State v Garitau [1996] PGNC 112; N1453 (8 July 1996)

N1453

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 373 OF 1996
CR 374 OF 1996

THE STATE

v

GARI BONU GARITAU

&

ROSSANA BONU

WAIGANI: PASSINGAN AJ
1996: 25-28 JUNE
4, 5 & 8 JULY

CRIMINAL LAW - Murder - Circumstantial evidence - Accuseds' right to remain silent - Conviction - Evidence - If guilt is the only inference.

CRIMINAL LAW - Sentence - Murder - No aggravating or mitigating features - Appropriate sentence - As determined on evidence.

CASES CITED

The following cases were cited in the judgment:

Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 498
The State v Laura (No. 2) [1988-89] PNGLR 98

TRIAL

The accused are husband and wife were arraigned on indictment charging them jointly with the murder of the deceased Samson Kare Meara, the second accused's brother. The charge is laid pursuant to Section 300 (1)(a) of the Criminal Code, Chapter Number 262.

Counsel:
K Popeu, for the State.
P Tusais and L Kari, for the accused.

4 July 1996

PASSINGAN AJ: On arraignment both accused pleaded not guilty to a charge of murder alleged to have been committed on the 21st day of October, 1995.

It was the State case that the accused were residing at the Bereina Station. That between 2.00 am and 3.00 am on the 21st day of October, 1995 they were asleep in their house when the deceased arrived in a drunken condition. That both accused then had an argument with the deceased. The accused Rossana Bonu continued the argument with the driver of the vehicle that had brought the deceased. The vehicle left without the deceased. State alleges that during the argument one of the accused stabbed the deceased with a knife causing injuries from which he died. That both accused are liable by virtue of Section 7 of the Criminal Code.

EVIDENCE

A total of seven witnesses were called in the State case. The first two witnesses were Mori and Perai Kaiviti. Their evidence is that on the 21st day of October 1995 sometime between 3.00 am and 4.00 am the couple were asleep when the accused Rossana Bonu woke them up. She wanted someone to accompany her to the Bishop's house. She needed transport to take the deceased to the Hospital. Mori accompanied her to get transport. The husband Perai waited for sometime and followed them to the accused's house. Whilst he was outside the accused Gari Bonu called out to him to come inside and assist. He entered the house and saw the deceased lying on the floor. He saw blood on the floor. The witness sat down and turned the deceased and felt for his pulse. The accused Gari Bonu attempted to put the drip on the deceased hand. He was unsuccessful. The Bishop's vehicle arrived. The two witnesses assisted to carry the deceased to the vehicle. The deceased was then taken to the Hospital. The next witness was Constable Philip Weka. In company of two other policemen, attended at the scene, namely the accuseds' house two days later on the 23rd of October, 1995. A search of the three bedroom house was made but nothing was found. In the dinning room he searched a coffee table which has a drawer. He found a knife under papers in the drawer. There was blood on the blade of the knife, its pouch or carrying case and also on the edges of 2-3 papers in the drawer. He pulled the knife out and handed it over to the CID Policeman. Constable Joseph Numbas attached to the National forensic Science Centre at Gordons gave evidence. On the 26th of October, 1995 he attended the crime scene and took possession of a number of items, labelled 1 to 5. Item 5 was a knife. The next two witnesses were the Police photographer and another both attached to the National Forensic Science Centre at Gordons. A total of five photographs were tendered by consent and marked as follows:

EXHIBIT "E" - general view of the deceased.

EXHIBIT "F" - close up of injuries on the left lower back.

EXHIBIT "G" - close up of dressing on the wounds.

EXHIBIT "H" - showing stitches to injuries on the left ribs.

EXHIBIT "I" - close up of more injuries.

Finally in the State case the following documents were tendered by consent and marked as follows:

EXHIBIT "J1" - Handwritten statement of Sister Anne Carey - Vei'ifa Health Centre.

EXHIBIT "J2" - Typed copy of Sister Anne Carey's Statement.

EXHIBIT "K" - Copy of Medical Certificate of Death.

DEFENCE

In the Defence case both accused exercised their rights to remain silent. No other witnesses were called in the Defence case. The accuseds' rights are well protected under Section 37(4)(a) of the Constitution which provides:

"(4) A person charged with an offence -

(a) 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 ..."

Both accused have a fundamental right to remain silent.

ISSUES

The central issue in this trial is whether or not the two accused were responsible for the injuries which caused death.

It is conceded by all counsel on this trial that the State case is largely circumstantial as to the identity of the murderer.

Before coming to a final conclusion on the guilt or innocence of the accused I wish to make some observations regarding the conduct of the defence case. Both accused exercised their fundamental right to remain silent. The authorities say that their absence from the witness box is not an admission of guilt. The principles are set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 (quoting from the headnote) the Court said:-

"Where an accused person fails to give evidence or to call witnesses to support his case the Court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified.

Where an accused person fails to give evidence or call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1) The failure of an accused is not an admission of guilt and no inference of guilt may be drawn therefrom;

(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 State 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 State but probably well known to the accused;

(b) whether the evidence implicating the accused is direct or circumstantial;

(c) whether the accused is legally represented;

(d) whether the accused has before the trial given an explanation which the State has adduced in evidence."

Finally, I come to the central issue and that is the question of identification. The State case is based largely on circumstantial evidence. I am aware of the need for care before convicting on such evidence. The law is very well settled in Papua New Guinea. It was stated by Miles J in The State v Tom Morris [1981] PNGLR 493, at p 495, and affirmed by the Supreme Court in the case of Paulus Pawa v The State [1981] PNGLR 498 at 501-501 (Judgment of Andrew, J):

"I am in agreement with Miles J in the State v Tom Morris 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] HCA 42; (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 the guilt of the accused: Peacock v The King (1911) 13 CLR 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 national inference that the circumstances would enable them to draw":

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, at p 252; See also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, at pp 605-606. However, "an inference to be reasonable must rest upon something more than a mere conjecture. The bare possibility of innocence should be 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] 1 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, that that the accused had committed the crime. That 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."

Is there any evidence before the Court to show that somebody else may have been responsible for the death of the deceased? Was there opportunity for someone else to have attacked and wounded the deceased between 2.00 am and 3.00 am in the accuseds' house? I find that there is no evidence to that effect. Could the deceased have been wounded prior to his coming to the accuseds' house? In my view there is also no evidence to support that possibility. There is no evidence that blood or bloodstains were discovered where the vehicle left the deceased and to the doorway of the accuseds' house. That possibility is clearly inconsistent with the evidence that the murder weapon, namely the knife was found in the accuseds' house.

Defence Counsel submits that another possibility is open on the evidence due to failure by the State to call any of the witnesses who had brought the deceased to the accuseds' house. This is in relation to his condition when he arrived at the accuseds' house. In my view, if the deceased was wounded prior to being dropped off at the accuseds' house, no reasonable person would have taken him to his relatives' house for fear of being identified. Particularly if the deceased had multiple wounds which may eventually lead to his death, as it happened. I disregard that possibility for the above reasons.

On the evidence before me I make the following findings:

(a) the deceased died at 5.00 am on the 21st day of October, 1995;

(b) the deceased suffered multiple wounds to his body - left lower ribs, left upper thigh and left mid thigh;

(c) that death was caused by haemorrhage due to incised wounds; and

(d) that the wounds were inflicted with a sharp instrument, namely a knife which was discovered in the accuseds' residence.

(e) that the injuries were inflicted in the accuseds' residence;

(f) at the relevant time (between 2.00 am and 3.00 am on the 21st day of October, 1995) the only persons in the accuseds' house were the two accused and the deceased; and

(g) the knife was in the possession of the accused or under their care and control.

On the evidence, I find that the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused" Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at p 634.

In my view the total of the Defence evidence creates a bare possibility that the two accused are innocent.

On the authorities cited above this Court is not prevented from finding the accused guilty, "if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence."

On the whole of the evidence therefore, I am satisfied beyond reasonable doubt that the two accused are responsible for the death of the deceased Samson Kare Meara. I convict them both of the crime of murder pursuant to Section 300(1)(a) of the Criminal Code.

VERDICT : GARI BONU GARITAU - Guilty of Murder.

ROSSANA BONU - Guilty of Murder.

8 July 1996

SENTENCE

The Court has found you both guilty of a serious crime which carries the maximum penalty of life imprisonment. The facts of this case are outlined in the judgment I delivered on the 4th of July, 1996. The court has considered al the possibilities that someone else may have been responsible for the wounds which caused the deceased's death. This Court was of the view that the total of the Defence evidence (which was none as the prisoners exercised their rights to remain silent and call no other witnesses) creates a bare possibility that you are innocent.

In your allocutus you maintained your innocence. But on the evidence the only inference to be drawn was that you were guilty of the charge.

This is a very strange case as the only witness who could have given evidence of the reasons and circumstances in which the wounds were inflicted was the deceased himself.

You both exercised your rights to remain silent. The Court does not hold that against you on sentence. But as this was a trial case no discount will be considered.

The Court has found you both guilty of murder and I have to sentence you now. I have to consider both the factors in your favour and those against you. In your favour I take the following factors into account:

(a) GARI BONU:

(i) a first offender and aged 33 years;

(ii) custody for five (5) months and two (2) weeks;

(iii) employment record of 17 years as a health worker;

(iv) married to the co-prisoner with five (5) children; and

(v) the deceased was your own relative, a brother-in-law.

(b) ROSSANA BONU:

(i) a first offender and aged 26 years;

(ii) custody for five (5) months and two (2) weeks; and

(iii) also a health worker for a number of years.

The following factors are against you. Murder is a very serious crime in the Criminal code. It attracts a sentence of life imprisonment according to the facts of each case. There is no evidence of any reason which may assist the Court on the question of mitigation. In my judgment the nature of the injuries and also the number of wounds, namely four (4), indicate to me that they were delivered in a state of anger and delivered furiously. In my view the deceased did not have the opportunity to survive. He died within a couple of hours.

In this case I find no special mitigating features. In fact, both of you have shown no remorse nor expressed regret for what you did. That is, you said you are still innocent. The fact that you are both first offenders does not assist you much because you have taken a man's life prematurely. The deceased was your own family member.

In considering an appropriate sentence I refer to the case of The State v Laura (No. 2) [1988-89] PNGLR 98, on the sentencing guidelines for murder. The Court held (from the head note):

"(1) Because murder is a more serious homicide than manslaughter, sentences for murder should be relevantly higher than those of manslaughter.

(2) The following guidelines may be taken as appropriate in sentencing for murder:

(a) on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b) a sentence of less than six years may be imposed only where there are special mitigating factors such as the youthfulness or very advanced age of the accused;

(c) on a plea of not guilty, a range of sentences from eight to 12 years or more in a case where aggravating factors are evidenced.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48, approved.

(3) Accordingly, on a plea of not guilty to a charge of murder under Section 300(1)(a) of the Criminal Code (Chapter No 262) with intent to cause grievous bodily harm whether were no special mitigating features and no special aggravating features, a sentence of eight years was appropriate.

The State v Laura (No 2) is distinguishable on the facts. There was no dispute that the accused stabbed the deceased with the sharpened end of the grassknife. But he said he stabbed the deceased because it was reasonably necessary in order to resist actual and unlawful violence threatened to him - a defence under Section 32 (1)(c) of the Criminal Code. The Court found that the defence was not made out. The accused was convicted of murder. He was aged 17 years.

The facts of the present case as found are different. In conclusion I consider that in the particular circumstances of this case seven (7) years imprisonment is adequate punishment. You are both sentenced to seven (7) years imprisonment in hard labour.

SENTENCE

GARI BONU: 7 YEARS IN HARD LABOUR

ORDERS:

(1) THAT FIVE (5) M0NTHS, TWO (2) WEEKS PERIOD IN CUSTODY BE DEDUCTED; AND

(2) THAT THE SENTENCE COMMENCE FROM THE COMMENCEMENT OF THE JUNE 1996 SITTING, NAMELY 3RD OF JUNE - A FURTHER PERIOD OF ONE (1) MONTH, ONE (1) WEEK BE DEDUCTED.

TO SERVE: BALANCE OF SIX (6) YEARS, FIVE (5) MONTHS AND ONE (1) WEEK IHL.

ROSSANA BONU: SEVEN (7) YEARS IHL.

ORDERS:

(1) THAT FIVE (5) MONTHS, TWO (2) WEEKS PERIOD IN CUSTODY BE DEDUCTED, AND

(2) THAT THE SENTENCE COMMENCED FROM THE COMMENCEMENT OF THE JUNE, 1996 SITTINGS, NAMELY 3RD OF JUNE - A FURTHER PERIOD OF ONE (1) MONTH, ONE (1) WEEK BE DEDUCTED.

TO SERVE: BALANCE OF SIX (6) YEARS FIVE (5) MONTHS AND ONE (1) WEEK IHL.

____________________________________________________________________
Lawyer for the State : Public Prosecutor.
Lawyer for the Accused : Public Solicitor.