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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI 2019
CRIMINAL CASE NO. 59 OF 2017
[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[LOMY POSADA ACCUSED
Before: The Hon Chief Justice Sir John Muria
6 March 2019
11 & 25 September 2019
12, 13 & 19 February 2020
11 March 2020
Ms Pauline Beiatau for the Prosecutor
Mr Banuera Berina for the Accused
JUDGMENT
Muria, CJ: The accused Lomy Posada, has been charged with one count of murder contrary to section 193 of the Penal Code. It is alleged that the accused murdered his wife Bernessa Elliot (Deceased) on 8 July 2017 at Bwangantebure Village, South Tarawa. The accused pleaded not guilty to the charge of murder.
Brief background
2. From the evidence before the Court, the following brief factual background can be stated: the accused and the deceased were married and had been separated. On the date in question, the accused had gone to pick the deceased and their children from where they were staying in Betio and took them back to their matrimonial home in Bwangantebure. The accused and deceased were having some drinks in the house when they got back to the house. The children were also in the house with them.
3. The wife was later found dead with a stab wound to the neck (front) and the accused had a stab wound to the stomach. Both the accused and deceased were found naked lying next to each other in the bedroom. The accused recovered after treatment at the Hospital.
Issue
4. The first issue to be determined in this case: Did the accused kill his wife? Secondly, if it is established that it was the accused who killed his wife, that he did so with malice aforethought. There is no direct evidence to show that it was the accused who killed his wife. All the prosecution evidence is circumstantial.
The Law
5. Before I proceed to consider the evidence in this case, let me state what the law is in a case of murder. The law is set out in section 193 of the Penal Code where it provides:
“193. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life”.
6. The prosecution must prove that it was the accused who caused the death of the deceased and that he did so with ‘malice aforethought’ by an unlawful act. The unlawful act in this case, as put by the prosecution was the stabbing to the neck of the deceased.
7. The element of ‘malice aforethought’ is defined in section 195 of the Penal Code as follows:
“195. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -
(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or
(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused”.
8. The burden remains on the prosecution throughout the trial to prove the elements of the crime, namely that the accused caused the death of the deceased; that he did so with “malice aforethought”; and that he killed the deceased by an unlawful act or omission.
The prosecution case
9. The prosecution case is that the deceased died of a single stab wound to her front neck inflicted by the accused following an argument between them. It is also the prosecution case that the accused stabbed himself in the stomach to make it look like it was someone else who attacked them, killed his wife and stabbed him, to the stomach. The prosecution case is that it was only the accused who was with his wife (deceased) that night of the incident.
10. In such a case, the prosecution case collapses, in my view, if the prosecution fails to prove beyond reasonable doubt that it was an act of the accused which caused the death of his wife. Equally, the argument that the accused inflicted the wound to his stomach by himself collapses if there is no evidence shown to sustain such an argument beyond reasonable doubt.
Evidence
11. In this case the prosecution case largely rests on circumstantial evidence. The prosecution called 10 witnesses including the
accused’s 10 year old daughter. Each one of the witnesses have been subjected to firm and fair cross-examination by Mr Berina
of Counsel for the accused.
Ms Beiatau of Counsel for the prosecution took each of the prosecution witnesses through their evidence in chief.
12. Tanro Thomas (PW1) gave evidence for the prosecution and stated that he heard noises of fighting coming from the accused’s house at about midnight on 7 July 2017. He heard the voice of a man and screaming from a woman and kids. At first he said that the voices were those of the accused and his wife. However, in cross-examination he said he did not recognize the voices but that the noise came from the accused’s house. According to him (PW1) the argument lasted for only about three minutes.
13. The second prosecution witness was Esther Posada (PW2). She is the 10 year old daughter of the accused and deceased. At the time of the incident she was only about 8 or 9 years old. Before the commencement of her evidence, the Court took time to explain to the witness of the importance of telling the truth when she gave her evidence. The Court also ascertained from the witness if she understood the reasons why she had to give her evidence to the Court in the case.
14. Her (PW2) evidence was that on 7 July 2017, she and her younger sister were with their parents (the accused and deceased) at their house at Bangantebure. She and her sister went into the room to watch video while their parents (accused and deceased) were having drinks (alcohol) in the sitting room. She said “there was also a man with them drinking together” at the sitting room.
15. The next piece of PW2’s evidence was that her mother (deceased) called her and she went to her mother who told her to see what her father was doing to her mother. She said she saw her father putting his arms around her mother’s neck, strangling her. Then she said that her mother stood up and went into the room to lie down. She said that her mother did not shout for help.
16. Her evidence continued and said that her father then gave her a laptop and told her to go into the other room where her sister was to watch movie. She went into the other room while her father went into the room where her mother was. Not long after that, her mother came to the room where she and her sister were. Her father then came and called her mother. Her mother went to her dad.
17. Worried about her mother, PW2 then went to the room where her father and mother were and called her mother. She said that when she did not hear her mother answering her, she peeped through the hole in the door to the room and saw her father holding something like a piece of cloth. When she peeped through the hole in the door, she said her mother was on the long chair and her father was on the mattress.
18. In her evidence in-chief PW2 did not mention that her mother shouted or screamed for help. In cross-examination, PW2 repeated that her mother did not scream nor shouted for help. PW2 also retracted what she said in-chief about her mother being grabbed and pulled out from the room where the kids were to the other room. She was asked:
“Q. Your mother did not scream and did not run away. She went to the room. Your father followed her. Is that correct?
A: Yes.
.................................
Q: Your mother was not pulled into the room. After she gave you (PW2) the key, she went to the room where your father was. Is that correct?
A: Yes”.
19. In-chief, PW2 said that when she peeped through the hole in the door to her parents’ room, it was not bright so she could not confirm exactly what she saw. She could only see her father holding something like a piece of cloth and that her mother was sitting on the long chair.
20. In re-examination, PW2 stated that her dad was not struggling with her mother in the sitting room but only in the bedroom. Again
in
re-examination PW2 added that her father pushed her mother’s head down on the mattress.
21. When asked again in re-examination what she saw when she peeped through the hole into the bedroom, PW2 said that her dad was standing up and her mum was lying on the sofa. But she was not so sure whether her dad was standing or sitting because it was a little dark.
22. The Court asked PW2 about the man who was drinking with her mum and dad in the sitting room. She confirmed that there was a man drinking with her parents at first in the sitting room. She said she did not know where the man went after that.
23. I will return to say something about “the man” later. For now, I can only say that I find it wanting that Counsel did not see it fit to ask PW2 more about “the man” present with the accused and deceased in their house that night of the incident.
24. The third prosecution witness was Nawaia Tebungata (PW3). His evidence is that on the night of 7 July 2017, some time after 2.00 am, he came home after having drinks with his friends at Otintaai Hotel. He said his mother picked him from the Hotel. Upon arriving home, he realized that he left his mobile phone at the Otintaai Hotel. He decided to go to the accused’s house to borrow the accused’s car so that he could go to get his mobile phone at the Hotel.
25. PW3 said that he then walked to the accused’s house which was not far from their house. He said that when he got to the accused’s house he knocked on the door and called the accused’s name. It was after a while that the door was opened. PW3 said that it was the accused who opened the door.
26. PW3 said that the accused’s body was covered with blood and that the accused told him that someone killed his wife. PW3 said that the accused then led him to the bedroom where he saw the deceased lying down dead on the couch. He said that he did not see any injuries on the accused’s stomach. He ran out of the house immediately after seeing blood and the deceased lying down dead.
27. He went and called his uncle Tateru (PW4) and together they went back to the accused’s house, taking with them a solar lamp. They turned the solar light on when they went into the room where the accused and deceased were. They saw the deceased’s body and the accused who was lying beside his wife (deceased). They turned off their solar light and left the room. They went outside and called the police. PW3 did not return to the accused’s house after calling the police.
28. PW3 knew the accused and deceased well. Yet during his evidence, particularly in cross-examination, he denied, at first, knowing the deceased. He was very reluctant to accept the fact that he knew the accused’s family and that he had very often gone to their house to have drinks and even slept over at the deceased’s house. He later admitted that he knew the accused’s wife and had given her lifts and even driven her in their vehicle at times. He later admitted, when pressed in cross-examination, that he drove the deceased to Temaiku at times.
29. PW3 was the first person who came to the accused’s house that night and the first person who saw the deceased and the accused lying down naked in their room. He and his uncle called the police and did not go back to the house again even when the police came.
30. PW3 told the Court that it was the accused who opened the door for him when he first went to the house. He said that the accused was walking “normally” and “acting normally”. He saw blood on the accused’s body and that he did not see any injury to the accused’s body. Later he agreed that he saw an injury to the accused’s stomach.
31. Later after calling his uncle (PW4) and returning to the accused’s house, he said that he saw the accused’s wife lying down dead on the couch and the accused lying beside his wife motionless. Both of them were lying naked. His answers to the following questions show:
“Q. When you came back to the house with your uncle, what was Romy doing?
A: Romy was lying next to his wife.
Q: He did not say anything?
A: That’s correct.
Q: Was he unconscious?
A: He was not talking. Not sure if he was unconscious.
Q: You did not see any knife or weapon?
A: No. Only saw blood.
Q: You were the first person to see what happened to Bernessa and Romy?
A: Yes.
Q: You know more than what you are telling the Court?
A: No.
Q: You knew how Romy was wounded and how Bernessa was killed?
A: I came only to borrow the car”.
32. PW3 is an important witness for the prosecution. He was the first person to see what had happened to the accused and the deceased. However, I find PW3 to be a witness who was very cautious and evasive at times when answering questions that directly connects him to the accused and the deceased. He would deny the truth about his relationship with the accused and deceased but only changed his mind and accepted the truth after pressed in cross-examination.
33. PW3’s evidence on the accused’s condition does not stand up well with the Doctor’s evidence on the effect of the injury on the accused. I shall come back to this when I consider the evidence of the Doctor (PW9).
34. The next prosecution witness is Tateru Eritiam (PW4). He saw his nephew PW3 left their house and walked toward the accused’s house. By then it was going toward 5.00 am, about the time that he (PW4) returned from the Kava Bar. Not long after that PW3 came back and told him about the deceased and accused. PW4 then followed PW3 back to the accused’s house.
35. PW4 saw the deceased with a ‘hole’ at her neck and the accused sitting beside her, holding her. Both were covered in blood. PW4 said that the accused talked to them (PW3 and PW4) saying that someone attacked them. PW4 and PW3 left the house and called the Police. When the Police came, PW4 went back to the accused’s house. PW3 did not go back to the accused’s house. He saw the accused taken in the Ambulance to the hospital and the Police took the deceased’s body a little later.
36. In cross-examination PW4 said that he saw fresh blood when he entered the room. He said the accused talked to them and that he was not unconscious. PW4 agreed that he never told the police that the accused was talking to him and PW3 when they went to the accused’s house.
37. PW4 stated that when he and PW3 came to the accused’s house, he called the accused’s name and he answered. When asked
in
cross-examination if he mentioned that in his statement to the police, he said he did not.
38. Unlike PW3, this witness (PW4) put the time when his nephew (PW3) went to the accused’s house to be about 5.00 am. PW3 said that he went to the accused’s house at about 2.00 am or some time after 2.00 am. Even assuming that PW3 went to the accused’s house at about 2.30 am to ask for the use of the accused’s car to go and get his mobile phone at Otintaai, there was still an unexplained one or two hours’ time lapse between the time at which PW3 said he went to the accused’s house and the time PW4 said he saw PW3 went to the accused’s house. These time discrepancies shown by the evidence and PW4, in the Court’s view, are salient enough to raise concern to investigation officers to consider. Not doing so has left loopholes in the investigation and prosecution would not be able to fill it in.
39. I find the evidence of PW3 and PW4, individually and in combination, unconvincing and unreliable.
40. The next prosecution witness was Kaimemeri Rauiti (PW5). His evidence is about finding the black knife-pouch in the cupboard
in the accused’s house. This witness never saw the knife that fitted into the
knife-pouch that he saw. He only saw the pouch black in colour and not the knife.
41. PW5 was a good friend to the accused’s family. He would go to their house often and slept over. He testified that the accused and deceased separated but would get back together. PW5 also testified that as far as he knew, the accused never beat his wife (deceased).
42. PW5 also testified that PW3 was a good friend to the accused and his family and that PW3 would also go to the accused’s house. He also testified that PW3 sometimes drove the accused’s car.
43. Insofar as the weapon alleged to have been used to kill the deceased in this case. PW5’s evidence is of little help to the prosecution. His evidence is confined to the knife-pouch.
44. The next prosecution witness is Takenibeia Bauro (PW6) who was one of the police officers who attended the crime scene on 8 July 2017. With him were {police officers Tareita, Itaia and Teri assisting him in the investigation. They arrived at the crime scene between 9 am and 10 am.
45. PW6 stated that he saw blood in the living room, leading to the bedroom and in the bedroom. He also stated that when they arrived at the scene of the crime the bodies of the deceased and the accused had already been removed from the house.
46. The witness also testified seeing pool of blood in the bedroom, traces of blood leading to the kitchen, through to the back door and out to the back of the house. He also stated that there were blood traces on stones, PVC pipes, on the plank of a boat at the back of the house and on the cement slabs. PW6 also stated that the knife (“Exhibit 36”) was found in a PVC pipe at the back of the house.
47. PW6 took the Court through each of the photos taken of the scene of the crime. He was never asked in-chief if he was the one who took the photos. It was in cross-examination that Counsel for the accused asked PW6 if he was the one who took the photos identified in his evidence. He agreed he did not take the photos. In re-examination PW6 confirmed that it was another officer from the fingerprint unit who took the photos.
48. Clearly, PW6 was using the photos taken by another officer to explain what he saw at the scene of the crime. From the photos
“Exh. 5” to
“Exh. 48” PW6 identified the marks and traces of blood in and outside of the accused’s house. I accept that these
photos only show the traces of blood as identified by PW6.
49. How the blood traces got to the sitting room, kitchen, through to the back door of the house, and out of the house and on the PVC pipes, is another matter altogether. Further, whose blood was it that was found in other parts of the house must also be established in view of the theory by the prosecution that it was the accused who killed his wife, took the knife, stabbed himself and then went through the kitchen, out the back door and hid the knife in the PVC pipe behind the house and came back to the house.
50. Sgt George Fikuyama (PW7) also gave evidence for the prosecution. His evidence only relates to the Police Safety Order which he issued following a complaint by the deceased on 5 July 2017. PW7 served the Order on the accused.
51. Asked in cross-examination by Defence Counsel if PW7 recorded the reasons given by the deceased for seeking a Police Safety Order,
PW7 said that he did not record the reasons, but that the deceased needed protection from the violent actions of the accused. When
pressed further in
cross-examination, PW7 agreed that the deceased asked for the order because she needed the order for protection since she was settling
with another man. PW7 confirmed that also in re-examination.
52. Sgt Itaia (PW8) was the officer attached to the Finger Print Unit at the CID. He attended the scene of the crime that day on 8 July 2017. When he arrived at the accused’s house, the other police officers were already at the scene of the crime. He entered the house through the front door. He saw traces of blood on the floor and followed them to the bedroom. The bodies of the accused and deceased were already removed from the room when he arrived.
53. PW8 took photos of the bloodstains in the rooms and he and his team also numbered the blood traces on the floor. He took photos of the door lock (Exh. 55) and steel rod found near the door. There were blood traces on the steel rod (Exh. 56).
54. There were blood stained foot prints and palm prints on the floor. These were photographed also. Asked if the palm and foot
prints were those of the killer, PW8 said that he did not know. Again asked in
cross-examination if he tried to find out whose palm and foot prints were they, he said he did not. Asked also if he thought that
the foot and palm prints were relevant to be investigated, he said that they were not.
55. I find the evidence of the investigating officers, including PW8 to be utterly deficient in connecting the killer of the deceased to the evidence that they are putting before the Court. Whose bloodstain was on the steel rod? Whose blood stained palm and foot prints were found in the house? The blood traces went from the bedroom of the accused and deceased, through the kitchen and out the back door of the house. There was evidence from the investigating officers that the possible killer of the deceased exited from the house through the back door to hide the weapon in the PVC pipe outside the house. But none of the investigating officers PW6 and PW8 offer any evidence of the possibility of the killer re-entering the house.
56. Then we have the evidence of Doctor Kabiri Tuneti (PW9). He was the doctor who attended to the deceased and accused. The doctor stated that the accused, although able to converse, was in a state of shock when he was brought to the hospital. He was very weak because he lost a lot of blood. The injury to the accused’s body was a penetrating injury, 5cm deep and 3-5cm in length. According to the doctor, it was difficult to say whether the injury to the accused’s body was self-inflicted but it was consistent with a deep-penetrating injury.
57. When asked in-chief if the accused was able to lift the steel-rod (which was heavy) and hit the lock with it to open the door, Dr Tuneti stated that with the nature of the injury to the accused’s body, the accused would not be able to lift the steel rod to smash the door lock. Dr Tuneti said that before the injury, the accused might be able to do so but not after he sustained the injury.
58. The steel-rod was tendered in Court (“Exh. 56”). It is heavy and would clearly require some energy to lift it and to smash the padlock at the door of the house. That is consistent with the doctor’s view of a person using the steel rod to smash open the padlock to the door.
59. The steel-rod, as I have already stated, had blood stains on it. No effort had been taken by the investigating officers to ascertain whose blood was on the rod. The theory that it was the accused who used the steel rod to smash open the door began to show signs of cracks in the light of the doctor’s evidence.
60. The Medical Reports of both the deceased (“Exh. 57A”) and the accused (“Exh. 57B”) were admitted without objection. The length of the injuries to the deceased’s neck and the accused’s stomach were “3-5cm” and were deep penetrating injuries. The deep penetrating injury to the deceased’s neck was fatal as the instrument used on her cut her left carotid artery and veins which caused her to bleed to death.
61. The Medical Report on the accused dated 8 July 2017 states:
“called to review this patient – had a penetrating knife abdominal injury, located at the epigastive region location – 3-4cm below xyphoid (sternum), 3-5cm in length, deep – intra-abdominal and not actively bleeding – was very painful and also showing signs of peritonitis – was taken to theatre and finding reveals a liver cut injury, stomach injury and splenic injury”.
There can be no doubt that the stab wound to the stomach of the accused was life-threatening and near fatal.
62. In the Doctor’s evidence, he stated that the accused was conversing well when he was brought to the hospital. That clearly does not sit well with his Medical Report on the accused. Exhbit 57B does not show the suggestion that the accused was awake and conversing well on arrival at the hospital at about 0600 am on 8 July 2017. It was quite the opposite.
63. The subsequent Report on the medical condition of the accused was requested and produced by the prosecution. That Report was
an
“In-Patient Progress Note” on the patient. The Note states that the accused was brought to the hospital by ambulance. On arrival he was in “distress, naked, covered in blood, bleeding seen from the wound”. O/E Patient having “signs that he was alert and conscious”. He was treated, put on IVF on arrival and further IVF subsequently. It was well after 6.00pm that the accused woke up and
then could converse well. The Note puts at about “6.20 hrs”. I do not accept that the accused, on arrival at the hospital on
8 July 2017, was conversing well. It does not sound right and it does not match the evidence presented to the Court. The Court,
however, accepts the doctor’s evidence on the injuries of the deceased and accused.
64. The last prosecution witness is Boboua Atanra (PW 10). The prosecution sought to elicit evidence from this witness of violence
committed by the accused on the deceased previously. Boboua’s evidence clearly is not helpful to the prosecution suggestion
that the accused had been violent toward the deceased in the past. In her evidence in
cross-examination and in re-examination, PW 10 confirmed that the accused and deceased had separated in the past and that at times
they would get back together. On this particular occasion, PW10 stated that the deceased was happy to go back to the accused with
her children. The accused came to PW 10’s house and picked his wife (deceased) and children and went back to Bangantebure.
On previous occasions, PW10 stated that there was no problem at all whenever the accused came to pick the deceased and children.
Defence Case
65. The defence case is that the accused did not kill his wife. The accused chose to give evidence on oath. No other witness was called for the defence.
66. The accused’s evidence is that on Friday 7 July 2017 at about 4pm his wife (deceased) called him and said that she wanted to come back to him. She asked him if he could come and pick her and the children at Boboua’s house at Betio. She told the accused that if Nawaia (PW3) came to the house at Bangantebure, he (accused) should tell Nawaia to come and pick her and the children at Betio and to take them to Bangantebure.
67. Nawaia did not turn up at the accused’s house, so the accused himself went to pick his wife (deceased) and their children at about 7pm. When he arrived at Betio, the accused spoke to Boboua (PW10) and then picked his wife and children and went back to Bangantebure. They arrived at Bangantebure at about 8.00pm.
68. After they arrived at their house at Bangantebure, the accused and the deceased had some drinks at the sitting room while their children went into their room and watched movies on the laptop. The accused and the deceased were enjoying their drinks, kaokioki (sour toddy), beers and Saratoga at the sitting room.
69. By about 1.30am, the deceased decided to take some ‘koben’ which she did. She went outside to spit and returned to the sitting room. They had some more drinks and then went into their room, taking with them some drinks. Clearly they continued their drinking in the room.
70. The accused further testified that after they had some more drinks in the room, the accused and his wife (deceased) had sex and they fell asleep. The evidence shows that when they were found in the early morning, both the accused and deceased were lying down naked. A reasonable inference from that evidence is that they had sex without clothes on.
71. The accused’s evidence is that he did not remember anything else until he was at the hospital. He did not realize he was stabbed and did not realize that his wife was stabbed to death until he regained his consciousness at the hospital.
72. He said he did not even remember conversing with the doctor on arrival at the hospital. He stated that it was after he regained his consciousness at the hospital that he heard his daughter (from his first marriage) talking to a woman while at the hospital. It was his daughter who told him that his wife died.
73. In cross-examination, the accused denied having an argument with his wife (deceased). He was having drinks with his wife at the sitting room while their kids were watching movies in their room. He denied the suggestion that the kids were crying because he and his wife were arguing.
74. The accused stated in cross-examination that he did not know that Nawaia (PW3) came to the house that night or early morning. The accused also stated that he never opened the door to the house to PW3. The accused also denied hearing PW3 calling out to him.
75. The accused stated that he never used the steel rod to smash open the door. The accused also stated that the padlock found near the door had never been used and that it was lying on the floor beside the door for some time unused.
76. Asked about the knife, the accused stated that he did not know about that knife and that he never used the knife to kill his wife. He did not know where the said knife came from.
77. The accused’s evidence in the main is that he went to Betio to pick his wife (deceased) and children back to Bangantebure. They arrived at the house in Bagantebure at about 9.00pm. He and his wife were having drinks at the sitting room while their kids were watching movies from a laptop in their room. By 1.30 am the accused and deceased went into their bedroom, taking with them some more drinks. They had sex and fell asleep. The accused’s words were that he “black out” or conked-out.
Analysis of Evidence
78. The evidence of PW1 is that he heard loud argument between a woman and a man from the accused’s house and screaming by a woman and kids. The argument lasted only about three (3) minutes. The evidence of loud argument and screaming by a woman and children did not match that of PW2’s evidence. PW2 was the only witness closest to the deceased and accused that night.
79. PW2 is the daughter of the accused and deceased and who was with them in the house that night of the incident. Her evidence was that her parents were having drinks and argued. Her mother then went into their room and lied down. Her father followed her into the room. PW2 saw her mother lying on a long chair while her father was lying on the bed. PW3 did not hear any screaming for help from her mother. She said the room where her parents went into was quiet and dark. She could not clearly see what was happening in the room, although she said that she saw her father held her mother, holding a piece of cloth.
80. The suggestion sought to be made by PW2’s evidence was that the accused strangled the deceased to death. However, there was no evidence at all to show that the deceased died of strangulation or suffocation. The last thing that PW2 saw through the hold in the door to her parents’ bedroom was that her mother was on the ‘long chair’ while her father was lying on the mattress.
81. The evidence of PW2, in the court’s view is hardly sufficient to support the suggestion that her father killed her mother by whatever form.
82. But as I alluded to earlier when I was narrating her evidence, PW2 clearly stated that her father and mother were drinking in the sitting room together with another “man”. There was the evidence of the presence of another man drinking with the accused and deceased that night. The evidence came from an eye witness (PW2). Yet, not one evidence adduced by the prosecution at the trial, to contradict that evidence.
83. The onus is on the prosecution to exclude any suggestion that another person was responsible for the death of the deceased. There was no evidence from any of the investigating officers that an inquiry or investigation was made to ascertain whether there was another man present with the accused and deceased that night, who that person was (if any), and to ascertain his whereabouts that night. This omission on the part of the criminal investigation in this case has left a hole in the prosecution case.
84. The evidence of PW4, like that of PW3, is unconvincing. It is material to note that the story he gave to the police that morning of the incident was different to that which he gave in Court. Both PW3 and PW4 told the Court that when they went to the accused’s house, the accused was talking to them. Yet when they gave their stories to the police on the same morning on the day of the incident, they never told the police such thing. I find it difficult to accept PW4’s evidence just as I find PW3’s evidence to be unconvincing.
85. The evidence of PW5 on the black knife pouch adds very little to the prosecution case. All that he found was a pouch, black in colour into which a knife could fit in PW5 never saw any knife in the pouch. When he was asked in-chief if he saw the knife, he firmly stated that he never saw it. There is absolutely no evidence linking the knife-pouch to the knife found in the PVC pipe. To hold that the knife found by the investigators in the PVC pipe outside the house came from that black pouch would be mere speculation.
86. The evidence of PW6 and PW8 who were the investigation officers shows that they had collected the evidence of the blood traces in the house, traces of bloody foot and finger prints, traces of blood outside of the accused’s house at the back and discovery of the knife in the PVC pipe at the back of the house. Evidence of blood stains on steel rod, on the kitchen sink and on the PVC pipes had been collected. However, all these physical evidence have to be turned into a potential means of establishing who killed the deceased, as well as who stabbed the accused. Without linking the physical evidence found to the accused, the value of such evidence diminishes leaving the prosecution in a difficult position to establish its case beyond reasonable doubt.
87. In the present case, the evidence of the investigating officers, in my view, has left gaps which the prosecution has been unable to fill. I set out those gaps which are fatal to the prosecution case.
88. First, there is the evidence of a third person, a man, from PW2 the 10 years old daughter of the accused and deceased. There has never been any dispute by the prosecution as to the presence of a third person, a man, who was with the deceased and accused that night of the incident. The prosecution bears the burden of excluding the possibility of that other person as a possible suspect in this case. No evidence has been led by the prosecution to exclude that possibility. As such that possibility remains open throughout the trial of the accused in this case.
89. Secondly, there is the evidence from PW6, the Investigating Officer, of blood stained finger and foot prints on the floor in the house. There is no evidence to suggest at all that the finger and foot prints were those of the accused. There was no evidence that the finger prints and the foot prints matched those of the accused. There are processes by which these can be done. No attempt had been made by the investigating officers to match the blood stained finger and foot prints with those of the accused. The question remains unresolved is: whose finger and foot prints were they?
90. The following questions and answers arising out of the evidence of PW8 are revealing of the prosecution inadequacy in this case also:
“Q. Photo No. 24 shows thumb prints?
Photo No. 25 shows foot prints?
91. Thirdly, there is the evidence of bloodstains on the steel rod. The suggestion by the prosecution from the evidence of PW3 and PW8 that the accused used the steel rod to smash the lock to the entrance door in order to open the door for PW3 to enter the house. When considering PW3’s evidence on the suggestion that the accused used the steel rod to break the lock to open the door, it is clear that the prosecution faces a number of challenges. The lock itself (Exhbit 55) tendered through PW8 shows relatively well-intact. There was very little damage shown on it. It was easily locked when put back into its locked position.
