Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Ehuru [2024] PGNC 372; N11043 (18 October 2024)

N11043

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 115 OF 2023

BETWEEN
THE STATE

AND
VERENA EHURU
Accused

Popondetta: Makail, J
2024: 13^th, 15^th, 16^th May & 18^th October

CRIMINAL LAW – VERDICT – Charge of murder – Element of ‘person’ who caused grievous bodily harm to another person – Identification of ‘person’ – Direct evidence – Identification by voice recognition evidence – Circumstantial evidence – Possible causes of death – Criminal Code – Section 300(1)(a)

EVIDENCE – Unsworn statement – Reliability of unsworn statement – Weight to attach to unsworn statement

Facts

The accused was charged with one count of murder contrary to Section 300(1)(a) of the Criminal Code. The State led both direct and circumstantial evidence to prove the charge against him. The direct evidence was based on voice recognition of a State witness’ account while the circumstantial evidence was based on the State witnesses’ account that the deceased was last seen alive in the company of the accused and his wife before his body was found lying on the riverbed of a nearby creek the next morning.

Held:

1. Pursuant to Schedule 2.2 and Schedule 2.3 of the PNG Constitution, the principles for assessing voice recognition evidence are adopted as part of the Underlying Law as follows:

(a) voice identification (or more precisely recognition) evidence needs to be approached with greater care than usual identification or recognition evidence.

(b) there must be evidence of the degree of familiarity the witness has had with the accused and his voice.

(c) there must be evidence of prior opportunities the witness may have had to hear the voice of the accused.

(d) the occasion when the recognition of the voice occurs, must be such that there were sufficient words used so to make the recognition of that voice safe on which to act.

(e) the greater the knowledge of the accused the fewer the words needed for recognition. The less familiarity with the voice the greater necessity there is for more spoken words to render recognition possible and therefore safe on which to act.

2. The State’s direct evidence on voice recognition is accepted but the evidence fell short of establishing that the deceased was present with the accused and his wife and motive.

3. The State’s case on circumstantial evidence suffered the same fate because the State did not rule out the possibility that one of the State witnesses had a motive to attack the deceased and was one of the suspects in the murder of the deceased.

4. A not guilty verdict was returned.

Cases Cited:

Papua New Guinean Cases
The State v. Paul Kundi Rape [1976] PNGLR 96
John Beng v. The State [1982] PNGLR 108
The State v. Tom Morris [1981] PNGLR 493

Overseas Cases
Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619
Taitusi Manuaca & Jone Colata v. The State [2024] FJCA 37
Davis v. R [2004] EWCA Crim. 2521
Flynn and St John [2008] EWCA Crim. 970
R v. Clarence Osbourne [1992] JLR 452
R v. Rohan Taylor [1993] 30 JLR 100

Counsel:
Mr J Done, for State
Mr E Yavisa, for Accused

VERDICT

18^th October 2024

1. MAKAIL, J: The accused is charged with one count of murder contrary to Section 300(1)(a) of the Criminal Code.

2. Section 300(1)(a) reads:

“(1) Subject to the succeeding provisions of this Code, a person who kills another person under ant of the following circumstances is guilty of murder –

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person.”

3. The accused was arraigned on the following allegations of fact to which he denied and a plea of not guilty was entered, on Sunday 24^th July 2022 at Kiorota village in Higaturu LLG, the accused, the deceased one Shelbie Osa and a group of relatives were drinking beer. By the afternoon of Sunday 24^th July 2022 all his relatives left. Only the accused and the accused’s wife remained with him. The deceased and the accused continued drinking until there was a commotion which led to a fight between the deceased and accused.

4. A neighbour named Grace Sirehi who lives in a house at the top of the hill heard the accused and the deceased arguing and heard the accused’s wife saying “Lusim em” and the accused saying, “Bai mi kilim yu” or translated in English “I will kill you.” The neighbour thought it was a domestic argument between the accused and his wife and went her way. On the morning of Monday 25^th July 2022, she learned that the deceased had died. The body of the deceased was found at Endehi creek.

5. The State called five witnesses, Grace Gaera, Grace Sirehi, Joe Gilbin Osa, Godfrey Baumbari and Una Osa. In addition, the State tendered by the consent the following documents:

(a) Record of Interview of accused in Pidgin and English versions dated 26^th September 2022 – Exhibit “P1”.

(b) Statement of Arresting Officer Kenari Begola dated 20^th October 2022 – Exhibit “P2”.

(c) Postmortem Report by Dr Akule Awasano dated 4^th August 2022 – Exhibit “P3”.

(d) Bundle of Photographs in 2 A-Four size papers of the crime scene – Exhibit “P4”.

(e) Sketch Plan/Drawings comprising of 5 pages of the crime scene dated 31^st October 2022 – Exhibit “P5”.

6. Grace Gaera said she saw the body of the deceased at the riverbed of Endehi creek when she went to the river to fetch water on the morning of Monday 25^th July 2022. Grace Sirehi who is the neighbour of the accused said she was standing nearby and heard the accused’s wife saying “Lusim em” twice and the accused saying “Yu bai dai” twice. She said, she recognised the accused’s voice as well as the accused’s wife. She thought it was another one of those domestic arguments the accused and his wife often have and went her way. This occurred in the early hours of the morning of Monday 25^th July 2022.

7. Joe Giblin Osa’s account of the death of the deceased, like Grace Gaera, was after the event. He went down to the Endehi creek and saw the body of the deceased. It was also at that time he saw the accused and observed that the accused appeared drunk and exhausted from lack of sleep. Further, he observed bruises on the right arm of the accused. He heard the youths telling the accused to admit that he killed the deceased, but the accused said that it was Godfrey. The accused and Godfrey blamed each other until Pastor Dudley Oru intervened and told them to take it to the law enforcement authorities to solve. When one of the local businessmen named Felix Kati arrived and picked up the accused, he observed that the accused called out to Godfrey to also get on the truck, but the latter refused and told the accused that he would make his own way there.

8. Godfrey Baumbari said he was one of the relatives of the deceased who drank beer with the deceased and the accused that Sunday. The others were John Baptist, Cyprian, Elias, and Joe. When the others left, he remained with the accused and the deceased. It was around that time he was verbally abused by the accused for not contributing to buy a tin of tulip meat and biscuits for the deceased to have because the deceased was hungry. The “K” word was used. As he was verbally abused, he was ashamed and left. It was around 10 o’clock. He did not say whether it was in the morning or night.

9. Una Osa was the last witness for the State. She is the wife of the deceased. She said that she and the deceased were happily married for a while but then they started arguing and had fights to a point where she, with the assistance of the family support services, had to seek refuge at the women safe house at Saiho for two months. Later, she travelled to her village in Madang and remained there for a month before returning to Kiorata. On the day of the death of her husband, she was on her way to Lae to sell betelnuts to raise money for their son’s school fees. When she received news of her husband’s demise, she returned to Kiorota.

10. The accused gave an unsworn statement from the dock. He said that on Sunday 24^th July 2022 the deceased, John Baptist, Godfrey, Cyprian, Joe, Elias, and him, were drinking beer in his house until afternoon. Then, John Baptist, Cyprian, Joe, and Elias left. Godfrey, the deceased, and him continued. His wife prepared a bed for the deceased and asked him to sleep. However, the deceased refused and staggered around as he stood. The deceased told him and his wife that he would go, get a knife, and kill his wife. After this the accused went to sleep and did not know what happened next.

11. The elements of the offence of murder under Section 300(1)(a) of the Criminal Code are:

(a) person,
(b) intention to cause grievous bodily harm,
(c) another person (deceased), and
(d) death of another person.

12. The State bears the onus to prove each of the elements. This requires the State to call evidence to identify the “person” who intended to cause grievous bodily harm to another person and death of that person. In terms of proof of each element, it is common ground that the elements of “another person” and death of another person are uncontroversial. The person who has died is identified as Sheilbie Osa. However, the issue is the identity of the “person” who caused grievous bodily harm to the deceased and whether the person intended to cause grievous bodily harm to the deceased.

13. According to the State, the identification of the “person” who caused grievous bodily harm to the deceased is largely dependent on the assessment of the evidence of the State witnesses. It was submitted that the State’s witnesses’ evidence should be accepted because their evidence was tested in cross-examination. The evidence of Grace Gaera, Grace Sirehi and Godfrey Baumbari point to the accused as the person who caused grievous bodily harm to the deceased. Their evidence is corroborated by the medical report where the injuries sustained by the deceased are consistent with the evidence of these witnesses that the deceased was attacked and wounded.

14. The State further submitted that while the accused gave unsworn statement, his statement also reinforces the State’s case that the only rational inference is his guilt. It is safe for the Court to return a verdict of guilty.

15. On the other hand, according to the defence, it is not safe for the Court to convict the accused because first the identification of the accused as the “person” who caused grievous bodily harm to the deceased is not strong. Defence counsel submitted that while Grace Sirehi said that she recognised the voices of the accused and his wife coming from their house, it is possible that she could have been mistaken. Secondly, if there was a struggle between the accused and the deceased during the fight, it is normal in such situations to hear the victim’s voice.

16. However, in this case during cross-examination of Grace Sirehi she conceded that she did not hear any other voices except those of the accused and his wife. The absence of the voice of the deceased reinforces the accused’s statement from the dock that despite he and his wife insistence on the deceased to spend the night with them, he refused and left. This opens up the possibility that the deceased was not present at their house.

17. According to the defence counsel, a further possibility for the cause of death of the deceased is that the deceased could have slipped and fell into the riverbed of Endehi creek when he was returning to his house. This possibility has not been ruled out by the State because that was where the deceased was seen on the morning of Monday 25^th July 2022 by Grace Gaera.

18. In the present case, it is abundantly clear that evidence tendered by the State is both direct and circumstantial. Except for the evidence of voice recognition, none of the State witnesses saw the accused cause the death of the deceased. Where the State’s evidence is wholly circumstantial to prove the guilt of the accused, the onus is on the State to rule out all other possibilities of the cause of death of the deceased. The law on circumstantial evidence is not in doubt, “............the jury cannot return a verdict of guilty unless the circumstances are said as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 at 634 and adopted in John Beng v. The State [1982] PNGLR 108 at 117 and The State v. Tom Morris [1981] PNGLR 493 per Miles J.

19. In the present case, the closest account of identification of the accused came from the State witness Godfrey Baumbari. Godfrey Baumbari’s account puts the accused where the deceased was last seen alive. This witness was the last person who was with the deceased, the accused and his wife at the accused’s house on Sunday 24^th July 2022. This witness, the deceased and the accused were drinking beer. By the next morning (Monday 25^th July 2022) the body of the deceased was found lying on the riverbed of the nearby Endehi creek by Grace Gaera. The villagers were alerted, and the body was retrieved and brought to the deceased’s house.

20. Other than this, the direct evidence of identification is based on voice recognition and came from Grace Sirehi who said she heard the accused and his wife arguing and recognised their voices. But the question is, how reliable is the evidence of voice recognition? The common evidence of identification of a suspect is witness visual account. Visual recognition account is much stronger. However, both prosecution and defence counsel made no submissions on the reliability of voice recognition evidence, the factors to apply when assessing voice recognition evidence and the extent of caution the Court must warn itself in a jurisdiction where there are no jury trials, before the evidence of identification of the accused can be safely acted upon.

21. From my limited research on Paclii, there are no reported cases in Papua New Guinea (PNG) on voice recognition evidence. In the Fijian Court of Appeal case of Taitusi Manuaca & Jone Colata v. The State [2024] FJCA 37 the Court referred to several decisions of the Court of Appeal of England and Wales and also, Court of Appeal of Jamaica on voice recognition evidence. The Court of Appeal quoted a statement in Davis v. R [2004] EWCA Crim. 2521 at paragraph 29:

“.....we accept that voice identification (or here more precisely recognition) evidence needs to be approached with even greater care that usual identification or recognition evidence. But the general principles governing identification stated in Turnbull apply to both cf e.g., Hersey [1997] EWCA Crim. 3106 (1 December 1997) (1998) Crim. L. R 281.”

22. The other case the Court of Appeal referred to is Flynn and St John [2008] EWCA Crim. 970 where Gage LJ said:

“In all cases in which prosecution rely on voice recognition evidence, whether by listener, or expert, or both, the Judge must give a very careful direction to the jury warning it of the danger of mistakes in such cases”

23. The next case the Fijian Court of Appeal referred to is the Court of Appeal judgment of Jamaica in R v. Clarence Osbourne [1992] JLR 452 where Carey P (Ag), said:

“Common sense suggests that the possibility of mistakes and errors exists in the adduction of any direct evidence, in the sense of evidence of what a witness can perceive with one of his five senses. But that can hardly be warrant for laying down that a Turnbull type warning is mandatory in every sort of situation where perhaps some attributable or feature of his speech capable of identifying him as a participant, forms part of the prosecution case.”

24. The final case is the judgment of the Court of Appeal of Jamaica in R v. Rohan Taylor [1993] 30 JLR 100 where Gordon JA said:

“We would add that the directions given must depend on the particular circumstances of the case.....

In order for the evidence of a witness that he recognized an accused person by his voice to be accepted as cogent there must, we think, be evidence of the degree of familiarity the witness has had with the accused and his voice and including the prior opportunities the witness may have had to hear the voice of the accused. The occasion when the recognition of the voice occurs, must be such that there were sufficient words used so to make the recognition of that voice safe on which to act. The correlation between knowledge of the accused’s voice by the witness and the words spoke on the challenged occasion, affects cogency. The greater the knowledge of the accused the fewer the words needs for recognition. The less familiarity with the voice the greater the necessity there is for more spoken words to render recognition possible and therefore safe on which to act.”

25. The Court of Appeal of England and Wales and Court of Appeal of Jamaica are from Commonwealth countries and common law jurisdictions. As the Court of Appeal of Fiji said, the judgments of the Court of Appeal of England and Wales and Court of Appeal of Jamaica are of persuasive value. Similarly, these judgments have persuasive value in PNG and unless they are inconsistent with a Constitutional Law or a statute, or they are inapplicable or inappropriate to the circumstances of the country or their application are inconsistent with custom, the principles on voice recognition evidence may be adopted as part of the underlying law pursuant to Schedule 2.2 and Schedule 2.3 of the PNG Constitution.

26. The principles for assessing voice recognition evidence that maybe extracted from the above cases are:

(a) voice identification (or more precisely recognition) evidence needs to be approached with greater care than usual identification or recognition evidence.

(b) there must be evidence of the degree of familiarity the witness has had with the accused and his voice.

(c) there must be evidence of prior opportunities the witness may have had to hear the voice of the accused.

(d) the occasion when the recognition of the voice occurs, must be such that there were sufficient words used so to make the recognition of that voice safe on which to act.

(e) the greater the knowledge of the accused the fewer the words needed for recognition. The less familiarity with the voice the greater necessity there is for more spoken words to render recognition possible and therefore safe on which to act.

27. I consider that these principles are an extension of the general principles for identification or recognition evidence and are specific to voice recognition evidence. These principles, in my view, are not inconsistent with a Constitutional Law or a statute, or that they are inapplicable or inappropriate to the circumstances of the country or that their applications are inconsistent with custom and are will adopt them as part of the underlying law pursuant to Schedule 2.2 and Schedule 2.3 of the PNG Constitution.

28. I accept that there is evidence from Grace Sirehi of the degree of familiarity and prior opportunities she has had with the accused and his voice because she is a neighbour of the accused and has heard his voice, and from time to time, heard the accused arguing with his wife during domestic arguments and fights, that being neighbours for a long time, the greater Grace Sirehi’s knowledge of the accused, the fewer the words needed for her to recognise the accused’s voice. Lastly, I note that when Grace Sirehi heard the voices of the accused, and his wife it was in the early hours of Monday morning and the chances of her being distracted or the accused’s voice being distorted is less.

29. However, while I am satisfied that voice recognition evidence of Grace Sirehi points to the accused and his wife, there is also the need for greater care or a higher standard of caution to be applied when relying on voice recognition evidence because mistakes can be made by a witness. In this case, I am not satisfied that the two words that Grace Sirehi heard being uttered by the accused being “Bai mi kilim yu” and repeated twice, are sufficient to find that the accused had directed them at the deceased. Similarly, I am not satisfied that the words “Lusim em” and repeated twice came from a female which Grace Sirehi recognised as that of the accused’s wife were directed at the deceased. Translated to English would mean the accused was saying “I will kill you” and the wife saying, “Leave him”.

30. This is because Grace Sirehi already made a mistake in her account. When she heard the voices and words coming from the accused’s house, she understood it to be another case of domestic argument and fight between the accused and his wife because they were forever having domestic arguments and fights. She did not hear a third person’s voice. This is unusual because if what Grace Sirehi heard is correct, then the words uttered by the accused and his wife were directed at a third person in the house.

31. Moreover, I accept the defence counsel’s submission that if there was a struggle between the accused and the deceased during the fight, it is normal in such situations to hear the victim’s voice. Here there was none. Even Grace Sirehi did not say she heard movement in the house by a third person. The absence of a third person’s voice suggests that there was no one else in the house except the accused and his wife and reinforces the doubt created by the mistaken belief held by Grace Sirehi that what she heard was another case of domestic violence between the accused and his wife. To rely on Grace Sirehi’s account where there is doubt in identifying the deceased at the house of the accused at that time she heard the voices and words coming from the house is quite risky. Where there is doubt, the accused should be given the benefit of the doubt. Additionally, I am looking for the evidence of motive to establish the accused’s intention to cause grievous bodily harm and I cannot find one.

32. The prosecution bears the onus of proof. It does not shift to the defence even if an accused gives an unsworn statement from the dock unless the unsworn statement is so contradictory or lacking in material aspects and rejected. The reliability of an unsworn statement is the task of the Court to weigh up and decide what weight to attach to it. In this case, the accused’s unsworn statement points to the deceased being present with him and his wife at the house. The deceased was the last person to leave them after John Baptist, Godfrey, Cyprian, Joe and Elias had left earlier that afternoon. As it was late that night, he and his wife invited the deceased to overnight with them, but he refused and left for his house. The deceased was disoriented and staggered around and told them that he would go home, get a knife and kill his wife. In my view, except for the additional information after Godfrey Baumbari left, the unsworn statement of the accused does not deviate from the State witness’ account in Godfrey Baumbari.

33. For these reasons, I am not satisfied beyond reasonable doubt that the direct evidence of Grace Sirehi puts the deceased where the accused and his wife where and that the accused was the person who attacked and wounded the deceased and in so doing, intended to cause grievous bodily harm to the deceased.

34. As to the State’s case on circumstantial evidence, it suffers the same fate because while Godfrey Baumbari was the last person to see the deceased alive because he was the last person to leave the deceased, accused and his wife at the accused’s house, the State did not rule out the possibility that he was one of the suspects in the murder of the deceased. It must be remembered that by his own admission he was upset and left because the deceased had verbally abused him in front of the accused and his wife because he did not contribute money to buy a tin tulip meat and biscuits for them to eat. If there was someone who was upset and seek revenge for the scolding, it was Godfrey Baumbari. There lies the possible motive and cause of death which the State failed to rule out.

35. The State witness Joe Giblin Osa’s account reinforces the possibility that the accused could not have been the person responsible for the death of the deceased because he observed on that Monday morning after the deceased’s body was found and being retrieved from the riverbed of Endehi creek the accused and Godfrey Baumbari accusing each other of killing the deceased. The bad blood between them spilled over to the time a local businessman named Felix Kati arrived and picked up the accused in a truck to go and report the death. The accused called Godfrey Baumbari to hop on, but he refused and told the accused that he would make his own way there. Given this, I am not satisfied that the State has not ruled out the possibility that Godfrey Baumbari could be the person responsible for the death of the deceased.

36. As noted, the defence counsel put forward a further possibility for the cause of death of the deceased. As the deceased had to pass by the bush track near the edge of the bank of Endehe creek, and given that he was drunk, he could have slipped and fell to his death because his body was found the next morning at the riverbed of the creek. I doubt this. The postmortem report is explicitly clear that the “bruising on lateral or sides of the neck reveals strangulation from the back by a perpetrator. Water and blood mixed fluid coming out through the nose and mouth shows evidence of drowning”. I rule out this possibility.

37. In the result, I am not satisfied beyond reasonable doubt that the only rational inference that the circumstances would enable the Court to draw is the guilt of the accused.

38. A verdict of not guilty is returned.

Verdict accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused