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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1170 OF 2019
THE STATE
-v-
CEDRIC GOMANG
Madang: Geita J
2020: 21, 22, 25, 26 May; 3, 6, 11, 24 June
CRIMINAL LAW – PRACTISE & PROCEDURE - Trial – Wilful Murder - Circumstantial evidence – Need to caution oneself in convicting persons on such evidence.
CRIMINAL LAW – PRACTISE & PROCEDURE - Unsworn statement - Accused right to give unsworn statement – Not an admission
of guilt – Court must also consider accused statement.
CRIMINAL LAW – Trial - Wilful Murder – Insufficient credible evidence to sustain alternative count under s. 539(1) Criminal
Code.
CRIMINAL LAW – Verdict - Wilful Murder – Section 299 (1) Criminal Code – Elements not made out successfully - Circumstantial
evidence – Not considered safe to lawfully convict. - Not Guilty verdict returned.
Cases Cited:
Garitau Bonu and Rossana Bonu v The State SC. 528
Jimmy Ono v The State (2002) SC 698
Paul Akis Soti v The State SCA 121/92
Paulus Pawa v The State [1981] PNGLR 493
The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
The State v Laura (No. 2) [1988-89] PNGLR 98
The State v Tom Morris [1981] PNGLR 498
Counsel:
Deborah Ambuk, for the State
Delailah Ephraim, for the Accused
JUDGMENT ON VERDICT
24 June, 2020
1. GEITA J: On arraignment the accused pleaded not guilty to a charge of wilful murder alleged to have been committed between 17th and 20 April 2019 at Kaul No.2 village, Karkar Island in the Sumkar District in Madang thereby contravening Section 299 (1) Criminal Code Act. Subject to s.19 of the Criminal Code the offence carries a death sentence.
The Evidence for the Prosecution
2. The State relied on both oral and witness testimonies. The following materials were tendered into court by consent viz.
State Witness 1 – Kuasir Kaiyong
3. He gave testimony of witnessing an argument between the accused and his wife on a Wednesday in which the accused threw a stone to hit his wife but missed. They both fought as a result of the accused bringing another woman into his house. The noise of their fighting was so loud that it disturbed their neighbours, so he intervened to stop them arguing and fighting. During the argument he heard the accused tell his wife: “You are my sexual partner”.
The witness said as they were still standing, he heard the accused utter these words: “If we come across privately, she will be finished”
He identified Cedric to be his brother and said he met him a week later, after the incident on Thursday at a second-hand shop. He said he noticed the accused acting strangely and said it was not his normal behaviour. He said he met the accused again at Kuriri cell after the body was found on Saturday and questioned the accused why he had done that. The witness said the accused remained silent and was crying with his head down. He said the water pond where the deceased’s body was found was about 50 meters away from Cedric’s house. At that time, it did not rain and so the swampy pond was not flooded.
4. In cross examination the witness maintained that the accused used those threatening words to his wife within his hearing between 4pm and 5pm on Wednesday. He said Jack was also present when the couple were fighting. He said he was Jenny’s uncle and they live close to each other. He said he knows everything about the couple as he was Jenny’s uncle and the couple have continuous fights. When suggested to him that Cedric never used those threatening words to his wife and that he was lying, the witness said he was not lying. He said they were both seated when Cedric uttered those words. Again, when put to the witness that no one heard those words, he maintained that he was there when the accused made those statements. He agreed that Jenny’s body was found on a Saturday. He further agreed that none of them know the date when Jenny might have died, save the date of her disappearance on a Wednesday when they realised, she had gone missing.
Cross examination continue:
Q. Someone may have killed her?
A. Yes, but Cedric made those statements about killing her, because of that statement, I am saying Cedric killed Jenny.
State Witness 2 – Ronda Naso. (Deceased’s sister)
5. In her written statement given and signed before a Commissioner for Oaths on 14 August 2019 she recalls last seeing Jenny wearing her black round “T-shirt on 17th April 2019. When Jenny’s body was found she did not see her “T” shirt on her body apart from a right-hand piece which was found at Katele Sagar sand. (Consent exhibit # 3)
6. She gave oral testimony on 22 May 2020, some 10 months later. She comes from a family of 6 siblings with the deceased, Jenny being the eldest in the family. She confirms Jenny’s marriage to Cedric with 3 children and the fourth one on the way but died with the deceased. The witness said Jenny went out on Wednesday and met her fate. On the day she went missing, her mother went looking for her at Cedric’s house, but he denied seeing her that day. During that night she heard trees rustling from nearby bushes. The next day, a Saturday she found her sister lying in a pond/swamp, dead and alerted other family members who came and removed her body. She estimated the distance of the pond to Cedric’s house to be between 40 to 50 meters. She described her sister as being humble and obedient to her parents. As to her sister’s marriage life, she said the couple always had problems.
Cross Examination
7. In cross examination the witness admitted that she does not know when the deceased died and who caused her death. She admitted accompanying her mother to Cedric’s house to look for Jenny but could not find Jenny. The witness remained adamant with suggestions that no family meetings were held with her uncle Kuasir. She denied family members gathering at their house save for a “haus krai”. When asked if her sister’s ‘death was discussed during the family gatherings, the witness answered: “Ï don’t know”. When further asked if Kuasir told her and other family members about the story of Cedric’s threats to Jenny she said: “yes em tok tok”. She however agreed that she was present at the “haus krai.”
Cross examination continue...
Q. Kuasir told your family that it was on a Wednesday that your sister died?
A. I don’t know.
Q. You all gathered and agreed to blame death of sister on Cedric?
A. I don’t know.
Q. I suggest to you that you discussed your story with Uncle Kuasir?
A. Nogat.
Q. I suggest you did discuss your evidence with Kuasir, because your evidence on the distance of the pond from Cedric’s house was the same description and distance Kuasir gave to this Court earlier. 40-50 meters?
A. Its true.
Q. Do you know Angela?
A. Yes, I know her, she was found with Cedric.
Q. That’s the reason why your sister went looking for her at Cedric’s house?
A. Yes.
In re-examination the witness indicated that the distance from Cedric’s house to the pond/swamp using court landmarks viz: Distance from witness box to the neighbours’ fence on the other side of the main road. NB Both Counsel agree to an approximate distance of 40 to 50 meters.
Court question?
Q. Did you go to school?
A. Yes, Grade 5
Q. You understand English?
A. Little bit.
Defence Counsel question?
Q. Did you read the page before you sign it?
A. I only signed it.
Q. Story in page, you don’t know?
A. I don’t know story.
State Counsel question?
Q. The paper given to you, was the story explained to you?
A. Nogat.
Q. Did you give that story to Police?
A. Yes.
Q. Is it the same story given to Police?
A. I don’t know about that.
A. Nogat.
Q. Who assisted you get your story?
A. No one.
Q. So you never told your story to anyone?
A. Yes.
Q. Today is your first time to tell your story?
A. Nogat.
Q. Who did you tell your story before?
A. The Police, I don’t know his name.
Q. So what you told Court is true?
A. Yes, its true story.
State Witness 3 – Lawo Naso. (Deceased’s mother)
8. In her written statement given and signed before a Commissioner for Oaths on 14 August 2019 she recalls confronting Cedric at his home around 1.00 am. At that time Steven Gomang was present. Cedric and Steven denied seeing Jenny on Friday 18 April 2019. She said upon Cedric’s denial she heard rustling from nearby bushes, so Steven Gomang shone the torch towards the rustling noise. She said the next morning between 6-7 am Ronda told her that Jenny’s body was found some 37-foot paces from Cedric’s house. At the time of her death Jenny was 8 months pregnant.
9. She gave oral testimony on 22 May 2020, some 10 months later. The witness said both Cedric and Jenny were happily married, however when their 2nd and 3rd children came along their marital problems began with Cedric’s adulterous relationship with another woman. During all those years Jenny suffered from Cedric’s continuous beatings and assaults. When Jenny became pregnant with their 4th child Cedric got another woman which resulted in on-going marital disharmony and fights, until the time of Jenny’s death.
The witness said on the night of 17 April 2019 Jenny went to Cedric’s house to fight with that woman, Angella. She said that was the last time she saw her as she never returned to the house on Friday. I went looking for her at Cedric’s place, but he denied seeing Jenny. Steven was also there with Cedric. Upon Cedric’s denial I heard noise and rustling from nearby bushes.
The witness sensed that her daughter was at the place trees were rustling and where the noise was coming from. The next day, her daughter Ronda told her that Jenny was found lying in the pond near Cedric’s house. Jenny’s body was removed from the pond and prepared for burial.
Cross Examination
10. When put to the witness that she does not know how Jenny died and why she died, the witness said Jenny died of worry. She said the last she saw Jenny was in the morning on 17 April 2019 as she went to Cedric’s place where she was assaulted. When questioned if she was present when Jenny was assaulted, she said she was, together with Kuasir. When asked if she tried to stop the couple fighting, she said the accused was an aggressive man.
Cross examination continue...
Q. Did you see her walk out of your house?
A. Remain mute and evasive.
A. Evasive
Q. Your story is not your story?
A. I am suspicious.
Q. You do not know when Jenny died?
A. No, I know my daughter up to her death.
A. I know Cedric killed her as she will not kill herself.
Q. You never saw Cedric and Jenny before her death?
A. She lived a problematic life.
Q. You are angry. Don’t know how she died?
Q. You wanted to blame someone, that is why you are blaming Cedric?
A. No one married Jenny, only Cedric and both have a 4th child on the way.
Q. You are basing your evidence on superstition?
A. Nogat.
A. No pigs and dogs that night.
Court question?
11. Q. Did you try to go to the place where the noise was coming from?
A. Its night-time and I don’t have strength to go check that area.
No questions from Counsel arising from Court question.
State Witness 8- Raut Meke. (Consent exhibit # 1)
12. The last time he saw Jenny alive was on Thursday 18 April 2019 as she sat talking with her family members at their Malan village around 1 am in the morning.
State Witness 9- Manu Pangkus. (Consent exhibit #2)
13. He gave an account of seeing the accused fully drunk at Roland’s marriage feast on 17 Wednesday 2019 and spending the night with Dick on Thursday 18th 2019.
State Witness 10 – Wong Matarap. (Consent exhibit # 5)
14. He gave an account of coming across two of Steven’s brothers around 7pm at Mirankri on Thursday 18th April 2019. When questioned what they were doing that time of the night, the one wearing an army coat said they were looking for Steven Gomang from Suaru, Bogia. Along the way he met Sonny and Keith and returned to his village at Uruan- Kaul #3 village.
On Friday 19th April 2019 he heard that Jenny had died on Wednesday night and her body was found on Saturday 20th April 2019. He then told everyone about meeting the two boys who were looking for Steven that night.
State Witness 11 - Shong Gunuk. From Demoram-Kaul # 1 village. (Consent exhibit # 6)
15. He gave an account of walking from Ngor to Burir village around 8.30 am on a Sunday April 2019 with his wife when they came across a woman from Ngor village by the name of Angela. She was standing near the Guamanga bridge. The witness said he noticed scars and scratches on her left and right face as if she was involved in a fight, resulting in those marks.
At that time my wife was having a conversation with a woman that was standing next to Angela.
State Witness 12– Ludwick Kaiyong (Consent exhibit #7)
16. He is aged 21years and comes from Kaul # 1 village- Karkar Island.
He gave an account of Steven Gomang telling him sometimes during the last week of April that he has Jenny’s necklace with him now. At that time the witness was with Jerry Yukuk at Kulsi, Wesan village and discussing about Jenny’s death.
State Witness 13 – Gabe Aloysius – (Consent exhibit # 8)
17. His role in this trail was to corroborate the Record of Interview conducted by Sgt Richard Sibolo.
State Witness 14 – Sibolo Richard – Consent exhibit # 9)
18. His role in this trial was to report on the Record of Interview he conducted on the accused.
The Evidence For the Accused
19. The accused chose to give an unsworn statement. On 8 April 2019 my wife Jenny Naso came to my workplace and we had an argument. Kuasir Kaiyong who was standing next to me told me to remove my wife or else he will kill her. He told me that he was cross with Jenny for using his well water to wash. From there Jenny returned home. I returned home around 5 pm. After 1 week and three days later Friday 19 2019 Jenny’s mother came to my house, woke me up and enquired about Jenny. Jenny’s mother told me that Jenny went missing the previous day. I told her I would come tomorrow and help look for her. I arrived and we all started looking for Jenny. I was told to go to the next village and look for a “glass man” but they said they will look for one instead. Along the way they told me that Jenny’s body was found. I was later arrested.
Submissions from State
20. The gist of State submission is that the accused evidence ought not to be believed as it was unsworn and therefore not tested in cross examination. His lack of explanation when given the opportunity during his record of interview, found wanting in its truthfulness. Furthermore, his version of shifting blame to Kuasir as the author of certain threatening words towards his late wife Jenny found wanting for lack of corroboration. Ms Ambuk submitted that the accused unsworn statement was a last attempt to exonerate himself from this crime. Kuasir’s evidence was relied upon to tailor his unsworn statement. Ms Ambuk submitted that when State evidence is considered in a chronological and holistic approach from the time there was an argument between the couple to the time of her death, considering all intervening events in between, the only credible hypothesis that can be drawn is the accused assaulted his wife resulting in her death. She submitted that in view of this Court’s finding of insufficiency of evidence on the wilful murder charge, the Court should return a verdict of guilty on a lesser charge under s. 539 Criminal Code.
Submissions from Défense
21. Counsel of defence Ms. Ephraim submitted that notwithstanding sworn State evidence most if not all found wanting corroboration, hence, not to be believed. For instance, Kuasir’s evidence. The common thread running through all other evidence was that none of them gave direct eyewitness account of what happened to Jenny. Furthermore, other possible hypothesis may be drawn from the State’s evidence. For instance, Angela, the woman in evidence said to be the Accused’s mistress. She was seen with scratch marks to her face and hands prior to Jenny’s disappearance. Steven Komang was also a possible suspect. He was last seen with Jenny’s necklace. As regards the unsworn statement given by the accused, it is quite possible that he knew nothing of the death of the deceased, as he was not involved said Ms. Ephraim. Ms Ephraim submitted for the accused to be acquitted of the wilful murder charge. Alternatively, the Court consider a lesser charge under s. 539(1) Criminal Code.
22. The central issue in this trial is whether the accused was responsible for the death of the victim. As it stands there is no direct evidence linking the death of the deceased to the accused save for circumstantial evidence. This Court is now left with the evidence from State witnesses to make a finding of guilt or otherwise of the accused person.
Could somebody else have caused the death of the deceased?
23. From Prosecution evidence thus far, several people have surfaced as possible suspects. Besides the accused who remains the principal suspect and on indictment. His mistress Angela and Steven Gomang remain high on the suspect list. Angela was seen standing on Guamanga bridge with another woman on Sunday April 2019 at 8.30am by Mr and Mrs Shong Gunuk. They saw scars and scratches on her face. Steven Gomang was seen in the company of the accused on Friday night of 18 April 2019 when Lawo Naso went to look for her daughter at Cedric’s place. Witness Wong Matarap gave account of talking to Steven Gomang’s brothers on Thursday night at 7pm said to be looking for Steven that night. Ludwick Kaiyong gave an account of Steven Gomang in possession of Jenny’s necklace sometimes during the last week of April. The accused Cedric’s fate is hinged on his close relationship with the deceased and was said to have uttered words to kill Jenny within the hearing of witness Kuasir Kaiyong on Wednesday during an argument between the couple. The prosecution has not successfully singled out anyone of those three suspects who may be linked to the death of Jenny.
Medical Report
24. The report falls short of making a finding or giving an opinion on the cause of late Jenny’s death. The body was found pretty much intact with only signs of swelling. There were no visible signs of physical injuries detected, except vaginal bleeding and discharge. Some suspected injury to the vulva. (covering of the vagina). The team of medical officers reported no disabilities or abnormalities to her body, save for the offensive bleeding and discharge. They reported that the death of the deceased to be unknown. They estimated that the body may have been in the still water for 3 nights and 3 days. The deceased’s body state of decomposition as described by the medical officer: “Cold & clammy skin, skin pale and peeling off (blister like).” For its worth the medical report only confirms late Jenny’s death and nothing more of evidentiary usefulness.
Conflicting statements from witnesses.
25. Both Ronda and her mother Lawa Naso gave two sets of evidence, one written and another oral between a space of 9 months (14 August 2019 & 22 May 2020.) Not surprisingly the two bodies of evidence were riddled with inconsistencies, additions and or omission of new evidence. The written statements appear to be too shallow and void of vital information which were only given orally during trial. Despite Ronda denying in cross examination that a family meeting were not held with their uncle Kuasir to discuss the death of Jenny, parts of her oral evidence appeared tainted with signs of being coached on what to say in Court. I draw inference on her evidence citing the distance of the pond where Jenny’s body was found to the accused’s house: She indicated that distance from the witness box, where she was seated to the fence on the other side of the main road in-front of the court house. Those were the exact same description of the distance given by witness Kuasir earlier on. She was coached by Kausir. I am therefore satisfied and can safely infer that her evidence given to Court falsified and treat her evidence with caution.
26. Lawa’s evidence was riddled with evasiveness and anger, for obvious reasons. Save for some aspects of her written evidence which were reflected in her oral testimony, her evidence remains suspect in my view. During cross examination she admitted being present with Kuasir as the couple were fighting but she fell short of corroborating Kuasi’s evidence of Cedric uttering those threatening words. The loss of her daughter remained fresh in her mind and clouded her thought pattern during evidence resulting in anger and frustration and sometime remaining mute.
27. I am of the view that Kuasi’s evidence was an afterthought and concocted to weave into the prosecution evidence. As to Kuasi’s evidence, although he maintains that Jack was also present during the couple’s fighting, no one else testified of hearing the supposed fatal words uttered by Cedric: Ïf we come across privately, she will be finished.” In other words, his evidence of hearing Cedric utter those words lacking corroboration.
28. The date of the deceased’s disappearance and eventual death remains inconclusive and confusing. Prosecution evidence on this issue is varied and confusing. She was last seen by witness Kuasir, Ronda and Lawo on Wednesday in April 2019 before she disappeared. Witness Raut Meke saw her alive on Thursday 18 April 2019 as she sat talking with her family members at the Malan village around 1 am in the morning. She was found dead on Saturday morning (20th April 2019) lying in the pond. It is therefore safe to infer that Jenny met her fate on Friday 19th April 2019. She quarrelled with the accused on 19th April 2019.
Common sense approach & credibility
29. Common sense dictates that in moments of sudden happiness or grief the bearers of such information or news are usually the first ones who are anxious and willing to announce such events to the public at the first available opportunity. In this case, 4 months after the death of late Jenny, 7 sets of statements were collected from 7 possible witnesses who may shed some light on Jenny’s death. Witness Kuasir Kaiyong was not one of them. If he did, the Court does not have this information to form an opinion. I ask the question why? Why was he not interviewed, and his vital information recorded or why didn’t he willingly come forward to give his evidence to police, if he claims to have his niece’s welfare at heart? After all he claims to have some vital information which may possibly link Jenny’s death to the Accused? All these questions remain unanswered. If indeed Kuasir’s statement was obtained together with others, this Court has not been assisted as to why this information was withheld. An obvious explanation is that he was called to give oral testimony. That aside, some explanation from prosecution would greatly assist the Court. The absence of an explanation has given rise to speculations that his evidence was of recent invention. Coupled with that, the absence of any form of corroborative evidence supporting his version of events, more particularly his version of Cedric uttering those words, I am not persuaded that he is a witness of truth. Furthermore, it became abundantly evident that all other state witness evidence mirrored Kuasi’s evidence. Inferentially therefore I am satisfied that Kuasi’s belated evidence was concocted and tailored to suit and link Jenny’s death to the accused. When asked during cross examination if someone else may have caused the death of Jenny, Kuasi replied: “Yes, but Cedric made those statements about killing her, because of that statement, I am saying that Cedric killed Jenny.” I do not find him to be a witness of truth nor do I find Ronda and Lawa’s evidence convincing and credible.
30. The relevant law. Section 299 Wilful Murder
(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.”
Elements of the Offence
31. The elements of the offence of wilful murder are:
The Law as it applies to the issues.
Circumstantial evidence
32. The law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the Court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw. The case of The State -v- Tom Morris [1981] PNGLR 493 and Paulus Pawa -v- The State [1981] PNGLR 498 are primary sources of reference. These principles have been applied in many subsequent cases both by the National and Supreme Courts. (The State -v- Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 and Garitau Bonu and Rossana Bonu -v- The State SC. 528.)
33. Now applying the above principle to this case, I cannot say with absolute certainty that the guilt of the accused is the only rational inference that in all the circumstances would enable me to draw on it. Furthermore, I caution myself on the need to be careful in convicting persons on such evidence.
Cedric’s unsworn statement
34. As regards to unsworn statements, this is what the Supreme Court said in the case of Jimmy Ono v The State (Unreported judgment delivered on 4/10/2002) SC 698:
“In your case, you presented no sworn evidence to rebut the sworn evidence against you. You were only prepared to give an unsworn statement. Whilst that was your right to do so and that no inference of guilt can be drawn against you because of that, it means that you were left with sworn evidence against you without any rebuttal from you. You were not able to present any reason to compel the trial judge not to accept the sworn evidence against you.”
35. The accused presented an unsworn statement as such he was not able to present any reason to compel this Court not to accept the sworn evidence against him. Notwithstanding this lack, all sworn evidence were found wanting credibility and corroboration and therefore rejected.
Are there evidence of all elements of the offence of wilful murder that would support the accused conviction?
36. As to the element of the person who may have caused the death of the deceased, I answer in the negative. There is insufficient
circumstantial evidence that the accused took part in the murder of the victim as set out in Section 299 (1) of the Criminal Code. Having considered all the evidence in the circumstances of this case, I am satisfied that the most likely rational inference to be
drawn here is that during that fatal night/morning two other persons were seen out and about within the vicinity of the murder scene:
Angella and Steven. The prosecution has not successfully isolated these two suspects, nor have they successfully linked the accused
to the death of the deceased. The element of who that person was is dismissed. It follows that the elements of unlawfulness and intention
to kill the deceased must also fail for the same reasons. In the absence of “the person who killed the accused” both
remaining elements cannot stand.
Findings.
37. Prosecution evidence is primarily based on Kuasi’s evidence which has not been corroborated. Of concern to this Court is that his presumption of Cedric’s guilt appears to be based on certain death threats made against Jenny within his hearing. It became apparently evident throughout this trail that the balance of prosecution evidence was tailored around Kuasir’s presumption. To my mind that is a very dangerous conclusion. Whilst I agree with Ms Ambuk’s argument that State evidence is best treated holistically and in a chronological manner, to which I have done so, this process of findings, still fell short of linking the accused to late Jenny’s death.
38. Having considered the competing evidence and the submissions of both counsel I am not persuaded that the State has proven their case beyond a reasonable doubt that the person who killed the deceased was the accused, for the reasons alluded to above. Anyone of those three persons named in this judgment remain possible suspects. I agree with submissions of Counsel of defence that from the State’s evidence other possible hypothesis may be drawn. This alone was cause for concern and unsafe for Court to find for the State. The prosecution has not conclusively linked the death of late Jenny to the accused. Therefore, in the absence of any direct evidence to the contrary, I find that Cedric cannot be safely and lawfully convicted.
Verdict.
39. Accordingly, I return a verdict of not guilty against the accused and have him acquitted accordingly. His Indictment is dismissed.
It is therefore not necessary for me to consider an alternative lesser charge pursuant to s. 539 Criminal Code.
Verdict: Not Guilty.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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