N8380
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1172 OF 2019

THE STATE

V

COLLEN PETRUS

Madang:  Geita J 
2020: 25, 26 27, 28 May; 3,11,22 June

CRIMINAL LAW – PRACTISE & PROCEDURE – The accused must be cautioned before he gives his evidence – Accused chose to give unsworn statement from the dock – Credibility and Weight of – Court must consider credibility.  
CRIMINAL LAW – PRACTISE & PROCEDURE – Hearsay evidence – spontaneity of screamed remarks discounting possibility of concoction of fabrication- while hearsay were admissible as res gestae.
CRIMINAL LAW – Verdict - Murder – Section 300 (1) (a) Criminal Code –Whether it was the accused who caused the death of the deceased- Partial admission of some form of assault occasioned on the deceased by the accused. – Prosecution evidence credible and accepted. Guilty verdict returned.

EVIDENCE – Sworn testimony versus unsworn testimony – Unsworn testimony not tested under cross-examination – Court duty bound to consider credibility of both evidence

Cases Cited:
Papua New Guinea Cases

Garitau Bonu and Rossana Bonu v The State SC. 528 
Paulus Pawa v The State [1981] PNGLR 498 
Regina v Ulel [1973] PNGLR 254
The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Tom Morris [1981] PNGLR 493 
The State v Willie Orki Briza [1976] PNGLR 517 

Overseas cases cited

 R v Ratten [1972] AC 378 at 3387

Counsel: 

Deborah Ambuk, for the State. 
Delailah Ephraim, for the Accused. 

JUDGMENT ON VERDICT
22 June, 2020 

1.      GEITA J: 	On arraignment the accused pleaded not guilty to a charge that he murdered Danu Issac on 2 June 2019 at Alaksula village, Madang Province thereby contravening Section 300 (1) (a) Criminal Code Act. Subject to s.19 of the Criminal Code the offence carries a death sentence. 
The evidence for the Prosecution
2.	The State relied on both oral and witness testimonies. The following material were tended into court by consent viz.
•	Exhibit "1” – Statement from Sakob Jaskolly 02.6.2019.
•	Exhibit "2” - Statement from Tropu Ilo 09.6.2019. 
•	Exhibit "3” - Statement from Tropu Abui 09.6.2019. 
•	Exhibit "4”-   Statement from Doat Anthea 06.6.2019.
•	Exhibit “5” – Statement from Kosi Lillian 06.6.2019.
•	Exhibit “6”- Statement from Elisha Tangi 13.6.2019.
•	Exhibit “7”- Statement from Keke Gure 17.07.2019
•	Exhibit “8”- Statement from Kepui Leo 17.7.2019.
•	Exhibit “9” - Autopsy Report 12.6.2019
•	Exhibit “10” - Record of Interview Pidgin (a), English (b)

State Witness 1 – Kelepas Fale

3.	The witness who is the victim’s uncle gave testimony of last seeing Danu on Friday 31 May 2019. He said the victim had gone to visit his sick grandmother at Mosie village around 10.30 am and returned home around 7 pm that evening. He said he escorted the victim to 10 mile and returned home and called the victim’s parents that Danu was on his way home to Gum. The witness estimated the distance from Gum village to 10 Mile to be about 3-4 kms. 
 
4.   	In cross examination the witness maintained that the only conversation he had with Danu was the reason for his visit to his grandmother. He said travelling by PMV usually take about 2 hours from 10 mile to Gum village. The witness denied suggestions that his brothers and him assaulted Danu around 6 pm that evening. 

Cross examinations continue:

Q. When you found out that Danu failed to return home you called his father by fone?
A. I am telling the truth. 

State Witness 2 - Lina Fale (Deceased’s mother)

5.	 She gave testimony of sending his son Danu with some food to visit his grandmother on Friday 31 May 2019 at Amele. The next day on Saturday 1 June 2019, Petrus and Danu arrived at her place around 7.40 am in a PMV bus. Danu had his head covered with a white T-shirt. Petrus asked us if Danu was our son and we confirmed that he was our son. The witness told them that Collen assaulted Danu. She observed Danu to be in pain and distress and limping on his side. She said Danu was crying and asked her mother if he could go and rest.

The witness said Danu woke up around 6pm and began vomiting and calling out in pain: Ai yo mama, Ai yo mama. The witness and her husband called out to him to come out. She said Danu than requested for Eni to call Petrus and Collen to come and take him to the hospital. The witness said at the time she observed Danu’s condition to be deteriorating and so they started to look for a PMV. Around 10 pm that evening, a PMV was secured and Danu was rushed to Modilon General Hospital. He died the next day 2 June 2019 around 9 pm.  

In examination in chief the witness said Petrus was Collen’s father and Eni was Collen’s sister. She said when Eni arrived Danu’s eyes were shut, and he was in distress. Danu was healthy that day when she bought food and sent him to go visit his grandmother, Sap, who is also Petrus’s mother.
	
Cross examination:

6.	In cross examination the witness said Petrus did not assault Danu, it was Collen who assaulted him. When suggested to the witness that since there was no dispute between Petrus and Collen and her family, Collen has no reason to assault Danu, she said there was none. She said argument arose after his death. She agreed that as a result of the problem, her family blamed Petrus and Collen for the death of Danu.

State Witness 2 - Issac Faile: (Deceased’s father)

7.	He gave testimony of being told by Petrus that his son Collen, assaulted Danu on June 2, 2019 as he came into his yard. As Petrus stopped his son, he enquired of Danu who his parents were, and Danu replied that he was Issac’s son. The witness told him that Petrus brought his son to confirm with him that Danu was indeed their son. He said his son Danu had his head covered with a T- shirt and was crying. He then went to his house and rested.

8.     The witness said around 6 pm Danu began vomiting and was in great pain and cried out: “Aiyo mama”, Aiyo mama”. Danu was unable to eat and called for Eni to call Petrus and Collen to come and take him to the hospital. Danu was taken to the hospital, but he died on Sunday. He said Petrus returned Danu to us on 1 June 2019.  

Cross examination:

 Q. When you met Petrus and Danu at the bus stop, Petrus told you that Colin hit Danu.?
A. Yes, he than returned to his house but we didn’t check him until 6pm when he began vomiting.
Q. You agree that Petrus had no reason to assault Danu?
A. Yes.

State Witness 3 – Sakob Jaskolly M/15 years: (consent statement Exhibit 1)

9.	He gave an account of seeing Collen Petrus, Raymond Awan, Neimen Manes and other boys drinking on the side of the road around 8 pm on Friday 31 May 2019 at Gum village. He said he was called by Neimen Manes to accompany them walk the accused to 4 Mile junction. Along the way the boys we still drinking Yawa (Home Brew). After leaving the accused at 4 Mile junction they returned to Gum village.  

State Witness 4 – Tropu Ilo F/22 (Consent statement Exhibit # 2)

10.	She gave an account of waiting for a PMV to go into town on 1 June 2019 at Gum bus top when Petrus and Danu got off a PMV bus (13B) and walked over to where they were standing. She was with his brothers Abui and Annie Petrus. She said upon Petrus Ninileg’s questioning as to who Danu’s parents were Annie replied: Papa Isaac and Mel. She said she noticed that Danu’s cheeks were swollen as he stood sideways by bracing himself with putting his right hand on his right stomach. As Danu’s parents arrived, Danu then went to his haus boi to rest. She said all along she noticed that he was walking crookedly. As Danu’s parents arrived Petrus asked them if Danu was their son to which his mother replied that Danu was indeed their son. The witness then told them in language that Collen assaulted him, so he brought him to them. “(Collen buun nu hevi nigin”  

State Witness 5 – Tropu Abui M/20: (Consent statement Exhibit # 3)

11.	Abui’s account of events is the same as Ilo as they were at the bus stop together.

State Witness   6 – Doat Anthea F/A: (Consent statement Exhibit # 4)

12.	This witness gave an account of what happened at the haus win around 3pm on 2 June 2019 as people gathered to wait for news from Danu’s family members, yet to return from the morgue. Around the same time suspect Collen Petrus accompanied by his father Petrus Ninileg and family members arrived in a vehicle. They stopped at Wilman carpark some distance away from Tropu’s residence. She said as Petrus Ninileg, Collen Petrus, Collen’s wife, Annie Petrus, Atthy Petrus walked towards the haus win, the crown started screaming and shouting at them and hurled abusive words. The witness said Petrus Ninileg pointed his finger at Tropu and Damop and said, why are you accusing Collen of his death, Collen only beat him with a stick and slapped him, that is why we are here to sort the matter out. (Yupla tok Collen paitim na dai ah? Collen ino paitim em, Collen stikim em na slapim em? Mi laik stretim toktok na mi kam”).

She said out of frustration the crowd began abusing them and punching them. During the commotion Collen called out in a loud voice that he did not assault the deceased, saying he only slapped him. She further said Collen’s wife supported Collen by saying that Collen only slapped him.  Out of frustration the witness approached Collen’s wife and rebuked her and assaulted her.  

State Witness   7 – Kosi Lillian F/A: (Consent statement Exhibit # 5)

13.	Lillian’ account of events were similar to Anthea save for her account of seeing Collen drinking when Collen’s wife supported her husband by saying that she was with him all day at home. The witness said she was angry with Collen’s wife’s assertion as she had seen Collen drinking at the marketplace with his brother in-law Raymond Awan and others between 5 pm and 6 pm on Friday 31 June 2019. She said she observed Collen to be over drunk by his actions and his in-laws could not control him. She said he screamed out loud and kicked the iron post of the house with his used brown safety boots.

The witness said out of frustration, she approached Collen’s wife and assaulted her on her face, saying Danu Isaac was a good in-law to her.

State Witness   8 – Elisah Tangi M/A: (Consent statement Exhibit # 6)

14.	Tangi is a Police Sergeant with 41 years of Forensic Science experience. His examinations include taking crime scene photographs. He deposed in his statement dated 13 June 2019 that he conducted a forensic examination on the deceased on 6 June 2019 with Constable Leo Kepui at Modilon Hospital. He took 19 sets of coloured photographs of the deceased at the morgue and photos of the alleged crime scene at the accused’s hamlet at Anawagon, Yahil village. Notable among the photographs were Photo exhibits 7,8 and 9. Photos 7 & 8 showed the deceased’s left swollen jaw. Photo 9 showed blood cloth on the deceased’s right jaw. Photos 3 and 4 show black marks on deceased’s left side of the stomach.

Autopsy Report by Dr. John Maihua: (Consent statement Exhibit # 9)

15.	For its worth the Surgeon Dr John Maihau was unable to determine the cause of death, save for his findings as follows: Right parotid – Old dark blood seen on the cut surface; Right ascending colon – blood in tissue. These are medical terminologies and best explained to us by medical doctors. The Wikipedia definition of the ascending colon is the part of the colon located between the cecum and the transverse colon. The cecum is the pouch that is the beginning of the large intestine. Parotid is that part of the body organ which produces saliva. It is usually located on both sides of the human face.

No Case submission:

16.	At the close of prosecution case the accused through her Lawyer moved a no case submission based on both limbs, relying on the principles set out in the case of State v Paul Kundi Rape. Both Counsel were heard, and the Court ruled ex tempore against the closure application. The case proceeded to trial. 

Defence Evidence:

17.	The accused elected to give an unsworn statement. His father gave a sworn evidence.

Collen Petrus- Unsworn statement:

18.	The accused gave an unsworn statement. It follows that he was not cross examined. His oral testimony in brief is as follows: He had just returned from Lae and was dropped off at Gum bridge to visit his elder sister on Friday. From there he was accompanied to 4 Mile junction by his brother in law and so he returned home with his younger brother. He went straight to sleep after the long travel but was woken up by his father around 1 am in the morning to come and identify a stranger in their yard. He said he asked the stranger to identify himself, but he remained quiet and would not co-operate, so he slapped him on his cheek to wake him up. He then left the deceased with his father and returned to sleep. 

