences can go regarding the accused’s involvement in the deaths of Maria Willie and Jessica Willie.


69. The fact that one of the bodies was found near his house, on land he was looking after, does not make him the killer. The land is freely accessible to passers by. It is not enclosed.


70. The fact that he had a bush knife does not make him the killer. Many people living in bush communities carry bush knives.


71. His behaviour in the morning of 20 October is perhaps, on the face of it, consistent with someone who has just carried out two vicious killings. It is also consistent with someone who has just discovered the body of a friend on his land and is scared that he will be suspected of the killing. Significantly, though the State placed a lot of emphasis on Hildagard Sapun noticing that the accused was behaving abnormally and was restless and unsettled, Hildagard said she did not believe that the accused was the person responsible for the killings.


72. As Mr Norum pointed out: if the accused was the killer, it is reasonable to expect that he would not have stayed around the crime scene and interacted with the local people. He would have fled. He did not leave the area, however, and this suggests that he was not responsible for the deaths.


73. As for the information provided by the bystander, it is entirely unreliable and untested. Perhaps this informant was the killer, intent on deflecting the blame to someone else. If there was a genuine and widespread feeling within the local community that the accused was the killer, it is reasonable to expect, as Mr Norum pointed out, that ‘jungle justice’ would have taken its course: the accused would have been attacked, perhaps killed. But that did not happen.


74. The police investigation has been so poor and the presentation of evidence to the court by the State has been so deficient, it is not possible to draw the conclusion that the guilt of the accused is a rational inference to draw from the proven facts, let alone that, according to the Paulus Pawa principles, it is the only rational inference. There are reasonable hypotheses available other than guilt of the accused.


75. The proven facts clearly do not lead reasonably only to the conclusion that the accused killed either of the deceased.


DID THE ACCUSED KILL EITHER OR BOTH OF THE DECEASED?


76. No. The State has fallen well short of proving this first element of the offence of wilful murder. He must be acquitted of wilful murder. He cannot be guilty of any other homicide offence as an essential element of each such offence is that the accused has killed a person. No other alternative verdict is available.


REMARKS


77. This is a very serious and significant case in the recent history of this province. A young woman and her child have been brutally murdered close to the provincial capital. It was the task of the police to investigate these murders thoroughly and diligently and professionally, to bring justice to whoever was responsible, to show respect for the lives that have been lost and to ease the pain for the relatives and loved ones of the deceased. That did not happen here. The police investigation was deficient, inept, unprofessional and lamentable. I trust that the WNB police will learn from the mistakes and inaction in this case and perform their obligations to the people of this province in a much more professional manner in future.


VERDICT


78. Linus Rebo Dakoa is found not guilty on both counts of wilful murder and not guilty of any other offence.


Verdict accordingly.


____________________________


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

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