N4768

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 31 OF 2007

STATE

V

JOHN KUVIS

Kavieng: Batari, J
2012: 12, 13 July

CRIMINAL LAW – evidence – wilful murder – intent – proof of – motive to kill – absence of – whether crucial to State's case – admissions – record of interview - unsigned – admissibility of – question of facts - election to remain silent – whether admission of guilt – treatment of - principles applied.

PRACTICE AND PROCEDURE - evidence in defence – options – right to call or give evidence – Criminal Code s 572 – right to remain silent – Constitution s 37(10)– options to be put to the accused for personal election. 

Facts

The accused was charged with wilful murder. The State case consisted of 2 eye witnesses, a post mortem report and admission of intention to kill in an unsigned record of interview admitted into evidence without objection. The accused elected not to give evidence. His defence was that the State had not proven a motive for murder and thus the intention to kill was not proven.

Held

1.	At the end of the State case, the Court shall put to the accused the three options he has under Criminal Code s572 (to remain silent, make a statement or give evidence) irrespective of what counsel may advise from the bar table, [13-19];

2.	A no case submission is not one of those options to put to the accused, [19]; 

3.	Where the State has led evidence sufficient to prove guilt beyond reasonable doubt, the election of the accused not to give evidence may strengthen the satisfaction of the Court as to the guilt of the accused, [20]

4.	When a record of interview is admitted into evidence by consent and its voluntariness not challenged, the record speaks for itself, [26-35];

5.	To establish an intent to kill the conduct of the accused before and after the act is relevant, proof of a motive to kill is not required, [39];

Cases Cited:

Koi Konom v Nelson Watai (1981) N297 (M).
Paulus Pawa v The State [1981] PNGLR, 498
The State v Marava Kanaio [1979] PNGLR 319.
The State v. Raphael Kuanande [1994] PNGLR 512.
The State vs. Goi Mubin [1990] PNGLR 99

Counsel:

J. Done, for the State
N. Sios, for the accused

VERDICT

16 July, 2012

1.	BATARI J:	 The accused stands charged that on 19 September, 2006 he wilfully murdered one Rauli Luai Mailik in contravention of s.299 of the Criminal Code. The killing is alleged to have taken place in Singua village, inland of South New Hanover, New Ireland Province. 

2.	The facts are substantially admitted. On the morning of the date in question, a group of armed men from a Kikimalais village 'invaded' Singua village for some unknown cause. One of them confronted Rauli and attacked him with a bush knife. Rauli later died from multiple knife wounds. An autopsy carried out after the body was exhumed a week after burial, listed the nature of injuries as:

i.	Open scalp wound above the left ear measuring 10cm long,
ii.	Deep knife wound on left shoulder measuring 12cm long,
iii.	Severed mid left hand except for thin muscle and skin sheet,
iv.	Knife wound cutting through first and second lumber bone.

3.	The cause of death was due to excessive blood loss, "thus causing hypovolemic shock causing cardiac arrest and ultimately, death" according to the examining Health Extension Officer Patterson Marengas.

Evidence - State's Case

4.	To prove guilt of the accused, the prosecution called oral evidence from two principal witnesses and a policeman who corroborated a record of interview. Documentary evidence in the form of a post mortem report, a Police witness statement dated 17/10/06 attaching a sketch plan of the crime scene, and the record of interview are also before the Court. 

5.	Police Sergeant Jimmy Tipanda was the first witness called. He testified that on 26/9/06, he was in a team of police investigators and a medical officer sent to New Hanover Island to investigate a reported killing. Some of the policemen went to Kikimalais village to apprehend the suspected killers while he accompanied HEO Patterson Marengas to Singua village where the body of the murder victim was exhumed and examined. When they returned, three suspects, one of them the accused, had surrendered and were been taken into police custody at Kikimalais village. 

6.	Sergeant Tipanda further testified that on 29/9/06, CID Joe Toravie invited him to corroborate an interview with the accused. The accused was given his constitutional right and cautioned at the beginning and at the end of the interview the questions and answers were read back to him. He understood and accepted the correctness of what was read but did not sign. The interview was conducted in Pidgin as elected by the accused.

7.	The record of interview has been admitted into evidence by consent through this witness. It contains admissions. 

8.	The second witness, Vosat Lapanbot, is a Singua villager who witnessed the killing. Vosat spoke of standing with his son and the deceased Rauli when John Kuvis came to the village accompanied by some 10 relatives and others from Kikimalais village. They damaged betel nut trees before John confronted them and attacked Raula with a bush-knife. He cut him on the hand, back and on the head after he fell.

9.	The witness also spoke of him being detained and abducted by the accused and his group. They left him with a magistrate (I think a village court magistrate as this was not clearly explained) and he was later released to the police.

10.	The third and last witness, Ngumasagie Vosap is the son of the second witness. His story is substantially consistent with his father's version. He clarified that the raiding party were armed with bush-knives and as they entered the village, they chopped betel-nut tree leaves (frons) before John Kuvis attacked Rauli. The accused delivered a third blow to the head before Rauli fell. 

11.	Although this version differs slightly from the evidence of his father that the accused cut the deceased on the head after he fell, the slight variation is inconsequential as each witness was describing the same event from his different location and timing of observation. One of them may be mistaken. The important point is that, a wound to the head has been independently proven by Sgt. Tipanda and the medical report. 

Evidence – Defence Case

12.	The accused did not give or call evidence. This followed his unequivocal election to remain silent and for his lawyer to speak for him.

13.	I pause here to reflect on an important procedural aspect of a fair trial namely, the right of the accused person to adduce evidence and/or call evidence or make a statement in his or her defence. This aspect necessitates court time and indulgence to ensure, the accused person clearly understands his or her right to call evidence or to make a statement at the end of the prosecution evidence. The statutory basis for this is found in s. 572 of the Criminal Code which reads: 

"572.	Evidence in defence.

(1)	At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.

(2)	Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.

(3)	When the accused makes a statement to the court he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence."

14.	The election under Sub-section (1) on whether to adduce evidence or to make a statement commonly regarded as 'unsworn statement from the dock' may be made by the accused person or by counsel. In practice, the Court will explained to the accused the two options together with the third option to remain silent under s.37 (10) of the Constitution (the right to silence) and require him or her to personally respond. A failure to invite the accused to personally make the election to call or not to call evidence in defence may amount to substantial miscarriage of justice if a conviction is subsequently recorded. See, Koi Konom v Nelson Watai (1981) N297 (M). 

15.	In my view, a personal response is an integral part of the right to a fair trial under s.37 (1) and (3) of the Constitution. It is a fundamental exercise of a statutory and constitutional right of the accused to expressly state how he or she intends to conduct his or her defence. 

16.	I make these observations having noted with respect, a growing tendency to rely only on counsel's response. While one may presume that Counsel acts on instructions, experience has shown otherwise and that a personal response in many instances before this Court has been different from Counsel's assertion of his client's election.

17.	So, it is good practice for defence counsel when advising the court on how the accused intends to respond, to also invite the Court to formally explain and put the options to the accused. Diligent counsel would normally seek a brief adjournment at the end of prosecution case to confer with the accused before the three options are formally put by the Court for personal election by the accused. 

18.	With respect, I suggest that before the accused is asked to respond, the options may be formally put in this way, with variants:

"The evidence against you by the State is finished. It is now your turn to respond, there are 3 ways; you can follow one of them. The first is to say nothing. If you choose that, the court will only consider the evidence from the State and decide whether it is strong enough to support the charge against you. The second option is to make a statement from where you are. If you do that, no one – the lawyers or the judge can ask you any question. The court will look at your statement and weigh it up against the evidence of the State before a decision is made. The third option is for you to go to the witness box and give evidence in the same manner as the witnesses for the State have done. In that case, lawyers and the judge can ask you questions. Do you understand?" 

19.	If the accused understands the three options that are open to adduce evidence in defence, he or she may then be asked to make the election. In this process a no case application or submission is not one of the options. That is a different process governed by different principles of law and practice. That process may be initiated by defence counsel at the close of the prosecution case and before the election. 

Failure to call evidence – Principles applied 
 
20.	The accused not only elected to remain silent, he also did not call evidence. Be that as it may, it is settled principle of law, that a failure to adduce evidence cannot be used to improve a deficient prosecution case. Conversely, once there is evidence upon which the court might be satisfied beyond reasonable doubt of the guilt of the accused, the failure by the accused to give evidence, or call evidence within his or her power to call, may lend support to any satisfaction the court may feel: The State v Marava Kanaio [1979] PNGLR 319. 

21.	In Paulus Pawa v The State [1981] PNGLR, 498 the Supreme Court held:

"Where an accused person fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1) 	The failure of an accused is not an admission of guilt and no inference of guilt may be drawn therefrom;

(2) 	Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

(3) 	Failure to testify only becomes a relevant consideration when the State has established a prima facie case;

(4) 	The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:

(a) 	whether the truth is not easily ascertainable by the State but probably well known to the accused;

(b) 	whether the evidence implicating the accused is direct or circumstantial;

(c) 	whether the accused is legally represented;

(d) 	whether the accused has before trial given an explanation which the State has adduced in evidence."

Submissions by Counsel

22.	The State's position as submitted by Mr. Done is, that the accused intended to kill the deceased and that he carried out that intention in the manner he attacked the deceased. Counsel also submitted that the intention to kill has been confessed in his record of interview and that his failure to call or give evidence confirms and augments those admissions.

23.	The defence made two primary contentions on this issue. The first is that the State has not adduced evidence on a motive to kill. Mr Sios submitted that in the absence of any reason or motive adduced for the killing, the element of intent in s.299 of the Criminal Code has not been proven. Therefore, there can be no lawful conviction on wilful murder.

24.	Collateral to the issue of motive is the reliability of the witnesses. Mr Sios submitted that the two eyewitnesses should be disbelieved for being selective in picking out only the accused from amongst the numerous people present. Counsel suggested that the witnesses would have been so overwhelmed by the violent nature of the attack that a positive identification of anyone would be highly improbable. And that the witnesses may be lying under oath. 

25.	The second contention is that the confession carries no weight because the record of interview is unsigned. Mr Sios argued that the failure to call Joe Toravie who did the interview to verify the correctness of the admissions, leaves the corroborator's evidence unsupported.

Reasons for decision on whether the facts show wilful murder.

26.	Because the attack on the deceased is admitted, the only issue is whether or not there was an intention to kill. The onus is on the State to prove beyond reasonable doubt the guilt of the accused. I will deal first with the question of weight to be given to the record of interview.

27.	The accused was detained on or about 26/9/06 – one week after the killing. On 29/9/06 (3 days later) a record of interview was conducted with him by CID Joe Toravie and corroborated by Sgt. Tipanda. The police witness testified on the propriety of the conduct of the interview and read in open court, the contents of the interview.

28.	The propriety of the conduct of the interview and the admissions were not challenged or sought to be clarified in cross-examination of the police witness. The only argument mounted against the confessions is that no weight should attach because the record of interview is unsigned.

29.	It is trite law that a failure or refusal to sign a confession does not disbar admission unless the accused can swear that he did not agree to the record: The State vs. Goi Mubin [1990] PNGLR 99. Once the confession is in evidence, the defence is entitled to lead evidence on the claim that the confession was not made, as a question of fact. Police witnesses can be cross-examined about the circumstance in which the admissions were made as issues of facts going to the weight to be given to the admissions.

30.	In this case, there has been no real challenge to the admissibility of the record of interview or the circumstances in which the admissions were obtained. There was in particular, no reason forthcoming from the accused person concerning his failure to sign the record of interview. That explanation came from Sgt. Tipanda who said that when asked to sign the record, the accused responded that he cannot read or write and that he had no issue with what has been read back to him. That is consistent with Question and Answer 34 of the record of interview.

31.	Sergeant Tipanda was cross-examined only on why the accused was not asked to put his thumb mark or an 'x' mark to indicate his approval. The witness responded that it was the duty of the interviewing officer and he cannot speak for Joseph Toravie. I think that is common sense.

32.	I am satisfied that, the accused was given the opportunity to make a choice to sign or not to sign. He elected not to sign. His exercise of free choice does not make the record of interview inadmissible. 

33.	There is also an over-riding presumption that when the record of interview is admitted into evidence by consent, his lawyer is acting on instructions not to raise the issue of the record being unsigned. But counsel is not barred from raising the truth or otherwise of what the accused had purportedly confessed as a question of fact on which police witnesses may be cross-examined. This goes to the question of weight to be given to a purported confession. In this case, counsel representing the accused did not pursue that course.

34.	An issue that may have been critical to the confession is whether an interpreter was used in the conduct of the interview. Sergeant Tipanda initially gave the impression of an interpreter namely, Bung Melun being present and interpreting during the interview. He later clarified that to say that his reference to Bung Melun in his statement of 2/10/06 marked as exhibit C3 is in relation to the other two co-accused persons. This is also evident from the second page of his statement where he wrote, "… Bung Melun who was also present as translator to that interview between Natamailik Rangai and the investigating officer." There was nothing about Bung Melun translating for the accused in this case. 

35.	So, the record of interview speaks for itself. In the Pidgin version, the accused was asked; "Q 26; Wanem samting iwokim na yu bin kilim dai Rauli Luaimailik? A26. Mi minim yet long kilim emi dai." This was fairly translated to English as; "Q26 What made you to kill Rauli Luaimailik? A26. I meant to kill him." 

36.	On the issue of motive, it is true that for some inexplicable reason, the two State witnesses did not offer any explanation or reason for the attack. They gave an impression of the attack being sudden and without warning, unprovoked and for no apparent reason. 

37.	I think there was an underlying motive for the attack, which the witnesses were unwilling to disclose, for whatever reason. That issue was in fact not explored or clarified with the witnesses by either counsel. So in the end, the killing seemed to be motiveless and cold-blooded.

38.	Does the absence of motive affect the issue of intention?

39.	The answer is clearly 'no'. A willed act can result from apparent or hidden motive. The essence of intent is the state of the mind of the accused at the time of the act. This may be given by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either case, the course of conduct of the accused person before, during and after the act which constituted the offence is relevant: The State v. Raphael Kuanande [1994] PNGLR 512.

40.	The attack in this case appeared to be pre-planned. The accused made that revelation in questions and answers 14, 15 and 16 of the record of interview where he stated, he was at his house in Kikimalais when two peace officers told him to follow them to fight Josap Lapanbot and his group at Singua village. He obliged and the killing resulted.

41.	When the accused attacked the deceased with a bush-knife, the intention was clearly to cause grievous bodily harm to the deceased. The intention to kill only became obvious when he struck the deceased with a deadly weapon on a vital part of the body, namely, the head. This supports a strong inference of an intention to kill. Consistent with that, he made admissions in stating that he intended to kill the deceased.

42.	In the upshot, it is most unfortunate and disturbing for the accused to have elected to remain silent. He is thoroughly implicated in the wilful killing of the deceased by eyewitnesses' evidence and from his own admissions. The evidence is not circumstantial. His failure to testify is crucial against him because it strengthens the State case by leaving it uncontradicted or unexplained on vital matters. 
 
43.	I am satisfied that he fully understood his right to call evidence in his defence or to remain silent after it was explained to him. The accused is also represented by a no lesser experienced and senior Counsel than in Mr. Sios of the Public Solicitor's Office. He no doubt has had the benefit of legal advice in his personal election to remain silent.

44.	In conclusion, there is overwhelming prosecution evidence to support a conviction on wilful murder. That evidence is boosted by the failure of the accused to give evidence.

45.	I find the accused guilty of wilful murder and convict him as charged.
________________________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused