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State v Paul [2016] PGNC 38; N6213 (17 February 2016)

N6213

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 464 OF 2015


THE STATE


V


ANTON PAUL


Cannings J
Ramu: 13, 16 July 2015
Madang: 23 September 2015, 17 February 2016


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


Facts:


The accused man was indicted for the murder of a 36-year-old woman that allegedly took place in a field near a settlement on the outskirts of a town, after he and the woman had been seen, at night-time, drinking together and walking into the field. A post-mortem report revealed that she had died of hypoxia due to strangulation. The accused pleaded not guilty so a trial was held. The State's case was based on circumstantial evidence. The accused gave sworn evidence that he was with the deceased, but denied all involvement.


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) 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 with the deceased in the vicinity of where she died, did not lead reasonably to only the conclusion that the accused killed the deceased.

(4) There were fatal flaws in the State's case: there was no clear evidence as to the time and place of death or even who found the deceased's body and who reported the matter to the Police and there was no forensic evidence linking the accused to the body of the deceased.

(5) 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


TRIAL


This was the trial of an accused charged with murder.


Counsel


M Pil, for the State
J Morog, for the accused


17th February, 2016


  1. CANNINGS J: The accused, Anton Paul, is charged under Section 300(1)(a) of the Criminal Code with the murder of a 36-year-old woman, Lucy Tai, at Tari Kona, near Ramu town, Madang Province on the night of Friday 1 August 2014. He pleaded not guilty so a trial was conducted. The State alleges that the accused killed the deceased by strangling her, after they had been drinking together and went into a sugar field to have sex. The State alleges that an argument between the pair ensued and the accused became angry and killed the deceased.
  2. The State's case is based on circumstantial evidence, in particular the evidence of a group of five young men and boys who chased the accused in the field after he was observed to be in the company of the deceased. The accused gave sworn evidence that he was with the deceased on the night she is alleged to have been killed, but denied all involvement.

UNDISPUTED FACTS


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

ISSUES


  1. 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.


  1. The two elements of the offence are that:
  2. 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).
  3. The primary issues are:

1 DID THE ACCUSED KILL THE DECEASED?


Determination of this issue requires a:


Evidence for the State


  1. Six witnesses gave evidence for the State, as summarised in the following table.
No
Witness
Description
1
Nancy Michael
Adult female, resident of Tari Kona
Evidence
She runs a beer shop at Tari Kona – the deceased lived with her at the back of the shop – the deceased was at her shop between 6 and 7 pm on 1 August 2014, in the company of a man – she (the witness) did not know the man – she described him as short and stocky – the deceased bought four bottles of beer and put them in a plastic bag, then walked off with that man – that was the last time she saw the deceased.
2
Albert Wandea
20-year-old male, resident of Bumbu
Evidence
It was between 7.00 and 8.00 pm on 1 August 2014: he was with other boys eating in their house at Tari Kona when Naiko Tom (State witness No 6) came in and told them that a man had taken the deceased, Soti, into the sugar field – Naiko wanted a torch – one of the boys, Bogiam, had a torch so they all (four of them) went with Naiko into the sugar field – the sugar cane was not high, no more than waist level – he (the witness) was the eldest in the group and he went first.

When they got into the field they saw a man and chased him – in court, he identified that man as the accused – the man ran across the highway – the group caught up with him – he (the witness) assaulted him and pulled his face into the torchlight: he was drunk – Naiko checked his pockets and removed the contents – the accused had a chain around his neck, it was one metre long, and he said that he works with Kasampy Construction Company and 'likes to kill people and drink their blood' – Naiko removed the chain from him – Naiko was also drunk.

In cross-examination he said that he believes that that man, the accused, must have killed Soti as he had a chain around his neck and said strange things and he ran away from them when he saw them coming and he had blood on his hands – the accused smelt like he had just had sex – he does not know when Soti died – some other boys found her body – he denied the allegation that he or any other members of his group killed Soti.
3
Eckly Mathias
18-year-old male, resident of Tari Kona
Evidence
He was in the house with Albert, Bogiam and Larry (all State witnesses) when Naiko came in and asked them to come into the sugar field to check on Soti – he (the witness) had a torch and they all followed Naiko into the field – they spotted a man where Soti was lying so they chased him – he shone the torch on Soti who was lying on the ground, naked, with blood on her nose and mouth, but he left her there as she was naked and drunk – they caught up with the man on the other side of the highway – he had a chain around his neck and blood on his hands and said that he likes to drink blood – in court, he identified that man as being the accused – Albert punched him and Naiko took his wallet.

In cross-examination he said that he did not go too close to Soti so he could not tell if she was dead.
4
Bogiam Simion
13-year-old boy, resident of Tari Kona
Evidence
He was in the house with Albert, Eckly and Larry (all State witnesses) when Naiko came in and asked them to come into the sugar field to check on Soti – they saw a man and he ran away, so they chased him and caught up with him and Albert hit him – he saw a chain around his neck, it was a medium-sized chain – the man said he liked to drink blood – in court, he identified that man as being the accused – he saw Soti, she was lying on the ground, naked.

In cross-examination he was in no doubt that the man they confronted in the field was the accused as Naiko got his wallet and he saw his ID in the wallet – Naiko left after he checked his wallet – he did not get very close to Soti so he did not see if she had blood on her face – he was not too worried about her as he thought she was just drunk and would later get up and go home – Naiko did not get the chain from the accused – they left the chain with him.
5
Larry Wambian
13-year-old boy, resident of Bumbu
Evidence
He knows the accused and he knew Soti – he was at the house at Tari Kona with Albert, Eckly and Bogiam – Naiko came and said that someone had taken Soti away – so they ran into the field – Albert went ahead and the rest of them followed – the group caught up with a man and Albert assaulted him and Naiko got his wallet – the man said that he likes to fight people and drink their blood – he did not see Soti – the man had a chain around his neck – in court, he identified that man as being the accused.

In cross-examination he agreed that after Naiko got the accused's wallet, he left – asked to describe the chain he referred to in examination-in-chief the witness said it was an 'iron chain' but was unable to give any further details and agreed that he was just saying what others had told him to say.
6
Naiko Tom
22-year-old man, resident of Drai Wara
Evidence
He knew Soti as she was from Tari and he is too – he heard Soti's voice – she was shouting 'Bring bottles!' or something similar – he saw the four boys (Albert, Eckly, Bogiam and Larry) standing around so he asked them to follow him into the field to make sure that Soti was all right – they caught up with a man – Albert punched him and his wallet fell – the man said he works for Kasampy – he (the witness) picked up the wallet and checked its contents and saw that it contained an ID card, so he took it home – he heard on the morning of Monday 4 August 2014 that Soti had died in the cane field so he gave the wallet to the Police – in court, he was unable to identify the accused as being the man whose wallet he took – it was too dark to see his face.

In cross-examination he said he was not drunk – he had only consumed one bottle of beer – he denied killing Soti – he denied seeing Soti, he only heard her voice – he denied robbing the man – he admitted that there was K170.00 cash in the wallet and that he spent it over the weekend.

Exhibits


  1. The following exhibits were admitted into evidence by consent:
No
Description
P1A, P1B
Record of interview, Anton Paul: He stated that from about 5.30 pm to 7.00 pm on Friday 1 August 2014 he was drinking beer at his employer's yard – then he walked to Tari Kona where he continued drinking at a beer shop with his uncle (who is also employed by Kasampy Construction Company) – he met Soti there, he knew her – they talked and drank and he bought her more beer – then he went into the sugar field with her, it was her idea, she said 'we go and do it' – the two of them were alone together – they did not have sex and he did not argue with her – he was attacked by raskols, then Soti left – it was put to him that Soti's body was found in a sugar field on Monday morning, 4 August 2014: he replied that he does not know how or when Soti died – he did not have a chain – his wallet, containing K570.00, was stolen – he agreed that exhibit P5 was his wallet, still containing his driver's licence – he was angry with the boys who assaulted and robbed him – he went back to Tari Kona and kicked over some drums and other things.
P2
Medical certificate of death: Lucy Tai, by Dr Sanoh Tahon, dated 14/08/14: the deceased's time of death is recorded as 6.00 am on 02/08/14 – the cause of death is recorded as 'hypoxia due to stangulation' – other significant conditions are recorded as 'sexual abuse'.
P3
Post-mortem report: Lucy Tai, by Dr Sanoh Tahon, undated: summary of findings are stated as:
  • Fracture, dislocation cervical spine
  • Protruding tongue
  • Widespread rigor mortis
  • Left arm wound
  • Lacerated right labia with haematoma formation
The concluding statement is "death resulted from hypoxia due to strangulation".
P4
Sketch plan of crime scene – this indicates the spot at which the deceased's body was found in the middle of a sugar field about 70 metres from the beer shop at Tari Kona – the point at which the accused was assaulted is shown as being in another sugar field across the highway about 100 metres from the spot at which the deceased's body was found
P5
Wallet: brown in colour, containing the accused's class 4 driver's licence, expiry date 29/05/14, showing his date of birth as 20/05/90.

Evidence for the defence


  1. The accused was the only witness for the defence.
No
Witness
Description
1
Anton Paul
The accused
Evidence
His evidence was generally consistent with his record of interview except he denied going into a sugar field with Soti – they only went 20 metres away from the place where he first met her – he did not get a good view of those who assaulted and robbed him – he became very angry when he went back to the beer shop to report that he had been robbed, because no one seemed interested – he did not have a chain around his neck, only a small necklace – he did not say anything about drinking people's blood.

In cross-examination he stated that he was assaulted badly and was hit with a piece of iron – he did not go into the sugar field – Soti just pulled him away a short distance – other people could see them – she wanted to have sex but he did not want to – he told her she was too old and 'like a mother' to him.

Site visit


  1. After the close of evidence and before submissions, the Court party took a view of the site at Tari Kona and the places referred to in the evidence.

Did the accused kill the deceased?


Circumstantial evidence


  1. It is the State's case that the accused killed the deceased by strangling her with a chain after taking her into a sugar field close to Tari Kona and that, soon after he killed her, he was chased and assaulted by a group of five men and boys. The State has no direct evidence to support those propositions. No one has given evidence of witnessing the accused assaulting the deceased. It relies on the evidence of the State witnesses that the accused was in the company of the accused shortly before and shortly after her death. 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:
  2. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

Assessment of witnesses


  1. Before setting out the proven facts I make the following general comments on the witnesses and their evidence. I thought, with two exceptions, the overall quality of the evidence of the State witnesses was reasonable. The exceptions are, first, the evidence of Nancy Michael, which was too general, especially as she could not identify the accused as being the man she saw with the deceased at her beer shop. Her evidence was of little probative value. The second exception is Naiko Tom. He could not identify the accused as the man he assaulted. This was difficult to believe as the other four members of the group who say they chased and assaulted the accused had no difficulty in identifying him. His demeanour was unsound. He seemed more interested in distancing himself from the assault and robbery of the accused than giving truthful evidence. I largely disregard his evidence.
  2. As to the remaining four witnesses their demeanour in the witness box was generally sound. Their evidence was generally consistent. Having said that, some of their evidence gave the appearance of being manufactured to suit the occasion and was unsatisfactory. I refer to the evidence of the accused having a chain around his neck and telling them that he likes to kill people and drink their blood. This was not credible evidence and I disregard it.
  3. However, the gist of their evidence was acceptable. I prefer their evidence to the evidence of the accused on the question of whether he went go into any sugar field with Soti. They said he did. He said he did not and that he only went a short distance away. I reject that part of his evidence. I do not reject all his evidence. I thought he was generally a reasonable witness. He admitted that he was with Soti and his account of events was generally consistent with the story he told in his Police interview. However, I find that his pattern of behaviour is consistent with him agreeing to have sex with the deceased. I reject his evidence that he was uninterested in having sex with her.

Proven facts


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

Unproven propositions


  1. I refrain from finding that the following propositions of the State are facts:
  2. I cannot make those findings as there is no clear evidence of the time or place of death. There is no clear evidence of where her body was found, or who found the deceased's body and who reported the matter to the Police. The questions asked of the accused in his Police interview suggest that the body was found on the morning of Monday 4 August 2014. This makes it improbable that she was killed on the night of Friday 1 August 2014. None of the five State witnesses who chased and caught up with the accused said anything about being concerned that the deceased had been killed. None of them rushed to her aid or went for help. Some gave evidence of seeing her lying naked and drunk but did nothing about it. This makes it more probable that she was not killed on Friday night.

Do the proven facts lead to only one conclusion?


  1. I consider that according to the principles in the Pawa's case, the proven facts, are not inconsistent with any reasonable hypothesis other than that the accused was the person who killed the deceased. That hypothesis is not the only rational inference that can be drawn.
  2. 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.
  3. There are other hypotheses reasonably available: that the deceased was not killed on the night of Friday 1 August 2014; that she was killed at some other time and by some person other than the accused.

Conclusion


  1. 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.

CONCLUSION


  1. 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 he assaulted the deceased, so he cannot be found guilty of unlawful grievous bodily harm or any other offence. He must be entirely acquitted of criminal responsibility for the death of the deceased.
  2. Ultimately the State has presented a weak case, its deficiencies highlighted by being unable to prove the time and place of death and by the failure to provide any forensic evidence linking the accused with the body of the deceased.

VERDICT


  1. Anton Paul, 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

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