SC1324
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 89 OF 2003

FEI STANLEY
Appellant

V

THE STATE
Respondent

Waigani: Injia DCJ, Lenalia J, Cannings J
2006: 28 August, 3 November

CRIMINAL LAW – wilful murder – whether intention to kill can be inferred from circumstantial evidence – alternative convictions available on a charge of wilful murder.

The appellant was convicted in the National Court of wilful murder of her husband. The Court found, on the basis of circumstantial evidence, that she killed him by stabbing him with a knife during the course of a fight, and that she intended to kill him. She appealed against her conviction and sentence, admitting that she had killed the deceased but arguing that the trial judge erred in being satisfied that there was an intention to kill.

Held:

(1)	To find an intention to kill, based on circumstantial evidence, it must not only be a rational inference, it must be the only rational inference, that the accused intended to kill (The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498 applied).

(2)	An intention to kill was not the only reasonable inference to draw from the evidence. The National Court erred in law in finding the appellant guilty of wilful murder.

(3)	There was ample evidence of an intention to do grievous bodily harm, the appropriate alternative conviction to enter was therefore murder.

(4)	As a substitute verdict was entered, it was appropriate to enter a lesser sentence of 13 years imprisonment.

(5)	The appeal against conviction and sentence was accordingly upheld: the conviction for wilful murder was set side and replaced by a conviction for murder; and the sentence of 18 years imprisonment was quashed and replaced with a sentence of 13 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Barca v The Queen (1975) 50 ALJR 108
Bernard Touramasong & Ors v The State [1978] PNGLR 337
Ian Setep Napoleon v The State (18.05.2000) SC666 (unreported)
John Beng v The State [1977] PNGLR 115
Karo Gamoga v The State [1981] PNGLR 443
Paulus Pawa v The State [1981] PNGLR 498
Peacock v The King (1911) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
R v Bauoro Dame [1965-66] PNGLR 201
Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Raphael Kuanande [1994] PNGLR 512
The State v Tom Morris [1981] PNGLR 493
Thomas v The Queen (1960) 102 CLR 584
Wanosa & Ors v The Queen [1971-72] PNGLR 90
William Norris v The State [1979] PNGLR 605

Counsel

W Kume, for the appellant
C Sambua, for the respondent

3rd November, 2006

1. BY THE COURT: The appellant was tried, convicted and sentenced to 18 years imprisonment for the offence of wilful murder contrary to Section 299 of the Criminal Code. She appeals against the conviction and sentence.

EVIDENCE AT TRIAL

2. The evidence against the appellant came from two witnesses. Apart from those two witnesses, the State tendered a certain number of documents by consent. The State's evidence was that on 29 October 2002 the appellant left her house at June Valley and went to 5-Mile Elcom compound in Port Moresby to see her husband Asa Korin.

3. When she arrived, one of the two State witnesses Mrs Elis Wama greeted her by saying good morning to her. The appellant did not reply. She instead asked for her husband and Elis told the appellant that the husband was sleeping inside the wind house. She asked if she could go inside to see "that fellow". She walked past the witness and went inside the house and whilst inside, the witness heard a short argument between the appellant and her husband. She heard the appellant mention a K50.00 and Mrs Wama formed the opinion that the appellant and the deceased were arguing about money.

4. When the argument stopped, Mrs Wama walked up to the gate and while on her way up, she heard a shout at her house. When she looked back she saw the appellant running away from the scene. The witness guessed that something might have occurred. She decided to pursue the appellant. She could not catch up with the appellant. She left her baby with someone, got into a taxi and directed the driver to drive toward Ponderosa hotel. The taxi stopped where the appellant was running and she was caught and brought back to the scene.

5. On arrival at the scene, the witness saw the appellant's husband and thought he might be unconscious or just lying down. When she checked him, she found that he was not breathing.

6. The second witness Emmanuel Sale saw the couple fighting. This witness occupies the other side of the duplex where Mrs Wama lives. They are employees of PNG Power Ltd. On that morning after having a shower, Mr Sale sat in the lounge room to have a cigarette and betel nut. As he was chewing he heard the late Korin and his wife fighting. Like the first witness, the second witness also heard the appellant and her husband argue over money.

7. When Emmanuel Sale went to the back of the house, he had limited observation, but when he got to the front, he saw the couple fighting. He saw the late Korin holding on to the appellant's hand, while the appellant held a knife in the other hand and they were struggling. By that time they were now in front of the house and Emmanuel observed that the victim's body was already covered with blood. He saw that late Korin was running around in circles implying that the victim would have been in a state of dizziness. Not long before that, he saw the appellant fleeing from the scene with the knife in her hand. He then alerted the first witness who went in pursuit of the appellant.

8. After the State's case was completed, the lawyer for the appellant made a submission of "no case to answer" on the basis of the second leg of the principles stated in The State v Paul Kundi Rape [1976] PNGLR 96. After hearing counsel, the trial judge made a short ruling that there was sufficient evidence to establish the element of intention. The fact that the appellant had gone to the scene armed with a knife in her pockets and the fact that the victim sustained a serious stab wound on the neck showed or exhibited the intention to commit the crime of wilful murder.

DEFENCE EVIDENCE

9. The appellant was the only defence witness. She denied intentionally stabbing her husband. She confirmed however that she had had an argument with him over K30.00, not K50.00 as put by the prosecution. The reason they fought was that when he sat close to her, the victim made approaches to her suggesting that they should have sex. She protested as the wind house was not convenient as the curtain put to cover and used to hang over the door could easily be blown around by the wind thereby exposing them. Her husband then started feeling her thighs upwards and he took out a knife from her trousers pocket and put it on the table.

10. They further argued and they then fought. In the course of the fight, the appellant went off balance and fell over. Then the victim came on top her with his weight and they both fell on the floor and the door. She said she did not recall at what stage of the fight the victim would have been cut with the knife. There was further evidence by the appellant that she was hit by the victim using an iron bar. There was no medical report to support her evidence.

11. At the end of the trial, the trial judge found the accused guilty of wilful murder, convicted her and sentenced her to 18 years imprisonment.

NOTICE OF APPEAL

12. The following grounds were advanced:

1	The sentence of 18 years was excessive as she did not intend to kill her late husband.

2	In a short period of time, three different lawyers handled her case.

3	Her witness was not given an opportunity to be called to testify on her behalf.

4	One of the State witnesses was in court during the course of the other giving oral testimony.

5	No samples of blood were collected from the room where the fight occurred to determine if it was blood from the appellant or was it blood from the deceased.

6	When she was arrested by police no photographs were taken from her nor were she taken to the hospital to be treated and for her to get a medical certificate of her condition after the fight.

7	The clothes she wore were not a tight six pocket trousers and a tight "T" shirt.

8	The fight started inside the house wind where her late husband was fast asleep.

SUBMISSIONS

13. On arguing the appeal, Mr Kume, counsel for the appellant, abandoned all grounds of appeal except two. He firstly submitted that the appellant's conviction was wrong in law as she did not have the requisite intention to kill the deceased and therefore the conviction was unsafe and unsatisfactory.

14. The second part of his submission relates to the circumstantial nature of the evidence given by the two State witnesses at the trial. On this issue, Mr Kume submitted that the trial judge convicted the appellant on purely circumstantial evidence on which the court should not have relied.

15. Mr Sambua, counsel for the respondent, argued that the conviction and sentence entered by the trial court were proper in law. On the issue of intention to kill, counsel argued that intention ought to be exhibited by some overt acts on the part of an accused and the appellant's intention in this appeal was elicited or deduced from the two State witnesses' evidence. On the issue of circumstantial evidence Mr Sambua argued that the trial judge duly warned himself against the danger of convicting the appellant on the circumstantial evidence given by the two State witnesses in terms of the case of Paulus Pawa v The State [1981] PNGLR 498.

INTENTION TO KILL AND CIRCUMSTANTIAL EVIDENCE

16. Section 299 of the Criminal Code states:
 
(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

17. The issue of "intention to kill" has been the subject of a number of judicial pronouncements by the Supreme Court as well as the National Court. In the Supreme Court Reservation No 4 of 1984, The State v James Pah [1985] PNGLR 188, that was the case where the appellant was indicted with two offences, one of attempted murder and the second one a charge of unlawfully doing grievous bodily harm. On discussing the element of 'intent' on the charge of attempted murder under Section 304 of the Criminal Code and 'offences of which the causing of some specific result is an element', Kidu CJ said at page 190 that the requisite elements on a charge of attempted killing are (1) an intention to actually kill; and (2) that such intention is put into execution of an overt act, (see also R v Bauoro Dame [1965-66] PNGLR 201.

18. The appeal before us is one on the charge of wilful murder. As Injia J (as he then was), rightly observed in the wilful murder case of The State v Raphael Kuanande [1994] PNGLR 512 at 514:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.

19. Before the trial judge, there was evidence from the two State witnesses that they each heard the appellant and the victim argue over money. After that argument, they fought from inside the wind house to the door and outside to the immediate precincts of the house. At page 98 of the Appeal Book lines 20 to 33, the trial judge made the following observation on the issue of the circumstantial nature of the evidence:

So the evidence against the accused in that respect is largely circumstantial. I have already discussed the accused's version of how the deceased was stabbed and if I was to accept her story, it certainly would appear that the deceased accidentally fell on the knife which the accused was holding, in which case the accused is entitled to acquittal. I therefore need to have a careful and a closer look – analysis of the accused's evidence to determine whether the accused is telling the truth. This has to be determined on the whole of the evidence. The principle to be applied in cases where the evidence is wholly circumstantial or largely circumstantial was stated in the case of Paulus Pawa v The State [1981] PNGLR 498. There the Supreme Court said that the accused should be acquitted unless all the circumstances are such to be inconsistent with any other reasonable hypothesis than the guilt of the person charged.

20. It is our view that for the trial judge to find the appellant guilty of wilful murder there ought not to have been any lurking doubt in his Honour's mind. An inference to be drawn on the guilt of an accused person must not only be a "rational inference but it should be the only rational inference that the circumstances" of the evidence would enable him to draw: The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498, (see also cases of 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).

21. As stated in Peacock v The Queen in order for an inference to be reasonable it "must rest upon something more than mere conjecture". The 'Oxford Advanced Learner's Dictionary' gives two meanings for the word "conjecture". On the first definition it means "an opinion or idea that is not based on definite knowledge and is formed by guessing" or "guess". The second meaning given is "the forming of an opinion or idea that is not based on definite knowledge". To this Court, what it means is that, for the trial judge to find the appellant guilty of wilful murder there ought to have been clear evidence showing there was intention to kill. As in cases of attempted killing brought pursuant to Section 304 of the Criminal Code, charges brought under Section 299, the elements of intention to kill and the act of killing are very crucial elements to be proved by the prosecution.

22. We are of the view that in this case the required intent which resulted in the killing could not be reasonably inferred.

23. As we find in this appeal, there was no dispute about the killing. There was evidence that the appellant and the victim fought. As the trial judge found, out of that fight, the appellant stabbed the victim. We would agree with the conclusion reached by the trial judge that the appellant stabbed her late husband causing his death. Under such circumstances there was ample evidence to show that the appellant intended to cause grievous bodily harm to the victim in terms of Section 300 of the Criminal Code.

24. Applying the test in John Beng v The State [1977] PNGLR 115 as to whether the guilty verdict for the charge of wilful murder was "safe or satisfactory" in all the circumstances of all the evidence put before the trial judge, could the Court below draw the necessary inference as to the intent of killing the deceased? We answer the question posed in the negative. We find from the evidence that it was unsafe to reach a guilty verdict as there was no evidence of intention to kill.

25. We are of the view that since there was credible and cogent evidence in terms of John Beng v The State, Bernard Touramasong & Ors v The State [1978] PNGLR 337 and Karo Gamoga v The State [1981] PNGLR 443 to substantiate an alternative verdict under Section 539, a verdict of guilty to a charge of murder under Section 300(1)(a) of the Criminal Code should have been returned. We are therefore of the view that, the conviction for the charge of wilful murder cannot stand and was wrong in law.

CONCLUSION

26. On the issue of sentence, in view of the conclusion we have reached, the sentence imposed by the learned trial judge for the offence of wilful murder cannot stand. The Supreme Court cannot readily disturb a sentence imposed by a trial judge unless an appellant demonstrates that the sentence imposed is manifestly excessive. A sentence can be manifestly excessive, where for instance; the trial judge acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some silent features of the evidence: Wanosa & Ors v The Queen [1971-72] PNGLR 90. This Court must be satisfied that the learned trial judge fell into some demonstrable error which should have the effect of vitiating the trial judge's sentencing discretion: William Norris v The State [1979] PNGLR 605, (see also Ian Setep Napoleon v The State (2000) SC666.

27. We order that both the conviction and sentence entered against the appellant on 13 and 24 October 2003 be set aside. The appeal before us is one against the conviction and sentence arising from a criminal trial. Criminal appeals are regulated by Division III.3 of the Supreme Court Act. By the powers given this Court under Sections 23 and 27 of the Act, we substitute the guilty verdict for wilful murder with a verdict of guilty of murder.

28. On sentence, we are of the view that a sentence between 12 and 14 years would have been more appropriate as the killing did not involve pre-planning and we consider there was minimum use of force as the victim and the appellant actually fought and grabbed each other in the course of which the victim was stabbed. We therefore quash the sentence of 18 years and substitute it with a sentence of 13 years.
_____________________________________________
George Kaore Lawyers: Lawyer for the Appellant
Public Prosecutor: Lawyer for Respondent