He said his father took him to his house in the morning. The next day his sister told them that the young man that came into his premises had died. He then told his sister that they would go and explain to his family member what had happened.

When his family member arrived at Gum Bridge to talk to the deceased’s family members, they became aggressive and attacked them.  He told the deceased’s relatives that he did not kill the victim. Police intervened and took him to the Police Station where he was formally charged.

Defence Witness 2: Petrus Ninileg (Father)

19.	He gave testimony of being disturbed by the deceased, when he entered his area around 1 am in the morning. He was scared so he called out to his son in law to come and investigate. The son in law confirmed that only 1 person was sitting on their front steps, so they came out and began questioning the deceased.

The deceased would not talk to us, so I called out to Collen to come and assist us question him. Collen question him but he would not talk so he slapped him on his cheek, and he woke up. The witness said during his questioning the deceased told him that he was Issacs’s son from Gum Bridge. The deceased told him that his grandmother was Sap, who happen to be the witnesses’ mother.

The witness said they fed the deceased with some yams and sat talking with him from 1 am to 6 am in the morning. They got on a PMV and returned the deceased to his family home at Gum Village as he returned to his place of work with United Pacific Drilling.

The deceased was received by his mother. His grandmother joined the conversation and took his mother away, He then returned to work.

The witness said the deceased looked sick as he came into their area. And did not look too well that day. He said he did not notice any injuries on the deceased’s body.

Cross examination:

Q. Your Lawyer asked you if he had injuries and you said no, what do you say?
A. Yes, after that Collen slapped him because he would not talk.
Q. When you dropped him off at his place, how did he appear?
A. He walked normally. We got on PMV and came.
Q. Was he wearing a shirt?
A. Yes, I can’t recall.
Q. After your son slapped him, you stayed up with him until the morning?
A. Yes, we stayed all night with him.
Q. You and your family stayed up with the deceased from 1 am to 6 am?
A. Yes, we had to stay up because he came to us. Colin had gone 
back to sleep.
Q. I suggest to you that the deceased said those things when your son assaulted him?
A. Nogat
Q. He said those things to stop you and Coleen from further assaulting him as he was your family member?
A. When he mentioned his father and grandmother’s name, I realised he was family and we did not assault him. 
 Q. I suggest to you that Danu knew who he was approaching and you without finding out, started assaulting him, and he had to inform you who he was, to stop you from further assaults?  what do you say?
A. We did not assault him. He was quiet and when Collen slapped him, he woke up and began talking and calling names. That’s when we knew that he was a family member.
Q. I suggest to you that it was more than a slap, it was a punch and a kick?
A. We did not punch him or kick him, we gave him food when he said he was hungry.
Q. I suggest to you that if he was not injured you would have dropped him and continue to work.?
A. No he was a family so I must take him back to his house and explain to his family.
Q. Is deceased 10 years old?
A. I don’t know. He is not a child.
Q. I suggest to you that the only reason why you had to bring an adult to his parents was to explain to his parents about his condition, what do you say to that?
A. No, I brought him to his parents to explain to them how he came to our house and how we took care of him.
Q. So you are saying that from 1am to 6pm he was with you, is that what you are saying?
A. Yes, he was with us and he had no injuries
Q. During the period from 1 am to 6 am you son assaulted him, what do you say?
A. No we only interviewed him but because he could not respond so Coleen came and slapped him.

Re- examination:

20.      In re-examination the witness confirmed that when Danu came to his house, he did not see any injuries on his body. He maintained that when Danu was returned to his parents the next morning, he did not see any injuries on his body.

Submissions on verdict – Defence

21.	Ms. Ephraim for the accused submitted that the prosecution evidence ought not to be believed as it was largely hearsay and lacking corroboration. She submitted that the deceased was assaulted by his uncles prior to him seeking refuge at Petrus Ninileg’s hamlet. Despite noticing some injuries to the deceased’s neck, the medical doctor concluded that the cause of death was unknown. Furthermore, she submitted that since the prosecution case is based largely on circumstantial evidence some other adverse inference may be drawn from its evidence. The case of Paulus Pawa v The State [1981] PNGLR 498 was submitted in support. Defence Counsel urged Court to have regard to the accused unsworn statement, in view of its consistency and finding corroboration with two State witnesses, including findings of the autopsy report. (Regina v Ulel [1973] PNGLR 254.) And that the accused only slapped the deceased.  

22.	 The gist of defence submission as I understand from counsel is that the deceased received those wounds elsewhere and not from the accused. Ms. Ephraim submitted that the State has not proven beyond a reasonable doubt the essential elements of murder and urged Court to return a verdict of not guilty with an acquittal. Alternatively, she submitted that s.539 (1) Criminal Code, provisions were available to the court for a lesser charge. 

Submissions on verdict - Prosecution 

23.	State Counsel Ms Ambuk submitted that notwithstanding prosecution evidence being wholly circumstantial this Court can safely rely on such evidence and return a verdict of guilty. The accused’s admission of only slapping the deceased was corroborated by his father. Secondly the deceased was reported to be in good health with no noticeable injuries according to the accused’s father Petrus when he came into their hamlet. Thirdly the deceased remained within the Petrus home from 1 am up to dawn, when he was accompanied by Petrus to his family. To this end the State submitted that the only place the deceased could have received those wounds was within the Petrus hamlet during the hours of 1.00 am to 6.00am in the morning, with the accused as the main instigator.  By the time the deceased was escorted back to his family he showed visible signs of distress and was crying, with his head covered. 

24.	Ms Ambuk submitted that the findings in the post-mortem report corroborates the accused’s admissions of an assault in the form of a slap on the deceased’s face. She asked the Court to infer that the wounds on the deceased’s face and body were reflective of a serious assault rather than a mere slap. The forensic evidence by way of photographs showing the trauma received to his head, face and body, again corroborates evidence of some form of assault.
25.	As to the varsity of the deceased’s cries in pain and agony as he called out to his parents when he awoke from his sleep in the afternoon, and recorded in his parent’s evidence, such evidence whilst hearsay, ought to be treated as res gestae, Ms. Ambuk submitted. The accused’s cries in agony: “Ai o mama, Ai o mama.” were spontaneous remarks and discounted the possibility of concoction of fabrication: (The State v Willie Orki Briza [1976] PNGLR 517.) The case of R v Ratten [1972] AC 378 at 3387 on this point by Lord Wilberforce was submitted in support of State arguments. 

26.	Ms Ambuk submitted for the State that Collen Petrus should be found guilty of assaulting and inflicting injuries that caused Danu Isaac’s death, and should find the accused guilty of the charge. A lesser charge other than murder was also available under s. 539 of the Criminal Code. 
Issues raised by evidence
27.	The thrust of prosecution evidence is whether the accused was responsible for the death of the victim. As it stands there is no direct evidence linking the death of the deceased to the accused save for circumstantial evidence. This Court is now left with the evidence from both parties to make a finding of guilt or otherwise of the accused person. The prosecution allegation is that the accused caused the death of the deceased.
Could somebody else have caused the death of the deceased?

28.	Prosecution evidence is suggestive of the fact that several people may have been involved in the death of Danu. Principal amongst these suspects was the accused followed by his father Petrus Ninileg and his son in law Raymond Awan. (Udidi’s husband.). Petrus Ninileg and his son in law’s involvement and participation remains unclear although they were present at the material time when Danu was subjected to in their words, interrogation and slapped by Collen out of frustration. Collen therefore is singled out as the perpetrator. Defence evidence however distanced Collen from the death of the accused.

Two prosecution witnesses, Sakob Jaskolly and Kosi Lillian saw Collen drinking home brew with his friends and his brother in law Raymond Awan at the marketplace and acting uncontrollably on 31 May 2019 at Gum village. Later, in the evening he was escorted to 4 Mile junction and told to return to his house around 8 pm that same day. Their evidence has not been discredited and remains in-tack. I consider their statements to be credible and consider both to be witnesses of truth. Both of these men were present at the material time Danu was assaulted.

I therefore make finding that two or more people may have been involved in the 
assault of the deceased in the early hours of 1 June 2019 at the Anawagum hamlet, Amele. It is quite probable in my mind that his brother in-law was also involved in assaulting Danu. I draw inference from prosecution evidence that both men were heavily intoxicated from drinking the previous evening. It follows therefore that when the accused went into their hamlet at that time of the night, 1 am, he was assaulted.  It is quite probable that the deceased pleaded for mercy by telling them that he was a close relative. As the saying goes: “dead man tell no tales” so we will never know what transpired. I consider Petrus Ninileg’s evidence of interrogating the deceased highly suspicious and incomprehensible. He appears to be very selective in his recollection of what happened that evening.

Due to the foregoing reasons I am satisfied that the Accused Coleen Petrus caused the death of Danu Isaac when he assaulted him when he stumbled into his hamlet at Amele.

Is there a coherence between the accused claim of only slapping the victim on his cheek and the evidence presented?

29.	The forensic and autopsy evidence confirm visible signs of swelling on
the victim’s face, blood clothes were present on his cheek, visible signs of
trauma present on his stomach and abdomen coupled with bleeding noticed
inside the colon. The colon forms part of the intestines within the human body
in the lower abdomen area. It follows that the trauma inflicted on the victim’s
body was most likely excessive thereby causing the colon to bleed inside.
Furthermore, the blood cloth noticed on the cheek area when the skin was
removed is indicative of the fact that the trauma inflicted on his face and cheek
were excessive and not only caused by a slight slap as advanced by the defence 
witnesses. The accused in his unsworn statement only admitted slapping the 
deceased to wake him up and answer his questions. His evidence was also 
supported by his father and wife publicly. The forensic and autopsy evidence 
corroborate some form of trauma inflicted on Danu’s face and stomach. 

30.	Inferentially therefore Danu was subjected to heavy assault of some sort on his face and stomach area. Defence witness Petrus claims that when Danu came into their home, he did not carry any injuries. He remained with them from 1 am to 6 am the next morning, when he escorted him back to his parents’ house.

31.	Common sense dictates that where there is the presence of dark blood cloth, in this case on the deceased’s cheek and colon, they manifest signs of some form of trauma done to the body.

32.	Under those circumstances this Court can safely draw inference that Danu received those injuries within the family home of Petrus family at their Amele hamlet at Anawagon, and no other place. It follows therefore that there is no coherence between the accused claim of only slapping the deceased and the evidence put before this Court. Therefore, I am satisfied that Danu died as a result of receiving severe beating from within the accused’s hamlet.

33.	Furthermore, I am satisfied that the hearsay evidence as recorded in Danu’s parents’ evidence credible and not fabricated. The accused’s cries in agony: “Ai o mama, Ai o mama.” were spontaneous remarks and ought to be believed by this Court and not disregarded. (The State v Willie Orki Briza [1976] PNGLR 517.) Those words correlate with the wounds the deceased received which resulted in his death soon after they were uttered. I will accept this piece of hearsay evidence as res gestae. I have been ably assisted by Ms Ambuk on a case law on this point to which I have adopted the principle.  Lord Wilberforce in the case of R v Ratten [1972] AC 378 at 3387 had this to say and I quote:

“The mere fact that evidence of a witness includes evidence as to words spoken by another who is not called is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, witness may give evidence that they were spoken. A question of hearsay only arise when the words spoken are relied on ‘testimonially’, i.e. as establishing some fact narrated by the words” (Emphasis mine).

34.	As to the veracity of defence evidence, I do not consider Petrus to be a witness of truth and disregard his evidence. As for the accused his evidence being unsworn and was not subject to cross examination therefore not credible. I do however note that although the accused’s evidence was unsworn the Court should not totally disregard his unsworn evidence. He admitted to only slapping the deceased on his cheek. This confirms his father and wife’s story and those from the prosecution. Their evidence finds corroboration with the prosecution evidence.  

35.	As regards unsworn statements, this is what the Supreme Court said in the case of Jimmy Ono v The State (Unreported judgment delivered on 4/10/2002) SC 698:

“In your case, you presented no sworn evidence to rebut the sworn evidence against you. You were only prepared to give an unsworn statement. Whilst that was your right to do so and that no inference of guilt can be drawn against you because of that, it means that you were left with sworn evidence against you without any rebuttal from you. You were not able to present any reason to compel the trial judge not to accept the sworn evidence against you.”   

36.	In his unsworn statement the accused admitted to only slapping the deceased on his cheeks, making him the prime suspect as no other persons were reported to have laid their hands on the deceased. Although the severity of the slap remains unclear, the medical and forensic evidence attest to the parts of the body bruised and scarred. The accused’s admission of slapping the deceased was corroborated by his father, wife and two state witnesses. I acknowledge his admission and have taken them into account, however that’s as far as they go: (Regina v Ulel [1973] PNGLR 254.)

37.	Notwithstanding the Medical Doctors opinion of being unable to find out the cause of Danu’s death, one thing is certain that he was with the accused family all night and did not go elsewhere. He remained at his home all day and came out around 6 pm, vomiting and complaining about stomach pains. It follows that his death is clearly linked to the Collen family and no other, with Collen as the prime suspect. No contradicting evidence was put before this Court which might distance Collen from Danu’s death.

38.	The relevant law.  S. 300 Murder
(1)	Subject to the succeeding provisions of this Code, a person who kills another person, under any of the following circumstances is guilty of murder. -
(a)	If the person intended to do grievous bodily harm to the person killed, or to some other person; …
Subject to section 19, imprisonment for life
Elements of the Offence
39.     The elements of the offence of murder are-
1)	That the accused killed the deceased.
2)	That the accused intended to do grievous bodily harm to the deceased.
Circumstantial evidence:

40.	The law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw. The case of The State -v- Tom Morris [1981] PNGLR 493 and Paulus Pawa -v- The State [1981] PNGLR 498 are primary sources of reference. These principles have been applied in many subsequent cases both by the National and Supreme Courts.  (The State -v- Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 and Garitau Bonu and Rossana Bonu -v- The State SC. 528.) 

Application of the law to the Issues.
 
Are there evidence of all elements of the offence of murder that would support the accused conviction? 

41.      As to the element of the person who may have caused the death of the deceased I answer in the affirmative. There is credible and convincing evidence linking the accused to the murder of the victim as set out in Section 300 (1)(a) of the Criminal Code. I caution myself on the need to be careful in convicting persons on such evidence. Having considered the competing evidence and the submissions of both counsel I am persuaded that the guilt of the accused is the only rational inference that in all the circumstances that would enable me to draw on. Under those circumstances I am satisfied that State has proven their case beyond a reasonable doubt that the person who killed the deceased was the accused, for the reasons alluded to above. I am satisfied that the most likely rational inference to be drawn here is that during that fatal night/morning the accused was present within the vicinity of the murder scene. It follows that the accused assaulted Danu Isaac and caused grievous bodily harm which led to his death.   
Verdict

42.	 I find that the prosecution has established beyond any reasonable doubt that you brought about the death of the deceased by your actions. Furthermore, I find that the prosecution established the charge of murder against you. Accordingly, I return a verdict of guilty against you on the charge of murder contrary to s. 300 (1) (a) of the Criminal Code. 

Guilty

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused