State v Tomur [2017] PGNC 167; N6837 (14 August 2017)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

Kokopo: Anis AJ
2017: 9, 10, 13 & 14 March; 6 June; 6, 20, 25 & 31 July; 14 August

CRIMINAL LAW – 3 accused charged with wilful murder - section 299 of the Criminal Code Act Chapter No. 262 - not guilty plea - prosecution allege deceased assaulted by the 3 accused, thrown in a hole and sustained neck injuries that led to death two weeks later - defence allege deceased was drunk, fell in a hole himself and sustained neck injuries that caused death - no case to answer application - application refused - trial on verdict - prosecution's evidence fell short to proof beyond reasonable doubt - prosecution's evidence insufficient, bad, lacked common sense and rationality - prosecution's evidence ruled out - consequences - no credible evidence adduced by prosecution - 3 accused were acquitted

The three (3) accused were charged with wilful murder of one Ereman Pulson (deceased). The prosecution alleged that the three (3) accused had assaulted the deceased over beer that he was carrying on an evening on 18 April 2015 at a village called Makurapau in Kokopo, East New Britain Province. The deceased sustained a serious neck injury and he died from it a few weeks later. The three (3) accused denied the charge. They admitted that they were with the deceased on the night in question but they denied assaulting him. They said the deceased himself fell into a hole, which was how they said he sustained his neck injury that caused his death.
Held

(i) because the facts that were proved in evidence were not inconsistent with other reasonable hypothesis, which included the possibility that the deceased could have fallen himself without any aid, into a hole or onto something to sustain the injuries received to his neck which has caused his death;

(ii) because although the guilt of the three (3) accused may be regarded as a rational inference, it was not the only rational inference that this Court could draw from to say how the deceased could have received the fatal injury to his neck;

(iii) because it was not possible for this Court to conclude with certainty that the three (3) accused had actually assaulted the deceased, or had caused him grievous bodily harm, or had pushed him whether accidently or deliberately into a hole or onto the road which had caused his neck injury;

(iv) because the deceased had consumed a lot of alcohol that evening and because he was drunk, the possibility that he could have slipped or simply fell into a hole or on the road onto something and sustained the neck injury which has led to his death, could not be ruled out.

(Cases followed: State v. Alphonse Asarombo (2010) N4035; The State v Tom Morris [1981] PNGLR 493)

David Kandakason v. The State (1998) SC558
Ilai Bate v. The State (2012) SC1216
Martin Kaiak v. The State (2016) SC1505
State v. Alphonse Asarombo (2010) N4035
State v. David Yakuya Daniel (2005) N2869
State v. Henry Toliu (2011) N4237
State v. Joe Ngotngot and Eremas Matiul (2016) N6306
State v. Joseph Viga (2016) N6341
State v Kelly Minong (2016) N6271
State v. Michael Tenaram Balbal (2007) SC860
State v. Ray Johnson (2016) N6379
State v. Stanley Kuma Kum (No.2)(2010) N4264
State v. Steven Donia (2010) N4166
State v. Titial ToMur, Leny Uraliu and Junious Turkeke (2017) N6798
State v Tom Morris [1981] PNGLR 493

1. ANIS AJ: Titila ToMur, Leny Uraliu and Junious Turkeke (the 3 accused) are charged with wilful murder. They were initially arrested and charged on the 28^thand 29^th of May 2015. On arraignment on 9 March 2017, they each entered a plea of "not guilty". The trial on verdict proceeded thereafter under this Court. The parties gave evidence, both written and sworn. I must make mention that at the close of the prosecution's case, the defence made a no case to answer application. I had considered and refused the no case to answer application. I published my ruling as an un-reported judgment on 5 July 2017, that is, State v. Titila ToMur, Leny Uraliu and Junious Turkeke (2017) N6798. The trial continued thereafter and formally concluded on 25 July 2017. I allowed parties to reserve and present their closing submissions on 31 July 2017. Following that, I reserved my ruling on verdict to a date to be advised.

Titila ToMur, Leny Uraliu and Junious Turkeke, all of Makurapau ward, Bitapaka LLG, Kokopo District, ENBP stand charged that they each and severally on the 18^th day of April 2015, at Makurapau in Papua New Guinea wilfully murdered Ereman Pulson.

4. The offence of wilful murder is prescribed under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code Act). It reads:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

5. On 8 March 2017, the prosecution, after presenting the indictment, handed-up in Court, a copy of the primary facts to the indictment. The prosecution then proceeded to read out the said facts. Let me restate the relevant parts of its content as follows:

Between eleven (11) and twelve (12) o’clock on the night of Saturday 18 April 2015, the three (3) accused persons and deceased Ereman Pulson were at Makurapau ward, Bitapaka LLG, Kokopo District, ENBP consuming intoxicating-liquor at a residence belonging to Loloma. All then left this residence and walked to the main village/ward-road. They walked along the road and at a spot, they first assaulted deceased Ereman with their hands in-order to give them beer because he was carrying some beer in his basket. They kept walking along the main village-road and at a second spot locally known as “Malolo”, they further assaulted him by punching him with their hands and hit the back of his neck repeatedly with a piece of “marmar” stick, intending to kill him from the way or manner in which they were repeatedly hitting this part of his body.

They forcefully pulled him from the ground where he was lying, and when he did not have enough strength anymore, they were asking each other as to who was going to take him to his (deceased Ereman) house. They were also talking amongst themselves to push him into a hole if they saw one. All the 3 accused persons then took deceased Ereman to a residence belonging to one Erick and laid him on a bed. On Sunday 19 April 2015, the wife of deceased Ereman and others took deceased Ereman to the St. Mary’s Vunapope Hospital where he was admitted. From Vunapope, he was referred to the Nonga General Hospital on Monday 20 April 2015, where he was admitted and died there after two (2) weeks since the time he was assaulted. He died due to the severe injury occasioned his neck from the assault executed by the 3 accused persons.

6. The following documents, except for Exhibit H and Exhibit I, were tendered by consent by the prosecution. I have, when accepting them, marked each one with an exhibit number. I have set them all out here in a table.

Exhibit No.	Description	Date
“A”	Record of Interview with Titila ToMur, by Sergeant Mary Tobing, English/Pidgin versions	28/05/15
“B”	Record of Interview with Leny Uraliu, by Sergeant Mary Tobing, English/Pidgin versions	28/05/15
“C”	Record of Interview with Junious Turkeke, by Sergeant Mary Tobing, English/Pidgin versions	29/05/15
“D”	Statement of Sergeant Mary Tobing for ROI with Titila ToMur Statement of Sergeant Mary Tobing for ROI with Leny Uraliu Statement of Sergeant Mary Tobing for ROI with Junious Turkeke	01/06/15 01/06/15 01/06/15
“E”	Statement of Policewoman, Dorcas Manakat for ROI with Titila ToMur	01/06/15
“F”	Statement of policewoman, Dorcas Manakat for ROI with Leny Uraliu	01/06/15
“G”	Statement of policeman Roger Tarataon for ROI with Junious Turkeke	01/06/15
“H”	Statement of Stanley Palume, pidgin version	29/05/15
“I”	Post Mortem Examination Report	14/05/15

7. Exhibit H and Exhibit I were later tendered through their authors. Exhibit H was tendered through witness Stanley Palume. Exhibit I was tendered through witness Dr Tommy Walters.

8. I refer to the three (3) records of interviews conducted by police on the three (3) accused, that is, Exhibit A, Exhibit B and Exhibit C. I find them as good evidence. I note that despite the fact that the three (3) accused have not counter-signed on them, they have met the criteria for me to accept them. I note that the three (3) records of interviews have signed statements showing verifications, firstly from the interviewing policewoman Sergeant Mary Tobing. This is evident in Exhibit D. They (i.e., records of interviews) also have the signed statements of the corroborators, namely constables Dorcas Marnakat and Roger Tarataon. They are marked as Exhibit E, Exhibit F and Exhibit G. The case law on point that I can easily think of, for the Court to accept such evidence as good evidence, would be case of State v Kelly Minong (2016) N6271. I held in that case and I quote:

A record of interview that is tendered by consent of the parties at trial, which is not counter-signed by the accused, is good evidence before the Court for consideration provided there is evidence, which shows that the record of interview was legally obtained. For example, police must afford the accused his or her constitutional rights. Police must read out or translate the statement to the accused at the end of the interview. The accused must understand and agree with the content of the statement. The interviewer and corroborator may give sworn evidence or file statements to support the admissibility of the record of interview in question. (Cases followed: State v. Goi Mubin [1990] PNGLR 99; State v. Benjamin Garo (1996) N1521; The State v. Peter Raima [1993] PNGLR 230).

9. I also adopt here what I have said in the case of State v. Joe Ngotngot and Eremas Matiul (2016) N6306, which is as follows:

A record of interview that is tendered without objection or by following due process, is good evidence and is open to the Court to assess and give appropriate weight to, even if the accused person or its author exercises his or her right to remain silent at the trial (case law followed: State v. John Yeon Bekeram (2011) N4298)

10. I note that only one of the three (3) accused, Titila ToMur, was called to testify. Co-accused Leny Uraliu and Junious Turkeke have exercised their rights to remain silent. I note that there was no serious challenge at the trial in regard to the records of interviews. As such, I will treat them as part of the whole evidence that is before the Court for consideration.

13. I find it useful that I should state at the beginning of my judgment, the facts where I am satisfied beyond reasonable doubt, as I will of course explain in the course of my judgment, that have been established or are undisputed. The first established or undisputed fact is that the three (3) accused have admitted that they were with Ereman Pulson (the deceased) on the night in question, that is, they were with the deceased at the alleged crime scene on 18 April 2015. The second established or undisputed fact is that after the deceased had sustained injuries to his neck that night, the three (3) accused took him in and laid him on a bed in a nearby house that belonged to one Erik. The third established or undisputed fact is that the deceased was taken to the Vunapope Hospital the next day on 19 April 2015, and later onto the Nonga Base General Hospital on 20 April 2015. The fourth established or undisputed fact is that the deceased had remained hospitalised for about two (2) weeks before he passed away. The final established or undisputed fact is that the cause of death of the deceased was due to the injury he sustained to his neck on the evening of 18 April 2015.

14. The first issue for determination is whether the three (3) accused each or together assaulted the deceased that night on 18 April 2015. The injury suffered by the deceased to his neck caused his death so if the prosecution can prove beyond reasonable doubt that he was assaulted or attacked by one or more of the three (3) accused that night on 18 April 2015, that would be sufficient to prove the first issue. The second issue, subject to the first, is whether the killing was unlawful. The final issue, subject to the first and second, is whether the three (3) accused had intended to kill the deceased.

15. Let me set out the elements of wilful murder. Based on section 299 of the Criminal Code Act and the case law (see cases, State v. David Yakuya Daniel (2005) N2869 and State v. Henry Toliu (2011) N4237), they are, (i) that an accused killed the deceased, (ii) that the killing was unlawful and (iii) that the accused intended to cause the death of the deceased.

16. I start with the first element and ask myself this. Did the three (3) accused kill the deceased? The question is explicit in regard to the first element of wilful murder. For this case, I think the more fitting question to ask, is this, whether the three (3) accused assaulted the deceased that night on 18 April 2015. As I have stated above, it is proven that the deceased died as a direct result of the injury that he had sustained to his neck earlier on the evening of 18 April 2015.

17. For the prosecution, its direct evidence comes from witnesses Tovit Longit (Tovit) and Stanley Palume (Stanley). Tovit gave sworn evidence whilst Stanley gave both written and sworn evidence. Stanley's sworn evidence was tendered and is marked as Exhibit H.

18. Let me begin with a summary of Tovit's evidence. He said on 18 April 2015, he was at his house at Makurapau village. His said at about 12 midnight, he heard drunkards fighting outside on the main road of the village. He said his house was next to the main road and a store called Malolo Store. He said he went outside his house. From there he said he walked up to the road to see what was happening. He said he stood six (6) meters away from the incident and observed from the dark. He said the place was clear because light was shining from the Malolo Store. He said he observed and saw co-accused Junious Turkeke assaulting the deceased. He said co-accused Turkeke used a tree branch (from a 'Marmar' tree) to strike the deceased on his neck. He said the deceased fell to the ground. He said he saw the deceased crying. He said he heard the deceased begging them to stop assaulting him. He said he saw the three (3) accused lifting the deceased back to his feet. He said by that time, the deceased could not walk properly. He said at the time when co-accused Turkeke was assaulting the deceased, the other two (2) accused Leny Uraliu and Titila ToMur just stood there and did nothing. He said the two (2) accused did not try to stop co-accused Turkeke from assaulting the deceased. He said he heard co-accused Turkeke say, as they were walking away, that they would look for a hole and throw in the deceased. He said the deceased was not walking well as they all left for the deceased's house. He said no one else was there at that time.

19. Tovit's evidence appears damning against the three (3) accused. But when Tovit was cross-examined by the defence, he was, in my view, exposed as someone whose testimony appears dangerous to accept and perhaps is (i.e., his testimony) far from the truth. I did not see him as a confident witness in the witness stand. He hesitated at times and on two (2) occasions, he took a long time to answer straightforward questions from the defence. He gave inconsistent or confusing evidence under oath under cross-examination and even in re-examination. And I note that, as I will later discuss, his evidence that there was clear lighting at the purported crime scene was disputed by two (2) other witnesses from the defence. The other material point of dispute relates to the timing of the incident. He said the incident occurred at or after 12 am that night or in the morning. The defence's evidence which was corroborated says that the three (3) accused and the deceased left the Malolo Store after about 10:30pm or say before 11 pm that night.

20. Let me explain the problems I saw in Tovit's sworn evidence. During examination in chief, he said after the deceased had been assaulted by co-accused Turkeke, they all left headed for the deceased's house. He was asked how he knew that they were going to the deceased's house. He said in reply that he knew because he was standing close by there and therefore he was able to hear them say that. And he finished off his answer in examination in chief by saying that when they all left the scene, that was all he knew. He said he did not know exactly where they went from there, other than what he had heard them say. But during cross-examination, Tovit was asked whether he knew that the three (3) accused had taken the deceased to Erik's house and he replied "yes". The defence also put to him that he never saw any fighting but that he only saw the three (3) accused assisting the deceased. Tovit replied, "that I wouldn't know". I note that Tovit took a long time to answer that question. The defence asked questions in relation to a mediation that had occurred after the incident, at the Makurapau village. The defence put to Tovit that the mediation occurred on Thursday 23 April 2015, after the three (3) accused had been arrested, and whether Tovit had heard about the mediation at that time. Tovit's reply was "no". The defence asked Tovit that if not before then whether Tovit knew about the mediation after it was conducted. Tovit replied "no". Then this question, "Wouldn't you know about the mediation as you are a witness to the incident?" Tovit's reply was, "I am not too sure". Again, Tovit took a long time to reply. But later, when the same question was put to Tovit "Did you know about the mediation?" he replied "yes". In other words, Tovit firstly denied that he knew about the mediation before and after its occurrence but later changed his story and said he knew about it.

21. I have doubts about this witness's testimony. His demeanour in Court and his responses to the questions particularly during cross-examination and re-examination show clear signs of uncertainty. I see that the witness appears as though he may be holding some things back. I also sensed that he appeared to be afraid of giving his answers during cross-examination and even to the prosecutor during re-examination where the purpose was to simply confirm what he had said earlier in examination in chief. For example, the prosecution tried almost in vain to get Tovit to verify what he had said earlier which was that Turkeke had assaulted the deceased. Twice, when the question was put to him in re-examination to confirm what he saw that night, Tovit kept on saying "I have nothing to say". The prosecution, after the second failed attempt to get an answer, asked Tovit whether he was confused of the question. Tovit said nothing and remained silent to that question. The prosecution then had to narrow down the question and finally asked Tovit whether the three (3) accused had told the truth or had told lies to which Tovit responded, "They are telling lies". That was where Tovit ended his testimony.

22. The defence, through its witnesses, as I will discuss below in my judgment, contests Tovit's claim about the lighting to the store or the area at that time. It says electricity is not connected to the village as well as to the Malolo Store. It says the place was dark at the time.

23. I also find it odd that Tovit, a grown man of 42 years old, would just stand there in the dark and do nothing except hide, and observe the alleged assault on the deceased. He did say that the three (3) accused were related to him and that he knew them. He referred to Turkeke as one of his fathers. And if they were attacking the helpless deceased whilst he was standing close by about 6 meters in the dark, watching, it does not make logical sense that he would just stand there. I note his reason which was that they were drunk which was why he said he did not want to stop them. But he also said the deceased was pleading to them to stop hitting him. That, with the fact that the three (3) accused are related to him, I still do not seem to follow Tovit's reasoning. He could have simply stepped in and stopped or prevented the attack if that was what was happening. There was light as alleged so following his evidence, the three (3) accused could have seen who he was had he stepped in, and the deceased could have been saved. The purported attackers were his relatives. I note that he never expressly said in Court that he was afraid of the three (3) accused.

24. Lastly, I note that no one else has corroborated his story, that is, of him being there at the spot as he has claimed. No one has corroborated his timing of the alleged incident. No one has corroborated his claim of the presence of the three (3) accused and the deceased at the time and of the alleged assault. No one has corroborated his claim that the Malolo Store had lights shining from the outside. It makes me wonder whether Tovit was actually there at all as alleged.

25. The prosecution's second direct evidence comes from witness Stanley. He is a student at the Kambubu Secondary School in Kokopo, East New Britain Province. He is 20 years old. He was a grade 10 student aged 18 at the time of the incident. He had given a written statement of the incident to the police, which is Exhibit H. However, his sworn evidence is different. Let me explain. During examination in chief, he gave a different account of what had happened that night on 18 April 2015. As a result, the prosecution had his statement tendered. I was satisfied and had the witness declared as hostile before he was cross-examined by the prosecution. In Stanley's sworn statement, he said he was close by that night at the Malolo Store and he saw the three (3) accused and a person called Ephraim Bongbong, assaulting the deceased. But in his sworn evidence, he said his reason for telling his story in the way as he had done in his written statement was because he was forced to by one Pastor Oscar Pidik, another witness of the prosecution. He said Oscar had forced him to tell the police that he had witnessed the three (3) accused assault the deceased on that night. He said Oscar told him that if he told the truth to the police, he (i.e., Stanley) would go to prison. Stanley's sworn evidence is this. He said at about 10 pm that night he walked to the Malolo Store. He said the three (3) accused and the deceased were drinking at a house belonging to a family called Bongbong, and they followed him later to the Malolo Store. He said at the Malolo Store, he met Junior ToMur, Isaac Burtil and Henry Longit under a mango tree next to the store. He said they all stayed there when the three (3) accused and the deceased showed up. He said nothing happened, which he meant to say I gather that there was no fighting or assault at that time between the three (3) accused and the deceased at the Malolo Store. He was asked by the prosecution where the three (3) accused and the deceased had gone to after he and the boys had left the Malolo Store at 12:30am that night or morning to which he replied, "I do not know".

26. Since this witness was declared a hostile witness, his written evidence is not supported and cannot be of any real assistance to the prosecution as direct evidence. That said I find this witness very confident under oath. He gave his sworn evidence without any difficulty. His demeanour in Court was actually impressive. I will get back to this witness at the latter part of my judgment.

27. I now turn to the direct evidence of the defence. Its' witness number one (1) is co-accused Titila ToMur (Titila). He was the only co-accused called to give evidence. Titila's evidence is this. On the day in question on 18 April 2015, he said he did not consume any alcohol but was sober. He said he first met up with co-accused Leny Uraliu (Leny), co-accused Junious Turkeke (Turkeke) and the deceased at the Bongbong family's residence (also known as Loloma family). He said the family was selling its second-hand vehicle to someone and had hosted a gathering that evening to commemorate the event. He described his two (2) co-accused and the deceased as "very drunk" at the occasion. He said they consumed alcohol namely SP beer at that time which was why they were drunk. He said one Joshua Pitmak (another defence witness who has also testified) had told him to follow the three (3) because they were drunk. He said they left the Bongbong's residence at around 10:30pm. He said they all walked to the Malolo Store. There he said they met some boys namely Junior Abi ToMur, Stanley Palume, Henry Longit and Isaac Burtil. He said the boys were sitting there and were playing games with their mobile phones. He said the Malolo Store was his store. He said he had closed the store earlier that day. He said it was not just his store but the entire village did not have electricity connected. He said there was no light shining outside his store. He said the place was dark when they arrived. He said they stayed there for a while before they left the boys. He said the two (2) co-accused, the deceased and himself walked off towards the junction of the road to send the deceased off to his house. He said from there, he and the two (2) co-accused left the deceased who kept on walking whilst they turned back. He said the place was dark. He said not long after, they heard a noise of someone falling down. He said he got his mobile phone and switched on its torch. He said he saw the deceased in a hole on the road. He said the three (3) of them went there and lifted up the deceased from the hole. He said they carried the deceased back and laid him inside the house of a person (known only by his first name) called Erik. He said the deceased told them at first that he was hungry but when they offered him ripe banana and biscuits, he refused to eat and slept. He said co-accused Junious Turkeke and Leny Uraliu slept with the deceased in Erik's house. He said he left them there and went home to his house.

28. I did not detect anything out of the ordinary with this witness. He gave his evidence without difficulty. The only caution I have is the fact that he is a co-accused so I must treat his evidence with care or caution. This include considering other evidence to see whether there is corroboration, justification or rationality. But these aside, I note that it is the prosecution whose duty is to prove beyond reasonable doubt by adducing its evidence. It is not the defence's role to do that. So at this stage, I cannot give any serious thought yet to the defence's evidence without being satisfied first that the prosecution has done what is required of it under law.

29. I now look at the indirect or circumstantial evidence. Let me start with the prosecution. Witness number two (2) for the prosecution is Mission Alphonse (Mission). He gave indirect evidence to the Court. This witness said he consumed alcohol on that day on 18 April 2015 at his village at Ranault, which is a neighbouring village to the Makurapau village. He said he drank beer and dry gin at his village starting at about 5 pm to 5:30 pm. He said from there, he and one other person named Dungkan ToMur (Dungkan), who is a real brother of co-accused Titila, left the village and walked headed towards the Makurapau village. He said they arrived there at about 10:30pm. He said they met co-accused Titila on the main road. He said co-accused Titila told them that he came to get ripe banana and biscuits for the deceased. He said from there, they all went to Erik's house. He said they told him that the deceased had fallen into a hole. He said they tried to feed the deceased but he refused to eat. He said the deceased tried to talk but his speech was blurry. He said after that, Dungkan, co-accused Titila and himself went to the location of the hole where he was shown the hole where the deceased was said to have fallen in. From there, he said they (i.e., himself, Dungkan and co-accused Titila) did not return to the house but went on and continued to consume alcohol at Malolo and listened to music from a boom box. He said at around 5:30 am the next day, co-accused Turkeke approached and joined them to drink and listen to music. He said when he saw co-accused Turkeke, he asked him about the deceased. He said co-accused Turkeke told him that they had taken the deceased back to his house. He said at that moment, co-accused Titila told him that before he arrived, they (i.e., the three (3) accused) had fought with the deceased. He said co-accused Titila told him that co-accused Leny had used a tree branch (marmar tree) to hit the deceased. He said he asked why they had assaulted the deceased. He said co-accused Titila told him that the reason was that the deceased had refused to share his six (6) pack beer that he had in his basket. He said co-accused Titila and co-accused Turkeke took him to and showed him the two locations where they said they had assaulted the deceased.

30. I find it hard to believe everything this witness has said. His evidence, with respect, is not credible and a good part of it is hearsay. On top of the fact that this witness was under the influence of alcohol between 6 pm on 18 April 2015 till the next day, which is about 10 hours or so, he still had time to be "very curious" of the deceased at that time, whom he himself said he was not related to. In other words, the deceased was more or less like a stranger to Mission. I say this based on Mission's own testimony in Court particularly the manner in which he gave his answers. I find it odd that a person, whilst consuming alcohol and having fun with his friend, would suddenly show a very kin interest and start to investigate a news that a stranger or someone whom he had no relationship whatsoever with, had fallen into a hole and has hurt himself. And then to go and pay a visit at where this person was being kept at. And then to soon afterwards, proceed further to inspect the alleged hole where the person was said to have fallen in, in the middle of the night or in the earlier hours of the morning. Then after that, to resume drinking and continue to have fun and listen to music. But then when the person is told that the stranger was also assaulted, that the person, who was supposed to be drunk and having a good time with his friends, would once again drop everything and be led by the alleged assailants to the purported crime scene and be shown the locations where the stranger was said to have been assaulted. As I have said, I find this odd and I am not sure at all whether I should believe anything this witness has stated under oath. I note that even in cross-examination, when it was put to the witness that he drank all night and that he would be tired and would not recall the happenings of that night, his answer was, " I could recall everything". "Even when you were drunk?" was the defence counsel's final question to which witness Mission replied, "Yes".

31. The claim by witness Mission that he was drinking at that time with a brother of co-accused Titila has caught my attention. I will address it. In this case, I note that co-accused Titila has given sworn evidence under oath and he has denied ever meeting with Mission or his brother. This was in addition to co-accused Titila denying everything that Mission has said. In other words, co-accused Titila is saying that Mission simply made up the story because he was never there that night or on the following morning. I note that Dungkan ToMur was not called as a witness to testify or corroborate Mission's testimony. So with that, this Court is left with Mission's sole and uncorroborated testimony against the defence evidence and its denials which are corroborated. It would be up to this Court of course to consider, weigh and decide on whom to believe.

32. The next prosecution witness who has given indirect evidence is witness number four (4) Teresia Pulson (Teresia), the wife of the deceased. She said during that day on 18 April 2015, she and the deceased went to Kokopo to shop. She said later that afternoon, the PMV dropped them off at the Makurapau village. She said when they arrived, the deceased "was already drunk". Those were her exact words. She said the deceased had been drinking earlier with co-accused Leny who was the driver of the PMV. She said the deceased acted as an offsider to the PMV and the two men drank beer in the PMV from the town to the village that afternoon. She said they dropped off the passengers including herself. She said they told her that they would continue on driving to the PMV owner's house. She said they drove off after that. Her next relevant evidence, on the issue of whether the three (3) accused killed the deceased, was her evidence on what she heard from the deceased at the Nonga Base General Hospital. She was asked whether she had asked the deceased as to the cause of his injuries. She said yes and said the deceased told her that a total of four (4) people had assaulted him that night on 18 April 2015. She said the deceased did not tell her their names. But she said the deceased told their names to one of his children by the name of Navel Pulson. Navel Pulson is also a witness who has testified for the State. Except for the first part of Teresia's evidence, which is good evidence, the latter part where she said she had spoken to the deceased may be hearsay evidence. It could also be regarded as a dying declaration and if so, the evidence may be accepted as valid. I note that there are three (3) more evidence of such similar nature so let me cover them all before I address the issue of dying declaration.

33. The prosecution's next indirect evidence is from witness number five (5), the deceased's son Navel Pulson (Navel). Navel said he visited and cared for the deceased at the Nonga Base General Hospital. He said he arrived there on 22 April 2015. He said whilst there, he asked the deceased to tell him what happened. He said the deceased told him that he was assaulted. He said he asked the deceased why they had assaulted him. He said the deceased told him that he was assaulted because of alcohol. He said the deceased also called out the names of his assailants as co-accused Turkele, co-accused Leny, co-accused Titila and also one other person by the name of Ephraim Bongbong. He said the deceased kept repeating their names. This evidence also raises the dying declaration issue. I will deal with that below shortly with the others.

34. The prosecution's witness number six (6) is Oscar Pidik (Oscar). He gave indirect evidence. He is a pastor and a blood uncle of the deceased. The deceased's mother is his sister. He admitted that he also conducted his own investigation on the matter. He said he visited the deceased twice after the incident. First was in the morning of the 19^th of April 2015 where he said he went to pray over the deceased presumably before the deceased was taken to the hospital. He said he visited the deceased several days later at the Nonga Base General Hospital. He said at the time of his visit the deceased told him that it was co- accused Leny and co-accused Turkeke who had assaulted him over beer that night at Malolo. He said the deceased told him that he could only remember Turkeke bumping him on his chest area and of him falling down. He said the deceased told him that when he fell, he could feel pain all over his body before he became unconscious. Oscar said the deceased told him that when he woke-up, he was surprised to be at Erik's house. Oscar's evidence also raises the dying declaration issue.

35. Oscar was asked whether he had forced Stanley to give a false statement to the police. Questions were put to him in examination in chief and cross-examination in regard to what witness Stanley had said against him in his sworn evidence. Oscar, in my view and observation, casually refuted the claim. I must say that his demeanour and body language suggests to me that he may not be telling the truth. I am not entirely convinced of Oscar's denial that he did not have a hand or say in what Stanley had put down in his written statement. Stanley's demeanour in my view was very powerful. He gave his evidence with strong body expressions as I recall. Stanley's demeanour showed that he appeared cross and upset to the fact, as he claims in his sworn evidence, that he was forced or intimidated by Oscar to give the statement in the manner has he had done to the police. He body language in Court portrays that he knew very well that what he had given earlier was not the truth. Oscar's evidence, in my view, is not as strong as Stanley's on the said fact. Now, let me be clear about Stanley's evidence. I may have declared him as a hostile witness but that is only in relation to what he had written down compared to what he had said under oath specifically on the facts of what he has witnessed that night at the Malolo Store [see case: David Kandakason v. The State (1998) SC558]. It does not prevent this Court from considering Stanley's evidence on other matters or facts such as this present issue, that is, whether he was forced or intimidated by Oscar to sign his statement. That part is open and the Court is at liberty to consider whom to believe. Witness Oscar was given the opportunity in Court to rebut what witness Stanley has said of him [see cases State v. Joseph Viga (2016) N6341, State v. Michael Tenaram Balbal (2007) SC860].

36. I now turn to the defence witnesses who gave indirect evidence on the subject matter, that is, how the deceased may have died or who could have killed him. The first is its' witness number two (2) Gular Junious (Gular). She is the sister of co-accused Turkeke. She is also related to the deceased but I note that it was not clarified accurately during the trial whether as a cousin, or a niece, or a distant relative. Gular said she visited the deceased at the Nonga Base General Hospital on or about Wednesday 22 April 2015. She said the deceased told her that no one had assaulted him on that night in question. She said he told her that he himself fell into a hole and dislocated his neck. I note that dying declaration would be an issue with this witness's testimony.

37. The defence next witness who gave indirect evidence on the matter is witness number three (3) Margaret Bob (Margaret). She is a relative of the deceased. Like Gular and Oscar, she visited the deceased at the Nonga Base General Hospital on Friday 24 April 2015. Margaret said during her visit, the deceased told her that the three (3) accused whom people had accused of assaulting him did not assault him. She said the deceased told her in front of his family members who were there that it was he himself that fell into a hole and injured himself. The evidence, like the others above, raises the issue of dying declaration, which I will deal with shortly.

38. The defence next witness who gave indirect evidence is witness number four (4) ToMur Arvah (Arvah). Witness Arvah is a blood brother of co-accused Titila. Their other brother was also mentioned in the sworn evidence of State witness Mission, that is, Dungkan ToMur. Arvah said that on the said Saturday night at around 8:30 pm, Isaac Burtil, Henry Longit, Stanley Palume and himself all sat down under the mango tree outside the Malolo Store. He said drunkards fronted up to where they were. He said the drunkards were the deceased, co-accused Turkeke and co-accused Leny. He said also with them was his brother co-accused Titila. He said co-accused Titila was not drunk like the two (2) but was sober. He said they all stayed there outside the Malolo Store for a while. He said they told them that they were on their way to drop off the deceased at the main road junction. He said there were no fights or fighting at that time. He said the Malolo Store did not have lights. He said there was no electricity connected to the store or to the Makurapau village. Arvah said after a while, the four (4) men including the deceased left himself, Isaac, Henry and Stanley, and they walked off on the main road in the direction of the junction. Arvah said he and the boys stayed on at the Malolo Store until about 11 pm before they all broke up and went to their houses.

39. The last witness for the defence who gave indirect evidence is witness number five (5) Joshua Pitmak (Joshua). He is 52 years old and is married with three (3) children. He is a ward member and he has served two (2) terms in that position. He said on 18 April 2015, the Bongbong family invited him to attend and witness a ceremony at its residence. He said the family had sold its car to a person and that it was on that day that settlement was set to occur whereby the family would release the car to its new owner. He said the Bongbong family prepared food for those that attended. He said he arrived there at about 6 pm. He said there were no guests when he first arrived at the Bongbong's residence. He said people slowly started coming in later and the ceremony started at about 7 pm. He said he was there for about 3 hours in total. He said it was at the gathering that he saw and met the deceased and the three (3) accused. He said, except for co-accused Titila whom he said did not consume alcohol, he could tell that the deceased, co-accused Turkeke and co-accused Leny appeared drunk. He said because of their drunkard appearances, he assumed that they must have consumed alcohol elsewhere before they showed up at the ceremony. He said that during the course of the ceremony, the deceased, co-accused Turkeke and co-accused Leny were consuming alcohol. He said co-accused Titila was not drinking as far as he could tell. He said he did talk to the deceased at one point. He said he told the deceased not to consume too much alcohol because of his health. He said before he left the ceremony that evening, he told co-accused Titila to look after the deceased as he was an elder and because he saw that the deceased was very drunk. He said before he left, he did not witness any fights or animosity between the deceased and the three (3) accused.

40. Let me firstly make my findings in relation to the direct evidence of witness Stanley (State witness). The Court has declared him as a hostile witness. His written evidence of what he said he saw was inconsistent with his sworn evidence. This was revealed when he was cross-examined by the prosecution. I therefore reject his written evidence as well as his sworn evidence. His evidence of what he said he saw or did that evening at the Malolo Store on 18 April 2015, in my view, is worthless for me to consider to determine the issue under this sub-heading, that is, how the deceased had sustained the injuries to his neck on that night that has led to his death. I note that Stanley has also given sworn evidence on other facts, which I have discussed above in my judgment.

41. Secondly, let me rule on evidence of witnesses Teresia (State witness), Navel (State witness), Oscar (State witness), Gular (defence witness) and Margaret (defence witness). These witnesses gave evidence of what they had heard from the deceased when they had visited him at the Nonga Base General Hospital. Their evidence of course constitutes or amounts to hearsay evidence. I note that no objection was taken by both counsel during the trial so their evidence is already before the Court. But at the presentation of submissions hearing, I note that I had raised the issue and had invited both counsel to make submissions on how the Court should treat these evidence under the circumstance. I asked counsel whether their witnesses' evidence would be regarded as dying declarations within the meaning of section 20 of the Evidence Act Chapter No. 48 and therefore they should not be disregarded by the Court as hearsay evidence. (See cases: Martin Kaiak v. The State (2016) SC 1505, State v. Steven Donia (2010) N4166 and State v. Stanley Kuma Kum (No.2)(2010) N4264).

42. The prosecution in response submitted that the evidence should not be treated as dying declarations. Counsel submitted that they all should be regarded as hearsay evidence and be disallowed. The defence also presented a similar submission. Counsel submitted that the evidence cannot qualify as dying declarations. The conclusion I gather from the submissions is that the evidence of Teresia, Navel, Oscar, Gular and Margaret are hearsay evidence.

43. I agree with the parties' submissions. The evidence of the five (5) witnesses concerning what they have heard from the deceased cannot be regarded as exceptions to the hearsay rule. Because there is no challenge on this point by the parties, which means that these evidence will be excluded, it would be pointless to address in detail the requirements of a dying declaration under section 20 of the Evidence Act. But I must caution myself and say this. The evidence may be hearsay evidence but they have been admitted without objections so they are before the Court for consideration. As such and to avoid any doubt, I will therefore disregard or give no weight whatsoever to the testimonies of witnesses Teresia, Navel, Oscar, Gular and Margaret, that is, all their evidence that tells of what the deceased may have told them had happened to him on that fateful night.

44. I must add that I find and am satisfied beyond reasonable doubt that the deceased had consumed a lot of alcohol on that night. Witnesses from both sides confirm this. I make particular mention of the deceased's wife Teresia who has said that the deceased was already drunk on that afternoon.

45. Now, the following evidence remains for consideration and ruling: For the prosecution, I have the direct evidence of Tovit and the indirect evidence of Mission. Let me start with witness Tovit. In addition to what I have already said above in my judgment regarding this witness, let me say this. I find that this witness has not told the truth to the Court. Based on what I have found above, I do not believe his accounts as retold in his sworn evidence. His testimony of what he said had happened was also not corroborated. There was also serious challenge to his evidence by the defence. My conclusion is that this witness has come forward to give evidence that is not aimed at assisting the Court to find out the truth of how the deceased may have sustained his injuries, which has led to his death, but for reasons only known to himself. I reject his evidence.

46. The turn to witness Mission's testimony. Again, I note that I have covered his evidence above in my judgment. This witness was under the influence of alcohol at the material time or times of his alleged various claims. In my decision in the case of State v. Ray Johnson (2016) N6379 (see also case: Ilai Bate v. The State (2012) SC1216), I held and I quote:

Courts in this jurisdiction have considered influence of alcohol detrimental to a witness's judgment or capacity to for example recall an event or behave, and courts should and must continue to take greater care when deciding whether to accept evidence from witnesses who are under the influence of alcohol.

47. I adopt and follow the said approach herein. I do not reject Mission's evidence solely on the basis that he was drunk at that time on 18 April 2015. I also find his story to be incredible and far lacking in common sense or rationality. Again, I have already stated these in the earlier part of my judgment. Mission's evidence is also not corroborated by anyone. I therefore reject his evidence. Like witness Tovit, I find that he is not a truthful witness. I also find that this witness is not coming forward to assist the Court find out the truth in relation to the death of the deceased, but rather for reasons only known to himself.

48. I rule now on the remaining evidence of the defence. The first is the evidence of co-accused Titial. He gave direct evidence. I have summarised them above earlier in my judgment. I find that Titila's account of what he said happened as strong and credible to a certain extent. His evidence is corroborated. For example, his account of what had transpired at the Bongbong's family residence is consistent with what witness Joshua has said in his evidence. Co-accused Titila said that the two (2) co-accused, the deceased and himself all left the Bongbong's residence at about 10:30 pm that evening. He said they arrived at the Malolo Store and met some boys over there. Witness Arvah corroborated his story of the said meeting. He said from there, he left the boys and went to leave the deceased. He said the deceased fell into a hole in the middle of the road and as a result sustained the neck injury. I am not entirely convinced that Titila did not consume alcohol. But I note that I cannot make this finding without good evidence coming from the State. With the State evidence now limited, Titila's evidence stands as un-contested.
49. The next remaining defence evidence is that of witness Arvah. I note that Arvah is Titila's brother. I will treat Arvah's version with caution. His evidence simply confirms what Titila has said when they all met up at the Malolo Store. His evidence may look suspicious but it was not disproved or weakened or destroyed in cross-examination by the prosecution.

50. The final remaining evidence is that of Joshua. He is perhaps the only independent witness of all those persons that have testified in this Court hearing, apart from the doctor. He has served two (2) terms as a ward council member. He was invited by the Bongbong family presumably in his capacity as the ward member of Makurapau to witness the event. He was not drunk. I find his evidence credible and his evidence was not shaken during cross-examination. He gave his evidence freely and I did not find anything unusual about what he has said. The only thing, which I think requires mentioning, is the possibility that co-accused Titila may have consumed alcohol at the event, which Joshua may or could not have been aware of. That aspect I thought was revealed during his cross-examination by the prosecution.

51. I am not satisfied that the prosecution has proven beyond reasonable doubt that the three (3) accused had assaulted or injured the deceased in the evening on 18 April 2015, as a result of which has caused or has led to his death. Let me summarise my findings. I accept Joshua's evidence. I find him to be an independent and credible witness. His credible evidence puts the deceased and the three (3) accused at the Bongbong's residence on that evening on 18 April 2015. This fact is corroborated. Joshua's evidence and others, shows that the deceased, co-accused Turkeke and co- accused Leny were all drunk. I find that to be the case. I also find that it is also possible that Titila could have consumed alcohol as well at that time or during the said gathering. Witness Joshua left the Bongbong's residence 3 hours later from when he first arrived there at 6 pm. I find that he left the Bongbong's residence at about 9 pm to 9:30 pm that evening. Following this "fact trail", as I will call it, the only other witness whose testimony has continued with the fact trail, is that of co-accused Titila. He said the four (4) men, including him left the Bongbong's residence and arrived at his store at Malolo at about 10:30 pm on that night. So the evidence implies and I find that the four (4) men had stayed at the Bongbong's residence for about another hour after witness Joshua had left. Witness Tovit has given evidence of what had happened over there at the Malolo Store. I note that I have already rejected his evidence. Others who also gave evidence of that location were witnesses Arvah and Stanley. I note that I have also rejected Stanley's written and sworn evidence regarding what he may or may not have witnessed on the purported crime scene. As for witness Arvah, I note that I have cautioned myself because of the fact that he is the brother of co-accused Titila. But I have not ruled out Arvah's evidence so I will accept that. Arvah's evidence corroborates co-accused Titila's evidence of what he said happened at the Malolo Store. Now, I find that the fact trail ended when co-accused Titita, co-accused Turkeke, co-accused Leny and the deceased all walked off from the Malolo Store into the darkness on the main road towards the junction.

52. I find that there is a time gap or unaccounted time, in the fact trail, that is, the time when the three (3) accused and the deceased left the Malolo Store, to the time when the three (3) accused carried the deceased to Erik's house. I say time gap on the basis that, given my findings and rejection of the prosecution's evidence, the prosecution does not have any direct evidence beyond where the fact trail ends, or beyond the time when the three (3) accused and the deceased ventured out from the Malolo Store that evening. As such, this opens up or invites the possibility arguments. It is possible that the deceased could have fallen into the hole as alleged by Titila during that time gap period. I note that I have found that the deceased had been drinking heavily and he was drunk at the material time. Given that fact, the deceased could have easily lost his balance or tripped over and fallen into a hole, a ditch or onto something on the road. That possibility is real and cannot be ruled out. It is also possible that the deceased could have been accidently pushed by one of the three (3) accused and fell and sustained the injuries to his neck that eventually led to his death. This possibility is also real and cannot be ruled out. It is also possible that the three (3) accused could have assaulted and injured the deceased on his neck as a resulted of which has caused his death a few weeks later. This possibility is also real and cannot be ruled out. These examples are only few of many other possibilities that could have happened on that night during the time gap period. For the record, I find co-accused Titita's evidence of what he said happened to the deceased after they had left the Malolo Store, as a real possibility rather than as a fact. I make this finding because I am not certain that the deceased fell himself, just like the fact that I am also not certain that he was assaulted by the three (3) accused.

53. I find the indirect or circumstantial evidence of the prosecution under this sub-heading insufficient. The time gap period has created, in my view, more than one (1) reasonable hypothesis of what may have happened. I have discussed the law on circumstantial evidence below under the sub-heading Alternative charges - Murder, Manslaughter etc, which I will get to shortly.

54. The fact trail restarted and continued when the deceased was brought back to Erik's house. There he was laid to rest til the next morning where he was taken to the hospital. I am satisfied and find that that was what had happened.

55. In conclusion, I am therefore not satisfied that the prosecution has proven beyond reasonable doubt the first element of the offence of wilful murder, that is, that the three (3) accused killed the deceased. I find the prosecution's evidence insufficient, bad and mostly tarnished by lack of credibility and common sense. With the first element now lacking or not proven, the charge of wilful murder against the three (3) accused must therefore fail.

56. The prosecution submits the Court should, in the alternative find the three (3) accused guilty of murder, manslaughter or a lesser offence that is allowable under law. Can the Court do this? The answer is, "yes". The prosecution has correctly referred to section 539 of the Criminal Code Act. The prosecution, in its submission under this sub-heading, has urged the Court to consider and find the three (3) accused guilty of alternative offences under section 539(1) and (4) of the Criminal Code Act.

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

58. Looking back at the prosecution's evidence, I note that I have found it insufficient. I also note that I have ruled out the prosecution's direct evidence. As I have stated above, having completed my assessment of the evidence, I was left with credible evidence of the facts (i.e., fact trail as I have described it above in my judgment) up to as far as 10:30 pm that night on 18 April 2015. After the deceased and the three (3) accused left the Malolo Store, except for Titila's evidence, which I have ruled as one of the possible outcomes, this Court does not know for sure and cannot determine what actually happened to the deceased to have sustained the injuries to his neck which has led to his death.

59. Based on my findings, I concluded that there was no evidence of anyone else, apart from co-accused Titila, who had seen whether the deceased, who was totally drunk that night, was assaulted or whether he fell, to dislocate his neck.

60. The law is settled on circumstantial evidence. The principles were summarised by Justice Cannings the case of State v. Alphonse Asarombo (2010) N4035 (see also case The State v Tom Morris [1981] PNGLR 493). His Honour held and I read:

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

61. I note that I have adopted and applied them herein. But looking at them under this sub-heading as well as the previous, let me summarise my findings as follows:

62. I find insufficient evidence to also convict the three (3) accused under any of the offences that are set out under section 539(1) & (4) of the Criminal Code Act.

63. I find the three (3) accused not guilty of wilful murder under section 299 of the Criminal Code Act. I also find the three (3) accused not guilty on any of the alternative charges under section 539(1) & (4) of the Criminal Code Act.

64. The three (3) accused are to be immediately released from custody forthwith.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the three (3) Accused

National Court of Papua New Guinea

State v Tomur [2017] PGNC 167; N6837 (14 August 2017)