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State v Kevin (No 3) [2021] PGNC 626; N9673 (29 November 2021)

N9673


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 838 OF 2020


THE STATE

v
ABE KEVIN
(No 3)


Kimbe: Numapo J
2021: 21st October & 29th November


CRIMINAL LAW – Particular Offence – Sexual Penetration of a Child s 229A (1) (2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002– Plea of Not Guilty – Confessional Statement - Issue of Identification – Circumstantial evidence- Accused found guilty.


Held:

(i) In assessing the credibility and reliability of the witness, a number of factors are taken into account such as; the impression left by the witness as to his reliability and accuracy; the existence of a motive for giving false evidence and any inconsistencies or contradictions made in his evidence to the Court.

(ii) Generally, circumstantial evidence is admissible in court if it is the only evidence available in the absence of any direct evidence however, the court must examine carefully the nature of the circumstantial evidence and its relevance and consider it together with the other evidence.

(iii) In the present case, I am convinced that the circumstantial evidence is credible and strong enough for me to draw a logical inference based on the facts and reasonably concluded that the accused was present at the crime scene on the date the deceased went missing.

(iv) Evidence of eye witness Dyane Kingsford and the confessional statement made by the accused are, on their own, sufficient to find the accused guilty.

(v) Accused found guilty as charged.

Cases Cited:


Beng v The State [1977] PNGLR 115
Bate v The State [2012] PGSC 46, SC1216
James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173
Ono v The State (2002) SC698
Piakali v The State (2004) SC771
Paulus Pawa v The State [1981] PNGLR 498
State v Manasseh Voeto [1978] PNGLR 519
The State v Beng [1976] PNGLR 471
The State v Anis Noki [1993] PNGLR 426
The State v Kakas & Ors [1994] PNGLR 20
The State v John Peng v The State [1982] PNGLR 331
Vali Rocky Maury v The State [2001] PGSC 16; SC668


Counsel:


N. Pare, for the State
B. Takua, for the Defence


RULING ON VERDICT


29th November, 2021


  1. NUMAPO J: This is ruling on verdict. The accused ABE KEVIN of Dumun village, SineSine-Yonggomugl, Chimbu Province, pleaded Not Guilty to one count of sexual penetration of one, Jenny Kulapai, a child under the age of 12 pursuant to section 229A (1) (2) of the Criminal Code (Sexual offences and Crimes Against Children) Act 2002. The matter proceeded to trial.
    1. BRIEF FACTS
  2. The brief facts were that; on the 25th February, 2019 between 3pm and 3:30pm the deceased Jenny Kulapai aged 6 years old and two other small girls Dyane and Natalie of the same age were washing at the Kamarere creek at Rigula NBPOL Oil Palm Mini-Estate Compound in West New Britain Province when the accused approached them and chased them. Dyane and Natalie ran away but the deceased was caught by the accused and taken into the bushes in the oil palm plantation and sexually penetrated her by inserting his penis into her vagina. After penetrating her, the accused noticed that the victim was bleeding heavily from her vagina and was in a lot of pain and crying. He then stepped on her neck to kill her. Victim was unconscious but still breathing. The accused took her to the creek and drowned her to death. Accused dug a hole beside the creek and covered up her body with sand, leaves and other debris. The body of the deceased was found the next day at the creek.
    1. STATE’S CASE
  3. The State’s case consisted of documentary evidence and oral evidence from five witnesses. The documentary evidence comprised of the following, amongst others:
  4. Defence consented to the tendering of all the documents comprising the State’s evidence at the outset. Defence however, objected to a confessional statement purportedly made by the accused and filed a Notice of Objection pursuant to section 28 of the Evidence Act. A voir dire was conducted and the court found that the confession was made voluntarily and in the exercise of the accused’s own free-choice. The confessional statement was then accepted into evidence. (*See separate ruling on voir dire).
  5. The oral evidence came from the following State witnesses who gave evidence on oath:
  6. Dyane Kingsford is nine years old this year. She was born on the 25th June 2012. She was seven years old in 2019 when the offence was committed. She told the court that on the day in question she was washing in the creek with Jenny Kulapai (decesaed) and Natalie Jim at Rigula Estate Compound when the accused Abe Kevin came and chased them. She and Natalie ran away but Jenny remained at the creek. She didn’t know what happened to Jenny but when she looked back Jenny was gone. The accused took Jenny away and she never saw her again. The accused came to the creek on his own and did not come with anyone. She was later told that Jenny ‘went to heaven’ (died). She never told anyone what happened at the creek until the body was found the next day.
  7. The witness was asked during cross-examination if Jenny also ran away but she said she saw the accused wrapped Jenny up with his shirt and carried her away from the creek. She was about 25 – 30 metres away from the creek when she looked back but did not see Jenny. She saw the accused wearing a red cap, a white trousers and a blue-green shirt.
  8. Witness told the court that she resides at Rigula Estate. She is employed by NBPOL as a fruit picker. On the 25th February 2019, she went for the roll-call and met another woman by the name of Remina Teli who told her that Jenny Kulapai has gone missing and a search is underway to find her. They both came to the road linking the boundary of the Kamarere creek and saw the accused coming out from behind a tree near the creek and was surprised when he saw them. He did not follow the small tracks people normally use next to the creek but came out from behind the bush next to the creek. They told the accused they were looking for Jenny and accused told them he is also looking for her. However, what they found unusual is that the accused was on his own and not with the other people conducting the search. Not long after about 2-3 minutes later they heard some people crying down at the creek and they went down to find out. They saw them pulling out Jenny’s body from the creek. This was about 10 metres away from where they met the accused. The company’s security personnel came and removed the body and took it to the hospital.
  9. Witness is employed with NBPOL as a Section Leader at Rigula Estate. On the 25th February 2019, he finished work late and came home around 5:30pm. Jenny’s mum, Rose Raka came looking for her daughter. She suspected that her daughter may have been murdered and asked him to help look for her daughter. A good number of people came and they all started looking for Jenny. It was raining heavily at the time and they all hid under the oil palm trees away from the rain. The accused came out of the oil palm trees and asked for a lighter to light a smoke for Mrs Waluka. At around 1:30am they all went to Rose Raka’s home for coffee. They agreed to resume their search again at 3:30am.
  10. He looked outside and saw the accused standing on his own and told the other boys to call him in and give him some coffee. Although, the accused was present at the time he was not part of the search party. They searched everywhere around the creek, the bushes and the swamps. In the early hours of the morning he looked towards the Supervisor’s house at Avenue 8, Row 3 and noticed someone walking across to Avenue 7 where Kamarere creek is, where Jenny went missing. He identified the person as Abe Kevin the accused, from the bright spotlight located at the back of the Supervisor’s residence. The accused went ahead of the search party after they agreed to search that area of the creek at dawn. He thought it was rather strange for the accused to be out on his own in the early hours of the morning when the search party was just getting ready to resume the search again after dawn. He went for the roll-call in the morning and requested the Estate Manager to allocate some more employees to help look for Jenny early the next morning. Not long after he heard that Jenny’s body was found at Kamarere creek.
  11. Witness told the court that company rules does not allow for outsiders to remain on the compound premises after 10pm. The accused is not an employee of NBPOL and lives in a private block outside of the Rigula Estate compound. However, the accused was in compound since 5pm the previous day and continued to hang around the compound area until the next day while the search was going on. It is very unusual for outsiders to remain in the compound without the permission of the Estate Supervisor. He is neither related to the victim or her family nor does he reside in the compound area but yet he took an active interest in looking for the missing victim. He also assisted in putting up the ‘hauskrai’ after the deceased’s body was found. It would seem that the accused did all these to divert attention away from him.
  12. The witness previously lived in Rigula Estate but is now living at Section 27 in Kimbe Town. She lived in Rigula for 10 years before moving out. She was at Rigula on the 25th February 2019 when she heard that Jenny Kulapai went missing. Jenny’s mother Rose Raka came and looked for her daughter at her place because she usually comes and plays with her children.
  13. Everyone at Rigula Estate went and looked for Jenny after they heard that she was missing. Her husband was also involved in the search. After a few hours they returned and she asked her husband if they have found Jenny but he told her that they have not found her. At 6am she went to Jenny’s parents’ house and later met up with Janet, a lady Pastor and another lady Cindy. They then decided to search for Jenny as she is one of their church members. They prayed and broke into two groups to search for Jenny. Some went looking into the bushes and some went down to the creek. She and other four children started searching the creek and walked up stream. She crossed the creek and saw something that looks like a bum bum nappy in the water. It was unusual to see it there because this is where people go to fetch their water. She got a stick and turned it around and noticed that it was a white bum bum nappy. She walked to the side of the creek and called out Jenny’s name and said: ‘you are a child of God so please show me some signs if you are still alive or dead.’
  14. She looked further down the creek and saw some pile of leaves and rubbish gathering over a pool of water on the side of a creek. She looked closely at it and saw something like a knee of a human being popping out of the rubbish. She first thought it was a doll or something and told the children to go close and have good look at it. The children went and had a closer look at it and called back and told her it was Jenny. She told them not to touch the body or do anything with it. She noticed that whoever killed her was trying to cover up the body by covering it up with leaves and rubbish and the area was still fresh. The security guards came and removed the body from the water. The body was covered with blood and she was still bleeding from her nose. The blood was still fresh so she could have just been buried under the leaves a few hours ago. Her neck was twisted and arms broken. She was naked and only had a small top on. She was also bleeding from her vagina.
  15. Detective Constable Newton Namura is the investigating officer in this case. He conducted the record of interview and also obtained the confessional statement form the accused.
  16. In his evidence he basically said that he carried out the investigations and spoke to a number of people including witnesses and based on the information he has he arrested the accused and charged him with one count of sexual penetration and one count of wilful murder.
  17. On the 22nd April 2019, he got a call to go to Lakiemata CS at the request of the accused as he wants to confess to the crime and give his confessional statement. He was accompanied by the CS Officer Andrew Avosa when the accused gave his confessional statement on his own free-will after he was cautioned and told of his Constitutional rights under section 42 (2) of the Constitution. In his confessional statement the accused confessed to committing the crime by stating that; on the 25th February 2019 around 3pm he left his block at Bubu VOP and followed a small track towards the Kamarere creek. He saw three small girls swimming in the creek at the back of the Estate Supervisor’s residence. He named them as Jenny, Rose’s daughter, Dyane Betty’s daughter and another small girl, Jim Bris’s daughter (Natalie). He then chased them and Dyane and the other girl (Natalie) ran way but Jenny did not run away. He picked Jenny up and carried her away from the creek and laid her down on the ground under a ton tree. He then sexually penetrated her. After that he saw that Jenny was bleeding heavily from her vagina and was suffering from a lot of pain and was crying. He was scared people might hear the noise. He then stepped on the victim’s neck until she was unconscious. He then took her to the creek and drowned her and dug a shallow grave on the side of the creek under a mong tree and put the body in there and covered it up with leaves and other rubbish. He left the deceased there to die and followed the main road to the compound. He was frightened and didn’t know what to do so he went back to his block at Bubu VOP at around 4pm. At around 5pm Boiboi and his wife came to his block and he gave them some mustard and later they all walked back to the compound.
  18. The Post-Mortem Report and Medical Certificate of Death were tendered into court by consent. Dr Warangi performed the autopsy and reported that the medical cause of death was asphyxia due to drowning after sexual penetration and assault. Deceased’s hymen and vagina were torn measuring two centimetres in radius. There were also sand pebbles in the larynx and trachea. Dr Warangi concluded that the deceased may have been sexually penetrated and then drowned. Vaginal swabs were sent away for spermatozoa analysis.
    1. DEFENCE CASE
  19. Defence called two witnesses. The accused himself and another witness who apparently was also a remandee at Lakiemata CS.
  20. Accused told the court that he was apprehended on the 26th February 2019 on the allegations of sexual penetration and wilful murder and was taken into custody at Buvusi Police Station. He was interviewed by Detective Constable Namura but he denied committing the offence.
  21. Accused told the court that on the 25th February 2019, he was home at his block. One of his friends came and visited him. They both went and cut grass at his oil palm block and by 12 noon they left and went back to the accused’s house. He and his friend Ian Kauose and Moses Kiak stayed there looking after his disabled brother until 4pm when Boiboi and his wife arrived and asked for mustard. He gave them the mustard and they all left to go to the compound. They arrived at the Rigula Estate compound around 5pm. His house is about half a kilometre from the compound. They met Joshua and David and walked with them. At the compound he left Boiboi and his wife and went to his uncle’s house. His uncle’s name is Dusty More. He had dinner at his uncle’s house and went to charge his phone at the Pay house. This was around 6pm in the afternoon. He was at the Pay house from 6pm to 10pm charging his phone, a total of four hours. He was about to leave the Pay house when two boys came and told him about the missing girl. Their names are Honge and Kamex. They then went to get the ‘glassman’ from Maliliu Planation to help search for the missing girl. They picked him up in the tractor and came back. They all started searching for the missing girl until late in the night. There was a heavy rain that night and they stopped to have coffee and later continued with the search until day break. He then met Grace and Remina on the road and told them he was going home to rest. He went straight to bed. He woke up later in the afternoon and was told that they found the body of the small girl already. He then went to help set up the ‘hauskrai’ at the deceased’s parent’s house. Police later picked him up and told him he was a suspect in the case.
  22. I should mention at this juncture that the defence wanted to call possible alibi witnesses who were named in the evidence in chief but the State objected stating that a notice of alibi has not been filed by the defence pursuant to Order 4 Rule 4 of the Criminal Practice Rules 1987 and therefore, cannot call evidence on alibi and furthermore, the defence did not indicate in its Pre-trial review statement that it would be calling additional witnesses apart from the accused himself. The court however, ruled in favour of the defence. (* see separate ruling).
  23. Defence indicated to the court it will call three possible alibi witnesses. However, only one witness gave evidence but the other two did not turn up to give evidence. Witness Ian Kauose was called to give evidence. Prosecution brought to the attention of the court that this witness is also a detainee held in custody at Lakiemata CS along with the accused person and asked the court to be cautious about this witness.
  24. The witness lives at Aling settlement at the out sketch of Kimbe town. He was at Rigula Estate compound on a Sunday in 2019. He could not recall the exact date. Accused met him at the compound and asked him if he wants to do some work. He agreed and they both went to the accused person’s block at Bubu VOP. They went to the oil palm block and cut grass there. They started at around 7am and finished at lunchtime. They dug some cassava from the garden and went back to the house and cooked it. They stayed at the house looking after the accused’s disabled brother until about 4pm and they left after the accused’s parents came home. The accused went to the compound with Boiboi and his wife to charge his phone. The witness then left and went to his uncle’s house at Block 17.
  25. Mr Takua informed the court that although he left messages for the other two witnesses to appear and give evidence they are not present hence, defence formally closed its case.
    1. ISSUE
  26. The issue at trial is one of identification; whether the accused was the person who sexually penetrated the victim?
    1. EVIDENCE OF IDENTIFICATION
  27. The State’s case rest primarily on the positive identification of the accused as the perpetrator who sexually penetrated the victim Jenny Kulapai and subsequently killed her by drowning her at Kamarere creek at the Rigula Estate compound on the 25th February 2019.
  28. The general rule on identification is that when the evidence against the accused person depends wholly or substantially on identification there is a need for caution before convicting the accused in reliance on the correctness of the identification.
  29. The Supreme Court in The State v Beng [1976] PNGLR 471, and in Beng v The State [1977] PNGLR 524; [1977] PNGLR 115 (2 May 1977) held that:

“....where evidence of identification is relevant, the court should be mindful of all inherent dangers, the need for caution before convicting in reliance on the correctness of identification...the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows, mistakes can be made. When the quality of the identification is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”


  1. The rationale was later applied in a number of National and Supreme Court’s decision such as in Ono v The State (2002) SC698 where the court said that because of the dangers inherent in the eye witness identification caution should be applied at all times on the correctness of the identification. See also; The State v Anis Noki [1993] PNGLR 426; The State v Kakas & Ors [1994] PNGLR 20 and the Supreme Court decision in Piakali v The State (2004) SC 771.
  2. In the recent Supreme Court case of Bate v The State (2012) PBSC 46, SC1216 (20th December 2012), the Court in applying the rationale in John Beng (supra) held that:

“In assessing identification evidence, relevant consideration include, that an honest witness can be mistaken and still be convincing that an identification witness must both be honest and accurate; whether the evidence is corroborated, whether the witness is purporting to identify a person who was a stranger or someone he recognized, the length of time the witness observed the accused (prolonged or fleeting glance), the emotional state of the witness at the time of the incident, the prevailing conditions, the line of sight (did the witness have a clear view of the front or the line of sight interrupted, did the witness just see the accused from the side)”.


  1. The view held is that the Court should examine closely the circumstances in which the identification by each witness came to be made and whether such evidence is sufficiently corroborated to establish the correctness of the identification.
    1. ASSESSMENT OF EVIDENCE
  2. There are several factors the court is required to take into consideration when assessing the evidence of the witnesses. Firstly, the demeanour of the witness and his interest or lack of it in the case; secondly, the accuracy of his evidence and his clear recollection of the events; thirdly, the consistency in his evidence, and finally, his credibility as a reliable and truthful witness. The guidelines are set out in State v Manasseh Voeto [1978] PNGLR 519.
  3. In assessing the credibility and reliability of the witness, a number of factors are taken into account such as; the impression left by the witness as to his reliability and accuracy; the existence of a motive for giving false evidence and any inconsistencies or contradictions made in his evidence to the Court (James Pari & Tine Kaupa Bomai v The State [1993] PNGLR 173).
  4. The general principle is that the court is not bound to accept the evidence of any witness, unless that evidence commends itself to the court. This does not mean that all the evidence of a witness should be accepted without qualification. It is within the discretion of the court to accept or not to accept any piece of evidence that does not stand up to scrutiny without having to reject the whole of the evidence. In doing so the court is required to apply some commonsense and logic.
    1. PRESENT CASE
  5. In the present case the only suspect identified was the accused. State witness Dyane Kingsford was the eye witness and saw the accused coming to the creek and chased them. She identified the accused as Abe Kevin. The accused came on his own and was not with anyone at the time. It was 3:00pm in the afternoon and in a broad day light. She and Natalie ran away but Jenny didn’t. She ran away and about 25-30 metres away turned around and looked back at the creek where Jenny was but could not see her. She then looked up and saw the accused covering Jenny up with a shirt and carried her away. This piece of evidence is consistent with what the accused said in his confessional statement where he said he wrapped the victim up with his shirt and carried her away from the creek and sexually penetrated her. Dyane described that the clothes worn by the accused as; a red cap, a white trousers and a blue-green shirt. The description of the clothes was not disputed by the defence.
  6. Dyane Kingsford was the only eye witness in the case who saw what happened. She was there when the incident happened. Despite her young age, I had no reason to doubt her evidence. In fact, I found her to be a reliable and credible witness for the State. She told the truth of what she saw on that fateful day when her friend Jenny was taken away and subsequently raped and killed. She spoke with confidence and was steadfast in her evidence. She withstood the rigorous scrutiny of cross-examination and stayed on course with her version of events. I find no inconsistencies or contradictions in her evidence. She understood and answered the questions well. She was a star witness for the prosecution.
    1. The evidence from the other three State witnesses were largely circumstantial. They gave no direct evidence linking the accused to the crime. However, they observed his behaviour and found him to be acting strangely throughout the time they were searching for the deceased. They saw the accused in odd places at odd times away from the designated search areas however, he was not able to explain why he was there. Although, the accused said he was helping with the search, he seems to be doing things on his own and was not involved with the main search party. For example; witness Michael Waluka saw the accused walking across from the spotlight at the back of the Supervisor’s residence and went to Avenue 7 where Kamarere creek is, in the early hours of the next morning around 4:00am. He was walking alone and not with anyone. The search did not resume until 5:30am so what was he doing there at 4:00am? Accused never said anything about why he was there except to deny that he went there. Witnesses Grace Ford in her evidence said she and Remina Teli met the accused in the early hours of morning when he came out of the bushes next to the creek and he was shocked to see them. About 2-3 minutes later, Jenny’s body was found in the direction from where the accused came out from. State submitted that the only plausible explanation would be that the accused went there to check on the body of the deceased to make sure that it stays hidden in water so she could not be found. He did a rushed job the previous evening by not covering the body up properly after he killed her and was worried that it might float to the surface and that is why he kept going back every now and then to check on it.
    2. Defence informed the court it would call three possible alibi witnesses however, only one appeared and gave evidence. The other two witnesses, although informed, did not appear to give evidence. In his evidence in chief, the accused named several people he was with and met on the 25th February 2019 until late in the evening, the day the deceased disappeared. For example; Moses Kiak whom he was with the whole day at his house; Boiboi and his wife who came and visited him at his house and later in the evening they all walked back to the compound; Joshua and Daniel whom he met on the road and told stories until about 5pm; his uncle Dusty More where he had dinner with at his place that evening and Honge and Komex whom he met at the Pay house at 10pm after he charged his phone. They then went to pick up a ‘glassman’ in a tractor to help with the search when they heard the victim was missing. Who is this glassman and where is that tractor driver? Why can’t they be called to give evidence in support of his case?
    3. Similar questions could be asked as well for other people whom the accused alleged to be with at certain times and places on the day in question but for reasons known only to himself he decided not to call them to give evidence in support of his defence. For the record, none of the State witnesses mentioned anything about the ‘glassman’ in their evidence. The only logical conclusion I reached therefore, is that, the accused was not with the people he named at the relevant times and places and therefore, he is not telling the truth. I find the accused unreliable and not a credible witness to be believed. His evidence stands unsupported and uncorroborated.
    4. The only witness for the defence was Ian Kauose whose evidence is almost word-for-word to that of the accused’s own evidence. It seems to me that the witness may have been coached on what to say or that he may have colluded with the accused regarding his own evidence. I say this because it was brought to the attention of the court later that the witness was a remandee at Lakiemata CS sharing the same cell block with the accused. There were some inconsistencies in their evidence.
    5. For example; the accused told the court that a friend of his came and visited him at his house and they went and cut grass on his oil palm block. He never mentioned Ian Kauose’s name. Ian Kauose however, told the court that the accused first met him at Rigula Estate compound and asked him if he wanted to do some work for him. He then took him to his block and they cut the grass there and after that they went to the accused’s house. In addition, the witness never mentioned Moses Kiak as the other person who was with them at the house looking after the accused’s disabled brother. Although, a minor inconsistency, it is significant. I do not consider the second witness as an honest and truthful witness. I doubt his reliability and credibility as a witness for the defence and I do not think he is telling the truth.
    6. The alleged offence took place between 3pm and 3:30pm, the time the accused said he was at his house with Ian Kauose and Moses Kiak looking after his disabled brother. Apart from Ian Kauose, accused never called Moses Kiak to corroborate his evidence that he was with them from 12 noon to 5pm on the 25th February 2019.
    7. On the whole, the defence evidence is uncorroborated and lacks support in many aspects. Although, defence of alibi was raised, defence did not call any credible alibi witness to support its assertion that on the day the victim went missing the accused was not at the crime scene and therefore, he could not possibly be the perpetrator.
      1. LAW ON CIRCUMSTANTIAL EVIDENCE
    8. I reiterate once more that except for the evidence given by Dyane Kingsford, the prosecution’s evidence, in the main, is largely circumstantial. Generally, circumstantial evidence is admissible in court if it is the only evidence available however, the court must examine carefully the nature of the circumstantial evidence and its relevance and consider it together with the other evidence. The law on circumstantial evidence is that where there is no direct evidence the court is entitled to enter a conviction on circumstantial evidence if it is credible and strong enough for the court to draw reasonable inferences in applying principles of logic and commonsense. The court being the tribunal of law and fact must be satisfied beyond reasonable doubt that the only rational inference that can be drawn from the circumstances is that the accused is guilty of the crime. If, however no reasonable inferences can be safely drawn from the facts then the accused is entitled to the benefit of doubt and must be acquitted.
    9. There are a good body of case laws on that. See for instance; The State v John Peng v The State [1982] PNGLR331, Paulus Pawa v The State [1981] PNGLR498 & Vali Rocky Maury v The State [2001] PGSC 16; SC668 (20 July 2001).
    10. In Maury v The State (supra) the Supreme Court bench of Injia, Sawong & Kandakasi JJ in reaffirming the law stated:

“Further, the law also allows in appropriate cases for convictions to stand even where there is no direct evidence connecting an accused person to the commission of an offence if the circumstances of the case dictate an inference only of the guilt of the accused beyond any reasonable doubt. This is the principle that is usually applied in a case where the State’s case is entirely circumstantial. The case of Paulus Pawa v. The State (supra) at p. 501, per Andrew J quoting Miles J. in The State v. Tom Morris [1981] PNGLR 493 at p. 495 spells out the law in these terms:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’.

  1. The legal position regarding circumstantial evidence is that where there is no direct evidence linking the accused to the crime, circumstantial evidence will be accepted if it is credible and strong from which rational inference can be drawn as to the guilt of the accused.
  2. In the present case, I am convinced that the circumstantial evidence is credible and strong enough for me to draw a logical inference based on the facts and reasonably concluded that the accused was present at the crime scene on the date the deceased went missing. His strange behaviour and the fact that he was found at odd places at odd hours of the night within the last 24 hours after the deceased went missing suggested to me that he had something to hide and was trying to conceal it. Furthermore, I am convinced that the accused’s involvement in the search and his assistance in putting up a ‘hauskrai’ was a deliberate tactic on his part to divert attention away from him. Logic and commonsense dictates that people often do that so as not to raise any suspicions.
  3. Suffice to say, the evidence of eye witness Dyane Kingsford and the confessional statement made by the accused are on their own sufficient to find the accused guilty.
  4. Based on the evidence before me, I am satisfied beyond a reasonable doubt that; on the 25th February 2019 between 3pm and 3:30pm at Kamarere creek, Rigula Estate compound, the accused sexually penetrated the victim Jenny Kulapai and subsequently killed her. He then buried her body on the side of the creek. State has proven beyond doubt the requisite elements of the offence of sexual penetration of a child under the age of 12 years pursuant to section 229A (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
    1. VERDICT
  5. I found the accused guilty as charged and convict him accordingly.

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence

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