State v Kanjip (No. 1) [2021] PGNC 356; N9180 (15 September 2021)

N9180

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 176 OF 2020

THE STATE

-v-

MANJANG KANJIP

(NO 1)

Lae: Kangwia J.

2021: 10^th, 13^th & 15^th September

CRIMINAL LAW – Murder – verdict – accused elected to remain mute – verdict of guilty returned.

Cases Cited

Devlyn Davis v The State (2006) SC881
Paulus Pawa v the State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
State v Marawa Kanaio [1979] PNGLR 319

Counsel:

P. Matana, for the State
G. Peu, for the Accused

15^th September, 2021

1. KANGWIA J: This is a decision on verdict. The accused was charged with one count of Murder pursuant to s 300 of the Criminal Code. The State alleged that the accused bludgeoned the deceased with a digging iron in the deceased garden and hid the body in a creek nearby.
2. He pleaded not guilty, and a trial ensued. The State tendered into evidence various documents, photographs including the alleged iron rod used, a knife used to threaten the key witness, the key to the accused house, and the ROI which contained denials. They were labelled as exhibits from A to J.
3. The State then called three witnesses who gave sworn evidence. Their evidence are briefly as follows.

1st State Witness - Alphonse Waiya.

4. He is a Senior Constable of police. His evidence was that he was the investigating officer for the murder.
   
5. In the process of his investigation, he retrieved the iron rod allegedly used to bludgeon the deceased, a knife used to threaten his wife and a key to the deceased residence. He gave evidence that the accused was the only one implicated in the killing and was charged. He was also present during the record of interview where the accused denied committing the offence.
   

2nd State Witness - Rebecca Manjang

6. This witness is the former wife of the accused. She identified the accused as her former husband. Her evidence was that she was in her house when the accused hit the deceased on the head with the iron. The deceased was in his garden when the accused killed him. The body was dragged away and left at the creek.
   
7. After the incident the accused threatened to kill her if she reported to anyone by pointing a knife at her. She later identified the knife as the one the accused held and threatened her. The creek where the body was dropped was not far from their house. In cross examination when pressed upon her that she was lying she was adamant that she told the truth of what she saw.
   

3rd State Witness-Eddie Paulus

8. His evidence was of discovering the body near the creek under a rock. He was with three other boys including the deceased son when they discovered the body. The deceased garden was a few meters from his house.
   
9. At the close of the case for the State the accused elected to remain silent, and the defence formally closed its case. This is the decision on verdict.
   
10. On behalf of the State Ms Patana submitted that the case for the State was made up of direct evidence against the accused. She saw the accused walk from their house, picked up the digging iron and striking the deceased on the head. He then took the deceased body to the river close by to hide it.
    
11. That evidence was corroborated by the evidence of the body being found under a boulder near the creek.
    
12. The evidence of the striking on the head of the deceased was also corroborated by the photos indicating the injury and the medical certificate of death which showed that the deceased had sustained a blunt force trauma to his head. There was further injury to the cervical spine which was attributed to the application of the blunt force to the top of the head.
    
13. It was argued that the only inconsistency was on the key and the photo of the house which were minor and did not affect the case for the State.
    
14. The evidence also established that grievous bodily harm was intended when he walked from his house to the garden where the deceased stood and the application of striking the deceased on the head with a digging iron. There was no justification for the killing and it was an unlawful killing. the State had proved its case beyond any reasonable doubt and the accused could be safely convicted of murder.
    
15. On behalf of the accused Ms Peu submitted that the only issue was whether the accused intended to cause grievous bodily harm and caused the death. The onus was on the State to prove it.
    
16. It was then intimated that the case for the State was built on direct and circumstantial evidence.
    
17. After highlighting the law governing direct and circumstantial evidence in the cases of Paulus Pawa v the State (1981) PNGLR 498; The State v Tom Morris (1981) PNGLR 493 and Devlyn Davis v The State (2006) SC881 it was submitted that the State had not proven its case beyond any reasonable doubt for murder and it was unsafe to convict the accused.
    
18. It was submitted that the evidence of the first State witness was one of suspicion and uncertainty and not supported by the other witnesses.
    
19. The second witness was the former wife of the accused who gave direct evidence of what she saw. However, she did not report the crime or speak to others.
    
20. She also did not forewarn the accused to stop him when she had the opportunity. Her evidence was also not corroborated and stands uncorroborated. It was also submitted that there was no evidence of the accused conduct prior to or after the deceased death. There was no argument between them. Therefore, the State failed to prove its case and the accused could not be safely convicted. A verdict of not guilty was sought.
    
21. This case involves a killing in which the State has alleged that the accused was the perpetrator. The accused and the deceased are in-laws. The evidence for the State stands unchallenged based on the accused electing to remain silent. The election to remain silent is a right under s 37 (10) of the Constitution. Pursuant to s 17 of the Evidence Act an accused cannot be compelled to give evidence.
    
22. On an election to remain silent the Court in the case of the State v Marawa Kanaio (1979) PNGLR 319 held that:
    

“ This cannot be used as a bolster to a deficient prosecution case, but there is authority for saying that once there is evidence upon which the Court might be satisfied beyond reasonable doubt that the accused is guilty, the fact that he has not given evidence or called evidence in his power to call may lend assurance to any satisfaction the Court may feel”

23. In the case of Paulus Pawa v The State [1981] PNGLR 495 Andrew J at 504 said:
    

“An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened. A person who claims to be completely innocent should give his explanation early as it could exculpate him notwithstanding his Constitutional right to silence.”

24. Considering those principles, I am of the opinion that there is in all probability that an accused may elect to remain silent after being cornered with no escape route from the evidence offered by the prosecution.
    
25. The evidence for the State is direct. The direct evidence is from the former wife of the accused. Her evidence was of seeing the accused walk over to the garden where the deceased was and hit him on the head with a digging iron. After the assault the accused returned and threatened her, that he would kill her if she told anyone of the incident. She was scared and did not tell. That evidence stands unchallenged. In the ROI the accused denied ever killing the deceased as he was the in law.
    
26. There is also unchallenged evidence that the accused hit the deceased only once with the digging iron. That evidence is consistent with the medical report that there was head injury from which the cervical spine injury was also sustained. As to the inconsistency on the photograph of the house and the key tendered into evidence they are insignificant as they are unlikely to affect the evidence for the State.
    
27. From the extent of the injury sustained it is safe to infer that there was a strong desire to do grievous bodily harm even though there was only one blow to the head of the deceased.
    
28. In the absence of any evidence to the contrary it is the view of the Court that the State has proved beyond any reasonable doubt that the accused intended to do grievous bodily harm which resulted in the death of the deceased.
    
29. A verdict of guilty for murder is returned.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence