State v Wapung [2017] PGNC 241; N6903 (7 September 2017)

N6903

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR 661 of 2014

THE STATE

V

MANUEL PAUL SEP WAPUNG

Kimbe: Miviri AJ
2017: 7^th September

CRIMINAL LAW- Trial- Wilful murder S299 CCA- wife to give evidence-interest of justice-protection of marriage according to law-credibility of evidence identification-evidence not given immediately-one year later-veracity of-no corroboration-real evidence missing-effect of-reasonable doubt-benefit-acquittal

Facts
Accused assisted by two others pushed the deceased into a fast flowing river intending to kill him. Deceased died from drowning.

Held
Evidence on identification not beyond doubt
Acquitted and discharged

Cases cited:
Papua New Guinea Cases

R v Angie-Ogun [1969-70] PNGLR 36
The State v Amoko-Amoko [1981] PNGLR 373
State v Sokai [2002] N2334
State v Kiapkot [2011] N4380

Overseas Cases

R v Pompey (1924) 18 QJPR 59
R v Andrews and Craig [1962] 1 WLR 1474 at 1477

Counsel:
L. Rangan, for the State

B. Popeu, for the Defendants

VERDICT

15^th September, 2017

1. MIVIRI AJ: This is the verdict after trial of a man who drowned the deceased intending to kill him.
   

BACKGROUND FACTS

2. Manuel Paul Sep Wapung is charged with the wilful murder of Bun Nomas on the 26^th April 2013. He pushed Bun Nomas into the Ruu River intending that he should drown and die.
   

EVIDENCE TENDERED

3. Tendered by consent into evidence was Exhibit S1A, the pidgin original record of interview of the Defendant with police dated the 16^th May 2014. There was no admission to the offence. Exhibit S1B was the English translation of that record of interview. Importantly he asserted in there that because both him and Nancy More had fought she went and resided at Nahavio and that she did not witness what she told the court. She was making up and trying to get back at him for assaulting her. At the outset, it indicated a motive for the testimony of the principle witness identifying against him and therefore the corroborating evidence in addition and on top of her evidence was critical for her credibility to be intact and for her evidence to be believed.
   
4. Exhibit S2 was the statement of the police corroborating officer Vernon Naurikia which was basically to corroborate the conduct of the record of interview. It did not add to the State case against the Defendant.
   
5. Exhibit S3 was a statement by Correctional officer Barnsly Kenn acting Officer In charge of reception and discharge at the Lakiemata Corrective Institution as to the deceased Bun Nomas who was a convicted prisoner serving 7 years 11 months for the crime of rape. It did not add anything to the case proper against the defendant.
   
6. Exhibit S4 was the autopsy report dated the 18^th May 2013 by Doctor Philip Golpak. The date of the autopsy was 18^th May 2013. It related to the deceased Bun Nomas, male aged 53 years old. The body was in advanced stage of decomposition and there was swelling of the left elbow with fracture and dislocation of the elbow joint. He concluded that death was undetermined. However the most likely cause is due to drowning. The swelling of the elbow may have been due to impact of objects to the strong current. Death by drowning was undisputed before me.
   
7. Exhibit S5 was the statement of Sergeant Samson Fanaso the arresting officer and the investigator in the matter. He did not add to the case in the statement.
   
8. Exhibit S6 was photographs that were taken by Sergeant Samson Fanaso. There were a total of 19 photographs all did not add to the State case against the defendant.
   
9. What was established beyond all reasonable doubt by all these evidence that were tendered was that Bun Nomas had died by drowning on the 26^th April 2013 at the Ruu River.
   

ISSUE

Whether or not Bun Nomas had died by accidental drowning?

10. Whether or not Bun Nomas had died by design or assisted drowning? That is he was assisted by someone to cause him to drown intending that he should drown and die.
    

Nancy More State evidence

11. What was raised in the forefront was an allegation that Nancy More had not seen what she says she allegedly saw because she was at Nahavio after she had run away there after argument and fight with the accused. There was no evidence led by the State to disprove this that the witness was there at the scene and did witness the crime. She came out with her evidence a year later in March 2014 to police. She had not after the 26^th April 2013 gone to the police with the evidence of the witnessing of the act of drowning that her husband the accused was a part to in the murder of Bun Nomas. She lived with the accused a suspect of murder for a year without reporting to police with the evidence accompanying. The state did not lead any independent evidence apart from the wife as to reasons as to why she never ever volunteered that evidence to the police until after one year later in 2014. For instance from the persons at Nahavio to whom she was allegedly staying contended by the accused. It would have strengthened her credibility that she was not with them but at the location where she witnessed the murder. She was an intelligent witness not in any way doubted as to her capacity to bring out that evidence. But no evidence was led to corroborate her assertions that she was the subject of violence over and above necessary to stay where she was with the accused.
    
12. Whether it was a stroke of luck or unprofessionalism evidence collected of a bush knife in the possession of the deceased together with a stick allegedly used by the deceased to cross the Ruu River where according to the Police Sergeant Investigator Samson Fanaso on oath lost when the office was maintained or repairs carried out. Both could have linked what all the witnesses were individually stating .For example the evidence of Steven Malken as to being the owner of the bush knife that he gave it to the deceased Bun Nomas. Which knife was on the shore of the Ruu River and in the possession of the defendant seen by Nancy More. That she had taken it away hid it and then produced it to police. It was the same knife that she had shown to the CIS warder whose evidence would have also identified it. In similar way the stick that was also seen by Nancy More was not produced to corroborate the account that she gave in court. Her veracity because of the assertion that were raised by the accused were very real and should have been properly corroborated. It meant there was doubt as to the veracity of her evidence because of the motive raised.
    
13. The state case was primarily depended on the witness Nancy More who allegedly saw her husband the defendant push Bun Nomas into the Ruu River intending to drown him. He was assisted by two others who were masked and who had tied a rope to a tree on the shore which they used to hold onto and to pull the defendant by his legs into the river and to drown him. She said that both these men were masked except for her husband the defendant who was not masked and so she was able to see his face from where she stood about 70 to 80 meters where little rain had come. The place was not that dark. It did not make sense that the other two persons were masked and not her husband. Especially considered in the light of the fact that they were killing someone and there were after effects of the process of law that would catch up on him. Why would he allow himself to be easily recognized and to be taken in by the law appreciating knowing the consequences that flowed from criminal actions? If indeed he was involved with two others as seen by this witness, why would these two allow his face to be exposed whilst theirs weren’t? It did not make sense. When the law caught up to him surely he would reveal the other two who accompanied him on this murder. They were committing a crime which carried the maximum penalty of death. Why would they allow that he expose his face and not theirs? Clearly it made her story incredible to believe. Further why wait a year 26^th April 2013 to 11^th February 2014 and 23^rd April 2014 for her evidence to be obtained on such a very serious case of wilful murder? There is easy accessibility to the police Station at Kimbe and even the Corrective Institution is next door to where she is. Why was there never a report by her for the whole year? It casted very serious doubts about her veracity as a witness of truth. Whether or not her evidence was believed depended on corroboration of that evidence. I have set out what these are in the discussion above.
    
14. She said she overheard the deceased pleading in local Poroma language of Mendi to be spared his life and for the defendant and the two to take K800 plus that he had in his pocket. She said her husband had retrieved the bush knife carried by the deceased which she got off her husband in the course of a fight with him off the deceased and used it to hit his elbow with it. Included with it was a stick that the deceased had imbedded in the shore of the river to assist him cross to the other side. She said she had taken both to the police and handed to the arresting officer Sergeant Samson Fanaso. He gave evidence that both exhibits were lost in the maintenance of their office and could not be located at the time of the trial. The effect was that what was sworn in oral testimony by Nancy More wife of the defendant was not corroborated. Corroboration was required because she had not immediately reported the matter there and then but waited a year until 23^rd April 2014 to make the report to police. And she reported because she was involved in a fight with the defendant who had tried to burn her together with the bush hut that he built and which was used by the witness to sleep in with her daughter in March 2014.
    
15. Clearly there was motive in the witness’s evidence against the defendant and intention to put the defendant away. She stated in cross examination that her life was better with the defendant gone to prison. Her evidence would have been looked at differently if she had come out immediately after the 26^th April 2013. She could not rely on the fact that the defendant was always assaulting her so she was scared to report. Because the State had not led evidence that the threat was there real present until a year later in 2014 and she feared for her life if she reported. She may have been seen as an accomplice, an accessory after the fact in that she witnessed the crime but never reported until after a year. For the purposes of being charged as an accessory after the fact an accused must do some act in order to enable the principal offender to escape detection and punishment: R v Angie-Ogun [1969-70] PNGLR 36; The State v Amoko-Amoko [1981] PNGLR 373 at 386; R v Pompey (1924) 18 QJPR 59, and R v Andrews and Craig [1962] 1 WLR 1474 at 1477. It was therefore important for her evidence to be believed that there were other evidence to corroborate the account that she gave. I did not find any corroboration of her account except her own assertions. It was unsafe and unsatisfactory to completely rely on her evidence in view of the questions that were now raised by the defence. These were not just mere questions but doubts in the credibility of the principle state witness. Had the state tendered through her the bush knife that the witness saw left behind by the deceased and also the stick that he used to cross the river Ruu, it would have swayed to believe the evidence of Nancy More.
    
16. She had seen the death of Bun Nomas there on the 26^th April 2013 but she made no report until 23^rd April 2014. If indeed it was as serious as she saw it, why did she immediately report there and then? She made the observation with her child accompanying her. To make an observation without any distraction undetected and undeterred would be a good observation. Here she had her child of the union with the accused with her at that time. She could not have easily made the observation without the child drawing attention to them. A crime was committed not by her husband alone but with two other persons would she be expected with a young child to fluently without any distractions from the child make the observations that she made. I think not and I find her evidence in this regard incredible to believe.
    
17. It is not necessary to consider the other evidence set out above which do not add to the State case in any way or form. It is primary in any given case for a ring of truth to be established in evidence produced for the court to rely on and to make appropriate findings of fact in law to arrive at the judgement in a particular way therefrom. State v Sokai [2002] PGNC 21; N2334 (19 June 2002) had corroboration led of the prior quarrels and assaults by the defendant on the deceased including on the night in question of a stockmen boots that was worn by the defendant neatly stacked in a draw in the room where the deceased lay dead. Also of the fact that the defendant had a spare key as he was regarded by the deceased as a “son”. It was a circumstantial case which saw conviction against the defendant because of the corroborative evidence led in addition to the primary evidence. State v Kiapkot [2011] PGNC 293; N4380 (4 April 2011) relied on the evidence of an accomplice which was corroborated by the weapons used of a gun, a piece of flat iron, a spear corroborating what the witness gave. The court returned a guilty verdict.
    
18. There is no dispute that the deceased Bun Nomas a serving prisoner of the State was out of the prison compound at Lakiemata Corrective Institution on the 26^th April 2013. That he had drowned in the Ruu River adjacent to the prison. I find the evidence of Nancy More as to the manner in which he may have drown not beyond doubt primarily as I have set out above that her evidence is not corroborated by the knife she retrieved together with the stick. She has never reported until a year 23^rd April 2014 without these corroborative evidence. Her presence at the scene of the crime witnessing is disputed. There is no evidence led before me to disprove that fact contended. I am not satisfied beyond all reasonable doubt that the accused had a part to play in the death of Bun Nomas.
    
19. Accordingly, I return a verdict of not guilty of wilful Murder. I further order that the defendant be discharged forthwith.
    

Orders Accordingly
________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant