State v Asilip [2011] PGNC 3; N4197 (18 January 2011)

N4197

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 668 OF 2008

THE STATE

V

PAUL DIMON ASILIP

Kimbe: Cannings J

2009: 7, 8, 9, 19, 21, 22, 23 October
2010: 6 April, 24 June;
2011: 18 January

VERDICT

CRIMINAL LAW – trial – wilful murder – circumstantial evidence – alibi – Criminal Code, Section 299

The accused was charged with the wilful murder of a two-year-old boy. The State presented no direct evidence and rested the case entirely on circumstantial evidence: that the boy was killed; that the accused threatened to kill the boy on the day on which the boy's body was found; that he carried the boy away when the boy was with his elder brother; that shortly before the boy's body was found he behaved suspiciously in the vicinity of the place where the boy's body was found. The accused gave sworn evidence, denying that he killed the boy, that he bore any animosity towards him or his family, that he behaved abnormally or that he made any admissions to the police. He said that he was at his house when the boy went missing.

Held:

(1) The principles to apply when a case is dependent on circumstantial evidence are:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;
  
• to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;
  
• the question to ask is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied).
  

(2) It was proven that the accused behaved suspiciously in a number of respects but not proven that he threatened to kill the boy or took him away or had a motive for killing him. It was not proven that the boy had actually been killed.

(3) Having applied the principles regarding cases dependent on circumstantial evidence: there were reasonable hypotheses available other than guilt of the accused; guilt was not the only reasonable inference to be drawn; the proven facts did not lead only to the conclusion that the accused killed the deceased.

(4) The accused was accordingly entitled to an acquittal.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Java Johnson Beraro v The State [1988-89] PNGLR 562
John Jaminan v The State (No 2) [1983] PNGLR 318
Paulus Pawa v The State [1981] PNGLR 498
Rolf Schubert v The State [1979] PNGLR 66
The State v David Yakuye Daniel (2005) N2869

Dates

The events referred to in this judgment occurred in 2008 unless otherwise indicated.

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

F Popeu, for the State
T Gene, A Akeya & R Awalua, for the accused

18 January, 2011

1. CANNINGS J: On the afternoon of Sunday 24 February 2008 a two-year-old boy, Roli Kevi Murario, went missing at Arille Island on the south coast of West New Britain. Later that day his body was found amongst mangroves on the nearby, and larger, Ablingi Island. Those who found the body observed marks on it and thought he had been killed. The police were alerted and a criminal investigation was started.

2. The accused, Paul Dimon Asilip, a 45-year-old Ablingi Island man, has been indicted for the wilful murder of the boy. He has pleaded not guilty and a trial has been held to determine whether he should be convicted.

EVIDENCE PRESENTED BY THE STATE

3. Seven witnesses gave oral evidence for the State. A number of witness statements, maps and sketches were admitted into evidence. There was no post-mortem report, as such, but a medical report and certificate of death, which had been prepared by a community health worker, were admitted, together with photographs of the deceased boy's body.

Oral evidence

4. State witness No 1, Bill Murario, is the deceased boy's father. His family lives on Arille Island, a small island on which there are only three houses. Arille is 180 metres from Ablingi Island. On low tide it is possible to walk on the reef between the islands, which are a two-hour boat trip to the east of Kandrian.

5. On the morning of 24 February it was low tide. He and his family, including his son, Roli, went to church on Ablingi. That was from 8.00 to 10.00 am. After that, he (Bill) went to his sister's house and slept.

6. During the afternoon his wife woke him to tell him that Roli was missing. He looked for Roli on and around Arille until the late afternoon. Then he sent word to the main village at Ablingi and people there, including the accused, came over to Arille and also searched for Roli.

7. Later that night, around 11.00 pm, Roli's body was found in the mangroves on Ablingi. He observed that Roli's eyes had sunken in, there was a black mark on his back, he had grass in his mouth, he was bleeding from the nose and his back (his spinal cord) was broken. He did not think that he had drowned as his stomach was not swollen. The black marks on his back made him think that someone had punched or hit him.

8. Some years ago there was a dispute regarding Arille Island. Some of his family's property was destroyed and his pig was killed. He feels that his son's death may have been a result of the problem about the island, which belongs to a small group of people including Peter Kapopong, Maka Koriam and the accused. He (Bill) comes from Ablingi, and does not own Arille but lives there with the consent of the owners. He knows the accused.

9. State witness No 2, Richard Murario, is the deceased boy's elder brother. Richard was 10 years old when he gave his evidence. In view of his age, it was appropriate to conduct an inquiry to determine his capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562.

10. Upon answering questions from me, he appeared to clearly understand the nature and purpose of the court proceedings, the reason he was in court and that the lawyers would ask him questions about what happened. He appeared to be a bright and intelligent child. He understood that if he did not tell the truth God would not be happy with him and that he could be punished. I was satisfied that he understood the meaning and importance of truth. The defence counsel, Mr Gene, raised no objection to his competence as a witness or the admissibility of his evidence. I concluded that he was a competent witness and that his evidence was admissible.

11. Upon the application of the prosecutor, Mr Popeu, and the consent of defence counsel, I allowed his uncle, Sebastian Colin, to sit next to him as a support person and ordered that the court be closed to the public while he was giving evidence. These special measures were ordered under Sections 37B(1)(a) and (b) and (2)(b) and (f) of the Evidence Act.

12. In examination-in-chief Richard said that he went to church with the family on the day that Roli died. After they came back from church his mother was at the house at Arille preparing a mumu, when she sent him to go and get Roli. That was in the middle of the day.

13. He found Roli on Arille, under a mango tree, near a big cave. He was about to take him away when the accused approached him and told him to leave Roli alone or he would kill both of them. He knows the accused as he lives at Ablingi. The accused was wearing a shirt, white on top and black on the bottom, and trousers, and a white covering on the top of his head. The accused then blew bad lime from his hand on to his (Richard's) face and carried Roli away and killed him. That was the last time he saw Roli alive.

14. He got scared and ran away towards his house, which is on a hill. On the way he ran out of breath and rested under a coconut tree. When he got to the house he went to sleep. He was later woken by his mother, but he did not tell her what had happened. The reason he did not tell her was that he had been poisoned with bad lime.

15. In cross-examination Richard said that the accused called Roli over to him by offering him a ripe banana. Roli ran over to him and then the accused picked him up and took him away. At another point in his evidence Richard said that he picked up his brother and that was when the accused told him to leave him (Roli) there or he (the accused) would kill both of them. The accused did not chase him (Richard).

16. There were some young children swimming at the beach, close to where Roli and the accused were. He (Richard) spoke to one of those children, Clinton, who also saw the accused take Roli away. At another point in his evidence, Richard said that Clinton was not with him, he was swimming in the sea.

17. When he went back to the house, which is about 75 metres away from where he had seen Roli and the accused, he did not go inside, but went underneath the house, where he slept. The accused came to their house in the late afternoon, with three of his children, to look for Roli.

18. Answering questions from the bench, Richard said that he knows where the accused lives on Ablingi as he (Richard) goes to school and goes to church on Ablingi. The accused had not done or said anything bad to him before this incident. Richard repeated that the accused had killed his small brother. When he took Roli away he covered his mouth and blew lime on him and then he took him into the bush.

19. State witness No 3, Rosina Sia Umil, is a married woman from Ablingi Island. She is an aunty to the deceased boy. She lives in the main village, which is on the western side of the island, near Arille. On 24 February her father, who lives on the other side of Ablingi, was sick, so she went in the afternoon to visit him, with her children, Oscar (aged nine) and Judith (aged five). Before she visited her father she heard stories about the missing boy, Roli. She heard that many people were searching for him on Arille.

20. That evening, as darkness approached, she and her children paddled in an outrigger canoe back from her father's place to the village. They paddled around Ablingi in a northwesterly direction. At a place called Block they came across a canoe being paddled by two boys that they know, Damien and Sak. They stopped and talked for a short while, then kept paddling.

21. After paddling another 60 metres towards the village, they came across another canoe, this one being paddled by the accused, who she knows well. The accused was paddling very fast, so much so that he almost collided with their canoe. They greeted him, but he did not respond. He paddled past them, turned around, stared at them, leaned back and put one of his hands to the back of the canoe and then he turned his canoe into the mangroves on the edge of Ablingi Island. She heard him drop the paddle down very hard into the canoe. Though it was getting dark, there was sufficient light for her to identify the accused. There were also lights from a logging ship parked 200 metres away that helped her see what was happening. They then resumed paddling quickly, as she felt afraid of the accused's strange behaviour.

22. When she got to Arille, she left her two children there and collected two young men, Sebastian and Francis, and told them to come with her back to the spot she had seen the accused. They paddled into the mangroves and she found Roli's body hanging on the roots of the mangroves. She shone her torch on the body and observed a black mark on the stomach. There were red ants all over the body, blood clots in the nose and the eyes were very red. The boy's head was lying towards the beach and his legs lay inland. The body was lying on the roots of the mangroves, face-up. The body was dry, not wet. In her opinion the boy had not drowned. He was killed. She cried and the boys signalled to the people on Arille who had been looking for Roli that his body had been found. There are no houses near that spot.

23. In cross-examination Rosina said that she did not know whose canoe the accused was in. She knew that he did not own a canoe and she knew that he had borrowed her canoe that morning but that her husband had retrieved it from him during the day. The accused was not in her canoe. She was emphatic that there was sufficient light for her to be able to identify the accused. He was wearing a white, sleeveless shirt but she could not say what colour the canoe was. She did not see the accused again until the next morning at Arille when people were in mourning over the boy's death.

24. State witness No 4, Oscar Umil, is Rosina's son. He was ten years old when he gave evidence. I followed the same procedure regarding reception of his evidence as in the case of Richard Murario and was satisfied that he was a competent witness.

25. He confirmed that he was in the canoe with his mother and sister on the evening of 24 February. They paddled from his grandfather's place towards Arille and on the way they came across the accused, who was paddling in the opposite direction. They almost collided because he was speeding. There was sufficient light to see that it was the accused, who was wearing a white shirt. They saw the accused put his hand to the back of the canoe, then he went into the mangroves and dropped the paddle on top of the canoe.

26. State witness No 5, Maris Kapun, is a married woman from Ablingi who lives on Arille. The deceased boy was her nephew. His body was brought to her and she washed it. Her evidence related to what she observed when she washed the body. She said there were marks on it, blood in his nose and red ants and dry grass on the body. There was a black mark on his stomach and another mark on the backbone, which looked as if it had been broken. His eyes were bloodshot and it looked as if someone had pinched his eyes. In her view the boy had been killed by someone. The body did not look as if it had been in the water.

27. State witness No 6, Sebastian Nililio, is a young man who lives on Arille. He is a nephew of Rosina Umil. He was playing soccer on Ablingi on the afternoon of 24 February. News spread that Roli was missing and there were lots of people searching for him on and around Arille, including the accused. When Rosina came to Arille, she got him and Francis Taptap and they paddled two canoes back to the place where she said she had seen the accused go into the mangroves. It did not take long to find the body, which was lying on the roots of the mangroves.

28. State witness No 7, Miriam Sakuat, is the deceased boy's mother. She is the wife of State witness No 1, Bill Murario. She comes from Pililo Island, West New Britain. She was at her house on Arille on 24 February. At around 11.00 am Roli went out playing and Richard followed him and she started to prepare a mumu. She then forgot about Roli and then thought of him again after she had finished the mumu. She asked the house people if they had seen him but no one knew where he was. It was by then the afternoon and that is when they searched for him. The accused was the first man to come from Ablingi to join in the search, which went on until after dark.

29. She does not know who would want to kill Roli as he was only two years old and could do no harm to anyone. She knows of no ill feelings between her Pililo people and anyone at Ablingi or Arille, which might provide a motive for what happened to her son.

Witness statements

Five statements were admitted into evidence.

30. Linda Peni, an adult woman from Arille, states that she was at the deceased boy's house on the morning of 24 February. She last saw Roli alive at around 11.00 am. He was outside the house, playing with other children. She then slept and when she woke in the afternoon Miriam asked her where Roli was, so she went to look for him. Other children reported to her that he must have been sleeping somewhere so she reported that information to Miriam, who was not concerned at that stage, then she (Linda) went to Ablingi to do her marketing. At 3.00 pm she enquired about Roli and was told that he had not been found, so she returned to Arille and joined the search for him. At 6.00 pm she met the accused in the hills on Arille. Later that night news came that Roli's body had been found.

31. Dorin Vinim is a schoolteacher who was living with Roli's parents. It was at about 3.00 pm that Roli's mother, Miriam, become worried and the search for Roli began. She helped search for him until it was dark, then she comforted Miriam until the body was found.

32. Agatha Sengsengme is an adult woman who lives on Ablingi. She paddled to Arille between 5.00 and 6.00 pm and that is when she was told that Roli was missing. She joined the search on Arille and went to the top of the hill behind Roli's house when she met the accused, who was with some children, also looking for Roli. The accused said 'the place is dark and we will not find the body'. She later went to Atuo, a village on the mainland, and heard that the accused was there also; for what reason, she does not know. She later got a dinghy from Atuo back to Arille and then heard that Roli's body had been found.

33. Mark Warat is a village peace officer at Ablingi. He is Rosina Sia's brother. Rosina reported to him about the accused's strange behaviour in the canoe.

34. Constable Wayne Isako is a Kimbe police officer who investigated Roli's death. He was on duty at Alevo, near Ablingi, in February 2008. The death was reported to him and another police officer, Const Sammy Param, on 26 February. They saw the body on the morning of the 27th at Ayuwet Island. They arranged for a community health worker, Michael Kea, based at Melenglo sub-health centre, to examine the body. There was no doctor available to do a post-mortem. The body was beginning to smell and soften. It was not practicable to keep it any longer so they arranged an examination of the body before burial. On 29 February he went with police from Kandrian to Ablingi, where they made some inquiries and picked up the accused, who was the principal suspect. They took a statement from him that night. The accused appeared to be expecting to be arrested and said he understood why he was a suspect. Const Isako continued to investigate the matter over the next few days, went back to Ablingi and took further witness statements and examined places of interest, including the spot at which the body was found. He estimates Roli went missing at some time between 10.30 am and 3.00 pm, that it got dark at 6.30 pm, and that the dinghy came to Arille from Atuo (a travelling time of 15 to 25 minutes) at 7.30 pm. He estimates that the body was dumped in the mangroves between 6.30 and 7.30 pm, "leaving the suspect enough time to go to the main village to seek alibis and drink a cup of coffee before departing to Atuo village, taking himself out of the picture". The deceased's elder brother, Richard, was sick in the early stages of the investigation and it was not until a few days after the burial that he told his uncle, Peni, about seeing the suspect take Roli away. The accused was taken to Kimbe on 6 March and formally arrested and charged there. Const Isako continued to investigate the motive for the abduction and murder but found none. Roli's father explained that the accused's family are the customary owners of Arille. There had been a couple of problems in 2002 and 2007, but no major or ongoing incidents.

Medical evidence

35. There were three pieces of medical evidence.

36. A report of death was prepared by Michael Kea, community health worker of Melenglo Health Sub-Centre, who reports that he viewed the body on 26 February and that the body was not subject to a post-mortem examination. His opinion is that the cause of death was excessive force resulting in external injuries, namely:

1. Eye pop out with a black mark on neck
2. Black scar on abdomen
3. Bruise on head
4. Black mark on (back) spine.
   

37. Mr Kea also prepared a medical certificate of death, which did not state anything in addition to his report of death.

38. Constable Sammy Param of Kimbe Police also took part in the initial investigations. He made a statement, annexing six photos of the body. He noticed bruises and black marks on the body.

Accused's statements to police

39. The accused made a statement on 29 February, five days after the death. He said that on the morning of 24 February he was in his house at Ablingi before going to the main village to visit people between 10.00 and 12 noon. He then went back home. Between 5.00 and 6.00 pm a woman, Alberta Akrang, told him that Bill and Miriam's son was missing so he went with other people to Arille to join the search. He took four children with him and they searched the bush all over the island until it got dark. He then paddled back to Ablingi. He went to Anton Launchi's house and had a cup of coffee. At around 10.00 pm he got onto a dinghy and went to Atuo village, on the mainland, to sort out some school fees. He returned to Ablingi in the early hours of the 25th, between 1.00 and 2.00 am. On the way, he saw signals coming from Arille, indicating that the boy's body had been found.

40. In his record of interview, dated 26 March, the accused said that neither he nor his wife went to church on the morning of the 24th. Only their children attended church. He was wearing a faded blue shirt and light trousers. He denied taking away Roli from his brother and denied knowledge of the alleged incident involving Rosina Sia (two canoes almost colliding and him going into the mangroves). There are no differences between him and Roli's relatives. He denied saying anything to the police about knowing why he was a suspect. He denied knowledge of any previous problems on Arille involving Bill Murario and his family.

EVIDENCE FOR THE DEFENCE

41. The accused gave sworn evidence and two other defence witnesses gave evidence in support of his alibi, which was that he was at his house when the boy went missing and later joined in the search for him.

42. Defence witness No 1, the accused, Paul Dimon Asilip, said that he is married with eight children.

43. On the morning of 24 February he was at his house on Ablingi. The family went to church but he did not. When they came back from church, at about 10.00 am, he visited two families on Ablingi, then returned to the house around 12 noon. He remembers hearing the field bell ring, which indicated that it was 1.00 pm and time for Sunday soccer to commence. His family then went off to the soccer, while he stayed behind and slept. He slept for quite a while and then was woken by a woman, Margaret Collin, a friend who had arrived from Kandrian with a message from the headmaster of Kandrian High School, where some of his children were schooling. The message was that he had to pay school fees or his children would be sent home. Then another woman, Alberta Akrang, arrived and relayed the message about Bill and Miriam's boy, Roli, going missing. He is related to Bill and regarded Roli as a grandchild. Alberta went up to the field to see if he might be there but returned with the news that he could not be found.

44. By this time it was 5.00 pm. The games had finished so he went with four other men and some children to Arille to join the search for the boy. They searched until it was dark, to no avail, then went back to Ablingi. Rosina Sia turned up at his house, looking for her canoe, which he had borrowed earlier that day. His (the accused's) wife told her that her husband had already been around to collect it. Then his wife reminded him about the headmaster's message, which he had forgotten about because of the search for Roli. So he borrowed another canoe and put it in a dinghy that was heading to Atua, on the mainland, where his brother, Robert, was staying. He wanted to get the money for the school fees to Robert that night, as he thought that it would be too late if he left it till the morning of the 25th. He paddled back towards Ablingi in the early hours of the 25th and on the way saw torch signals coming from Arille. He went there to find out what the signals were for and was told that the boy's body had been found. He then paddled home to Ablingi.

45. There has never been any trouble between him and Bill Murario's family.

46. In cross-examination the accused agreed that he knows the State witnesses and that they know him but said that they had not told true stories to the court. Asked about his claim that Rosina Sia came around to his house on the night of the 24th, looking for her canoe, the accused said that that was true. Rosina came between 7.00 and 8.00 pm, after he had returned from Arille, searching for Roli. The body had not been found at that stage. The body was not found until after he left for Atua.

47. Defence witness No 2, Janet Kuria, is the accused's wife. She went to church on the morning of 24 February, then returned to the house on Ablingi, where she stayed for the rest of the day. She was with a neighbour, Wainim Bob. She did not go to the field to watch the soccer. Two women came to the house in the afternoon. Margaret Collin came to convey a message about the school fees and Alberta Akaram brought the news about the missing boy. She did not join the search party. She remained in the house.

48. Defence witness No 3, Wainim Bob, said that she is a neighbour to the accused. She remained at or near her house all day on the 24th. The accused's wife and a couple of other people visited her during the course of the day. She saw that the accused was in his house during the day, both in the morning and in the afternoon and she talked to him.

ISSUES

49. The offence of wilful murder is created by Section 299 of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

• the accused killed the deceased;
• the killing was unlawful; and
• the accused intended to cause the death of the deceased.
  

50. All of these elements are in issue as the accused does not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. He says simply that he did not kill the deceased; and that it has not even been proven that the deceased was killed by anyone. His defence is a general denial coupled with an alibi.

51. The primary issue is therefore whether the accused, and indeed anyone, killed the deceased. If he did, it will be deemed an unlawful killing (as no specific defence has been raised) and the court will proceed to consider whether he intended to cause the death of the deceased. If he did not have that intention, an alternative conviction for murder or manslaughter can be entered.

52. The State presented no direct evidence and rested the case entirely on circumstantial evidence. The principles to apply when the State relies on circumstantial evidence are those set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court 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 rational inference that the circumstances would enable it to draw.
  

53. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

• do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.
  

54. The issues calling for immediate determination therefore are:

• What are the proven facts?
  
• Do they lead only to the conclusion that the accused killed the deceased?
  

WHAT ARE THE PROVEN FACTS?

The State's case

55. Mr Popeu submitted that the following were proven facts:

1. The deceased was last seen alive by members of his family on Arille around 11.00 am.
   
2. The body was found in the mangroves at the edge of Ablingi in the nighttime.
   
3. The time of death was between 12 noon and 9.00 pm.
   
4. The accused threatened to kill the deceased and his brother, before carrying him away.
   
5. Shortly before the deceased's body was found, the accused behaved suspiciously in the vicinity of the place where the body was found.
   
6. The accused had ample opportunity to kill the deceased.
   
7. The accused gave a false alibi.
   
8. The accused had a motive, arising from previous conflicts regarding Arille Island.
   
9. The deceased was killed and did not die accidentally.
   

56. Mr Popeu submitted that the only reasonable inference to draw from the above facts is that the accused was the person who killed the deceased. The defence counsel agreed with only some of the propositions of fact and submitted that no reasonable inference that the accused was the person who killed the deceased could be drawn from the proven facts.

57. I will now test each of the propositions of fact and determine which ones have been proven. Then I will summarise the proven facts and then apply the principles regarding circumstantial evidence to those facts.

1. Deceased last seen alive by members of his family on Arille around 11.00 am.
   

58. This is correct. Though it is difficult to pinpoint the exact time, there is no reason to doubt the evidence of Roli's mother, Miriam, that she saw him late in the morning, when she was about to prepare the mumu, and Roli went out to play, followed by Richard. Her evidence is corroborated by the statement of Linda Peni. It was several hours after that, however, before it was realised that Roli was missing.

2 Body found in mangroves at edge of Ablingi at night.

59. The evidence of Rosina Sia Umil is clear. She was the one who found the body and she pointed to a particular spot on a map that was admitted into evidence as being the place, in the mangroves, on the western edge of Ablingi, where the body was found. As to the time the body was found, it appears to have been between 7.00 and 9.00 pm. Rosina's evidence about finding the body was corroborated by Sebastian Nililio, one of the young men who accompanied her to the spot. Her evidence as to the location of the body was not seriously contested by the defence. Nor was her evidence about how the body was positioned: face-up, with the head lying towards the beach and legs lying inland.

3 Time of death was between 12 noon and 9.00 pm.

60. This is an undisputed fact.

4 The accused threatened to kill the deceased and his brother, before carrying him away.

61. There is very significant, but contentious, evidence by the deceased's elder brother, Richard Murario, that this is what happened. The court has to exercise great care before accepting this evidence, as it came from a ten-year-old boy and it was uncorroborated. Although I have assessed Richard as being a bright and intelligent boy and that he is a competent witness and that his evidence is admissible, ultimately I have formed the view that he is an unreliable witness. No reason was given as to why the accused would threaten to kill the boys. The accused was related to the boys, so why would he suddenly threaten to harm them, indeed kill them? Richard changed his story about whether other children were in the vicinity of the place where he says the accused threatened to kill him and Roli. At one point he said another boy, Clinton, was with them. Later he said Clinton was not there, he was down at the beach. His story about running home, scared, after he saw the accused take Roli away and then not telling anyone and going to sleep under the house is not credible. Neither is his explanation for this strange behaviour – that the accused blew poison lime on to him – credible. Surely if the accused had taken his little brother away after threatening them he would have found his parents or an uncle and reported the incident immediately. It was revealed through the evidence of the police investigator, Const Isako, that Richard did not tell anyone of these allegations until a few days after the deceased was buried, which is another reason to think that it is a made-up story, the product of a young boy's imagination, rather than a clear recollection of what actually happened.

