State v Peter [2022] PGNC 11; N9415 (4 February 2022)

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CRIMINAL LAW – Wilful murder – Criminal Code, Division V.3 – Section 299, –Circumstantial evidence – whether guilt of the accused the only reasonable inference- Hearsay Rule – Exceptions to - Confessions – considerations – whether free and voluntary confession to a person not in authority.

The State alleges that in the early hours of 22 September 2017, Graham Floyd Peter, in the company of some accomplices broke into a shop in Lorengau, Splendid Star, stole an undisclosed sum of money and set the building alight, killing 10 Chinese nationals. There is no direct evidence of the accused involvement, except that he confessed to the crime to three witnesses, who were his close relatives. The State has charged him for wilful murder under s 299(1) of the Criminal Code to which he pleaded not guilty. The accused called no evidence and exercised his right to remain silent.

Peter Murphy, Murphy on Evidence, 5^th Edn, Blackstone Press Limited, 1995, London.
Counsel:

(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 willful murder .

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

No	Date	Document/item tendered	Exhibit No	Brief Description of Document
	5 November 2019.	Record Of Interview (ROI) of Graham Floyd Peter – Pidgin version, dated 5 November 2019.	“A”	ROI conducted between Chief Sergeant Abraham Hualupmomi and the accused, Graham Floyd Peter at the Criminal Investigation Division office at Lorengau Police Station on Tuesday 5 November 2019.
		ROI of Graham Floyd Peter – English version, dated 5 November 2019.	“A1”	The English translation of the accused’s response to the questions from the police interviewer.
		Statement of Moses Pain	“B”	A Sergeant in the Police, a forensic examiner, he conducted the examination of the building and provides his report and sketch plan of the report.
	6.11.19	Statement of Agnes Sive	“C”	She is a policewoman, senior sergeant employed as a Police photographer at the National; Forensic Science Center in Port Moresby. She provides a description of the photographs she took of the burnt building and the human remains in the building.
		Photographs 1 – 113	“C1”	Photographs of the burnt building and that of the charred human remains.
		Photographs 1 – 12	“C2”	Photographs of the burnt building and that of the charred human remains.
		Photographs 1 – 100	“C3”	Photographs of the burnt building and that of the charred human remains.
	12.11.17	Statement of Markson Gamui	“D”	He is a policeman at Lorengau. When he received information about the fire at Splendid Star he went over to see the building. He then instructed his officers to cordon of the area as it was a crime scene. He also recalls taking the security guards of Splendid Star in for questioning.
	12.10.17	Statement of Hilda Leo	“E”	She is a police prosecutor. She recalls just after 3am, she saw black smoke coming from the area of Splendid Star. Later she goes to the area and see people looting the container next to the shop.
	9.10.17	Statement of Lesley Peni	“F”	He is a policeman, he recalls alerting the police at the barracks regarding the fire.
	8.10.17	Statement of Channel Yagom	“G”	He is a probationary constable with the Criminal Investigation Division. He recalls being dispatched to the area to guard the crime scene.
	13.10.17	Statement of Timothy Pomminis	“H”	He is a police officer. He was at Splendid Star at about 1.30am on Friday 22 September 2017. He bought items from one of the Security Guard’s wife who sold things there. He left them about 1.45am, and there was no fire at that time.
	8.10.17	Statement of Ted Teaga	“I”	He is a police officer, aged 25 years old. He recalls going to see the fire in the morning of 22 September 2017 and witnessing the looting going on at a container next to the Splendid Star building.
	7.9.17	Statement of Holland Onjiga	“J”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	9.9.17	Statement of Opa Nelson	“K”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	6.10.17	Statement of Tuka Pake	“L”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	10.10.17	Statement of Michael Kepi Minai	“M”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	11.10.17	Statement of Jeffrey Lanza	“N”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	8.10.17	Statement of Eric Richard	“O”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	10.10.17	Statement of Ralwin Lamu	“P”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	Undated	Statement of Daniel Watah	“Q”	He is a police officer, and he witnessed the fire of Splendid Star and they got some salt water to prevent the fire going on to the nearby building.
	13.10.17	Statement of Peter Palaua	“R”	He is a police officer, and he was involved in guarding the crime scene on 22 September 2017, after the Splendid Star fire.
	11.2.20	Affidavit of Dr Otto Numan	“S”	Dr Numan is a registered medical doctor at the Manus Provincial Hospital. He has been doing post- mortem reports for 31 years now. He did a post-mortem report dated 6/11/17 on the remains of the bodies from the Splendid Star fire incident in Lorengau Town.
	6.11.17	Autopsy Report of Dr Otto Numan	“S1”	Dr Numan was asked to go and identify whether there were human remains at the burnt building. He could identify seven bodies but says there could be more. One of the remains, he says, it may have been slashed by a sharp object at the head of the femur and looked suspicious but needs to be confirmed by a pathologist.
	3.2.20	Statement of Dr Seth Fose	“T”	Dr Seth Fose is a medical doctor and has a Masters in Pathology and a Bachelor of Law. He is employed by the National Health Department as the Chief Pathologist and is also honorary consultant pathologist with the Port Moresby General Hospital. He provides a medical report on the cause of death of the deceased 10 Chinese nationals – Yan Xin (male adult), Chen Qinghya (male adult), Chen Shiyi (male adult), Yan Minghui (male adult), Yan Chenxia (female adult), Lin Na (female adult), Si Yun (female adult), Weng Yun (female adult), Yan Xiamei (female adult) and Wu Fenghua (female adult). He says, “The multiple bone fragments show evidence excessive heat and thermal injuries to body due to exposure of body to excessive heat and temperature due to fire burning down the building.
	11.10.19	Statement of Ian Pasin	“U”	He is unemployed and is from Likum Village. He was apprehended over the burning of Splendid Star but says that he was in his village at the time.
	4.10.17	Statement of Frank Guka	“V”	He is a policeman a sergeant. He was on duty at that time. He received report of the burning of Splendid Star at 4.30am from a security guard of Splendid Star.
	21.10.19	Statement of Eric Posakei	“W”	He is self-employed and recalls that during the fire, there was looting of the container containing store goods next to Splendid Star and he was very concerned.
	12.10.17	Statement of James Emos	“X”	He is 24 years old, a security guard and he recalls that there was a fire at Splendid Star.
	24.10.17	Statement of Lawrence Henry	“Y”	He is a security guard employed with Juromo Security Company, he recalls fire starting at 3am going towards 4am, and he alerted his people of the fire.
	11.10.17	Statement of Lucy Allan	“Z”	She was with her friend who is from the Philippines, and recalls being told about 2.30am and 3am that Splendid Star was on fire.
	24.10.19	Statement of Jaycie Hilarai	“AA”	She is the wife of Gilbert Hilarai. She recalls the fire starting between 3am and 4am. She talked to Esther, who is the wife of Julius, who is a security guard at Splendid Star before she went home and went to bed at about 1.30am.
	24.10.19	Statement of Gilbert Hilarai	“AB”	He leaves at the boat shed, at the back of Splendid Star. Between 3am and 4am he was woken by his sister telling him that Splendid Star was on fire. They quickly moved out of their house as they could feel the heat.
	28.9.17	Statement of Paul Steven	“AC”	He is 37 years old, a contractor, and did construction work in Splendid Star in 2010. He attached a floor plan of the building.
	24.9.17	Statement of Parkop John	“AD”	He is a security guard at the neighbouring shop. He says he attempted to hose down the fire.
	23.9.17	Statement of Esther Julius	“AE”	Esther Julius is 22 years old and is the wife of Julius John, the security guard. She says the fire started at about 4.50am.
	23.9.17	Statement of Julius John	“AF”	He is 25 years old, a security guard at the time at Splendid Star. He was on duty at that time. At about 4.50am he says they noticed the fire and radioed their boss, they talked briefly with him, and then they couldn’t hear him anymore.
	29.9.17	Statement of Judith Inock	“AG”	She is 35 years old, a shop assistant at Splendid Star. She says there is leakage of the roof. She draws a map of the shop.
	28.9.17	Statement of Rita Palaua	“AH”	She is 40 years old, from West New Britain Province, and a shop assistant at Splendid Star, and the wife of a policeman. She is good friends with the Chinese nationals and they talk freely with her. She gives a description of the shop. She says the staff wake up as early as 3am to prepare for the day. She says the two security guards (Julius John in front and Robilo Micah at the back) have radio contact with either Jack or Tom in the shop. Jack was on holidays. She says there is no clear fire escape, but there is a route that can be taken.
	3.10.17	Statement of Jack Yan	“AI”	Former manager of Splendid Star. He was on leave at the time of the fire. He Confirms the 10 Chinese nationals as former employees of Splendid Star Ltd that perished in the fire.
	28.10.17	Statement of Jack Yan	“AJ”	In his additional statement he reveals that the accused was a former employee of Splendid Star Ltd and was terminated for stealing and had an argument with his supervisor, “Boss Tom.”
	30.9.17	Statement of Dominic Kohai	“AK”	He is a driver at Harbourside Hotel. He recalls seeing Robin at about 4am in the morning. He is a security guard at Splendid Star. He did not mention to him that there was a fire in progress at the moment at Splendid Star. He recalls seeing a white Toyota landcuiser at that time around the area.
	22.10.19	Statement of Bridget Pahun	“AL”	She is self-employed, they live at the back of Splendid Star. She says she could hear dogs barking around the Splendid Star area. She recalls going to sleep at 3am or 3.30am but woken up later by her daughter as Splendid was on fire. She recalls seeing fuel around the corner of Splendid Star after the fire that morning and thought that it was strange.
	1.11.19	Statement of Berry Jimson	“AM”	He is unemployed and he lives with Dorcas Barry, the sister of Floyd Peter. He is of mixed parentage as well as from Likum Village in Manus Province. He recalls drinking with other men an alcoholic beverage called “coffee punch” and they told him they bought it from Robillo (security guard at Splendid Star).
	1.11.19	Statement of Joel Kiki	“AN”	He is unemployed and he lives with his Uncle, Graham Floyd Peter at Ward 5, Lorengau, Manus Province. He is of mixed parentage as well as from Likum Village in Manus Province. He recalls drinking with other men an alcoholic beverage called “coffee punch” and they told him they bought it from Robillo (security guard at Splendid Star).
	1.11.19	Statement of Danny Kiki	“AO”	He is unemployed and he lives with his Uncle, Graham Floyd Peter at Ward 5, Lorengau, Manus Province. He is of mixed parentage as well as from Likum Village in Manus Province. He recalls drinking with other men an alcoholic beverage called “coffee punch” and they told him they bought it from Robillo.
	31.10.19	Statement of Alex Miller	“AP”	He is 27 years old, unemployed and from Likum Village, Lorengau, Manus Province. He recalls drinking Coffee punch (alcohol drink) with some relatives after the fire. When asked where they got it from, they said they got it from Nathan Boas.
	31.1.19	Statement of Rato Obert	“AQ”	He is 24 years old, unemployed and from Likum Village, Lorengau, Manus Province. He recalls drinking Coffee punch with some relatives after the fire. When asked where they got the drink from, they told him that they got it from Robillo Michah’s wife, who sold it for K25 a bottle.
	15.11.19	Coroner’s Report of Josephine Nidue	“AR”	Report of the coroner with the autopsy report of Dr Seth Fose.
		Employers Register of Work Permit by Jack Yan	“AS”	Jack Yan is a Manager at Splendid Star (at the time of the fire), and he maintains a register of their foreign employees which includes the deceased Chinese nationals, the subject of this case.
	14.5.15	Work Permit of Yan Xin	“AT”	Copy of a work permit.
	1.7.14	Work Permit of Chen Shi Yi	“AU”	Copy of a work permit.
	13.11.17	Death Certificate of Li Na certified by Dr Seth Fose.	“AV”	Confirms death of Li Na. The cause of death was fire in a building.
	13.11.17	Death Certificate of Wu Fengua certified by Dr Seth Fose.	“AW”	Confirms death of Wu Fenghua. The cause of death was fire in a building.
	13.11.17	Death Certificate of Shi Yun certified by Dr Seth Fose.	“AX”	Confirms death of Shi Yum. The cause of death was fire in a building.
	13.11.17	Death Certificate of Yun Shi certified by Dr Seth Fose.	“AY”	Confirms death of Weng Yun. The cause of death was fire in a building.
	13.11.17	Death Certificate of Chen Shi Yi certified by Dr Seth Fose.	AZ”	Confirms death of Chen Shi Yi. The cause of death was fire in a building.
	13.11.17	Death Certificate of Yang Mungui certified by Dr Seth Fose.	“AAA”	Confirms death of Yang Mungui. The cause of death was fire in a building.
	13.11.17	Death Certificate of Yan Xiamei certified by Dr Seth Fose.	“AAB”	Confirms death of Yan Xiamei. The cause of death was fire in a building.
	13.11.17	Death Certificate of Yan Chenxia certified by Dr Seth Fose.	“AAC”	Confirms death of Yan Chenxia. The cause of death was fire in a building.
	13.11.17	Death Certificate of Yan Xin certified by Dr Seth Fose.	“AAD”	Confirms death of Yan Xin. The cause of death was fire in a building.
	13.11.17	Death Certificate of Chen Qinghua certified by Dr Seth Fose.	“AAE”	Confirms death of Chen Qinghua. The cause of death was fire in a building.
	8.10.21	Fire Report by Bill Roo, Chief Fire Officer	“AAF”	Contains a report of the cause of fire, after an investigation was done at the scene of the remains of the burnt building.

“Our examinations showed that the fire appeared to have started from the interior side to the main door area of the retail supermarket part of the building in the early hours between 0300am and 4.00am on Friday the 22^nd of September 2017...

This area was on the front and mid part on the Western side of the building. The evidence were the burnt iron roofing and the snapped iron thick structural metals and other burnt items.

There was no evidence to suggest a break and enter of the whole building as well that two security guards fully alert the whole night of 21^st to early 22^nd September 2017, and 10 people believed alive in separate rooms inside, all geared with radio, also reports none.

Since the lights were allegedly on when the fire had already started conflicts electricity faults. My physical examinations of all available swich boxes and wirings suggested nil electricity short circuits through melting wires etc.

The foresaid suggests that the fire appeared to have been introduced by people from inside of the main entrance door area of the retail supermarket of the building.

The open safe and the cut through of the metal door found in the retail supermarket and liquor shop area suggested burglary. This also supports the suggestion of introducing the fire from inside of the building.

Though the building was too huge and it took more than an hour to burn down, it was strange none of the 10 victims appeared to have attempted an escape, most likely through the balcony or veranda or other means suggested that these people appeared to have been murdered by those responsible for the burglary and arson.

This was also supported by the position of the deceased body locations being four metres (4m) to 7m and furthest being 21m apart from inside the building, mainly the eastern part of the retail supermarket to southern (21m) wholesale area. These positions suggested the question of handicapped to escape by the victims and also confirms being murdered or tied up before setting fire to the building.

It appeared that the perpetrators, more than one or two people appeared to have accessed the main entry and exit door used after hours at the back area (east) to kill the 10 deceased, steal and set fire to the building.

The security guard Robin Micah who was posted at the back area of the building and was working from 6pm on 21^st September to 22^nd September Friday 2017, 6am appeared to have knowledge of who was responsible for the fire and death of the 10 deceased.”

“Evidence from any witness which consists of what another person stated (whether verbally, in writing, or by any other method of assertion such as a gesture) on any prior occasion, is inadmissible, if its only relevant purpose is to prove that any fact so stated by that person on that prior occasion is true. Such a statement may, however, be admitted for any relevant purpose other than proving the truth of facts stated in it.” (Peter Murphy, Murphy on Evidence, 5^th Edn, Blackstone Press Limited, 1995, London, at 172)

“The objection to Smith’s evidence was put on the ground that it was hearsay evidence. What Smith narrated amounted to a confession by the appellant of the crime with which he was charged, and confessions and admissions constitute, of course, a class of evidence which is excepted from the hearsay rule: such statements are admissible as evidence of the facts stated.”

“It has long been established...that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercise or held out by a person in authority.”

“The trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession.”

“On Monday 28^th of October the CID officers from Port Moresby showed me a photograph of a possible suspect which I identified him as Graham Floyd Peter a male adult who is a local from Manus Province. Graham was a former security guard with Splendid Star Supermarket before the stores were burnt in 2017. Graham was terminated by Boss Tom in 2016 for stealing. He had an argument with Boss Tom before he was terminated in 2016.”

Q14: Can you recall back on Friday the 22^nd of September 2017? Where were you?
Ans: I was with my family in the house.

Q15: Was it the whole day, morning till night?
Ans: The whole day in the morning till night I didn’t come to town.

Q17: That’s surprised (sic) how the entire population in Manus heard about the Splendid Star Supermarket was on flame?

Ans: It was on Thursday I slept with my family in the house my wife heard the noise and she woke me up and we went down to see.

1) Yan Xiamei, Chinese female;
2) Weng Yun, Chinese female;
3)Yang Minghui, Chinese male;
4)Shi Yun, Chinese male;
5)Chen Shi Yi, Chinese male;
6) Li Na, Chinese female;
7)Chen Qinghua, Chinese male;
8)Yan Chenxia, Chinese female;
9)Yan Xin, Chinese male; and
10)Wu Fenghua, Chinese female.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

National Court of Papua New Guinea

State v Peter [2022] PGNC 11; N9415 (4 February 2022)