Unreported Supreme Court Decisions
SC528
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCRA 44 OF 1996
BETWEEN
GARITAU BONU & ROSANNA BONU - APPELLANTS
AND
THE STATE - RESPONDENT
Waigani
Los Sheehan Kirriwom JJ
23 May 1997
24 July 1997
CRIMINAL LAW - Murder - Conviction based on circumstantial evidence.
EVIDENCE - Failure of Accused to testify or give explanation - Only inference open is consistent with guilt of Accused.
EVIDENCE - Circumstances of death of deceased known only to Accused - Accused choose to remain silent and offer no explanation - Inferences to be drawn according to common sense.
Facts
The Appellants were convicted of murder at Bereina Central Province.  The deceased was found in the Appellants’ house with multiple stab wounds to his body.  There was evidence of attempts by the Appellants to revive or render medical help to the deceased in the bedroom.  There is also evidence of assistance sought by the Appellants from fellow workers and the Bishop of Bereina to transport the deceased to the hospital.  At the trial both Appellants pleaded not guilty and did not testify nor call any evidence.  They were both convicted and sentenced to seven years imprisonment in hard labour.  Appellants appealed against conviction on the following grounds:
1.       That the trial Judge erred in law when he convicted them of murder because there was no evidence of them acting in concert in inflicting injuries upon the deceased from which he later died;
2.       That the trial Judge erred in law when he admitted during the trial evidence obtained illegally in the search of their premises, ie without a Search Warrant;
3.       That the trial Judge erred in the exercise of his common law discretion when he admitted the evidence in the trial which was illegally obtained by the Police during the search of their premises without the Search Warrant.
They also appealed against the severity of the Sentence but did not pursue this ground at the hearing of the appeal.
Held (Dismissing the Appeal)
(1)      There was strong circumstantial evidence for the trial Judge to be satisfied beyond reasonable doubt as to the guilt of the Appellants;
(2)      The conclusion reached by the trial judge based on the wholly circumstantial evidence was the only inference open to him when the Appellants chose to remain silent and did not challenge nor refute the allegations against them;
(3)      There was strong evidence albeit circumstantial, to convict the Appellants for murder even without the evidence disputed by the Appellants as being illegally obtained by the Police ie without Search Warrant.
Cases Cited
Paulus Pawa v The State [1981] PNGLR 498 applied
The State v Tom Morris [1981] PNGLR 493 adopted
Barca v The Queen [1975] 50 ALJR 108
Peacock v The King [1911] 13 CLR 619
Plomp v The Queen [1963] 110 CLR 234
Thomas v The Queen [1960] 102 CLR 584
McGreevy v The Director of Public Prosecutors [1973] WLR 276
Ward v James [1961] 1 QB 273
R v Sparrow [1973] 57 Cr. App. R. 352
Counsel
Mr D Koeget for the Appellants
Mr C Manek for the Respondent
DECISION
24 July 1997
LOS SHEEHAN KIRRIWOM JJ:  The Appellants are husband and wife.  They were each found guilty in the National Court at Waigani on 4 July, 1996 of murdering one Samson Kake Meara, believed to be a close relative of the Appellant Rosanna Bonu.  Conviction of the Appellants was founded on s. 7 of the Criminal Code as principals and aiders and abettors.  They were each sentenced to seven (7) years in hard labour.  Both Appellants were employed by the Department of Health as nurse aides and stationed at Bereina Station in Bereina District Central Province on 21 October, 1995 when they are alleged to have committed the murder.  The National Court found that the deceased was killed in the Appellants’ house by the Appellants acting in concert with one another.
The Appellants lodged their own appeal on 24 July, 1996 and relied on the following grounds:
1.       The Trial Judge erred in law.
2.       The Trial Judge erred on facts and evidence.
3.       The sentence was excessively severe and harsh.
At the hearing of this appeal, they were represented by the Public Solicitor who filed a Supplementary Notice of Appeal and particularised as well as added further grounds of appeal against conviction as stated hereunder:
a.       That the trial judge erred in law when he convicted the Appellants on the charge of murder as there was no evidence that they acted in concert in inflicting injuries upon the deceased from the which the latter died.
b.       That the trial judge erred in law when he admitted during the trial evidence obtained illegally in the search of the Appellants’ premises.
c.       That the trial judge erred in the exercise of his common law discretion when he admitted the evidence in the trial which were obtained illegally by the Police during the search of the Appellants’ premises without the search warrant.
The State’s case against the Appellants is entirely circumstantial.  There is no direct evidence implicating the Appellants to the murder although the fatally stabbed and wounded body of the deceased was found in the Appellants’ house and that there had been some attempts made by them to give medical attention to the deceased prior to seeking help from the neighbours including the Bishop of Bereina.  There was no admission by the Appellants either to the Police during interview or at the time of their arrest or to anyone else.  In fact in their interviews they both declined to offer any explanation or say anything.  Both Appellants declined to give evidence at the trial.  There is therefore no explanation from them as to how, when or why the deceased was found in their house and bleeding heavily with stab wounds to his body.  Nor is there any offer of information regarding their efforts to save him.
The Appellants main contention in this appeal against their conviction is that their conviction is wrong.  They are innocent.  They are saying that the State had not discharged the onus of proof required by law by adducing any direct evidence implicating them in this murder.  Simultaneously the Appellants are disputing the admissibility of evidence exhibited in the trial.  These consist of a drip cover, syringe, rubber tube and a drip container.  They are contending that these items discovered or found by the Police in the house of the Appellants several days after the murder were not admissible, as they were not discovered in any legitimate search - one made in accordance with the Search Act.  They say that this evidence was illegally obtained as Police did not have a search warrant to enter the Appellants’ house.
The State outlined the following undisputed facts in this case according to the evidence presented in the trial:
1.       That the deceased was seen by prosecution witnesses lying in the Appellants’ house bleeding at about 3 or 4 o’clock in the morning of the date in question.  These witnesses had been called to the Appellants’ house by the Appellants.
2.       That the deceased had suffered severe multiple stab wounds.
3.       That the Appellants did not offer these witnesses any explanation for the deceased being in their house or how they had found him.
4.       That the deceased was pronounced dead at 5 o’clock that morning.
The issue in the trial was, were the Appellants responsible for the stabbing?  At the end of the State case, counsel for the defence made a no-case submission which the trial judge over-ruled.  Both Appellants then offered to give no evidence in their defence.
After analysing all evidence, the trial judge found that there was strong circumstantial evidence for him to be satisfied beyond reasonable doubt that the Appellants were guilty as charged.
The onus of proof always rests on the prosecution.  But we also bear in mind s. 37 (4) (a) of the Constitution which states:
“A person charged with an offence shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are or would be, peculiarly within his knowledge.”  (emphasis added).
In the absence of any explanation from the Appellants as to why and how the deceased happened to have ended up in their house and found by them in that condition, it is a common sense reaction for anyone to conclude that the Appellants ought to know much more than they are prepared to admit or say.  It is a rational inference consistent with logic and common sense.  This in our view was a conclusion open to the trial Court on the facts available, and we see no justification in reversing the findings of the trial judge.
Obviously, it would be a different situation altogether if the Appellants had advised anyone as to how they came to have the deceased in their house but denied harming him in any way.  The onus would then continue to remain with the prosecution to prove beyond reasonable doubt that the Appellants stabbed the deceased while acting in concert.  Is there any hypothesis consistent with innocence of the Appellants?  Without any explanation on their part regarding the deceased lying bleeding in their house from multiple stab wounds, the only logical inference to be drawn from the proved facts is that the Appellants are responsible for the condition that the deceased was in when seen by the eye-witness before he died.
The law relating to circumstantial evidence and the inferences to be drawn are clearly established in Paulus Pawa v the State[ccxxvi]1 where the Supreme Court was unanimous in its decision by dismissing the appeal of the prisoner and confirming the trial judge’s conviction of the Appellant wholly on circumstantial evidence.  In that case the Court House in Mount Hagen was broken into and the safe was stolen.  The safe was subsequently discovered the next day near the Appellants’ village.  It was still locked and when cut open cheques and documents were found inside but there was no cash.  Evidence from the Clerk of Court was that at the close of business on 25 November, 1980, there should have been K4,327.00 in cash in the safe.
The Appellant was a Clerk of the District Court in Mount Hagen and as part of his duties held the only key to the Court’s safe.  His explanation of the supposed loss of the key to the safe given by Prosecution witness, was not accepted and when he did not give or call evidence in his trial for theft of the money, the trial Court found him guilty of the theft.  It is the same situation in this case although the facts and the charges are different.  In Paulus Pawa, His Honour Andrew J agreed with Miles J (as he then was) in the State v Tom Morris[ccxxvii]2 when he said:
“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] 50 ALJR 108 at p. 117:
‘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 guilt of the accused’: Peacock v The King [1911] 13 CLR 619 at p. 634.  To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only inference that the circumstances would enable them to draw’: Plomp v The Queen [1963] 110 CLR 234 at p. 252; see also Thomas v The Queen [1960] 102 CLR 584 at pp. 605-606.  However, ‘an inference to be reasonable must rest upon something more than mere conjuncture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The Queen at p. 661.  These principles are well settled in Australia.  It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions [1973] WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime.  The decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.’ ”
In this case, what, if any, is the reasonable hypothesis consistent with the innocence of the two Appellants?  There is no evidence on how the deceased happened to be in the Appellants’ house and the Appellants themselves have offered no explanation as to how and why the deceased got to be there.  All that is put forward on their behalf is a bare assertion by their plea that they are innocent of his murder.
In discussing the Appellants’ argument in Paulus Pawa that the trial judge erred in placing too much weight on his failure to give evidence himself or to call witness in support of his case, Andrew J states at p. 504:
“There is no evidence that the trial judge assumed the Appellant to be guilty because of his absence from the witness box.
The distinction in our jurisdiction is that the judge is the tribunal of both fact and law.  The decided cases from other jurisdictions are of necessity dealing with the comments which it is permissible for the trial judge to give to the jury in his summing up, in relation to the accused’s failure to give evidence.  In those jurisdictions the findings of the jury are “as inscrutable as the sphinx” (see per Lord Denning MR in Ward v James[ccxxviii]3).
In our jurisdiction we have in effect the juries findings of fact and the reasons for those findings.  The question then is what may be the tribunal of fact make of an accused’s absence from the witness box?  The answer lies in common sense.  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 by giving his own version of what happened (see R v Sparrow[ccxxix]4).  But again, common sense must dictate in each case as to what weight could be given to an accused’s absence from the witness box.  I agree with the conclusion of Professor O’Reagan in his article “Adverse Inferences From Failure of An Accused Person To Testify” 1965 Crim. L. R. 711 that:
1.       The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testifying.
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 Crown 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 Crown but probably well known to the Accused;
(b)      whether the evidence implicating the Accused is direct or circumstantial;
(c)      whether the Accused has before trial given an explanation which the Crown has adduced in evidence.
None of these conclusions, in my opinion, detract from the trial judge’s finding that he could not believe the Appellant’s explanations and it was reasonably open as a matter of common sense for the trial judge to remark that the accused failed to call his friend (whom he said was with him) as to the alleged break-in to the vehicle.”
His Honour then went on to find that the verdict was safe and satisfactory and dismissed the appeal.
Applying the principles and reasoning in Paulus Pawa’s case, we are of the view that the trial judge’s summation of the evidence, the conclusion he reached and the reasons given in support of his findings are correct.
The Appellants are also arguing that the trial judge erred in admitting into evidence certain evidence obtained illegally, that is, without a search warrant.  We do not see how much difference it would have made in the conclusion reached by the trial judge even without the evidence disputed to be illegally obtained.  The fact remains that the deceased was found with multiple stab wounds in the Appellants’ house, the Appellants sought help from the neighbours to seek transport from Bishop Lucas, there is no explanation as to how the deceased got to be there in such a condition and there is no evidence for example of drops of blood leading to the Appellants’ house suggesting that he may have been injured elsewhere and went to the Appellants’ house seeking help.
Unlike Paulus Pawa’s case, this is a case where the truth of what exactly happened is only known to the two Appellants and no-one else.  At the end of the State case there was a strong prima facie case established against them and although there was no onus on the Appellants to refute the allegation, the fact that they chose to remain silent, offered no explanation or reason to place any doubt on the evidence before the Court inevitably led to their conviction.  The finding of the trial judge is therefore a common sense conclusion.
To say that the deceased would most likely have been stabbed by unknown persons and left in the Appellants’ house without them knowing anything about it is parting company with reality and common sense when there is not one iota of evidence or information suggestive of such hypothesis or possibility.
We therefore dismiss the appeal against the conviction.
The Appellants did not pursue the ground of appeal against sentence at the hearing.
We therefore make no ruling on this ground.
Lawyer for the Appellants: The A/Public Solicitor
Lawyer for the State: The Public Prosecutor

[ccxxvi] [1981] PNGLR 498
[ccxxvii] [1981] PNGLR 493
[ccxxviii] [1966] 1QB 273 at p. 301
[ccxxix] [1973] 57 Cr. App. R. 352