92. The steel rod, although not too heavy to lift, is heavy enough to put considerable strain on the injured accused to lift it and applied force to smash open the lock to the door of the house. The Doctor (PW9) testified that the person, such as the accused, who suffered injuries as those suffered by the accused in this case would not be in a position to lift such a heavy object as the steel rod produced in this case and smashed the door lock.
93. A further hurdle which the prosecution faces in this case is establishing the co-relation between the wounds on the deceased’s and accused’s bodies and the weapon used. While the evidence of the doctor (PW9) states that the wounds inflicted to the neck of the deceased and stomach of the accused were penetrating knife wounds, there is no evidence from the doctor or from any of the investigation officers that the wounds were from the knife (Exhibit 36) which was tendered in Court. The knife was simply tendered in Court as the knife found inside the PVC pipe. It has never been suggested by any of the prosecution witnesses that the knife (Exhibit 36) was the knife used to stab the deceased to death or to stab the accused.
94. Although the doctor (PW9) described the wounds to the neck of the deceased and to the accused’s stomach as “knife wounds” it had not been put to the doctor whether the wounds were from Exhibit 36. One would have expected that the prosecution would
lead evidence to match the knife (Exhibit 36) to the stab-wounds found on the bodies of the deceased and accused. This is especially
so, since the doctor described the wounds as
“3-5cm” in lengths. The lack of evidence on the possible compatibility of the knife (Exhibit 36) with the wounds on the bodies of
the deceased and accused as described by the doctor leaves a further gap in the prosecution case against the accused.
95. Forensic evidence would be of great assistance to the prosecution in this case. There was none of it. The investigation officers felt that forensic evidence in relation to the finger and foot prints, wounds and the weapon were not relevant. This approach by the investigation officers in this case compounded, in my view, the difficult task that the prosecution faced in this case. This case for the prosecution is difficult, as it is mainly based on circumstantial evidence. In my view, the criminal investigation done in this case is so deficient as to make the prosecution’s case equally difficult and inadequate in establishing its case as to who killed the deceased.
96. It is important also to point out that in a case such as the present one, the prosecution must show by evidence of some motive on the part of the accused to kill his wife. Although motive is not an element of a crime to be proved by the prosecution, it is nevertheless important for the prosecution to bring evidence to show the reason why the accused committed the crime. No evidence was produced by the prosecution in this case as correctly submitted by Mr Berina of Counsel for the accused as to the motive for the accused to kill his wife.
97. Equally the suggestion by the prosecution that the accused killed his wife and then stabbed himself in the stomach simply does
find support on the evidence before the Court. The evidence, at the very least, shows the scenario of the accused and his wife (deceased)
having an evening together over drinks in the living room after being separated. They later moved into their bedroom, had sex and
fell into sleep, both lying down naked. The next thing that happened was that they were found, the wife stabbed to death at the
neck and the accused stabbed in the stomach. PW3 was the first person who found the accused and deceased early in the morning of
8 July 2017.
Conclusion
98. The onus is on the prosecution to establish each of the elements of murder under section 193 of the Penal Code and the guilt of the accused beyond reasonable doubt. The prosecution must do so on the evidence before the Court.
99. In the present case the prosecution has failed to discharge that burden leaving the Court with much doubt as to who killed the deceased. There is also no evidence at all to support the prosecution theory that the accused stabbed his wife to death and then stabbed himself in the stomach.
100. Sadly, we may never know who killed the deceased. This in my view is due largely to the fatal gaps left by the criminal investigation in this case, gaps which the prosecution was unable to fill throughout the trial. The proposition I make is that the prosecution of a criminal case is just as good as the criminal investigation goes.
101. In the present case on the evidence before the Court, I am left with much doubt as to the guilt of the accused. I therefore find him not guilty of the charge of murder and he is acquitted.
102. In passing, I take the opportunity to alert the Commissioner of Police, the Court’s legitimate concern for the need to beef-up the criminal investigation standards with a view to putting in place some ‘Best Practices’ in criminal investigation. This is because not all crimes and offences are straight forward for purposes of investigation. There are rare and complicated cases which may require special attention. One such case is this present case.
103. Verdict: Accused Not guilty.
Accused acquitted.
Dated the 1st day of May 2020
SIR JOHN MURIA
Chief Justice
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