SC1578                                                 

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 31 OF 2014 &
SCRA NO. 03 OF 2015

BETWEEN

VINCENT RAUMA
Appellant

AND

THE STATE
Respondent

Waigani: Injia CJ, Toliken & Polume-Kiele JJ
2016:  13 May

CRIMINL LAW - Appeal - Conviction & Sentence - Wilful murder - Appellant convicted after trial - Cause of death - Asphyxiation through manual strangulation - Sentence - Life imprisonment - Criminal Code Ch. 262, s 299.

CRIMINAL LAW - Evidence - Circumstantial - Inferences - Conclusion drawn - Whether guilt of Appellant was the only rational conclusion open to trial judge - Appellant's guilt , only rational conclusion - No identifiable error in trial judge's findings of primary facts or inferences and conclusion drawn from those facts - Appeal against conviction dismissed - Conviction affirmed.

Cases cited:
Papua New Guinea Cases

Havila Kavo v The State (2015) SC1450
James Pari v The State [1993] PNGLR173
John Kil v The State (1990) SC395.
John Beng v The State [1977] PNGLR 115
Merriam v The State [2000] PNGLR 10
Paulus Pawa v The State [1981] PNGLR 498.
The State v Tom Morris [1981] PNGLR 493

Overseas Cases

Plomp v The Queen (1963) C.L.R 234
R v Ball [1911] A.C. 47, HL 
R v Bond [1906] 2 K.B. 389
 R v Williams (C.I.), 84 Cr.App.R.299

Counsel:	

L. B. Mamu, for the Appellant
C. Sambua, for the Respondent 

JUDGMENT ON APPEAL
13 May, 2016

1.	BY THE COURT.	The Appellant Vincent Rauma was, on 25th August 2014, convicted after trial for the wilful murder of one Ericka Tali on 15th September 2013 thereby contravening Section 299 of Criminal Code Ch. 262. He was sentenced to life imprisonment. He appealed against both his conviction and sentence.
2. In appeal SCRA No. 31 of 2014, the appellant in person appealed against conviction and sentence. In appeal SCRA 3 of 2015, the Public Solicitor filed an appeal against conviction only. At the hearing of the appeals, counsel for the appellant abandoned the appeal against sentence in SCRA 31 of 2015, We heard arguments of counsel on conviction and reserved our decision which we now deliver.

GROUNDS OF APPEAL
2.	The appeal against conviction is that the conviction was unsafe and unsatisfactory in that:
(a)	The trial judge erred in law in convicting the Appellant upon such circumstantial evidence when there were other reasonable conclusions that could be drawn from the evidence that may have caused the death of the deceased; and
(b)	The trial judge erred in relying on the oral testimony of the doctor instead of requiring the production of 	photographs to verify the evidence of a possible strangling of the neck; and
(c)	The Appellant was denied of a fair trial through the failure of producing the photographs.

4. The evidence led the trial was largely circumstantial. The appeal turns on the challenge to findings of fact on the evidence adduced at the trial and the application of the law on burden of proof and circumstantial evidence to reach the guilty verdict.

LAW ON APPEALS AGAINST CONVICTION 

5.	Section 23 (1) & (2) of the Supreme Court Act Ch. 37 provides for appeals against conviction in the following terms:

"23.	Determination of appeals in ordinary cases.

(1)	Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b)	the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)	there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
(2)	Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
(3)...
 (4)... "

6.	The appellate Court will not set aside a conviction unless it is shown by the appellant and the Court is satisfied, that any one or more of the three (3) conditions stipulated in s 23 (1) have been met. The Supreme Court recently in Havila Kavo v The State (2015) SC1450, stated that these are distinct grounds upon which a conviction may be set aside. The Court said:

"To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115)".

5. When the appeal is based on a challenge to the findings of fact and the application of the law on the burden and standard of proof in a criminal case, the first condition found in s 23(1)(a) (verdict is unsafe and unsatisfactory in all the circumstances of the case) is usually the applicable test. The Court "must be satisfied that there is in all circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before an appeal is allowed": John Beng v The State [1977] PNGLR 115 (per Prentice DCJ, Williams and Kearney JJ. The appellate court has a duty to consider the whole of the evidence to determine whether the verdict in all the circumstances is unsafe and unsatisfactory: James Pari v The State [1993] PNGLR173.
 
6. In Merriam v The State [2000] PNGLR 10, the Supreme Court said:

"In order to assess whether the evidence is of such a quality and character that it would render the verdict unsafe or unsatisfactory, it is necessary to consider and assess the reliability of the evidence after it has been subjected to full examination. The fact that the witness had sworn that he had committed perjury by telling untruths in the Court below is not sufficient ground itself for setting aside a verdict. In determining whether the witness is reliable and the evidence credible, it is necessary to assess carefully the nature of the fresh evidence, the circumstances surrounding and giving rise to the change of evidence, the demeanour of the witness in Court, the motivation and pressures brought upon the witness to change the story given at the trial and the reasons given in this Court for the assertion that the evidence given in the trial was not the truth. See Pari v. The State (supra).We think that the different epithets describing the quality of the evidence necessary to affect the verdict mean substantially the same thing in the final analysis, that is that the verdict is unsafe and unsatisfactory and should not be allowed to stand."

THE STATE'S ALLEGATION AT TRIAL

8.	The State alleged that on 15th September 2013, the deceased Ericka Tali and three of her friends namely, Miti Talao, Sherlyna Joseph and Anne Paru had gone up to 17 Mile with the Appellant and other family members and friends for a picnic. The  deceased and her friend were all swimming in the river when they were called to return to shore as it was time to go. Miti and Sherlyna swam to the riverbank while the deceased and Annie were still in the river. When Miti and Sherlyna reached the riverbank, they looked back for Ericka and Anne. They saw Anne and the Appellant but Ericka was not with them.  An alarm was raised that Ericka was missing and her brothers and uncle started to search the river. Her body was later found in the river and taken to the Port Moresby General Hospital.
9.	A post-mortem was conducted by Dr Fose at which bruises were discovered on the neck of the deceased. The cause of death was identified as asphyxia due to obstruction of the airway through manual strangulation. The State alleged that the accused manually strangled the deceased on her neck and pushed her under water with the intention to kill her and in doing so killed her.
THE EVIDENCE AT TRIAL
10.	At the trial the State called two eyewitnesses, Miti Talao and Raphael Apul and a Dr Seth Fose who conducted the post mortem on the deceased. With consent, the State also tendered the following documents:
•	The Appellant's record of interview in pidgin and the English translation (A and A1)
•	Affidavit  of Dr. Seth Fose sworn and filed 1 August 2014 to  which the post mortem report a diagram of the body were annexed (B, B1 and B2)
•	Statement of Kelly Akoi dated 8 April 2014
•	Statement of Jacob Jimbengi

THE TRIAL COURT’S FINDINGS
11.	The primary facts found at trial are that on 15th September 2013, the deceased went on picnic with family members and friends at the 17 Mile outside the Port Moresby City. These included the Appellant, Francis and his family, Miti, Sherlyn, Claire, Annie, Raphael Apul and others.
12.	Once they arrived at the river, the children including the girls Miti, Sherlyn, Clair, Annie and the deceased went in to the river to swim. The Appellant joined them while Raphael Apul and the other adults remained on shore. The smaller children remained around the shallow part of the river while the bigger ones and the Appellant went further into the deep towards the middle of the river. State witness Miti testified that because she was short the water came to about her neck.
13.	After about 45 minutes a call was made for the children to come out of the water so that they could head back into the City. Miti and Sherlyna swam back to the bank leaving the deceased, Annie and Clair behind in the water. Annie and Clair were next to come out of the water but the deceased did not and could not be seen anywhere after that. After about three minutes an alarm was raised that the deceased was missing so a search ensued. 
14.	As the search was going on, the Appellant had remained on the same spot in the river where he and the bigger girls including the deceased had been swimming for some 10 minutes before he joined the search looking for her among the crowd of picnickers. He was the last person to be seen around that spot. While there were other people in the river that time they were swimming further upstream and downstream.
15.	The body was later found downstream beside a log by villagers. The deceased's body was then taken to the Port Moresby General Hospital. 
16.	Dr. Fose performed a post mortem examination on the body of the deceased. His examination revealed that there were bruises of soft neck tissue, the thyroid cartilage and the carotid arteries. Dr Fose was of the opinion that the cause of death was "asphyxia due to airway obstruction due to manual strangulation" and drowning. 
17.	The Appellant testified at trial that he was not swimming with girls and the deceased but rather minding a child by the name of Brandon. When the girls were called to come ashore he assisted Annie to the river bank and did not enter the water again until the alarm was raised that the deceased was missing. He joined the search by proceeding upstream and downstream and further going to the other side in search of the deceased. He made reference to a superstitious belief among the locals that spirits had been responsible for some deaths that had previously happened in this area.
18.	His Honour acknowledged that the case was entirely circumstantial. After stating the law on circumstantial evidence, His Honour found that the Appellant's evidence that he was not in the river after the alarm was raised was fabricated in order to distance himself from the spot where the girls and the deceased were last seen swimming. His Honour concluded therefore that the guilt of the Appellant was the only rational inference that he could draw in the circumstances.

APPELLANT’S SUBMISSION 
19.	Mr. Mamu of counsel for the Appellant submitted that there were other reasonable conclusions which could have been drawn from the circumstances of the case. In other words the guilt of the Appellant was not the only inference His Honour the trial Judge could have drawn. He submitted that there were a lot of people swimming in the river that time so anybody could have killed the deceased. This, and the fact that the Appellant had no motive to kill the deceased, was overlooked by the trial judge, counsel argued.
20.	Further to that State did not produce or provide any actual photographs of the deceased during the post mortem but instead tendered a sketch (diagram) that was drawn by Dr Fose depicting the internal bruises that he noted on the deceased neck area. In so doing, counsel submitted, the court was deprived of the opportunity to look at the photograph and analyse it against the opinion given by Dr. Fose. Therefore the integrity and accuracy of the doctor's diagram and ultimately the trial court's judgment was brought into question. In the circumstances the Appellant was also denied a fair trial by the State's failure to produce the actual photographs. 

THE STATE’S SUBMISSION
21.	On the first ground of the appeal, Mr. Sambua submitted on behalf of the State that His Honour the trial judge sufficiently discussed the evidence and the law on circumstantial evidence. His Honour carefully considered the evidence against the issues that were raised at trial there is no doubt as to the satisfactoriness and safeness of the Appellant's conviction. 
22.	On the question of photographs, Mr. Sambua submitted that the ground is misconceived as there was no evidence at the trial that photographs were taken during the post mortem hence none was available or tendered at the trial.

LAW ON CIRCUMSTANTIAL EVIDENCE

23.	The law on circumstantial evidence is settled. For the court to convict the accused on circumstantial evidence it must 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 is the only rational inference that the court could in the circumstances reasonably draw. (Paulus Pawa v The State [1981] PNGLR 498). What inferences can be drawn are matters for the trial judge to draw: The State v Tom Morris [1981] PNGLR 493. In drawing inferences and arriving at conclusions where the evidence is substantially circumstantial, a logic and common sense approach is necessary:  Garitau Bonu & Rosanna Bonu v. The State (1997) SC528. In circumstances where the deceased was alone with the accused before the deceased went missing and is found dead, the accused, without shifting the onus of proof in any way, practical logic and commonsense would dictate that the accused is to offer an explanation that  supports his innocence. As the Supreme Court said in Garitau Bonu & Rosanna Bonu v. The State (1997) SC528:
"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.

DECISION

26.	So in the appeal before us, was the Appellant's guilt the only rational inference that was open to the trial judge, taking into account any other inferences that may have been available to him? 
27.	The trial judge basically found that the Appellant was the last person to be at the place and with the deceased where the deceased was last seen alive in the river. His Honour, preferring the evidence of Raphael Apul over that of the Appellant's evidence, found that the Appellant stood on that spot in the river for some 10 minutes without moving while others were frantically searching for the deceased. From this evidence, His Honour drew the conclusion that the Appellant was able, within that time, to hold down the deceased under water and drown her by manually strangling her neck.

28.	At page 124 -128 of the Appeal Book His Honours sufficiently discusses the law on circumstantial evidence and the evidence before him. At Page 127 of the Appeal Book His Honour said:

“I accept that at all times, Ericka was in the river swimming with the girls. When Miti and Sherlyn came to the bank, they left behind Annie and Clare in the river. Annie and Clare were the next persons coming up the river. The accused admitted to taking Annie from the place where the girls were last seen swimming to the bank of the river. Obviously he would have noticed Ericka still in the river. His evidence that he was not in the river three minutes after the alarm was raised, in my view was fabricated to distance himself from the spot where Ericka and the girls were last seen swimming. He lied about what he did.”

	So, why was the accused standing in the same spot for 10 minutes without helping search for Ericka? The most logical and common sense inference is this. He had accosted the deceased, strangled her and pushed her under the water to keep her out of view. He had to stay that long to ensure that the body is sunk to the bottom of the riverbed. Having satisfied himself, he came out of the river and belatedly began searching the surrounding areas. That explains why the body of Ericka, was discovered more than two hours later, floating down stream by a log..."

