State v Malepo (No 2) [1996] PGNC 83; N1449 (23 April 1996)

N1449

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 903 OF 1991

THE STATE

v

JEFFERY HAROLD MALEPO (NO. 2)

WAIGANI: PASSINGAN AJ
1996: 1-4, 9, 10, 17 & 23 APRIL

Evidence - Confessions only evidence - Whether sufficient to support conviction - Wilful murder - No evidence of identification - Alibi uncorroborated.

CASES CITED

The following cases were cited in the judgment:

R v Mon and Debong [1965-1966] PNGLR 42
R v Namiropa Koinbondi [1969-1970] PNGLR 194
The State v Tau Ted Lahui, George Gadiva Hetau, Maraki Noho & Jeffrey Airi Eki [1992] PNGLR 325.

TRIAL

The accused Jeffery Harold Malepo was arraigned on indictment charging him with the Wilful Murder of Theresia Lutichini pursuant to s 299 of the Criminal Code, Chapter Number 262. The facts appear sufficiently in the judgement.

L Maru, for the State.
L Siminji, for the accused.

JUDGEMENT

17 April 1996

PASSINGAN AJ: The Accused had pleaded not guilty to the wilful murder of the deceased Theresia Lutschini on the 26th October, 1991.

The State case was that on the 26th of October, 1991 between 9:00 am and 10:00 am the deceased, her two children and her mother had parked their vehicle in front of the Regal Bakery at Hohola. The deceased had gone into the bakery to buy some bread. She returned to the vehicle, got in and was about to start the engine when the accused and four others ran towards the vehicle. One of them ran to the deceased, sat on her laps and snatched the keys from her. It is alleged she struggled and got out and attempted to assist her mother and the children. At this point the five men were already inside the vehicle and had started the engine. Whilst attempting to release her mother from the seat-belt she got tangled and both were dragged along the road towards the Eki Vaki Community School. The mother managed to free herself. The deceased was dragged for about 3 kilometres, suffered injuries and died as a result. The State alleges that by dragging the deceased along despite her screams for assistance the accused and others intended to cause her death.

EVIDENCE

The State called Sergeant Mingnaut and Senior Constable Richard Sibiolo in relation to the Confessional Statement (Exhibit "A"). I have admitted on the vior dire. As this is the main evidence in the State’s case I will set out its content in full:

"Confessional Statement"

Nau mi mas toksave long yu olsem sapos yu laik yu ken toktok, tasol sapos you bekim sampela toktok long dispela, bai mi raitim go daun long pepa na givim long Kot, yu kilia long dispela?

Ans: Yes.
Name: Jeffrey Harold Malepo
Add: Beon CIS

P O Box 114

MADANG MP

States:-

"In 1990 I committed an armed robbery which were trailed in the National Court. I committed three armed robberies, one attempted murder and one illegal use of a motor vehicle. All charges were still pending when I escaped from the National Court in September 1991. As soon as I escaped from National Court I with five (5) others held up these woman at Hohola market and drove away in her vehicle and she died. My fellow friends were TED LAHUI, JEFFREY AIRI, ANDEX, ROCKY of Barakau Village. Soon after that my relatives gave me some money, I bought a airline ticket to Goroka. I stayed with a community school Headmaster Paul Masa at Watabung.

I went down to Lae and police in Lae arrested me for the escape here in Madang. I was arrested and charged for armed robbery in Madang in 1988. I was convicted and sentenced to five (5) years and on the 30th of May 1993, I have not been charged for the murder of Mitchel yet.

That is all I can remember.

I, Jeffrey Harold Malepo, certify that this Confessional Statement is true to the best of my knowledge ad belief. I make it knowing that if it is tendered in evidence, I will be liable to persecution if I have knowingly stated anything that is false or misleading in any particular.

Signed

Jeffrey Harold Malepo."

Eight witnesses’ statements were tendered by consent. Firstly the Statement of the husband, Mitchell Lutschini in relation to attending the scene and his observation. Secondly the statement of three doctors (Dr Misimon Lam, Dr Stephen Webb and Dr Dirhendra Barua) relating to the injuries and the cause of death. The next statement is that of Sergeant Max Dongme of the National Forensic Centre who attended the scene and later examined a number of items found on the scene - blood stain, hairy part of the skin and underwear. Then the statement of the Police photographer Sergeant Luk Kupundu in relation to a total of 28 photographs of the scene and the deceased. And finally the Statements of Sergeant Peter Senat and Sergeant Geffrey Simewa in relation to a Record of Interview in which the accused denied any involvement in the crime.

The medical evidence revealed that the deceased met her death on the 26th of October, 1991 with her unborn child who would have been 24 and a half weeks.

The Post-Mortem Report conducted on the 29th of October, 1991 by Doctor Dirhendra Barua showed the following injuries:

1. "Fracture and avulsion of skull left side with evisceration of brain.
   
2. Multiple lacerations over all the body.
   
3. Gravid uterus with a female foetus of about 28 weeks."
   

The Report revealed that the actual cause of death was brain injury and multiple lacerations over the body.

DEFENCE EVIDENCE

The defence only evidence comes from the accused himself. He had been residing at Hohola since 1990. But a week prior to the 26th of October, 1991 he had been living with a friend, namely Terry, at Erima. Terry comes from the Finschaffen area. His evidence is that on the 26th of October, 1991 he did not go anywhere. He had escaped from custody and Police were looking for him. When asked why he made the confession he said he had made it up. He was afraid and was not in a good mood at the time.

That he later learned about the names of the others whilst he was in custody at Buimo in Lae. A former detective Tom Chinau had told him stories about the trouble at Hohola. In cross-examination he admitted that he told lies to the Police.

DEFENCE RAISED

Defences raised on the evidence are firstly a general denial by the accused. And secondly the defence of alibi. The accused swore in evidence that he was at Erima on the 26th of October, 1991. He heard about the incident before he left for Goroka. In about June, 1992 he was arrested at Lae.

THE CONFESSIONS

I now turn to the confessions. As earlier pointed out the case against the accused depends entirely on that confession. The accused is alleged to have confessed to the wilful murder of the deceased Theresia Lutschini in the manner alleged by the State. The question I am faced with is this. Can the confession alone satisfy me beyond reasonable doubt of the accused’s guilt?

DECISIONS ON THE POINT

I turn to the following decisions on this point. In the case of R v Mon and Debon [1965-1966] PNGLR 42 the accused were charged with the murder of the deceased. They were interviewed through an interpreter by a policeman. They were cautioned. Both men made a confession to the killing of the deceased. Their reason was that the deceased had dug up the body of Mon’s wife and eaten it. In acquitting the two men the Court held (inter alia):

(1) the accused may nevertheless, be found guilty of murder if confessions made by them are found by the Court to be true (satisfaction beyond reasonable doubt).

(2) where the evidence of guilt is substantially confessional only but the tribunal is satisfied as to the death of the person alleged to have been killed, the Court must in relation to the criminal conduct of the accused, to which he has confessed, give similar weight to hypotheses more or less reasonably consistent with the confession being untrue.

At page 51 His Honour Mr Justice Smithers (as he then was) said -

"When confessions are not supported either from within or without, the Court must subject them to keen scrutiny. When the Court is dealing with native persons whose ways are frequently inscrutable, it is not for the Court to reject the hypotheses because they are not reasonable as applied to the white man. The onus is on the Crown to convince the Court of the reality of its allegations against a background of the unknown. In such a setting an ounce of objective evidence is obviously of great value to the tribunal and the absence of that evidence may well be fatal to the Crown...."

In another case - R v Namiropa Koinbondi [1969-70] PNGLR 194, the accused aged 14 years was charged with wilfully murdering his foster mother. The case against him depended on a number of admissions. The Police had accepted the accused’s admissions, and consequently had not full investigated the circumstances surrounding the death.

The deceased had been slain in her house with an axe which belonged to the accused’s foster father. The husband gave evidence that he had spent the night of the murder in the men’s house of a neighbouring village.

In acquitting the accused His Honour Clarkson, J (as he then was) held:

(1) "A Court will convict on an uncorroborated confession only after the closest scrutiny and testing of the confession, if any supplying hypotheses by which the making of a confession may be explained more or less reasonably consistent with innocence."

(Dictum of Dixon J in McKay v The King (1935) 54 CLR1 at p 9 adopted; R v Mon and Debong (supra) referred to).

CASES DISTINGUISHABLE ON FACTS

The above cases are distinguishable on the facts from the present case.

In R v Namiropa Koibondi (supra) the Police merely accepted the accused’s admissions and did not fully investigate the circumstances surrounding the death of the deceased.

The husband’s alibi should have been checked. The murder weapon belonged to the husband. He was quick in his evidence to point out that the accused (foster son) was the killer. In my view the investigation was incomplete.

In R v Mon and Debong (supra) the two accused were charged with murdering a person whose bones were not identified. The only evidence to prove the charge consisted of their admissions. That was a case the two men were accused. They denied the first time but when the witness insisted they admitted. The witness even took them to the Police Station and produced the bones he had collected. Out of fear they admitted to the Police. There was no evidence of a search or any inquiries into the deceased’s death. There was no evidence of his family or the deceased’s whereabouts on the day he disappeared from the village. Again in my view, investigations in that case were incomplete.

PRESENT CASE

In the present case inquiries were made by Madang Police in relation to allegations of escape by the accused. The evidence is that in the course of the investigations the accused had wanted to make confessions in relation to other offences he committed whilst he was at large. At that point Sergeant Maingnaut gave him the usual Police caution or warning.

I have found on the voir dire that the accused’s confessional statement was made voluntarily. This is evidence against him in this trial.

There is evidence before this Court that the Police did not stop after the admissions were made. Sergeant Mingnaut instructed Senior Constable Richard Sibolo to call Port Moresby (Boroko Police) to confirm the dates and the Hohola incident the accused was referring to. He did confirm and charged the accused in the afternoon on the 27th of July, 1993. The Court records show that the accused appeared for mention before the Madang District Court on the 3rd of August, 1993. The matter was then transferred to the Boroko District Court for mention on the 23rd of August, 1993.

The Prosecution led evidence to show that the incident at Hohola actually happened and that the accused’s accomplices have been dealt with. The matter is reported - The State v Tau Ted Lahui, George Dadiva Hetau, Maraki Noho and Jeffery Airi Eki [1992] PNGLR 325.

The trial commenced on the 17th of June, and judgment was given on the 3rd of August, 1992.

In my examination of the Confessional Statement I note that the accused named Ted Lahui and Jeffrey Airi but referred to the others as "Gandex and Rocky of Barakau." From the Decision referred to above both George Gadiva Hetau and Maraki Noho come from Barakau village. I also note that that the accused in his confessions mentioned the deceased’s name and how she died. One other point about the last paragraph of the Confessional Statement. It reads:

"I, Jeffery Harold Malepo, certify that this Confessional Statement is true to the best of my knowledge and belief..."

In my view this paragraph further affirmed the truth of the confessions. The accused also made admissions to his past criminal conducts - his involvements in various arm robberies, attempted murder and escaping from custody. Whilst in Port Moresby he lived with his parents at Hohola since 1990. Then he moved around the city, living with friends in hiding for fear of being arrested by Police. He left Port Moresby for Goroka after the 26th of October, 1991. Then in about June, 1992 he was arrested in Lae. He met a former detective, Tom Chinau at the Buimo Goal.

I turn to the alibi defence raised at the trial. In his evidence the accused told the Court that he had been living with Terry and Terry’s sister at Erima for a week prior to the 26th of October, 1991.

On the 26th of October, 1991 he did not leave Erima for fear of being arrested by the Police. Notice of this defence had not been given to the State prior to the commencement of this trial. Terry, his sister or anyone else for that matter had not been called to confirm the accused’s claim.

Finally, the accused’s final claim in his evidence. That he had made up the story he gave to the Police. In cross-examination he said he had lied to the Police. I find this difficult to accept. It appears from the evidence that he was living the life of crime. He was fully aware of the consequences. That is the reason why he says he was hiding from the Police. How could he suddenly change his attitude to accept responsibility for something he did not do?

On all of the evidence before me I am satisfied beyond reasonable doubt that the confessions made by the accused at the Madang Police Station on the 27th of July, 1993 were true. In light of the various aspects of the evidence I have considered and the accused’s criminal conduct, including the defences raised, I find that the confessions he made are reasonably consistent with guilt than with innocence:

R v Mon and Debong (supra);

R v Namiropa Koinbondi (supra) applied.

The State submitted that the element of unlawful killing is not in dispute. I find that, that element has been proved beyond reasonable doubt. On the question of "intention" to cause death, the State submitted that by dragging the deceased along the road despite her screams for assistance, the accused and the four others intended to cause her death. The State submitted in the alternative, that if the Court was not so satisfied a verdict for murder was opened on the evidence.

There is evidence that the four accomplices (Tau Ted Lahui, George Gadiva Hetau, Maraki Noho and Jeffery Airi Eki) have been dealt with. They were charged with murder pursuant to s 300(1)(a) and (b) of the Criminal Code. They were convicted. His Honour Hinchliffe, J held:

"Their actions amounted to murder because death was caused by means of an act done in the prosecution of an unlawful purpose of such a nature as to be likely to endanger human life".

I respectfully agree with his Honour’s finding. I find that there is no other evidence special or peculiar to this accused.

Accordingly, I find the accused JEFFREY HAROLD MALEPO not guilty of Wilful Murder, but I find him guilty of murder pursuant to s 300(1)(a) and (b) of the Criminal Code.

SENTENCE

Jeffery Harold Malepo you have been found guilty of the crime of murder pursuant to s 300(1)(a) and (b) of the Criminal Code. Murder is one of the most serious crimes in our Criminal Code and it carries the maximum penalty of life imprisonment.

The facts of your case is a bad one. This innocent woman was doing the normal family business on the 26th of October, 1991 when you and your friends appeared from nowhere and for no reason attacked her, her mother and the two children. She is a human being just as yourself but you thought your interest was more important. You all acted aggressively, and had no respect at all for the two women who are just like your own mothers. As women they were defenceless against you.

The circumstances of this case are very frightening. You put the family into great shock and treated the deceased with disrespect, as if she was an animal. The vehicle you stole dragged her along the road - bitumen/dirt for a distance of about three kilometres or more. I have no doubt that Mrs Lutschini suffered terrible pain and died in agony, as if she died under torture.

It is clear to me that you have no respect for human life which is a gift to each human being from God to use and enjoy on this earth. You cut short this woman’s life, you broke the law of this country and disrupted the family and the community by your actions.

Section 35 of the National Constitution is very clear. You and others had no right to deprive Mrs Lutschini of her life. Also under s 36 of the Constitution, what you did was torture and you showed no respect for the inherent dignity of the human person afforded to her. You case falls into the category of the worst type of murder. I find nothing special or peculiar about your case to enable the Court to treat you differently from your accomplices.

I have considered the question of sentence in your case. I have taken into account all that you have said in Court and what your lawyer has also submitted on your behalf. The maximum penalty prescribed under s 300 of the Criminal Code is subject to s 19 of the Criminal Code. There is a discretion in the Court, considering the circumstances of the case to impose a shorter term. On the whole your case falls into the category of the worst type of murder. My conclusion on sentence is that the maximum penalty is appropriate and I order as follows:

ORDER:

JEFFERY HAROLD MALEPO, you are convicted of the murder of Theresia Lutschini and sentenced to life imprisonment with hard labour.

_______________

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