N5685

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 890 OF 2013

THE STATE

V

ISAAC JACK SIVINGGINS

Madang: Cannings J
2014: 20 May, 5, 11, 16 June, 8, 21 July

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – elements of the offence – whether the accused killed the deceased – circumstantial evidence.

The accused was indicted for the murder of a 16-year-old boy who had in the middle of the night entered the accused's daughter's bedroom and lay on top of her. The accused pleaded not guilty so a trial was held. The State alleged that the accused went into the bedroom after being alerted by another family member that someone was inside with his daughter, and that he slashed the deceased on his back with a bushknife, inflicting injuries that led to substantial loss of blood and death. It was alleged that he killed the deceased, intending to cause him grievous bodily harm, and that he was guilty of murder under Section 300(1)(a) of the Criminal Code. The State's case was built on circumstantial evidence. The accused gave sworn evidence that it was not him but his cousin-brother who attacked the deceased.

Held:

(1)	There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(2)	As to (a), it is not necessary for there to be direct evidence that the accused killed the deceased. Proof that the accused killed the deceased may be constituted by circumstantial evidence, in which case the test to be applied is that the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt.

(3)	The proven facts, including that the accused was present when the deceased was attacked and that he made an inculpatory statement shortly after the incident referring to the deceased as a "pig" ready to be "picked up", did not lead reasonably to only one conclusion: that the accused killed the deceased.

(4)	As the State was unable to prove that the accused killed the deceased, a verdict of not guilty was entered.

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 Paul Dimon Asilip (2011) N4197

TRIAL

This was the trial of an accused charged with murder.

Counsel

M Pil, for the State
A Meten, for the accused

21st July, 2014 

1. CANNINGS J: This is the verdict of the Court in the case of the accused, Isaac Jack Sivinggins, who has been indicted for the murder of a 16-year-old boy, Augustine Vanya. The accused pleaded not guilty so a trial was held.

2. The deceased had in the middle of the night entered the accused's daughter's bedroom and lay on top of her. The State alleges that the accused went into the bedroom after being alerted by another family member that someone was inside with his daughter, and that he slashed the deceased on his back with a bushknife, inflicting injuries that led to substantial loss of blood and death. It is alleged that he killed the deceased, intending to cause him grievous bodily harm, and that he is guilty of murder under Section 300(1)(a) of the Criminal Code.

3. The State's case is built on circumstantial evidence. The accused gave sworn evidence that it was not him but his cousin-brother who attacked the deceased.

UNDISPUTED FACTS

4. A number of undisputed facts have emerged from the evidence:

•	The incident took place between 1.00 and 2.00 am on Sunday 17 March 2013 at Wagol-Fikus settlement, Madang, where both the accused and deceased lived.

•	The accused is aged in his mid-40s. He is separated from his wife and has custody of their four children. Prior to the incident he was employed as an ambulance driver at Modilon General Hospital.

•	The accused and his family occupy two separate houses, very close to each other. His daughter, F, and his cousin, Herman, were sleeping in one house. The accused and other members of the family were sleeping in the other one.

•	The deceased entered the house occupied by F and went into her bedroom and while she was asleep and without her knowledge or consent lay on top of her, creating a noise.

•	Herman, who had been asleep, woke up and, realising that there was an intruder in the house went next door and woke up the accused, and the both of them then went into F's bedroom and saw the deceased lying on top of F. The deceased and F were not having sex.

•	The accused and Herman were angry and immediately after their entry into the bedroom one of them slashed the deceased on his back with a bushknife.

•	The deceased ran out of the house but did not get far as he collapsed in a swampy area ten metres from the back of the house.

•	Word quickly spread in the settlement that something had happened and a number of youths came running to the scene, including the two State witnesses.

•	A phone call was made to Modilon General Hospital and an ambulance was dispatched to the scene and the deceased, who was in poor condition but still alive, was taken to the hospital, where he died some hours later.

ISSUES

5. Section 300(1)(a) of the Criminal Code states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …

if the offender intended to do grievous bodily harm to the person killed or to some other person.

6. The two elements of the offence are that:

•	the accused killed the deceased; and
•	he intended to do grievous bodily harm.

7. If the court is not satisfied that the first element is proven, an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is satisfied but not the second, an alternative verdict of manslaughter can be considered under Section 539(2).

8. The primary issues are:

1	Did the accused kill the deceased?

2	Did he unlawfully do grievous bodily harm to the deceased or commit any other offence?

3	Was there an intention to do grievous bodily harm?

4	Should an alternative conviction for manslaughter be entered?

1 	DID THE ACCUSED KILL THE DECEASED?

9. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the accused killed the deceased.

Evidence for the State

10. Two witnesses gave oral evidence for the State, as summarised in the following table, and one exhibit was admitted into evidence by consent.

Oral evidence

No	Witness	Description	
1	Jeremiah Keith	Wagol-Fikus resident, accused's nephew	
Evidence: He was at Wagol-Fikus at his grandfather's haus krai – he heard a noise coming from the accused's area and a boy ran up to where he was and said someone had been cut, so he and his friend ran to the accused's area – when they got there, the accused standing outside his house with a bow and arrow said to them 'Your pig is at the back of the house, you can go and pick it up' – he (the witness) went to the back of the house and saw the deceased, who he recognised as Augustine Vanya, lying there, badly injured – he helped to put the deceased in an ambulance that had been called to the scene – the accused is a man who gets angry easily.

In cross-examination he said he was sure that it was the accused with whom he had the conversation – it was dark and hard to see but he recognised his voice.	
2	Francis Sinange	Wagol-Fikus resident	
Evidence: He was at Wagol-Fikus, at the haus krai with his friend Jeremiah – he went with Jeremiah to the accused's area – they met the accused standing at the front of his house on the veranda – he was holding a bow and arrow – he said 'Your pig is at the back of the house, you can go and pick it up' – he went to the back of the house and saw the deceased lying there – he recognised the deceased as Augustine Vanya, who is his brother-in-law – he and Jeremiah lifted him up and carried him to the ambulance – he knows the accused as he lives in the same community – the accused has a short temper and often gets angry with the youths in the community, who are scared of him.

In cross-examination he said that though it was dark he knew that they were talking to the accused as he knows him well and he could recognise his voice – there was also a torch lying on the veranda and it was providing some light.	

Exhibit

•	Record of interview of accused – he was asleep in the house when Herman woke him up and told him that there was someone in F's bedroom – so he went over to the other house, with his torch, and Herman followed him into F's bedroom – Herman picked up a bushknife on the way – he flashed his torch and saw that there was a man lying on F, underneath the bed-sheet – he told Herman to lift the bed-sheet, which he did, and he observed that the man was wearing only his underpants and that he was holding F's neck with his left hand – he saw that the man's eyes were red so he warned Herman to be careful as he looked like a 'drug man' – when he said that, Herman cut the man with the bush knife – the man, who he now knows was the deceased, Augustine, ran out of the house – he and Herman followed him and then Herman swung the bushknife again at Augustine and cut him again – Augustine got his leg trapped in the steps leading up to the veranda and Herman kicked him in the face – he (the accused) lifted Augustine's leg out of the steps – Augustine fell, got up, then ran to the back of the house and collapsed in the muddy area at the back of the house – he called the ambulance, which came and Augustine was taken to the hospital – he denied that he was the one who cut the deceased – he was not given the opportunity to tell the Police his side of the story until the formal interview – he cooperated with the Police when they came to his house and took him to Yomba Police Station – he was surprised when they arrested him and locked him in the cell.

Evidence for the defence

11. The accused gave sworn evidence and there were two other defence witnesses.

Oral evidence

No	Witness	Description	
1	Isaac Jack Sivinggins	The accused	
Evidence: His evidence was generally consistent with what he said in his police interview: Herman came and woke him up – he and Herman went into F's bedroom – he had a torch and told Herman to lift the bed-sheet, which he did – he shone the torch in the deceased's face and saw that his eyes were red – he told Herman to be careful – then Herman cut the deceased on his back – the deceased ran out – he and Herman followed him – the deceased got his leg caught in the steps – Herman cut him again – then he (the accused) released his leg – the deceased fell then got up and ran to the back of the house where he collapsed.

His daughter was 15 years old at the time.

He then went to the house of his brother, Boston, and woke him up and told him what had happened – Boston got a lap-lap and went with him to the spot where the deceased was lying and assisted the deceased – he (the accused) went and woke up another of his brothers, Elijah, and told him what happened – then he and Elijah went back to the house – then he went back with Boston to check on the deceased and he rang the ambulance – family members who had heard the commotion came out – then the ambulance arrived and a number of youths turned up and he heard them shouting "Kill him! Kill him!' and the youths rushed towards his house – he ran into his house and got his bow and arrow and came out and told Herman to stand on the veranda – he pointed his bow and arrow at the angry youths and told them to keep their distance – it was Boston and Elijah who carried the deceased to the ambulance.

The Police came to his house two days later and asked him to come to the station – he cooperated with them but was surprised when they arrested him and charged him with murder – his daughter, F, and Herman have left Wagol-Fikus and he does not know where they are.

In cross-examination he denied having a reputation in the community at Wagol-Fikus as being a tough man who people are scared of – he is a member of the Reserve Police and works with the regular Constabulary in controlling drug use, home-brew consumption and other illegal activities in the settlement – he denied cutting the deceased; it was Herman who cut him.

He denied saying anything to the two State witnesses about their 'pig' being at the back of the house – he armed himself with his bow and arrow as he was afraid of retaliation – he stood on the ground and faced the angry youths, while Herman was on the veranda with his bushknife.	
2	 Elijah Yangi	Neighbour of accused	
Evidence: His house is very close to the accused's house – the accused woke him up and told him that a man had come into the house and raped his daughter and that Herman had cut him and that the man had run away and was now at the back of the house – he followed the accused back to the front of the accused's house – the news spread and a number of people came out to see what was going on – the accused rang the ambulance –some youths came running in, they were angry and shouting – when the accused saw that, he went inside his house and got his bow and arrow and came out and warned the youths to stay away – the ambulance came and he and a number of other men helped to get him into the ambulance – he was not dead at the stage – after the ambulance left Herman told him (the witness) and others that he was the one who had cut the deceased – Herman has fled because he is afraid of the repercussions of what he did.	
3	Boston Jack	Accused's brother	
Evidence: The accused woke him up and told him that a man had gone into his daughter's bedroom and that Herman had cut him – so he followed the accused to the swamp at the back of his house where they found the deceased lying – they then got a laplap and used it to carry him to the front of the house – the ambulance came and the deceased was taken to the hospital.	

Did the first accused kill the deceased?

Circumstantial evidence

12. It is the State's case that the accused killed the deceased by slashing him on the back with a bushknife. The State has no direct evidence to support this proposition. The two persons, apart from the accused, who would have been able to give direct evidence of what happened – Herman and the accused's daughter, F – did not give evidence. The State's case is therefore built on circumstantial evidence, which means, as explained by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

•	to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

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

•	do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

Assessment of witnesses

14. Before setting out what I regard as proven facts I make the following general comments on the witnesses and their evidence. I thought the overall quality of the evidence of the two State witnesses was good. Their demeanour in the witness box was sound. Their evidence was consistent. On the significant issue of whether it was the accused who told them that their 'pig' was at the back of the house their evidence was generally credible. Though it was dark, I accept that they would have been able to tell who they were talking to as they both lived in the settlement and knew the accused well.

15. I tend to make a similar assessment of the defence witnesses. None of them, including the accused, was obviously lying or gave evidence that was not believable. However, as to the accused's persistent denial that he said anything about the 'pig' at the back of the house, and in view of my assessment of the State witnesses as giving credible evidence, I do not accept that part of his evidence. However, I do not necessarily reject the other parts of his evidence. I accept the evidence of the two other defence witnesses.

Proven facts

16. I determine that the proven facts are, in addition to those set out earlier as undisputed facts:

•	the accused was angry when he saw the deceased in the bedroom of his daughter, lying on top of her;

•	the accused said to Jeremiah Keith and Francis Sinange, when they ran to his house, 'Your pig is at the back of the house, you can go and pick it up';

•	the accused woke his neighbours, Elijah Yangi and Boston Jack, after the deceased had been cut and with their assistance and the assistance of others took the deceased from the swamp area at the back of the house to the ambulance, which he had called.

Do the proven facts lead to only one conclusion?

17. I consider that according to the principles in the Pawa's case those proven facts, including the statement made by the accused about the 'pig' being at the back of the house, are not inconsistent with any reasonable hypothesis other than that he was the person who cut the deceased. That hypothesis is not the only rational inference that can be drawn.

18. According to the principles in David's case the proven facts do not lead reasonably to only one conclusion: that the accused killed the deceased.

19. There is another hypothesis reasonably available: that the person responsible for the death was the accused's cousin, Herman. This is the version of events consistently given by the accused since his Police interview and through to trial. Though little evidence was given as to Herman's whereabouts, the fact is that he should have been a witness and his absence without explanation by the State is consistent with the proposition that he is the culprit and that he has fled Madang in order to escape arrest. As for the absence of the accused's daughter, F, it is difficult to know what to make of that. Has she gone missing as she does not want to give evidence against her father? Is she still distraught over what happened and not able to give evidence? Too much speculation is required to answer these sorts of questions.

20. Ultimately it must be said that the State has presented a rather weak case, highlighted by the absence of two obviously critical witnesses and by the absence of any medical evidence. There was no post-mortem report, so there was nothing against which to assess the accused's evidence as to the number of wounds incurred by the deceased. There is no rule of law that in a murder case there has to be a post-mortem report (The State v Paul Dimon Asilip (2011) N4197) but where a death has occurred, as in this case, in a major provincial hospital, it is difficult to believe that no post-mortem examination would have been conducted and a report prepared, particularly when someone has been charged with murder. Surely a post-mortem report was prepared, so why has it not been put into evidence? And why was no explanation for this gap in the evidence provided by the prosecution?

Conclusion

21. The State has not discharged the burden of proving beyond reasonable doubt that the accused killed the deceased. The first element of the offence of murder has not been proven.

2 	DID THE ACCUSED UNLAWFULLY DO GRIEVOUS BODILY HARM OR COMMIT ANY SIMILAR OFFENCE?

22. No. It has not been proven that the accused injured the deceased in any way. It is unnecessary to consider any other issues.

CONCLUSION

23. The State has been unable to prove that the accused killed the deceased, so he must be found not guilty of murder. As he did not kill the deceased he cannot be convicted of the lesser offence of manslaughter. The State has also been unable to prove that the accused injured the deceased in any way. He must be entirely acquitted of criminal responsibility for the death of the deceased.

VERDICT

24. Isaac Jack Sivinggins, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence.

Verdict accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused