N7968

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 696 OF 2016

THE STATE

V

NAKAKO NAKS YUTIPAS

Lae:	Numapo AJ
2019:	12th & 25th July, & 16th August

CRIMINAL LAW – Particular offence – Murder s.300 Criminal Code– Plea of Not Guilty – Right to Remain Silent - Evidence on identification – Intention to Cause GBH – Use of Offensive Weapon – Guilty as Charged.

Held:

(i)	Generally speaking, the right to silence comprised two rights, firstly, the privilege against self-incrimination, i.e. the freedom of an accused from the compulsion to incriminate himself, and secondly, the right not to have adverse inferences drawn from his silence.   

(ii)	The absence of the accused from the witness box is not an admission of guilty nor is it something from which an inference of guilty may be inferred. 

(iii)	The identification of the accused person and the correctness of that identification is established beyond doubt based on the eye witness’s account. 

(iv)	The use of an offensive weapon such as a bushknife clearly showed the strong intent on the part of the accused to cause GBH that can cause death if the injuries sustained are serious and life threatening. 

(v)	Accused found guilty as charged and convicted accordingly.

Cases Cited:
Papua New Guinea Cases

Paulus Pawa v The State [1981] PNGLR 498 
State v Abia Tambule (1973) (Unreported Judgment No. 769)
The State v Nelson Namto & Patrick Kaikre CR (FC) Nos. 202 & 204 of 2015 N7259 (10th March 2018)

Overseas Cases

R v Sharmpal Singh [1962] AC 188, 198 (PC)
R. v. Sparrow (1973) 57 Cr. App. R 353 

Counsel:

J. Done, for the State
J. Huekwahin, for the Defence

RULING ON VERDICT

16th August, 2019

1.	NUMAPO AJ: This is a ruling on verdict.  The accused was indicted on one count of Murder contrary to Section 300 (1) (b) of the Criminal Code.  The accused pleaded Not Guilty and the matter went to trial.

A.	BRIEF FACTS

2.	On the 16th of January 2016 at Minge village, Menyamya the accused Nakako Naks Yutipas and his co-accused Tamiri David Yutipas murdered another person namely, Nick Kewa.  The State alleged that the accused and his brother Tamiri chased the deceased and chopped him with the bushknife and the deceased died shortly after from excessive loss of blood. 

B.	STATE’S CASE

3.	The State’s case is made up of both the documentary and oral evidence.  Mr Done for the State tendered a total of eight (8) documents altogether.

1.	Documentary Evidence

(i)	Record of Interview (ROI) dated 10/02/16 - “Exhibit PW1”.
(ii)	Affidavit of Nursing Officer David Manasseh, Medical Certificate of Death dated 18/01/18 – “Exh. PW2”
(iii)	Photographs of the deceased – “Exh. PW3”
(iv)	Police Statement of Const Lazarus Busil dated 12/02/16 – “Exh. PW4”
(v)	Statement of Police Investigator George Gambu dated 16/03/16 – “Exh. PW5”

2.	Oral Evidence

3.	State called three (3) witnesses who gave oral evidence.  They all gave evidence on oath.

(i)	Prosecution Witness No. 1 – Abaita Kewa on Oath

4.	The witness Kewa Abaita comes from Minge village, Menyamya and is the brother of the deceased Nicky Kewa.  He knew the accused Nakako Yutipas as they both are from the same village.  He told the Court that on Saturday 16th January 2016 was a Sabbath and after attending Church he was walking back to his house and saw some people playing soccer so he stood there to watch the game.  Not long he saw the accused Nakako Naks Yutipas running towards Menyamya station and was carrying a bushknife with blood on it.  There were a lot of people watching the soccer match and they all saw the accused.  He had his shirt tied around his head and was full of sweat.  The witness knew straight away that something terrible has happened as the accused and his people had been enemies with him and his family for quite some time. 

5.	The witness ran down to his house and found his brother lying on the ground dead. He noticed that his brother had been chopped up.  He saw his wife Anna who was also there at the scene of the murder and she was crying.  She told him that the accused Nakako Naks Yutipas and his brother Timara Yutipas killed his brother, Nicky Kewa.  He then reported the matter to the community leaders. 

(ii)	     Prosecution Witness No. 2 – Hanson Bartimias on Oath

6.	The witness is a Ward Councilor from Minge village in Menyamya.  He knew the accused Nakako Yutipas well.  He scheduled a meeting for his ward committee members to be held on Friday 15th January 2016 and Saturday 16th January 2016. On the 15th January 2016 the accused was present at the meeting but on Saturday the 16th January 2016 he was not present. 

7.	Later in the day, Abaita Kewa came and told him that the accused and his brother Timara Yutipas have murdered his brother Nicky Kewa.

(iii)	Prosecution Witness No. 3 – Anna Abaita on Oath

8.	The witness is married to Abaita Kewa, the deceased’s brother.  She lived with her husband and three children in Minge village, Menyamya.  She knew the accused Nakako Yutipas well as they all live in the same village.  On Saturday 16th January 2016, she was in the village.  She was feeling unwell and was sleeping in her house.  

9.	She also knew the accused’s brother Timara Yutipas who was also charged for the same offence and convicted and is currently serving 15 years in prison.

10.	The accused and his brother Timara chased the deceased Nicky Kewa and surrounded him and attacked him.  She heard the deceased yelled and she came out of the house and saw the accused attacking the deceased.  Timara was chasing the deceased from the front and the accused was chasing from behind.  They surrounded the deceased and she saw the accused cutting the deceased on his neck once and the deceased fell to the ground.  She was still standing watching when the accused approached her and threatened to chop her and she was so scared she urinated in her pants.  She was standing less a metre from where the deceased was killed and she saw clearly what happened.  It was in a broad daylight.

C.	DEFENCE CASE

11.	Defence had only one witness, the accused himself however, he elected to remain silent and did not give evidence.  No other witnesses were called and the defence closed its case.

D.	SUMMARY OF EVIDENCE FROM STATE

12.	The only evidence now before the Court is that of the State after the accused exercised his rights to remain silent. 

13.	The State’s evidence in summary is that, on Saturday 16th January 2016 between 10am and 11am the accused Nakako Naks Yutipas was with his brother and co-accused Tamiri David Yutipas at Minge village in Wapi LLG area of the Menyamya District.  Both were armed with offensive weapons namely, bushknives and chased the deceased Nicky Kewa following an argument.  They blocked the deceased from escaping and attacked him with bushknives.  Accused Nakako Naks Yutipas came from behind and chopped the deceased on the back of his head. The deceased fell down onto the ground and the accused and his co-accused chopped the deceased further on his legs and hands. 

14.	The first witness, Abaita Kewa the deceased’s brother saw the accused running in front of him towards the station with a bushknife with blood stain on it.  He feared that his brother Nicky Kewa may have been attacked because of the on-going feud between his family and the accused’s family.  He ran down to his house and found his brother lying on the ground and was already dead.  He went and reported the matter to the ward committee. 

15.	The second witness Henson Bartimias knew the accused and told the Court that the accused was present at the meeting he called on Friday 15th January 2016 but the accused was not present at the meeting on Saturday 16th January 2016 when the incident happened.  He received report that the accused and his brother Tamiri had a fight with the deceased and killed him. 

16.	The third State’s witness Anna Abaita witnessed everything that happened.  She told the Court that she was present at the time when accused and his brother Tamiri David Yutipas attacked the deceased.  They both chased the deceased and the accused came from behind and chopped the deceased on the back of his head and neck and later chopped him on the legs and arms.  She was standing there watching when the accused approached her and threatened to chop her and she urinated as she was over whelmed by fear. 

E.	RIGHT TO REMAIN SILENT

17.	The accused’s rights to remain silent is guaranteed under Sections 37 (4) and 37 (10) of the Constitution that basically states that a person charged with an offence shall be presumed innocent until proved guilty according to law (s37 (4) (a)) and that no person shall be compelled in a trial of an offence to be a witness against himself (s37 (10)).  In addition, section 12 of the Evidence Act states that a person charged with an offence is a competent witness but not a compellable witness for himself in any legal proceedings in connexion with the offence with which he is charged.  It reaffirms the common law principle on the right to remain silent.  The accused is not obliged to give evidence as he doesn’t need to prove his innocence. The onus is on the prosecution to prove his guilt.  

18.	Generally speaking, the right to silence comprised two rights, firstly, the privilege against self-incrimination, i.e. the freedom of an accused from the compulsion to incriminate himself, and secondly, the right not to have adverse inferences drawn from his silence.    

19.	Counsel representing the State, Mr Done submitted that in the absence of any evidence from the Defence, the Court is entitled to draw an adverse inference on the accused’s failure to testify.  The learned prosecutor then asked the Court to give weight to the State’s evidence which has not being challenged on vital points. And to support that he referred to the Supreme Court case of Paulus Pawa v The State [1981] PNGLR 498 where Kearney DCJ (as he then was) said: “…….In such circumstances where the court is left with an incomplete picture the court may draw inferences which properly flow from the evidence, and reach its conclusion thereon, without being deterred from doing so by the incomplete state of the evidence, or by speculation as to what the accused might have said had he testified…. Only in that sense may an accused by not testifying ‘strengthen’ the State’s case”. See R v Sharmpal Singh [1962] AC 188, 198 (PC). 

20.	In the same case, Andrew J ( as he then was) started by saying that naturally an innocent man charged with a crime or with any conduct reflecting upon his reputation, he can be expected to refute the allegation as soon as he can by giving his own version of what happened rather than to remain silent.  But when he chooses to remain silent the Court cannot take that as an admission of guilt.  His Honour adopted the conclusions made by Professor O’Regan in his article “Adverse Inferences From Failure of an Accused Person to Testify” 1965 Crim. L. R. 711 and said that; “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 person to testify is not an admission of guilty and no inference of guilty may be drawn from such failure to testify;

(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; and

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

21.	His Honour then cited a leading English authority on the right to remain silent in R. v. Sparrow (1973) 57 Cr. App. R 353 at pp. 363 - 364 where the Court held, after considering some earlier authorities, that: “Having studied these authorities I remind myself that the absence of the accused from the witness box is not an admission of guilty nor is it something from which an inference of guilty may be inferred”.

22.	Kapi J (as he then was) adopted the view taken by Frost S.P.J in State v Abia Tambule (1973) (Unreported Judgment No. 769) that the accused’s absence from the witness box makes the inference of guilty from evidence of the prosecution less unsafe than it might possibly appear.  His Honour sums it up by saying that; “With respect, I do not agree with authorities that suggest that an adverse inference against the accused may be drawn from his failure to give evidence. This is against the principle that the accused has a fundamental right to remain silent. Whether an accused person is guilty or not of an offence must be determined on the evidence of the prosecution alone and no inference of guilty by the failure of the accused to call evidence should improve a prosecution case which may be unsafe. In other words, if at the close of the prosecution case, the prosecution case does not measure up to a standard beyond reasonable doubt, the case cannot be improved by any inference from the failure of the accused to call evidence. All that can be said is that the Court will determine the case solely on the evidence of the prosecution.”

23.	These principles are well settled in this jurisdiction and has been applied by the National Court and the Supreme Court in many subsequent cases. 

24.	I adopted the conclusion reached by his Honour Kapi J in The State v Nelson Namto & Patrick Kaikre CR (FC) Nos. 202 & 204 of 2015 N7259 (10th March 2018) and intend to apply the same again in the present case before me and held therefore, that the Court is not entitled to draw an adverse inference against the accused for his failure to give evidence.  The guilt or otherwise of the accused person shall be determined solely on the evidence of the prosecution that is now before the Court. 

F.	FINDINGS

25.	Having considered the prosecution’s evidence, I am convinced that State has proven beyond doubt each and every elements of the charge of murder pursuant to section 300 (1) (a) of the Criminal Code.  Firstly, that the accused Nakako Naks Yutipas was identified as the person responsible for the death of the deceased Nicky Nema.  The identification of the accused person and the correctness of that identification are established beyond doubt based on the eye witness account of Anna Abaita and supported further by Abaita Nema.  Secondly, that the accused had an intention to do grievous bodily harm when he used an offensive weapon, a bushknife and attacked the deceased, and thirdly, that the death of the deceased resulted directly from the injuries he sustained from the attack.  Medical Report showed cuts to his head, neck, arms and legs. 

26.	The use of an offensive weapon such as a bushknife clearly showed a strong intent on the part of the accused to cause GBH that can death if the injuries sustained are serious and life threatening. 

27.	 am satisfied that the injuries caused to the deceased resulted in his death.  The evidence of the eye witness, Anna Abaita who saw the accused chopping the deceased on his neck and head remains intact and has not being destroyed or discredited by the defence during cross examination.  She is a credible and reliable witness and she told the truth.  

28.	The motive of the attack was clear as stated by the deceased’s brother Abaita Kewa that there has been a long going dispute between his family and the accused’s family and it was for this reason that his brother was attacked.

G.	RULING

29.	The accused Nakako Naks Yutipas is found guilty for committing the offence of Murder pursuant to section 300 (1) (a) of the Criminal Code. 

Accused is convicted accordingly.

Orders Accordingly 
_________________________________________________________________
Public Prosecutor:  	Lawyers for the State
Public Solicitor:		Lawyers for the Defence