62. I find the allegation that the accused threatened to kill Roli and Richard, and that he took Roli away, unproven.

5 Shortly before the deceased's body was found, the accused behaved suspiciously in the vicinity of the place where the body was found.

63. The State's case hinges rather heavily on acceptance of the evidence of Rosina Sia Umil as to the accused's strange behaviour when, she says, she almost collided with his canoe when she was paddling with her two children late in the afternoon. Her evidence was corroborated by that of her son, Richard: the accused was paddling very fast, he did not respond to her greeting, he stopped and stared at them after passing them, reached behind him towards something in the back of his canoe, then turned into the mangroves, and dropped his paddle heavily into his canoe at the spot which turned out to be the place where Roli's body was found.

64. The accused denied that this incident occurred. However, having accepted Rosina's evidence about her going back later with Sebastian and Francis and finding the body and having observed Rosina's demeanour in the witness box, and that of Richard, I accept her evidence.

65. I find it proven as a fact that the accused behaved suspiciously and strangely, at the time and place alleged.

6 Accused had ample opportunity to kill the deceased.

66. Mr Popeu submitted that even if the evidence of the accused's wife, Janet Kuria, and his neighbour, Wainim Bob, is believed, and it is accepted that the accused was at his house during the afternoon, there are at least two hours – 10.00 am to 12 noon – that are unaccounted for as there is no corroboration of the accused's evidence that he paid a visit to two families on Ablingi. I uphold this line of reasoning and find that the accused did have ample opportunity to kill the deceased.

7 The accused gave a false alibi.

67. The defence counsel submitted that the accused could not have killed the deceased as he has an alibi: he was either at his house or visiting friends on Ablingi until the late afternoon, which was when he first went to Arille to join the search for the missing boy.

68. I have considered that submission in light of the principles on alibi evidence in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, however, depending on the circumstances, amount to corroboration of the State's case. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused's failure to call a witness that might reasonably be expected to support the accused's alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

69. Having considered all of the above matters, I record the following relevant considerations:

(a) The accused's evidence as to his movements during the day, beginning with his staying at the house, then visiting friends between 10.00 am and 12 noon, going back to the house to sleep and staying there until late afternoon, joining the search for the missing boy, then going back to house, and then getting a dinghy to Atua before returning in the early hours of the following day, is generally consistent with the notice of alibi provided to the State prior to commencement of the trial. It is also consistent with the statement the accused made to the police and his record of interview. So the alibi cannot be regarded as a recent invention or dismissed out of hand as being obviously false.

(b) The accused was not as impressive a witness as Rosina Sia Umil, whose evidence as to the suspicious behaviour of the accused in the vicinity of where the body was found, has already been accepted.

(c) The alibi was uncorroborated. As Mr Popeu emphasised, the accused's evidence as to where he went between 10.00 am and 12 noon was entirely unsupported. As to his movements in the afternoon, the evidence of his wife, Janet, and his neighbour Wainim Bob, was very vague. An accused who gives an alibi but then provides little back-up evidence and gives no explanation for there being an absence of corroboration when it would reasonably be expected to be available, leaves himself exposed to the natural inference that the alibi is a fabrication.

70. In light of the above, I have concluded that the alibi evidence of the accused is not strong. The alibi evidence is poor and I determine that, in fact, it is a false alibi.

8 The accused had a motive arising from previous conflicts regarding Arille Island.

71. This has not been proven. The deceased's father gave general evidence as to incidents in the past and there was evidence about who actually owned Arille Island but this was very speculative. In fact a number of witnesses said that there was no ill will between the accused and the deceased's family. So no motive at all has been established. It has also not been proven or even suggested that the accused was a violent or ill-tempered person or had ever done anything in his life to indicate that he may be a danger to young children.

9 The accused was killed and did not die accidentally.

72. The medical evidence in this case leaves much to be desired. The report by the community health worker, Mr Kea, is vague. The external injuries that he records in his report ('eye pop out, black mark on neck, black scar on abdomen, bruise on head, black mark on spine) do not, in my opinion, support the conclusion that the boy died from "excessive force". Those injuries would appear to be equally consistent with the boy having died through misadventure, perhaps falling down an embankment, on to rocks, and stumbling into the mangroves.

73. There is no rule of law that says that in a murder case there must be an official post-mortem report prepared by a qualified medical practitioner. As I remarked in The State v David Yakuye Daniel (2005) N2869, a case in which the accused was convicted of the murder of his wife at Kandrian, and in which the State's case depended on a report of death prepared by a health extension officer, there are many parts of Papua New Guinea where deaths occur and doctors are not available to prepare reports on the cause of death. The court will work on the best evidence that is at hand. In Daniel the quality of what was a quite detailed report by the health extension officer was enhanced by the author of the document coming into court and giving oral evidence, to explain and elaborate on his findings. That perhaps should have been done in the present case. Alternatively a doctor with experience in preparing post-mortem reports or with interpreting reports by rural health officers may have given evidence as to whether the boy had been killed based on the medical evidence that was presented. That did not happen, however, so the court has been left with little to go on.

74. The six photos of the deceased's body are also, in my opinion, inconclusive. Again, this is a part of the evidence that required interpretation by a qualified medical practitioner. The statements by a number of witnesses that they thought that the boy had not drowned, were also vague and unconvincing.

75. Mr Popeu asked the court to take into account that the position of the body in the mangroves indicated that it had been placed there deliberately, and that it could only be inferred – in light of Rosina's evidence – that it was the accused who placed it there. I do not accept that proposition. The position in which the body was found is equally consistent with the boy having been injured in a fall and stumbling into the mangroves.

76. I find it unproven that the deceased was killed by any person. The possibility that he died an accidental death cannot be ruled out.

Proven facts

77. They can be summarised as follows:

• The deceased was last seen alive by members of his family on Arille around 11.00 am.
  
• The body was found in the mangroves at the edge of Ablingi in the night-time.
  
• The time of death was between 12 noon and 9.00 pm.
  
• Shortly before the deceased's body was found, the accused behaved suspiciously in the vicinity of the place where the body was found.
  
• The accused had ample opportunity to kill the deceased.
  
• The accused gave a false alibi.
  

Unproven facts

• The accused threatened to kill the deceased and his brother, before carrying him away.
  
• The accused had a motive, arising from previous conflicts regarding Arille Island.
  
• The deceased was killed and did not die accidentally.
  

DO THE PROVEN FACTS LEAD ONLY TO THE CONCLUSION THAT THE ACCUSED KILLED THE DECEASED?

78. It is correct to draw the inference that the accused was rightly regarded as a suspect. He behaved abnormally and suspiciously not long before the body was found and it was his conduct that led to the body being found. He went to Atua late in the night, ostensibly to sort out a school fees problem, and this would seem to be further strange behaviour, consistent with someone who has committed a crime and wants to remove himself from the crime scene and from suspicion.

79. However, that is about as far as any reasonable inferences can go regarding the accused's involvement in the death. It has not been proven that the deceased was killed by anyone. Nor has it been proven that the accused had any motive for killing the boy or that he had any propensity to violence. If the accused had killed the boy, it is hard to believe that he would have joined in the search for him or that he would have been so careless about leading Rosina to the spot where he placed the body.

80. The guilt of the accused is a rational inference to draw from the proven facts, however, it cannot be said, according to the Paulus Pawa principles, that it is the only rational inference. There are reasonable hypotheses available other than guilt of the accused. The proven facts clearly do not lead reasonably only to the conclusion that the accused killed the deceased.

DID THE ACCUSED KILL THE DECEASED?

81. No. The State has fallen short of proving this first element of the offence of wilful murder. The accused must be acquitted of wilful murder. 82. He cannot be guilty of any other homicide offence as an essential element of each such offence is that the accused has killed a person. No alternative verdict is available.

VERDICT

83. Paul Dimon Asilip is found not guilty of wilful murder and not guilty of any other offence.

Verdict accordingly.
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Public prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused