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State v Amjoni [2021] PGNC 355; N9179 (15 September 2021)

N9179

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1290 OF 2021

THE STATE

V

ISMAEL AMJONI

Lae: Kangwia J.

2021: 9^th, 10^th & 15^th September

CRIMINAL LAW – Murder – circumstantial evidence – evidence of blood seen at various locations in accused premises - accused elects to remain silent – explanation on blood seen at accused residence remained with accused and none other – no other source of blood – only inference is accused killed deceased – verdict of guilty returned.

Cases Cited:

Pawa v. The State [1981] PNGLR 498
R v Abia Fambule (1974) PNGLR 250

Counsel:
P. Matana, for the State
G. Peu, for the Accused

15^th September, 2021

1. KANGWIA J: This is a decision on verdict. The accused was charged under s 300 (1) of the Criminal Code for allegedly murdering his wife. He pleaded not guilty, and a trial was conducted. The State tendered into evidence by consent various documents including the Record of Interview which contained denials.
2. The state called one witness who gave sworn evidence. Her evidence was not direct. She gave evidence of what she saw after the killing.
3. At the close of the case for the prosecution the accused moved that he had no case to answer. The Court ruled that he had a case to answer.
4. On the day of trial for the defence the accused elected to remain silent, and the defence closed its case. It is his right if he chooses to remain silent pursuant to s 37 of the Constitution. The law on election to remain silent is settled.
5. In the case of the State v Marawa Kanaio (1979) PNGLR 319 the court held that:
   

“ This cannot be used as a bolster to a deficient prosecution case, but there is authority for saying that once there is evidence upon which the Court might be satisfied beyond reasonable doubt that the accused is guilty, the fact that he has not given evidence or called evidence in his power to call may lend assurance to any satisfaction the Court may feel”

6. Submissions on verdict were received on 13 September 2021. This is the decision on verdict.
7. On behalf of the State Ms Patana while relying on a written submission submitted that the State relied on circumstantial evidence. The only direct evidence was the medical report which confirmed that there was an intention to cause grievous bodily harm by whoever the offender was. It was an unlawful killing.
8. The only issue was one of who inflicted the injuries.
9. On this issue it was submitted that from the evidence offered by the State, blood stains were seen on the steps and ground under the accused’s house covered by soil and pandanus leaves. A bloodstained cloth covered in sticky tape was also found 2 to 3 meters away from the accused’s house.
10. The first hypothesis by the State was that the evidence in the Record of Interview (ROI) that the accused went to find pandanus leaves was consistent with the evidence of the first State witness of seeing pandanus leaves which together with the soil covered blood under the house.
11. The second hypothesis was that in the ROI the accused stated that he took clothes to change the deceased clothes was consistent with the evidence of the first State witness that the deceased appeared to have her clothes changed when she saw her body at the riverbank.
12. The third hypothesis was that the size of the blood - stained knife found in the accused house when the villagers broke open the door to place the deceased inside. It was consistent with the size of the injuries on the neck and head of the deceased.
13. It was suggested that the observation of blood inside the house, the steps and under the house and the blood-stained cloth found 2 to 3 meters from the accused’s house indicated that the deceased was killed in the house.
14. It was also suggested that the scars noted on the back of the deceased head indicated healing of earlier wounds or injury which was consistent with the evidence of the first State witness that the accused used to abuse the deceased.
15. It was further suggested that from the numerous injuries on the body, if a stranger had killed her, time would have been against that person and a single blow would have been inflicted. The person who assaulted the deceased had the opportunity and time to inflict the numerous injuries on the deceased.
16. It was then submitted that the only death reported from 13 April 2019 for that area was the deceased.
17. The final suggestion was that from the medical report that the deceased went into ligation for birth control and the injury on the genital area, the only reasonable conclusion was that ligation was the reason for the assaults.
18. It was submitted that all the hypothesis pointed to one conclusion; that the accused killed the deceased. The State had proved beyond any reasonable doubt and the Court can safely convict the accused of murder.
19. On behalf of the accused Ms Peu also through her extract of arguments submitted that the issue for trial was whether the accused intended to do grievous bodily harm to the deceased and cause her death.
20. The facts in dispute were that the accused physically assaulted the deceased and stabbed her with a knife on various parts of the body and left her at a river.
21. The evidence for the accused in the ROI were that he left his wife in the house and went to cut pandanus leaves.
22. Upon return he ate and at around 6 pm his wife told him that she was going to the river to wash and left. He then went and fed the pigs. She did not return so he went looking for her at the river and checked at her sister’s house till daybreak. He searched with all members of his family. During his search he met one Malje Mark twice going back and forth. He was then informed by one of the boys who took him to where he retrieved the body.
23. While conceding the extent of injuries on the body from the medical report it was submitted that from the elements of the offence to be proved by the State the issue in contention was identification.
24. It was submitted that the case for the state rested on circumstantial evidence.
25. After referring to the law on circumstantial evidence as enunciated in the cases of Paulus Pawa v The State (1981) PNGLR; The State v Tom Morris (1981) PNGLR 493 and Devlyn v The State (2006) SC 881 it was submitted that the evidence did not support the element of identification.
26. It was submitted that the evidence of the only State witness was one of suspicion, uncertainty and not supported by the evidence of the other State witnesses.
27. She arrived at the scene the next day when the body was retrieved from the river. She was informed of the death and ran to the scene. She noticed cuts all over her body. She accompanied the body to the hospital and back to her house. She noticed blood drippings on the floor, steps and ground covered with pandanus leaves. She did not know who owned the knife. She did not know the accused but claimed he was a jealous man.
28. On the issue of intention, it was submitted that the evidence did not show the conduct of the accused prior to or after the offence was committed.
29. In conclusion it was submitted that the only State witness did not see anything as she arrived after the killing and her evidence stands uncorroborated as to the murder weapon and the blood stains. There were huge gaps in the State’ s case and therefore the State had not proved its case beyond any reasonable doubt. It was unsafe to convict the accused and a verdict of Not Guilty should be returned.
30. This case relates to the death of the accused wife. The facts not in dispute were that the mutilated body of the deceased was found near a river. The body was taken to the hospital from which the medical report showed multiple wounds on the body. The death was from an unlawful killing and from no other way.
31. There is no direct evidence of the killing. However, there was direct evidence revealing an intention to kill from the multiple wounds identified on the body. The multiple wounds referred to in the medical report were of wounds on the scalp, eyebrow, severed tongue, severed nipple, forehead, lower lip, below the chin area and genital area.
32. The report also identified scars on the back of the deceased.
33. The State relied on circumstantial evidence. The hypothesis of the State is that the accused killed the deceased and moved her to the river.
34. The law on circumstantial evidence is settled. The Supreme Court in the case of Pawa v. The State [1981] PNGLR 498 per Andrew J. said:
    

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”.

35. In the present case the only circumstantial evidence is of the blood seen at the house belonging to the accused. That was the evidence from the only female witness for the State who is a village Court Magistrate. Her evidence was that she saw blood on parts of the accused’s residence, the knife found inside the accused residence and a piece of cloth found near a sugarcane next to the accused’s house. Apart from the wounds sustained by the deceased, there was no evidence of any other source from which the blood could have come from. Blood was still visible as blood. She was alive one day and dead on the next day.
36. The evidence of the only State witness consisted of what she saw after the killing. Her demeanour was good. She did not colour her evidence.
37. Upon questions she described the accused as an isolated person in the community but recently had problems with the deceased. Her evidence is accepted as truthful and credible.
38. In the decision on the no case submission, the court ruled that there was no evidence of where the blood on the accused’s premises came from. It was then determined that the accused was the only person who could answer that because the residence was his. That has not happened after the accused exercised his right to remain silent.
39. It is the view of the Court that the truth of the matter is only known by the accused. The accused did not give any explanation or answers reasonably expected of him, that the real truth was consistent with his innocence.
40. In the case of Paulus Pawa v The State [1981] PNGLR 495 at 504 Andrew J said:
    

“An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can be giving his own version of what happened. A person who claims to be completely innocent should give his explanation early as it could exculpate him notwithstanding his Constitutional right to silence”.

41. In the case of R v Abia Fambule (1974) PNGLR 250 the Court held that:
    

“It is consistent with common sense and logic for a person falsely accused of the commission of a serious offence, to deny and give his version or explanation at the earliest opportunity or give his version at trial. “

42. That did not happen in Court when he elected to remain silent. In the ROI his explanation was that he went looking for pandanus leaves and when he returned the wife told him that she was going to the river to wash.
43. What is unexplained is where and how the blood seen in the house, stairs, on the ground under the house and the cloth found nearby came to be. It cannot be safely concluded that the blood seen was from another person, animal, or source. Secondly the only person who saw the deceased last was the accused. There was no one else apart from the accused and the deceased on the day of the death.
44. The assertion in the ROI that one Malje Mark could have killed the deceased is outlandish and scandalous. Firstly, he did not identify or reveal any motive out of which Maljie Mark could have killed the deceased. In the absence of any reasonable explanation by the accused on how blood was in his residence, it is safe to infer that by his election to remain silent he is hiding the truth.
45. The only reasonable conclusion from the evidence of the gruesome injuries on the deceased body is that, the accused intended to cause grievous bodily harm, but turned fatal.
46. A verdict of guilty for murder is returned.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence