N4237

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. 125 of 2010

THE STATE

V

HENRY TOLIU

Kokopo: Sawong, J.
2011: 15, 16, 17, 18 & 23 March

CRIMINAL LAW – Wilful Murder – Plea of Not Guilty – Admissions in confessional statement – Whether safe to convict on uncorroborated confession: need for corroboration – Unsafe to convict an uncorroborated confessional statement.

Cases Cited:
Papua New Guinea Cases

R –v- Namiropa Koinbondi [1969 – 1970] PNGLR 94
The State –v- Malepo (2) 1996 PNGLR 252
The State –v- Ungum Ovohe [1980] N245
The State –v- Thomas Some (1982) N366 
Devlene David –v- The State [2005] SC881
Onama Andrew –v- The State (2009) SC997

Overseas cases

R –v- McKay (1935) 54 CLR 1

Counsels:

Ms. V. Mauta, for the State
Ms. A. Hombunaka, for the Accused

23 March 2011

1.	SAWONG, J.:	The accused was jointly charged with another accused on one count of wilful murder, an offence contrary to Section 299 of the Criminal Code as amended to date. Both of them pleaded not guilty and a trial was conducted.

2.	 In the cause of the trial, a voir dire was conducted in relation to the confessional statement in relation to this accused. After hearing the evidence and submissions, I ruled that the confessional statement be admitted into evidence. The confessional statement was admitted into evidence as part of the State's case and is marked as exhibit "S8".

3.	After that the State then called other witnesses whose evidence I will refer to shortly hereafter. After the State closed its case, counsel for the two accused made a no case to answer submission. After considering the submissions, I gave brief rulings and found that the accused Rayson Tiun had no case to answer and acquitted and discharged him. However, I found that the accused Henry Toliu had a case to answer. At the end of the State's case, counsel for the accused closed the defence case.

4.	In order to prove it's case, counsel for the State called six witnesses who gave sworn oral evidence. In addition, the State relied on several documentary evidence. Except for the confessional statement, all the documentary evidence were tendered and accepted into evidence by consent. This documentary evidence included:

(a)	The record of interview between the accused and the police investigating officers (exhibit S 1(a) & (b).

(b)	the affidavit of Dr. R. Malien together with post mortem report – (exhibit S3). 

(c)	the statement of the police investigating officer Orim Konge (exhibit S4).

(d)	the statement of the corroborator (exhibit S5).

(e)	confessional statement dated 2 September 2008 (exhibit S8).

(f)	one page containing 6 photos of the deceased's wounds (exhibit S9)."

5.	The statement of the two police investigating officers may be disposed of quickly. There is no evidence in those statements which are relevant. They are of no probative value at all.

6.	The record of interview does not have any admissions. However, there are aspects of it, which I will refer to later in this judgment. To that extent, I will refer to the relevant parts.

7.	The photographs of wounds and the post mortem report may be dealt with together. The photographs show in graphic detail the wounds that have been described in the autopsy report. The autopsy report describes the different wounds that had been inflicted and the photographs compliment and shows those wounds in graphic detail. This shows that, the deceased was brutally and savagely attacked. These demonstrate the viciousness with which the deceased was attacked. The viciousness and the force that was applied are clearly depicted in the photographs.

8.	Turning now to the oral evidence. The first witness was Judas Waninara. He is a former councillor and a friend of the deceased. His evidence relates to him and the deceased, meeting that afternoon and going to the witness's house. There, they chewed some betel nut and some time later the deceased rode away in his motor bike. Not long after that, he heard that the deceased have been attacked and killed. Upon hearing this, he went to the scene of the attack and saw his friend lying there dead. His evidence is of no or very little relevance. It is only relevant so far as it relates to seeing the wounds on his friends body and finding out that his friend was dead.

9.	The next witness was Dr. R. Malien. He was called to clarify and explain his findings as contained in the autopsy report. In the autopsy report the Doctor sets out in detail his finds. For reasons that will become obvious, it is unnecessary to set out that report in any great detail. Suffice to say that the report clearly shows that the deceased was savagely attacked with dangerous weapon or weapons. The injuries inflicted demonstrate the horrific and brutal injuries sustained by the deceased. The cause of death was directly from the brutal attacks.

10.	It clearly demonstrates to my mind that who ever attacked this man, intended to kill the deceased. It is obvious that the force and weapons used coupled with the nature of the injuries on the body of the deceased clearly demonstrate this.

11.	Oscar Tobing's evidence relates to the confessional statement. He gave evidence because the accused challenged it, as being obtained involuntarily. However, I accepted Oscar Tobing's evidence, as I find that the accused's version was not credible. The same may be said of the evidence of Johnny Korong.

12.	The confessional statement has been admitted into evidence after a voire dire. It reads:

"Caution. You noken toktok long sampla samting tasol women kain tok bekim belong yu bai mi writim igo daon long displa pepa na behain bai mi givim igo long kot olsem evidence againsim yu ken long kot belong yu, yu klia?

Ans:	Yes

Q1:	Yu laik bai mi writim stori belong yu?

Ans:	Yes.

Mipela ibung long Thursday 16th day long Mun Novemberr 2008 long taim olsem 7.00pm long nait long rot long marmar ples. Donald ibin kam long ples kamar na bungim mitupla, Rayson na mi. Donald ibin tokim mitupla bai mi tripla kilim Maia. Mipla bai mas kilim em long Friday em next day tasol. Mi ilaik kilim becos em komitim adultri long ples, long sister belong mi. Na wanpla samting tu em long em itok bai igo kisim ol policeman na ol boi belong tesin na bai ol bagarapim ol samting long ples. Em tok Marmar United church na Kamar United Church bai yupla olgeta ya bai yupla inap lotuim kok belong mi.

Long made tasol long displa week we bai mipla kilim em em ibin kam long ples haus lain na tok nogutim mi wantaim sister, na mama wantaem, pikinini blong em, na em kikim pot kaikai blong mipla long paia ibin kuk istap. Em tokim mipla tu olsem mipla in no blong hap, mipla belong reep.

Em nau long Friday namba 17th day long Mun November 2008 long taim olsem 1.00pm apinun mi tripla kisim tripla knaip, na mipla wokobaot antap long hill na igo daon long main rot blong Kabanga na Marmar. Mi tripla hait istap igo inap long hapinun long taim olsem 5.30pm. Em nau mi tripla harim motor bike iron ikam bek long ples igo long Kabanga station. Em ron ikam em Boss man, yet ikam na em spak tu. Mipla aproachim em tasol na paitim em tasol. Em stopim bike na em tok nogutim mipla gen olsem yupla ol mangi Marmar ya inap tasol long mi kuapim has blong ypla. Mi harim olsem na mi lukim em ikam arasait long bike na paitim Donald. Donald tanim nau na swingim naip long Maia nau na Maia iron bihainim rot igo bek olsem em ikam daon long en.

Mi lukim em olsem nau na mipla ronim em igo na katim em long naip. Mi katim em long sait reeb long body belong em.

Mi laik bai displa naip mi usim long kilim Maia bai mi soim yu na bai mi givim yu long en.

Mi lukim Donald katim em tripla taim nau na mi kirap na mi ronowe igo na mi kamap long haus. Em tasol".

13.	For the defence, only the accused gave evidence. He gave evidence during the voir dire. Most if not all of his evidence was in relation to the confessional statement. The essence of it was that because he was brutally attacked by Oscar Tobing with an iron bar over the head, he was in great pain and he was also threatened that he confessed. He also said that because he was in fear of being further attacked he signed it. He didn't give any evidence on his alibi defence.

14.	As I have said earlier, I didn't accept his evidence regarding the confession. I rejected his challenge and admitted it into evidence.

15.	Counsel for the accused has submitted that the State has not proved its case beyond reasonable doubt. She submitted that apart from the confessional statement, there is no other independent evidence of identifying the accused as one of the perpetrators of the crime. She submitted that the court should be cautious of relying on the confessional statement as the confession statement without more, would be unsafe to rely on to convict the accused. She submits that it would be unsafe to convict the accused on the uncorroborated evidence contain in the confessional statement and if the court were to convict on that evidence alone, it must do so only after the closes scrutiny and testing of the confession and only after an examination of the considerations, if any, supplying hypothesis by which the making of a confession may be explained more or less reasonably consistent with innocent. She referred me to R –v- Namiropa Koinbondi [1969 – 1970] PNGLR 94 and Onama Andrew –v- The State (2009) SC 997.

16.	Further, she submitted that there are conflicting or inconsistent evidence from the State. She submits that the evidence in the record of interview and the confessional statement are inconsistent, in that in the record of interview, the accused raises an alibi which is indirect conflict with the confessional statement. She submitted that, in the absence of an eye witness evidence, these two pieces of conflicting evidence, ought to cast doubt in the State's case.

17.	In addition, she submitted that there was a further inconsistency in the State's evidence in that in the confessional statement the accused says that he cut the deceased on the rib area yet in the medical report there is no indication that there was any injury on the rib area. Further the autopsy report and the photographs do not state or show that there were any knife wounds in the rib area. Moreover, the Doctor in his oral evidence did not say that he found any knife wounds in the rib area.

18.	Ms Hambunaka therefore submitted that it would be unsafe to convict on the uncorroborated and untested confessional statement.

19.	Ms Mauta for the State submitted that whilst there was inconsistencies in the State's case, in that the confessional statement was inconsistent with the record of interview, nevertheless the court should accept the confessional statement and convict on it as that confessional statement had been tested in cross examination of the accused.

20.	It is trite law that in a wilful murder trial, just like any other trial matters involving criminal offences, the State has the onus of proving beyond reasonable doubt the elements of a particular criminal charge. As this was a wilful murder charge, the State had the onus of proving beyond reasonable doubt the elements of that offence as set out in Section 299(1) of the Criminal Code. The elements of the crime of wilful murder are:

(a)	 that the accused killed the deceased, 

(b)	that the killing was unlawful,

(c)	that the accused intended to cause the death of the deceased.

21.	In Onoma Andrew –v- The State (supra), the accused had been indicted and convicted for wilful murder. On appeal to the Supreme Court, the court considered a number of issues. One of those issues was whether the conviction of the accused based on a confession was safe. 

22.	During the trial, the learned trial judge took into account that the State's case depended on the acceptance of the incriminating admission made in the record of interview. The record of interview had been tendered by consent into evidence and accepted as part of the State's case. In addition, a Section 96 statement made by the accused at the District Court was also admitted into evidence. The statement in the Section 96 statement was inconsistent with the appellant's admissions in the record of interview. Counsel for the defendant had argued before His Honour the trial judge that it would be unsafe to rely on the confessional statements contained in the record of interview to convict appellant as it was uncorroborated and was inconsistent with the appellant's Section 96 statement. The trial judge considered the leading PNG case on this issue, R –v- Namiropa Koinbondi (supra). The learned trial judge ruled that Koinbondi's case did not apply as the facts could be distinguished in three respects. He relied on the admissions and convicted the appellant.

23.	One of the grounds of appeal was that it was unsafe to convict him on the basis of the uncorroborated confessions contained in the record of interview which conflicted with his Section 96 statement. On this aspect, the Supreme Court said at p.10:

"The principles in Koinbondi's case have their genisis in the decision of the High Court of Australia in R –v- McKay (1935) 54 CLR 1, which indicated that there is no rule of law that says a conviction cannot be based on an uncorroborated confession. However, it is equally clear that the trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession. These principles have been applied in a number of other PNG cases: R –v- Mom & Debong [1965 – 1966] PNGLR 42, The State –v- Ungum Ovohe [1980] N 245; The State –v- Thomas Some (1982) N 366 and The State –v- Malepo (2) 1996 PNGLR 252.

The learned trial judge ruled that Koinbondi's case did not apply as the facts could be distinguished in three respects. First, the admission of the accused that he was present at the crime scene was corroborated by the evidence of the two State witnesses. Secondly, this case was fully investigated whereas in Koinbondi's case there was no full investigation. Thirdly, in the Appellant's case the Police Investigator was not cross examined.

As to those three points, we consider that His Honouor made an error of law on the first one. The question that should have been asked was not whether there was corroboration of the appellant's presence at the crime scene but whether there was corroboration of his admission that he killed the deceased. The answer to that question was clearly no. If the question had been raised and answered in that fashion, the danger of convicting on the basis of an uncorroborated confession would immediately have been apparent. It was particularly dangerous in this case as there was ample indication that the appellant wished to disown the confession. This indication come from the confessional statement and the Section 96 statement – both of which were admitted into evidence – and the clumsy and the ill-fated attempt of the defence counsel to force the State to reopen its case so that it could cross examine the Police Investigator.

With respect, we consider that the learned trial judge was focusing unduly on identifying the points or facts of distinction within the present case and Koinbondi's case when the preferral approaches was to apply the principles of law established by the case to the circumstances of the present case. If the principles had been applied in the manner required, we consider that it would not have been reasonable to convict the appellant. For these reason also, we have reached the conclusion that the conviction was unsafe and unsatisfactory." (emphasis added)

24.	In the present case, the question that should be asked is whether there was corroboration of his admission that he was part of the group of men who killed the deceased. In the record of interview, questions and answers 20 to 26, the accused denies making a confessional statement. This is what he says:

"Q.20	 Did you give a confessional statement before?

Ans:	 No.

Q.21	 Can you recognize the signatures signed on this statement?

Ans:	 No, it is not true.

Q.22	This is the confessional statement you gave to the Police when you surrended at Bitapaka, what will you say?

Ans:	No.

Q.23	In your confessional statement you said that you met up with Rayson and Donald and plan to kill Maia.

Ans:	That is not true.

Q.24	In your statement you said that Maia committed adultery with your sister in the village. What will you say to this?

Ans:	It is not true.

Q.25	In your statement you said on Friday 17th of October 2008, the three of you got three knives and walk down the Kabanga/Kamar road and when you heard Maia coming down on this motor bike you stopped him and cut him. What will you say to this?

Ans:		I don't know this.

Q.26	 If you say no than who killed Maia?

Ans:	 I don't know this."

25.	The question and answers I have set out above conflicts directly with the confessional statement. There is nothing in the record of interview which corroborates the confessional statement of the accused. Moreover, there is no other evidence from the State which corroborates the confessional statement.

26.	Secondly, the record of interview is the part of the State's case. The statements contained in it, are made by the accused but nevertheless that piece of evidence has been tendered and accepted into evidence as part of the State's evidence and not as part of the accused's evidence. 

27.	In that record of interview, the accused raised an alibi. This is what he said:

"Q.11	Where were you between 5pm and 6pm on Friday the 17th October, 2008?

Ans:	I was at the house.

Q.12	Who were you with?

Ans:	I was with my aunty and uncle.

Q.13	What are their names?

Ans:	Christine Timothy and Timothy.

Q.14	What were you doing at the house?

Ans:	Just stay there."

Again this piece of evidence conflicts with the evidence in the confessional statement. It is inconsistent with the confessional statement.

28.	In the final analysis, the burden is on the State to prove beyond reasonable doubt each and every elements of the offence. In the present case as I have demonstrated, I accept Ms. Hambunaka's submissions that it would be unsafe to convict the accused on the uncorroborated confessional statement. Further, in my opinion, it would be unsafe and unsatisfactory to convict the accused on the inconsistent evidence from the State. 

29.	In summary then, it would be unsafe to convict the accused when there is no corroboration of his admission that he killed the deceased. Secondly, there are crucial inconsistencies in the State's evidence that it would be unsafe to convict. The benefits of these must be given to the accused.

30.	In the circumstances, I am not satisfied beyond reasonable doubt that the accused wilfully murdered the deceased. I therefore find him not guilty and acquit him.

________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused