N5199

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 439 (NO.2) OF 2009

THE STATE

V

JANICE IRURAPA NAMBATE

Popondetta: Toliken AJ
2013: 11th, 12th, 13th February

CRIMINAL LAW – Particular offence – Murder – Plea of not guilty – Defence – General denial - Deceased died from internal bleeding caused by cut to left carotid artery – Suffered other injuries including fractured jaw - Criminal Code Act Ch. 262, s 300(1)(a).

CRIMINAL LAW – Evidence – State's case entirely circumstantial – No direct evidence that accused killed deceased – Accused found with deceased lying on top of her – No other person with deceased and accused – Guilt of accused not the only inference – Other inferences can be drawn from evidence - Deceased involved in a fight 3 days previously – Complained of body aches and numbness but no apparent injuries though – Deceased was alone on two of the occasions that night prior to his death – Serious doubts cast upon State's case or hypothesis on how accused killed the deceased – Accused acquitted. 

Cases Cited

Tom Morris –v- The State [1981] PNGLR 493
Paulus Pawa –v- The State [1981] PNGLR 498
Garitau Bonu & Rossana Bonu –v- The State (1997) SC 528
Denden Tom & Ors –v- The State (2008) SC 967

Counsel

J.W. Tamate, for the State
L. Mamu, for the prisoner

JUDGMENT ON VERDICT
21st February, 2013

1.	TOLIKEN AJ: The accused Janice Irurapa Nambate was indicted under Section 300 (1) (a) of the Criminal Code Act Ch. 262 (the Code), for the murder of her late husband Carson Nambate on the 06th of May 2008.

2.	She denied the charge raising the defence of general denial. 

THE ALLEGATIONS

3.	The State alleged that on 05th of May 2008 the deceased had some beer at Bangoho Compound, in Popondetta town. He then left on foot for the village with some village boys. The accused called in at another village along the way and he picked up his wife (the accused). This was between 10.00 p.m. and 12.00 a.m. They then continued on, arriving at their village (Bapue) sometime around 2.00 a.m. on the morning of the 06th May 2008.

4.	Once they were at their house the accused was about to go to the kitchen to get some food when the deceased grabbed her by the hand and pulled her to the back of their toilet. An argument ensued and the accused stabbed the deceased on the side of his face and ear. This caused the deceased to fall on the accused face up.

5.	The State alleged that accused had intended to cause grievous bodily harm to the deceased. 

6.	The State also alleged that the accused screamed out when she realized that the deceased was dead. This attracted her son and his wife who ran out and found that the deceased was bleeding from knife wounds.

7.	Arrangements were later mad and the deceased body was taken to the Popondetta General Hospital. The matter was reported to the police and the accused was later arrested and charged.
8.	A Post Mortem on the deceased revealed that the deceased sustained knife wounds to his left jaw area and a deep laceration to the left back side of ear. The deceased died from those wounds and from loss of blood.

9.	The State alleged that the accused was the only one with the deceased at that time and therefore she was the one who inflicted those injuries from which the deceased died. 

 THE ISSUES

10.	The general issues for the court to ultimately determine are: 

1.	Did the accused cause the death of the deceased?
2.	If she did, did she intend to cause him grievous bodily harm?

THE EVIDENCE
The State's Case
11.	The State's case consisted of the following:

1.	Record of Interview dated 18th September 2008 (Original Pidgin version – Exhibit A1/ English translation – Exhibit A2)
2.	Autopsy Report dated 19th May 2008 (Exhibit B)
3.	Statement of witness Tony Ambogo dated 12/05/2008 (Exhibit C)
4.	Statement of witness Margaret Kovenapa dated 09th May 2008 (Exhibit D)
5.	Statement of witness Basil Sanko dated 12/05/2008 Exhibit E)
6.	Sworn oral testimony of Charlie Nambata 
7.	Sworn oral testimony of Bibra Prout

12.	The Record of Interview and witness' statements were tendered by consent.

Evidence of Tony Ambogo

13.	Tony Ambogo stated that on 05th of May 2008, he had come into town with his family as it was cheer up day for oil palm growers. He did the family shopping and then sent his family home in a hired car. He stayed back as he wanted to do a recording with Allan Sauga.

14.	So he went with two other persons whom he named as Nicho and Holland to Allan Sauga's residence at Bangoho. They stayed there doing the Demo (demonstration recording) until about 10.00 p.m. They bought a carton of beer and were drinking as they were doing the recording. They completed the recording around 10.00 p.m. and left Allan's place and headed home.

15.	When they came to Billy Majuge's house they met the deceased (Carson Nambata), Kipas, Charlie and Lindsy who were drinking there. Charlie told Carson, whom the witness referred to as Papa Carson, that he had drunk too much and that they should go home together with this witness and the others. So they all left together for their villages. On the way the deceased was telling the others how his team will beat their team at the coming weekend soccer games.
 
16.	When they came to Huhura Village, the deceased and this witness went to Kenneth's house to get the accused (witness referred to her as Mama Janice). They came out to the road together and they all walked home towards Bapui. When they came to Dahana Village the witness went in to get smoke so he told them to go on ahead.

17.	The witness stated that Charlie had been walking behind. He met him at Dahana and told him to follow Papa Carson and Mama Janice who had gone ahead. He said he was not sure if the deceased and the accused had argued that night. And he saw that the deceased was drunk. He also denied that the deceased had argued with Charlie.

Statement of Margret Kovenapa
18.	Margret Kovenapa stated that on the 05th of May 2008, around 8.00p.m., they were having dinner when Papa Carson (deceased) and Mama Janice (accused) came to her house. They were both very drunk.

19.	The deceased told them that he will leave the accused with them while he returns to Bangoho Compound to look for more beer. The witness said he made a bed for the accused and they all slept.

20.	Around midnight the deceased returned and called out saying "Tambu, Tambu". The witness came out with a lamp and saw that it was the deceased and Tony. The deceased asked for the accused. The witness went back and woke up the accused. They left and the witness went back to bed. However, not long after she heard Charlie calling "Tambu". She answered from inside the house telling Charlie that Papa Carson and Mama Janice had just left and then went back sleep. She said Charlie came just about two minutes after the deceased and the accused left.

21.	The witness said that the deceased and the accused did not argue and that the accused brought some shopping. She said that she showed her two pairs of sportswear. She said she had her shopping in a zipper-less bag with flowers on it.

Statement of Basil Sanko

22.	Bill Sanko stated that on the 06th of May 2008 he was asleep in his house when Charlie Nambata came and woke him up at around 4.00 a.m. He came out of the house and asked Charlie what was wrong. He said Charlie told him that "Papa Carson was drinking with Mama Janice at the house and he fell down and could not get up and Mama called me and I went and flashed the torch at Papa and he didn't [look] good so I came to you." He then stated that he spread the news to others like Batty and his wife that Papa Carson has died.

Evidence of Charlie Nambata
23.	Charlie Nambata is the son of the deceased and the accused. He testified that on the 05th of May 2008 he had gone into town. In the afternoon he went to Bangoho Compound where he met some friends and his cousin brothers. They bought and drank some beer and then he left for home just as it was getting dark. He arrived home early in the night, sometime between 8.00 p.m. and 9.00 p.m. He had his dinner and then went to sleep. 

24.	Around midnight he and his wife were awoken by his mother's screams. She was screaming and crying. They both ran out of the house. When he flashed his flashlight at his mother she said to him "Daddy pulled me from the back and fell on me". Hearing this he thought that his father wanted to have sex with his mother so he put off the torch and ran to his aunt's house. He said both his parents were fully clothed when he flashed the torch at them.

25.	The witness said that when he came to his aunt's house, his aunt and uncle had also heard his mother's screams so they were also running out of their house. They all returned together. When they arrived at where his mother was she shouted at them, telling them to come and see the deceased who had fallen on top of her.

26.	When he flashed the torch again he noticed that his father did not move. His aunt and uncle then lifted him off from the accused and laid him on the rest house (haus win). The witness said he wanted to walk to the Police Station then, but, since it was still dark he decided otherwise.

27.	 Instead he gathered enough strength and walked to a village elder's house and reported what happened. The elder advised him to wait until day-break. However, some people had called the police already. The police came and took the deceased to the hospital.

28.	The witness told the court in examination in- chief that there was no one else around when this thing happened. His mother and father were alone. He denied that they had argued that night or that they ever argued at all. He also said that he noticed that his father was dead but did not notice anything thing on his clothes or marks on his body. He said his father was in town but did not know when he left town. He said that his father was not with him and his cousins. He indicated a distance of about 30 meters between his house and his parents' and said that he would have been able to hear screams if his parents had fought or argued.

29.	In cross-examination the witness said that there was a fight over the weekend during a soccer match between the team he and his father played for and another team which involved his father. His father was badly bashed up and was left lying on the field for some time. On re-examination he said that his father was never taken to the hospital. He walked home after regaining his strength. He said his father just sustained a swollen face. 

Evidence of Bibra Prout
30.	Bibra Prout is a cousin sister of the deceased. She testified that on date in question she and her husband were asleep when they were also awoken by the accused's screams. They did not go down at first but kept sitting in their house until Charlie ran up after seeing the body. When she went down and saw the body she was shocked. She cried and told her husband and Charlie to take the body and lay it down in the haus win. She got her grandchild's nappy and covered a cut that was on side of the deceased's ear. They also covered the deceased with a bed sheet and stayed with body until the police came and took it to the morgue in the morning. 

31.	When examined in chief the witness said that she was not able to see what other injuries there were on the deceased as it was dark though she said blood was coming out of the cut. She was not able to tell what caused the cut but said the cut was fresh. She said the accused was just crying. She also said that the deceased and the accused never argued and that they lived happily together. She said that her house is about 40-50m away from the deceased's.

The Defence Case

32.	The accused gave sworn evidence. No other witnesses were called. She testified that she is the women's representative in the Popondetta Oil Palm rowers Association (POPGA). She and her late husband (the deceased) have four oil palm blocks.

33.	On Monday 05th of May 2008 they were supposed to harvest but she came into town to pay the women for their loose fruits. Furthermore the deceased was not able to do so because he was suffering from injuries he had sustained from a fight at the weekend during a soccer match. His right side of the body was numb. The accused testified that she had to bring him with her into town to see the doctor.

34.	On 05th of May 2008 she had come into town to pay the women for their loose fruits. She asked the deceased to go to the hospital while she goes and pay the women. He, however, refused and asked her buy panadol instead for him at Price Rite where she left him and went to the POPGA office to pay the women.
35.	She paid the women at about 11.30a.m. When she came out the deceased still had not gone to the hospital. She then left for Kakandetta for a village Court sitting there. After the court adjourned its cases the accused said that she returned to town between 3.00-4.00p.m.

36.	She met up with the deceased and they headed for the village. They went down to the Bangoho Compound as she wanted to buy some things from the market before they went home. 

37.	The accused that her husband was not looking good so she asked him again if he wanted to go home or go to the hospital. She said the deceased refused to go to the hospital so he waited under a tree while she went down to the market. When she returned from the market the deceased asked her for K50.00 to buy beer for himself and a friend, a Health Extension Officer from Musa. She gave him the money and he called his friend and they went down to the black market. They returned with the beer and sat down to drink. While they were drinking the accused said she was eating some of the scones she had bought at the market. The deceased and his fiend finished their beer around 6.30p.m. It was pay day so while women, children and old men went home the village youths stayed to drink.

38.	The accused testified that as they were walking up a hill to the main road they met a group of boys drinking under a teak tree. These were boys who had fought with the deceased during the weekend at the soccer field. She said that the boys greeted them but the deceased was not happy and said in vernacular "I am an elephant. I will not forget." The accused said that she told him not to say anything so they walked quietly past the boys to the main road.

39.	The accused said that it takes between 2 ½ - 3 hours walk from town to Bapui Village. They started walking to Bapui until they came to Huhure. There the deceased left her with a family whom she knew but had never gone to their house before while he returned to Town after he was informed by the woman of the house that her husband had taken the things that he want – home brew and marijuana – to sell at the compound.

40.	 The accused said they waited until sometime between 8.30 p.m. – 9.00 p.m. At that point the woman gave her husband's dinner to her. They listened to the radio until the Station closed at 10.00 p.m. As it was getting late the woman made a bed for the accused. The accused said that she was having her monthly period so she told the lady that she won't sleep on her bed. Instead she went and slept in their spare room. Before they went to bed, they could, however, hear drunken boys going home.

41.	The accused said that she immediately went into a deep sleep. Some hours later she was awaken by the lady who told her that the deceased had returned and wanted them to go home. She told her to tell him that they have to sleep overnight but the lady told her he had already walked on ahead. So she alighted from the house and went to the road. She could not see any one on the road. But when she looked up the road he could see a figure up ahead. She called out to him to wait for her for her but he did not. She then made herself a torch from coconut leaves and ran after him.

42.	The accused said that along the way the deceased went into a roadside stall. She sat on the road for 5-7 minutes waiting for him to come back the same the same way. However, the deceased came out through another way and headed for the Aija River.

43.	 The accused followed him. When she came to the river she saw two men sitting on the river bank. She could also clearly see her husband crossing the river. She said that one of them called the deceased by name and they started to follow him not knowing that that she was walking behind them. They were saying something in vernacular to the deceased. She recognized their voices and called their names. They turned around and saw her and said " Mama yu stap we na yu kam?" She told them she had heard them singing along the road on the way home between 8.30p.m. - 9.00p.m. She asked them what they were still doing around at 12.00a.m. While she was talking to them, the deceased followed the river down. The two men left for home and she sat on the river bed waiting for her husband.

44.	She waited for quite a while for the deceased to return. She called out twice but he did not reply. She thought that the deceased had followed the river down to their village. She got scared and called for the last time. She was about to leave when she saw a figure coming up the river. It was the deceased.

45.	The deceased did not come to the accused though. He just walked passed her and started running towards the village. The accused said that the deceased never walked near her that night. He was always some distance from her. All the while he was making vomiting sounds, much like when someone is chewing betelnut and wants to spit out. He, however, did not vomit. They never met anyone else on the road.

46.	When they finally arrived at their village, he went passed the track to their hamlet and walked on towards the main Bapui Village. The accused said she called out to him and he came back and they went to their house.

47.	Now the accused said she stood at one side of their kitchen while he stood on the other side. All the while she noticed that he was turning his head around. She said she took off her bilum and put it aside and then entered the kitchen. At that moment the deceased grabbed her hands and pulled to the back of the kitchen, not to the toilet.

48.	The accused said that at that time the place was totally dark and the only light was coming from a small lamp from a room in the house where a small a small boy sleeps. The kitchen is only 4 steps from the house.

49.	The accused said she pulled the deceased to the haus win and told him to sit down while she goes into the kitchen to get some oil palm fruits to make a fire with. The deceased, however, refused to sit down. Never did he once talk to her at all that time.

50.	The next minute the accused said she felt the deceased grabbed her by her meri blouse from the back and she fell backwards. The deceased fell on top of her with his face over her laps and his legs over her shoulders.

51.	The accused said that they had been married since 1982 and all these years her deceased husband had never once touched her when she was menstruating. She said that he knew she was having her period on the first week of the month so when he grabbed her she did not think that he wanted to have sex with her.

52.	She said that the deceased drank a lot and took marijuana and would often fall down. She thought that that was the case again that time.

53.	She slowly got one of his legs off her, raised herself up with one of her elbows and spoke softly to the deceased saying "Carson, get up and sit down while I get the fire burning". She kept on waking him up but he would not wake up. She said the deceased fell with his arms at his back. She tried lifting one of his arms but as soon as he did that it just went limp. That was when she started crying and calling his name.

54.	The accused said that she did not realize at first that he was dead so she was saying to him "That is why I wanted you to go to the hospital." That was when their son Charlie and his aunty and uncle arrived.

55.	She said that when the deceased was lying on top of her she could see her sister-in-law and her husband turn their lamp up and her son and his wife running down. Charlie had flashed his torch at her and the deceased but immediately put it off and ran back towards her auntie's house. There she heard her sister-in-law asked Charlie what the matter was. She heard Charlie tell his aunt that "daddy (deceased) was on top of mummy" and that he did not see them properly before he turned the torch off.

56.	As they were talking the accused, still lying on the ground with the deceased on top of her said she called out to them saying "What are you talking about? Come and remove this fellow and see what is wrong with him!" The four of them then came and removed the deceased and laid him in the haus win. They covered him. There was no blood on the deceased or on her clothes.

57.	She said her sister in law told Charlie to go for the police but someone had already rang them on a mobile phone. The police came in the morning and took her and the deceased's body to the hospital. She was later taken to police station.

58.	During examination in-chief when asked to describe the injuries sustained by the deceased during the fight on Saturday at the soccer match she said that she had washed him that night after the fight. She sponged him because he could not walk up the steps, his left arm was numb and his left ribs hurt when she touched them. And when he tried to cough he would put his right hand over his left ribs and cough.

59.	She also agreed during examination in chief that it was not long after they had arrived home when her husband collapsed onto her but she could not tell exactly how long.

60.	In cross examination she strenuously denied that she had continuously been subject to indecent acts by her husband. These involved him pushing bottles into her vagina during sexual intercourse when he was under the influence of alcohol and marijuana. She said there were two incidents only – one in 2002 and the other in 2003. He, however, stopped when he realized that she had been going to the police.

61.	She further strongly denied suggestions that when the deceased grabbed her that night she believed that she will again be subjected to the same indignities so she armed herself with a kitchen knife and retaliated by stabbing the deceased three times.

62.	She further denied having seen any blood on the deceased's body that night and that she was covering up for her crime because she knew that no one was around to see what really happened. She further denied knowledge of how the deceased sustained the wounds on his body.

FINDINGS OF FACT

63.	From the above evidence I make the following findings of fact.

64.	On Saturday, the deceased was involved in a fight during a soccer game in the village. He was knocked down in the fight and laid down on the field for some 10 -15 minutes. He sustained a swollen face but later also complained of numbness to his left side of the body and left arms. He also experience pain on his ribs when coughing.

65.	On Monday the 05th of May 2008 the accused and her late husband the deceased went into town. The accused as the women's representative in POPGA came in partly to pay out women for their loose fruits and to attend a Village Court sitting at Kakandetta.

66.	The accused was to have gone to the hospital but refused to. He took Panadol instead.

67.	In the later part of the afternoon, the accused and the deceased went down to the Bangoho Compound before they headed for their village.

68.	At the Compound, the accused bought some food at the local market while the accused bought some beer which he shared with a Health Extension Officer friend of his from Musa.

69.	 After the deceased and his friend had finished drinking, he and the accused started on their 2 ½ - 3 hours walk home to Bapue.

70.	When they arrived at Huhura sometime around 8.00 p.m., the deceased called into Margaret Kovenapa's house. Margaret Kovenapa told the accused that her husband had gone into town, taking the things that he (the accused) wanted with him – home brewed alcohol and marijuana. The deceased then returned to town leaving the accused with Margaret Kovenapa. The accused sat listening to the radio until 10.00 pm when the Radio Station closed and then went to sleep.

71.	She was awaken some hours later by Margaret Kovenapa who told her that the deceased had returned was waiting on the road for them to go home. The accused found her husband and they started to walk home - the accused running after the deceased who had already walked on ahead.

72.	On the way, the deceased went off into someone's roadside stall. When he came out, he headed for the Aija River. The accused following him at a distance.

73.	At the Aija River, the accused met Nichodemus Haopa and Holland Herove who had called out the deceased's name when they recognised him. They didn't know the accused was walking behind the accused and were quite surprised when they saw her. She talked to them briefly and they left for their village.

74.	I find at that stage that the deceased followed the river bed down. The accused waited for about 25 minutes for the deceased to come back up. She called him 3 times and when he finally came out, he walked past her without saying a word and started running for the village. The accused followed him. 

75.	They finally arrived at their hamlet sometime around 2.00 a.m. on the early hours of the morning of the 06th of May 2008.

76.	Now, what happened when they arrived back to their house is very critically important. I will return to this shortly but it is important to note that apart from the accused and the deceased no-one else was around.

77.	When the accused and the deceased arrived back home Charlie Nambata and his wife were asleep in their house some 17 – 20 metres from his parent's house. Bibra Prout and her husband were also asleep in their house several metres further down. They were all suddenly awoken from their sleep by the accused's screams and cries.

78.	Charlie Nambata and his wife ran down from the house. Charlie flashed his flash light to where his mother was screaming from. He saw his father (deceased) lying on top of the accused. Seeing her son, the accused told him "Daddy pulled me from the back and fell on top of me". Thinking that his father wanted to have sex with the accused, he immediately put the torch off and walked down to his aunty Bibra Prout's house.

79.	Bibra Prout and her husband were sitting outside her house when Charlie came and told them what he saw. They all went back to where the accused was – the deceased still laying on top her.

80.	They noticed that the deceased was not moving – in fact dead – and lifted him off from the deceased and laid him on the haus win. They covered him with a bed sheet. At that stage, Bibra Prout noticed blood on the side of the deceased's head. Bibra Prout covered the deceased's wound with her grandchild's napkin.

81.	Charlie went off and informed the Village Elder who advised him to wait until day break before going to the police. However, someone in the village had already called the police by mobile phone and the police came in the morning and took the deceased body and the accused to the hospital. The accused was later taken to the Police Station where sometime later he was arrested and charged.

82.	I accept that the deceased had subjected the accused to indecencies like pushing bottles into her vagina during intercourse when he was drunk and under influence of marijuana. I accept that this happened twice – once in 2002 and once in 2003. He stopped when he learned that he had been reporting her to the police.

83.	A Post Mortem was conducted on the deceased's body on 16th May 2008 by Dr Mano and Dr Stanley Bita.

84.	The Post Mortem Report is reproduced below:
 
A.	Time and date of death : Between 2 & 3 am – 6th May 2008
B.	Place of death : Bapue Village
C.	Cause of death:-
1.	DIRECT CAUSE
•	Internal Haemorrharge

ANTECEDENT CAUSE

•	Cut Left Internal Carotid Artery

PATHOLOGY SUMMARY
•	The body was clean and dressed on neat clothes.
•	His head was wrapped with bandage.
•	The bandage was stained with blood at the middle to left side,
 posterior (back) of the head.
•	He had a deep 3cm long laceration on the left jaw.
•	He had two (2) post auricular (behind the ear) deep lacerations 2cm long on the left side.
•	He had a longitudinal laceration 6cm long, 1cm wide on left occipital (back) of the head.
•	He had a bruise on the anterior aspect (front) of the neck.
•	He had multiple lacerations (x5) on the posterior aspect (back) of his left shoulder and arm.
•	There were blood clots (++) within the muscles and tissue in he lef Submandular region.
•	The left internal carotid artery was cut at the superior (upper aspect) below the mandible bone.
•	 There was complete traverse facture (broken) of the left mandible bone.
•	There was left neck muscle (sterno-mastoid muscle) trauma with blood clots especially in the posterior triangle of the neck.

85.	This Summary is confirmed further in that part of the report headed "Evidence of Injuries".

86.	So, how did the deceased come about his death? Was he killed by the accused in the circumstances alleged by the State?

87.	Now, the only evidence that may shed some light at what really happened at that critical moment when the accused and the deceased arrived back at their house, comes from the oral evidence of the accused herself and what she told the Arresting Officer in her Record of Interview.

88.	The following is her account in her oral testimony. When they arrived home, she stood at one side of their kitchen while he stood on the other side. The place was completely dark and the only light was from a small light from a bedroom up in their house. There was also no-one else around. They were completely alone. She then removed her bilum and put it aside when the deceased suddenly grabbed her from behind and pulled her to the back of the kitchen not the toilet. The deceased said she pulled the deceased to the haus win and told her to sit down while she goes to the kitchen to get some oil palm fruits to make fire with. The deceased refused to sit down but didn't talk to her at all. The next moment she felt the deceased grabbed her by her meri blouse from the back and she fell backwards. The deceased fell forward with his face over her laps and his legs over her head out shoulders. She said she did not suspect anything like the deceased wanting to have sex with her because he never touched her whenever she has her monthly period and she said she was menstruating hat time and he knew about it. She also said that the deceased often drank heavily and would take marijuana and on such occasion would often fall down. She thought that this was one such occasion.

89.	She then lifted one of his legs slowly, raised herself up with one elbow and softly spoke to the deceased saying "Carson, get up and sit down while I get the fire burning. She kept on waking him but he wouldn't wake up. She said that the deceased fell with his hands on his back so she tried lifting one of his arms, but when she did that, it just went limp. That was when she started crying and screaming telling him that was the reason she wanted him to go to the hospital.

90.	As the deceased was lying on top of her, she could see her son and his wife running down their house and Bibra Prout's lamp being turned up. She confirmed Charles flashing his torch at her but immediately putting it off and walking to his aunt's house. When he returned with is aunt and uncle, he accused said that he told them to stop talking and "remove this fellow and see what's wrong with him. Apparently, the deceased was still lying on top of the accused a fact confirmed by Charlie and Bibra and they then lifted the deceased off from the accused and placed him on their haus win.

91.	The accused said that there was no blood on the deceased or on her own clothes.

SUBMISSIONS
92.	The State strongly submitted that when the deceased called the accused to the toilet, the accused believed that he will again subject her to the same indignities as he often does so she armed herself with a kitchen knife and stabbed the deceased 3 times with it.

93.	Counsel submitted that the accused knew that there was no-one else around so she tried to cover up her crime. Counsel said that if the accused had pulled her from behind as she says he did, then, both of them would have fallen backwards – with the deceased lying on his back and the accused with her back on her.

94.	Counsel submitted that the only reasonable inference that can be drawn her given the circumstances is that she killed her husband and is now trying to cover up. He makes reference to the manner in which the accused presented her evidence – that she was very deliberate and seemed very certain about minute details of what happened some four years ago. He said this is because she wants to tell a different thing from what really happened.

95.	Counsel said that there is no evidence that the deceased was stabbed on during the fight at the soccer field the previous Saturday. No evidence that anyone inflicted the stab wounds on the deceased between Bapui and the hospital or that someone inflicted the wounds at the hospital before or during the post mortem.

96.	Counsel said that there was clearly evidence of a struggle when the deceased pulled the accused from the back so in the process of resisting him, she attacked him with a kitchen knife. 

97.	So, therefore, even though the State's case is merely circumstantial, Counsel submitted that no other inference can be drawn from the evidence. The only reasonable inference is that the accused attacked the deceased with a kitchen knife and stabbed him 3 times believing that he would again subject her to sexual indignities and in the process killed the deceased.

98.	Counsel for the accused submitted that the State has not proved its case beyond reasonable doubt. He submitted that the cause of death is internal bleeding as clearly shown by the Post Mortem Report and there is no evidence at all that the accused killed the deceased in the manner alleged by the State. While the State alleged that the accused killed the deceased by stabbing him 3 times with a kitchen knife, the murder weapon have not been produced in Court nor did anyone see her kill the deceased.

99.	Counsel submitted that whilst the Court may convict on circumstantial evidence, the evidence must be such that only one inference can be drawn i.e. the guilt of the accused. 

100.	In this case, Counsel argued that another inference – a reasonable one – can be drawn. He submits that the deceased died from injuries he sustained at the fight over the weekend at the soccer field. He said that this was a brutal fight that left the deceased with severe injuries to his left arm and ribs. Furthermore, there is evidence the fight left him lying on the field for some 15 minutes.

101.	Counsel also submitted that the evidence showed that the deceased and the accused walked for 31/2 hours back to the village on the night of the 5th of May 2008 and that they met people on the way including drunkards and the youths who fought the deceased on the soccer field.

102.	Counsel also said that there is evidence that the deceased left the accused at Huhure and returned to town to drink some more and that he returned later that night for her and they continued on to Bapue.

103.	Counsel said that there is reasonable inference that when the deceased left the accused at Huhure and returned to town, he could have met up with those boys or others at the compound who could have assaulted him.

104.	Finally, counsel submitted that there is no evidence that the deceased had argued with or fought the accused that night and any allegations or inference that the accused assaulted the deceased or that she was provoked into retaliating in the manner alleged by the State is supply not supported by the evidence.

105.	He, therefore, asked for an acquittal.

DELIBERATIONS
106.	The law on circumstantial evidence is clear. A court may return a guilty verdict solely based upon circumstantial evidence in the absence of direct evidence. Denden Tom& Ors –v- The State (2008) SC 967; Garitau Bonu & Rossana Bonu –v- The State (1997) SC 528.

107.	However, the court may only do so if the accused's guilt is not only a rational inference but the only rational inference that the circumstances would enable it to draw. But for an inference to be reasonable, it must be based upon something more than mere conjecture. Tom Morris –v- The State [1981] PNGLR 493.

108.	In a case such as this, where the prosecution is based substantially, if not entirely on circumstantial evidence (i.e. evidence which, if proven, a reasonable inference can be drawn to prove a fact in issue) unless those facts that are proved in the evidence are inconsistent with the guilt of the accused, he ought to be acquitted. Paulus Pawa –v- The State [1981] PNGLR 498.

109.	So, in the case at hand, I must necessarily ask myself; Do the facts that have been proven or admitted lead me only to one reasonable conclusion – that the accused did all the things that the State alleged she did and is thus guilty of the charge of murdering her husband?

110.	The pertinent facts that I have found from the evidence are that the accused and her husband, the deceased had returned home on the early hours of the morning of 6th May 2008. Earlier in the night of 5th May 2008, the deceased had returned back to town after having left the accused at Huhura to look for more drinks. He returned, took the accused and they walked to their village. On the way at Aiya River, they came across two men, Nichodemus Haopa and Holland Havore. He left the accused on the river and went further down and didn't come back until after 25 – 30 minutes.

111.	They then walked home arriving in the early hours of the morning of the 6th May 2008. The State does not dispute that the deceased pulled the accused by her blouse from the back. Hence, the State says that the accused retaliated, by attacking him with a kitchen knife believing that he will subject her again to sexual pervasions as he had done on numerous occasions previously.

112.	The medical evidence clearly shows that the deceased died from internal bleeding caused by a deep cut to the internal left carotid artery.

113.	The Report also shows that the deceased suffered other injuries as we have seen above-

•	a deep 3cm long laceration to the left jaw.
•	two (2) deep 2cm long lacerations behind the ear.
•	one longitudinal laceration measuring 6cm long by 1cm wide to the left side of the back of the head.
•	A bruise on the front of the neck.
•	Five () lacerations to the back of his left shoulder and arm.
•	A deep cut to the left internal carotid artery below the mandible bone on jaw.
•	A complete traverse fracture of the left mandible bone.

114.	I am being invited by the State to find that the only inference that can be drawn from the above facts is that the accused did what the State alleged her to have done. That is she stabbed her husband repeatedly with a kitchen knife.

115.	It must be noted also that not only must the only inference reasonable, it must also be logical and must accord with common sense. (Garitau Bonu & Rossana Bonu –v- The State (supra).

116.	My analysis of the facts, however, shows that the guilt of the accused is not the only inference that can be drawn from the circumstantial evidence proved in this case.

117.	The possibility that the accused may have attacked and killed her husband in the manner alleged by the State because she was alone with the deceased and no-one else was around and therefore killed him is not the only conclusion that the Court can draw from the proven facts. There are other inferences.

118.	Firstly, the deceased was assaulted the previous Saturday and was still suffering from injuries he sustained during the fight at the soccer field. Granted, there is no evidence that he was attacked with knives and was carrying wounds. However, the fact that he died from internal bleeding does raise a hypothesis that this may have contributed to his demises, hence, ultimate the innocence of the accused.

119.	Secondly, the accused had been alone at some time during the night of the 5th of May 2008. Firstly, when he returned to Bangaho Compound for Huhura and again at the Aija River. This raises a reasonable inference that he may have been attacked by someone or some people thus sustaining wounds from which he later collapsed and died on the early hours of the 6th May 2008.

120.	Now, the injuries revealed in the Post Mortem Report are quite substantial if not very grievous. These were deep cuts to the left internal carotid artery, a 3cm long laceration to the left jaw, two deep 2cm long lacerations behind the ear, a 6cm long x 3cm wide laceration to the back left side of the head, a broken jaw and lacerations to the back of the left shoulder and arm.

121.	The State did not address the possibility that it most probably took something much heavier than a kitchen knife to inflict the kind of injuries that the deceased sustained. For instance, it is almost impossible for a mere kitchen knife to have fractured the deceased left jaw bone or mandible. It would definitely have taken something much heavier and that much bigger force would have been applied to cause such a fracture. All of this point to a reasonable inference that the accused may not have occasioned the injuries on her husband as alleged by the State, hence, pointing to her innocence.

122.	Furthermore, given the nature and extent of the injuries, if the accused did in fact assault or attack the deceased and inflicted those multiple cuts to his ear and neck area, obviously the deceased would have cried out in pain and this would have alerted their son Charlie, who was sleeping in his house some 17-20 metres away from where he came and found his parents, or Bibra Prout and her husband who were also not far away. On the contrary, the only cries these people heard were from the accused herself.

123.	Given these facts the accused would have required some assistance in killing her husband but there is simply no evidence to even support such a possibility.

124.	It may be inferred that she may have feigned or faked everything to cover up her crime but this does not explain the fact that Charlie and Bibra Prout did not hear any cries of pain from the deceased or any argument or commotion at all for that matter.

125.	Furthermore, it does not explain the fact that no blood was found on the deceased's or the accused's clothings. It is against logic and common sense that for someone who has had his left carotid artery – which is a big blood vessel – no blood was found on him or his alleged attacker or on the crime scene. The medical report supports the accused's evidence that no blood was seen on the deceased except that which may have oozed from the cut. The Report states that the body was clean and dressed in neat clothes.

126.	This case is not too dissimilar from Garitau Bonu & Rosana Bonu –v- The State (supra). There, the appellants appealed against their conviction and sentence for the murder of a man who was found dead in their bedroom. The trial court found that nobody else could have been responsible for death of the deceased or that someone else had the opportunity to attack the deceased in the appellants' bedroom and there was no blood stains at the place where the deceased had been earlier dropped off.

127.	The appellants didn't give evidence and this led to the conclusion of guilt because the trial court found that the only inference open to it was that they were guilty.

128.	The Supreme Court upheld the conviction holding that these trial court's findings and conclusions were correct. It held that there was no explanation as to how the deceased get to the appellants' house in the condition that he was found –with multiple stab wound – and there was no evidence that he may have been injured elsewhere in the absence of blood trails outside the house.

129.	The Supreme Court held that the trial court's conclusion was a common sense one and to say that the deceased may have been stabbed by unknown persons and left in the appellants' house without them knowing anything about it is parting with reality and common sense when there was not an iota of evidence or information suggestive of that hypothesis or possibility.

130.	Now the case at hand has ome similarities with the facts in Garitau Bonu –v- The State (supra) but there also some differences. In this case the accused gave evidence. No blood found on the deceased's or the accused's clothing given the fact that he suffered multiple cuts to the neck, ear and jaw area. There was no blood on the scene of the crime, which could have suggested that the deceased was attacked there by the accused.

131.	If the accused had killed the deceased in the manner suggested by the State the circumstances would suggest that she would have gone through considerable effort and time in cleaning up the crime scene of blood, murder weapon or cleaning the deceased and herself of any blood that obviously could have spilt on them.

132.	But having said that, there are some aspects of this case that perplexed me because they would throw a completely different light to any conclusions that I may make and on the inferences that can be drawn from the circumstantial evidence before me.

133.	I have said that two other possible inferences can be drawn from the evidence. First, that the injuries he received from the assault on him on the weekend may have contributed to his death. Secondly, he may have been attacked some time during the night of the 5th May 2008 on at least two occasions – when he went back to Bangoho Compound from Huhura or at the Aija River when he went down stream and did not return back after 25 – 30 minutes.

134.	It is to be noted, however, that the Post Mortem Report reveals that the cause of death was internal bleeding caused by a cut to the left internal carotid artery. Because no medical expert was called by either party, the Court is uncertain if such a cut can cause internal bleeding as these is no evidence that there were injuries to internal organs. Could it be that a cut to the carotid artery which is located in the neck area would result in an out flowing blood? But conversely, if this were the artery that carries blood from the head to the heart would is it possible for the deceased to bleed internally?

135.	Furthermore, is it possible for someone to be bleeding internally from injuries sustained two days previously not to die immediately or just soon after the assault or some days after the assault.

136.	The Post Mortem Report also revealed that the body of the deceased was clean and dressed in neat clothes.

137.	Now, for someone who had been drinking from late afternoon on the 5th of May 2008 and well into the night and who had been walking quite some distance from town to Huhera, then back to town and back to Huhera and then on to Bapue, does it not seem strange that the body was clean and his clothes were neat?

138.	Is it logical that his clothes were not soiled or had no blood on them if he was attacked between Bangoho Compound and Bapue during the night of the 5th of May 2008?

139.	It is certainly not logical for if he was attacked somewhere at some time between town and the village, certainly his clothes would have had blood on them and his body would have blood on it too. There would have been dried blood on his body particularly on his neck and face area. Instead, the body was clean. The only thing that was noted on the Report was trauma on the left neck muscle with blood clots on the posterior or back triangle of the neck.

140.	There is no evidence that the deceased's body was washed while they were waiting for the police to arrive.

141.	There is, however, also no evidence though that the clothes the deceased had on him were the same clothes that he was wearing on 5th of May 2008. There is no evidence that he had a shower soon after he and the accused arrived home. 

142.	So, how is it that his body was clean and his clothes were neat as noted by the examining doctors at the Post Mortem? How was it that the accused in her evidence did not see blood on the deceased clothes or on her own? How was it that Bibra Prout did not see blood on the deceased clothes though she did see blood from he cut to the deceased's left side of his ear area which she covered with a napkin?

143.	Is it therefore reasonable to infer that the accused killed the deceased, washed the body off blood, disposed of his soiled and bloodied clothes and put clean or "neat" clothes on the body? Was it possible for the accused to have washed off any evidence of blood from the scene of the crime and if she did, how could she have done that?

144.	Is it also possible that the accused could have had some assistance from some other person or persons given the fact that the deceased weigh some 75kg and 180cm and it would have taken her much effort in moving the body around on her own? Such an inference would be bordering on conjecture but I should think that it is not entirely implausible.

145.	Now, just going back to what I said about the cut to the carotid artery and the fact that internal bleeding was the actual cause of death, this may perhaps explain the absence of blood generally on the body or on the deceased clothes.

146.	The only way any uncertainty on these matters could have been resolve was though the evidence of a medical expert. The examining doctors, if they had been called, could have explained what exactly they meant when they said that the body was clean and that deceased wore neat clothes.

VERDICT
147.	So, in the final analysis, as much as I would want to believe that the accused may be complicit in the death of her late husband, the doubts that I have above alluded to, cast reasonable doubt on the whole of the prosecution's case.

148.	Something more was needed here to allay those doubts. The examining doctors ought to have been called, failing which, some other doctor ought to have been called to clarify the medical questions that I have raised.

149.	More could have been done also by the arresting or investigation officer. He could have conducted a thorough investigation of the crime scene. None was done hence the Court is left with serious doubt on matters which I have raised above.

150.	And whilst there are also serious doubts or holes in the accused evidence, the law requires that any doubts in the whole of the evidence must be applied to her benefit.

151.	So, regardless of what I have said above that may have implicated the accused, I must unfortunately acquit her of the charge of murder and order that she be discharged forthwith and that her bail be refunded.

Orders accordingly.
____________________________________________________________
Public Prosecutors : Lawyers for the State
Paraka Lawyers: Lawyers for the accused