29.	His Honour's conclusion that the Appellant manually strangled the deceased was based on Dr Fose's conclusion and opinion in the post mortem - that internal examination of the neck area revealed that there were soft tissue bruises on the neck, the thyroid cartilage and the carotid arteries which Dr. Fose said were consistent with manual strangulation.

30.	Mr. Mamu submitted on behalf of the Appellant that there were other inferences that would have led the trial judge to reach a conclusion other than that the Appellant was guilty of killing the deceased. In particular, there were other people swimming in the river at that time and there is the reference to some superstitious belief around the area.

31.	His Honour noted that the Appellant tried to shift the blame away from himself and said:

"... The accused evidence of a superstitious belief that was taken by some spirit living in the river is a figment of his imagination and once again is an attempt to distance himself from the spot where Ericka and the girls were last seen swimming. He lied about what he did. The guilt of 	the accused is the only rational inference that the overall circumstances can enable this court to draw." [Page 127 of the Appeal Book, Line 30] 

32.	So were the inferences drawn by his Honour rational so as to lead him to the conclusion that the Appellant killed the deceased? Was this the only conclusion he could have reasonably drawn?  

33.	In this case, His Honour was entitled to reach that conclusion in the circumstances. It is true that no one actually saw the Appellant hold down and strangle the deceased under water. His Honour accepted that there were others swimming in the river that day but they were either further upstream or downstream, well away from where the Appellant's party were. The Appellant was the only one at the spot where the deceased was last seen. While others were frantically searching for the deceased the Appellant took no part and remained on the same spot, for some 10 minutes. His Honour accepted Dr. Fose's evidence that all that it takes to kill someone by strangulation is three minutes.

34.	The Appellant testified at his trial. He denied being in the water when the deceased went missing. Hence this case can be distinguished from Garitau Bonu v The State (supra.) His Honour did accept that the Appellant took Annie across from where the girls had been swimming to the river bank but then asked why the Appellant did not see the deceased who would have been with Annie. His Honour did not believe the Appellant and we consider that the trial judge was entitled to disbelieve the Appellant we have seen in the circumstances.

35.	And so coupled with the post mortem finding of death by asphyxia through manual strangulation, it was open to His Honour to infer that the Appellant strangled the deceased and held her under water until she died. That was the only rational inference that could have been drawn from the evidence. 

36.	Anything else, such as attributing the death to superstition, would be to part company with reality as his Honour put it. The first ground of the appeal on conviction should be dismissed.

37.	With regard to the Appellant's contention in relation to photographs, this ground is without merit. No photographs were taken during the post mortem and hence none were available to be tendered during the trial. 

38. 	We believe Dr. Fose did what he had to do in circumstances like this and produced a diagram, which he annexed with his post mortem report, depicting the location of the internal bruises that he found on the deceased's neck area. If photographs were taken no doubt these would have been annexed to the report. However, none were taken and to expect him or the State to produce photographs at the trial is preposterous. In any case the diagram merely confirmed Dr. Fose's opinion as to the cause of death which was asphyxiation through manual strangulation.

39. With regard to motive, motive is not necessary to prove murder: John Kil v The State (1990) SC395. Motive is not an element of the offence of wilful murder, the offence for with which the appellant was indicted and convicted: Criminal Code, s 24 (3). Although proof of motive is not required to support a conviction for wilful murder, evidence of motive is admissible to show that it was more probable that the accused committed the murder: per Lord Atkinson in R v Ball [1911] A.C. 47, HL at page 68; R v Williams (C.I.), 84 Cr.App.R.299; R v Bond [1906] 2 K.B. 389 at 401. Also see commentary in Archbold 2015 on Criminal Pleading, Evidence and Practice, Sweet & Maxwell, London; at pages 1594-1595, para 13-30 & 32. 

41. The approach to be adopted in the consideration of motive in a case based on circumstantial evidence is found in the Australian High Court decision in Plomp v The Queen, (1963) C.L.R 234 at 242. Dixon CJ said:
 “All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.  There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case.  I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.”
42. In the present case, absence of motive was not raised by the appellant in his evidence. Neither counsel raised the point and the trial judge too did not consider the point. The point is being raised for the first time in this appeal and we choose not to consider the point for this reason.    
42.	All in all, this Court finds no error in His Honour the trial judge's findings of the primary facts nor any errors in the inferences that he drew and the conclusion he reached from those facts that could prompt this Court to disturb the conviction.

40.	We dismiss the appeal and affirm the conviction.
Orders accordingly.
________________________________________________________________
The Public Solicitor: Lawyer for the Appellant
The Public Prosecutor: Lawyer for the State