State v Wanjil [1997] PNGLR 64 (24 February 1997)

[1997] PNGLR 64

PAPUA NEW GUINEA

THE STATE

V

JOHN WANJIL & 3 ORS

MOUNT HAGEN: LENALIA AJ
23, 24, 27, 28, 29 January, 24 February 1997

Facts

John Wanjil and his three wives were charged with murder for the death of his fourth wife, the deceased. After the close of the prosecution case the defence made a "no case to answer" submission. There was no dispute that the prosecution case centred mainly on circumstantial evidence.

Held

1. When the State’s case rests substantially upon circumstantial evidence, a Court cannot find a case to answer unless the circumstances are such as to be inconsistent with any reasonable hypothesis that may be drawn from primary findings as to the essential elements of the charge.
2. Admissibility of evidence under the doctrine of "res gestae" is only relevant on account of it being made contemporaneity with the matters under investigation.
3. Where there are a number of competing inferences it is a question of fact for the judge to decide which inferences he must draw, which to reject, which are reasonable and which party they favour.
   

Papua New Guinea cases cited

Allan Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131.

Paulus Pawa v The State [1981] PNGLR 498.

The State v Paul Kundi Rape [1976] PNGLR 96.

The State v Roka Pep (No. 2) [1983] PNGLR 287.

The State v Tom Morris [1981] PNGLR 493.

Other cases cited

Adelaide Chemical & Fertilizer Co. Ltd v Carlyle (1940) 64 CLR 515.

Mawaz Khan and Another v R [1966] UKPC 26; [1967] 1 All E.R. 80.

McDermott v R (1948) 76 CLR 501.

R v Rudd (1948) 32 Cr. App. Rep 138.

Subramanian v Public Prosecutor [1956] UKPC 21; [1956] 1 W.L.R. 965.

Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433.

Counsel

P Kumo, for the State.
S Korowi, for 1st accused.
B Aipe, for 2nd - 4th accused.

24 February 1997

LENALIA AJ. The four accused were charged with the murder of Ruth Jerry on 1st of October 1995 in Hagen Coffee, some five to six hundred metres away from the Mount Hagen Court premises. Before arraignment I enquired with each accused and their lawyers if they wish to have separate trials. All defence lawyers agreed that it should be a joint trial. On arraignment, the first accused entered a plea of not guilty. Before I took the pleas of the other three accused, Mr Aipe made an application to the Court pursuant to s 558 of the Criminal Code to quash the indictment on behalf of the three who had not entered any pleas on the basis that the section they were charged under was defective. The facts of the case did not reveal any involvement of his clients in the commission of the alleged crime.

Mr Kumo for the State submitted in reply that, all the four accused were in the same house. They all knew what was happening. They should all be charged with either murder under s 300 and s 10 of the Code as accessories after the fact to the first accused. I made a ruling in favour of Mr Kumo’s reply that although the correct section to charge the accused would have been s 309 for concealing the death, the State had the discretion to choose what section to charge the accused as revealed by the facts. I re-arraigned the 2nd, 3rd and 4th accused. They all pleaded not guilty.

To establish their case, the State called thirteen (13) witnesses whose evidences were mostly circumstantial in nature surrounding the death of the deceased. For the purpose of my deliberation, I do not intend to discuss the evidence in the sequence in which the witnesses were called. I would rather group the witnesses’ evidence in their similarities. The entire evidence was merely circumstantial and I may safely say at the outset of this judgement, to be more peripheral to the central issue; the murder itself. The doctor who performed the post mortem was called as the first witness. I will discuss his evidence later at the end of the State’s evidence.

Lucy John was called as the second witness. Her evidence was that on the 1st of October 1995, at about 9 am, Ruth Jerry who later became the victim that day, came to her house where she was with Peter and Wari Mark. Mark was playing a guitar in his room. This witness and the deceased danced to the music being played by Mark. Peter was outside. When he opened the door to the room where Lucy and Ruth were, he saw them dancing. Having been seen, the two women who were shy decided to leave. The deceased left, first, to her house. Then Lucy also decided to take a walk up to the main bus stop to take a PMV to Wabag.

At the bus stop, Biyang Leme, who is the second accused came up to her. She informed Lucy that Ruth Jerry wanted to see her. Lucy John said to Biyang Leme that, there was no point in seeing Ruth Jerry then. They had just seen each other in the house where they had just separated a while ago. Lucy did not want to go back as she was waiting for a PMV to take her to Wabag. Although after having expressed her negative approach to return to her house, she finally decided to go to her house. Before she left for the house, she noticed that the first accused’s vehicle was parked near the store. Lucy John then walked back to the house.

As she approached the first accused’s house, a girl by the name of Marrygoroka Umba signalled Lucy to come. Marrygoroka was standing at the back of the first accused’s house looking in through an open window. Witness Lucy John did not take any notice of Marrygoroka. She proceeded toward a group of people gambling and she joined them. She was there until a short time later when she was told that Ruth Jerry had died. On hearing the news, she told the group that it was not possible for Ruth Jerry to have died. She had seen her about two or three hours before and had observed her to be healthy.

Some more people came a little later and informed the group that the deceased had overdosed herself by consuming excessive tablets. Lucy proceeded to the house where the deceased body was. She observed that Ruth Jerry had actually died. She had been in the house for a while when the accused John Wanjil came in and started to cry. They took the body to the mortuary some time later.

Marrygoroka Umba was the third witness who testified that about 10 am on the 1st of October 1995, she was at the Hagen Coffee premises. She had gone to a nearby shop where she did a bit of shopping. As she returned she came near John Wanjil’s house. Ruth Jerry was there prior to her untimely death, when she called out to Marrygoroka. Ruth was calling through the back window of their house. When Marrygoroka came around. Ruth Jerry asked her to urgently call for Lucy John.

It appears from the evidence that, the distance from where Marrygoroka and Ruth Jerry’s house to where Lucy John was could not have been really far apart. Marrygoroka said that she stood on the same place and called out to Lucy John. As seen from the second witness evidence, she was not really interested in coming to see Ruth Jerry. Despite the fact that Marrygoroka urged her to come, she never came. Marrygoroka instead caught sight of John Wanjil’s sister. She signalled her to come to where she was standing. The two of them looked through the window and observed that Ruth Jerry was sitting on the bed. Beside her was a half bottle of pepsi drink. They came around to the main door, but it was closed. They did not open it. John Wanjil’s sister then left to see her husband.

She was asked in chief why were they peeping through the window. She answered that Ruth Jerry had initially called her. She had asked her to call for Lucy John. While she was there she noticed that Ruth Jerry had saliva coming out from her mouth on to her clothes. Marrygoroka’s evidence is that while she was there, there was no body in the room except Ruth. There was no one around outside, except herself and John Wanjil’s sister. Marrygoroka said she never saw the accused that morning until the body of the deceased was found. The only time she saw the accused was when people gathered to mourn. Asked in chief where were the other three accused, Marrygoroka said Biyang Leme had gone to the market and was just coming up. Accused Leme Sapo was playing a dart game with other men near the market as well.

Evidence of the 4th, 5th and 7th witnesses Lingu Jerry, Pane Baki and Paul Nali was much similar. These witnesses were not residents of Hagen Coffee. They had been informed about the death of Ruth Jerry. They came in about 5 pm to mourn. The only relevance in Lingu Jerry’s evidence was that the deceased was her real daughter. When she came to Hagen Coffee by 5 pm, she asked the mourners if anyone had reported the death to the police. She was informed that no one had reported. She then went to the police station to lay a formal complaint.

While they mourned that night, by about 4 am, Lingu Jerry said that they discovered blood coming out from the back of the deceased’s head. They had to change the deceased’s clothes. She also observed that there was white fluid coming from the deceased’s nose. The 5th witness Pane Baki confirmed that she also saw blood on the deceased head. All these three witnesses testified that when they saw the blood they were suspicious since they had been informed that the most probable cause of death was excessive consumption of aspirin tablets. To support the allegation about overdosing, four aspirin tablets were also found beside the place where the deceased was seen by Marrygoroka and Buyang Leme while the deceased was still alive.

During the course of the 4th, 5th and 7th witnesses’ evidence the State Prosecutor sought to introduce into their evidence conversations that had taken place between them and the 3rd accused, Clara John. The defence counsels objected bitterly to this approach on the basis that this would offend against the hearsay rule. I rejected the defence objections and ruled that I could only accept evidence in relation to what conversation they each had with the accused Clara John. I was not to accept any evidence in relation to what occurred between Clara John and John Wanjil on their way back from Mendi to Hagen.

The sixth witness introduced himself as Kangugu Waria. On the early morning on the date in question, his boss came to pick him up to go to his work place. On arrival at the work place, his boss found out that there was no work for him to do. He returned to his house. He did not notice what time he arrived back at his house. His house is situated in Hagen Coffee right near John Wanjil’s house. As he was sitting in his house, he heard something fell at the back of his house. This witness’s description of the noise was that it sounded like a "crate". After hearing this noise, he did not take notice or bothered to go up to the market where policemen were conducting a raid. He found out some 15-20 minutes later that the noise he had earlier was the fall of the deceased.

At the back of Waria’s house is a cliff. According to him it is some 10-12 metres away from his back wall. Immediately behind his house is a drain where the deceased’s body was found. From the back of his house to the base of the cliff would be about 10 metres away. The first accused’s house is situated on the top of the cliff. His evidence is that at the base of the cliff was an old metal bed frame and empty cans. Asked in chief if there was any noise in John Wanjil’s house prior to him hearing the noise he answered that there was no noise. The place was quite as everyone had gone down to the market to see the police raid. His estimate of the height of the cliff to where the accused house is, is about 5-6 metres. Other witnesses elsewhere put it at 3-5 metres.

Baby Romo Boso’s evidence was that on the date of this offence, he was in Baisu. When he heard about the deceased’s death, he made his way up to Hagen Coffee. He would have arrived at Hagen Coffee between 5 and 6 pm. He confirmed that by about 4 am the next day, the mourners discovered blood oozing from the back of the deceased’s head. As in the evidence of the 4th, 5th and 7th witnesses, Baby confirmed that he too heard Clara John mentioned something to the effect that, the accused John Wanjil whilst on their way from Mendi to Hagen, had said that there was trouble in the house. Either Clara John or Ruth Jerry would die. There is evidence by almost all witnesses that the accused Clara John had left the matrimonial home for some three months. Despite this the first accused went to Mendi to pick Clara John because she is one of the co-wives of the first accused.

At least the ninth witness Ena David said she spoke to the first accused enquiring why it was that John Wanjil’s wives were having problems now and then. The accused John Wanjil said that he himself had created the problem by bringing the 4th wife back (accused Clara John) to their matrimonial home. John Wanjil also informed her that, the deceased had overdosed and immediately fainted when she saw the 4th wife. Mr Aipe for the 2nd-4th defendants objected to this part of her evidence on the basis that this would be hearsay evidence. I allowed the objection and ruled that I could only accept that part of his evidence as proof of the conversation that took place between this witness and the accused John Wanjil, but not as the truth of what occurred.

In the course of Ena David’s evidence, Mr Kumo sought to tender her statement. The defence counsels objected bitterly quite apparently on the grounds that certain portions of that statement contained hearsay evidence which if accepted would be prejudicial to their clients’ cases. I upheld the objection on the same basis. Mr Aipe further argued that the State couldn’t have it both ways. Here was a witness who had completed her oral evidence and was properly cross-examined by the defence counsels; I saw no purpose of tendering the statement. However, I invited the prosecutor to cite authorities to the court for the purpose of enlightenment on that issue.

The next day before calling the 10th witness, Mr Kumo addressed the Court on the admissibility of confessional statement. He cited from page 521 of "Cross on Evidence" (2nd Edition). This page contains a discussion of the rule enunciated in the well-known case of McDermott v R (1948) 76 CLR. 501. At page 511 of that case Dixon J said:

"If he [the accused] speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter, by what means he has been overborne.

If his statement is the result of duress, intimidation, persistent importunity, or sustained, or undue insistent or pressure, it cannot be voluntary. But it is also a definite rule of common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement was made".

That common law rule has been adopted into our jurisdiction by virtue of schedule 2.2 of our Constitution. It is also reflected in s 28 of the Evidence Act (Ch. No. 48). My understanding of that rule is that it governs admissibility of confessional statements made by an accused to persons in authority. It is also a well-established principle of law that self-serving statements made by parties to a litigation are usually inadmissible in evidence of their truth for fear of fabrication. It is also a rule of law that where a party makes an adverse statement to his case it is received as proof of its contents. The statement that Mr Kumo sought to tender was made by the witness to the investigating officer. Its admissibility is governed by the rule that it must have been made voluntarily and is referred to as formal on account of its being made to a person in authority.

It has also been held that informal admissions by words or conduct made by a party to the proceedings to those in privity with him are also admissible in evidence against him of the truth of the contents. Thus, in R v Simons [1834] EngR 927; (1838) 6 C & P 540 on a charge of arson the Crown sought to call a witness to prove what Simons said to his wife on leaving the magistrate’s room after a committal proceedings. It was held that "what a person is overheard saying to his wife or even saying to him is evidence" and is quite admissible.

In the case before me, I made two rulings so far. First, I accepted as part of the State’s case what either the first or 3rd accused have said to certain witnesses including witness Ena David. Second, I ruled that, as to what conversations took place between Clara and John between Mendi and Hagen would not be accepted. The statement, which Mr Kumo sought to tender, was the statement made by Ena David who was called as a witness and was properly cross-examined by the defence counsels. The position would have been different if the statement was made by the first accused himself.

Frank Siwi was the 10th witness. He identified his statement, which was tendered by consent. In his statement, he confirmed that he was on duty on the night of the 1st of October when Lingo Jerry came to complain about the death of her daughter Ruth Jerry. Frank advised Lingu Jerry to inform their relatives not to interfere with the deceased’s body until a post mortem was performed to determine the cause of the death.

Ruth Nane’s evidence corroborated that of Marrygoroka’s evidence. The two of them looked through the window and saw the deceased sitting on the bed. She confirmed that Marrygoroka and herself did not talk to Ruth Jerry. She proceeded past John Wanjil’s house to her own house, then walked right back to the market where a raid was being conducted. She also confirmed that when Marrygoroka and herself were around John Wanjil’s house, there was no one inside or not even outside except for the deceased who was alone in the room.

Four sets of photographs taken by the Police photographer, Daeb Tangi, were tendered by consent. They mainly show the positioning of the house where the deceased was last seen by Marrygoroka Umba and Ruth Nane. Daeb’s description of the scene and particularly the height of the cliff was that it must have been about 10 metres. He was asked in court if he could estimate that distance to Court. He quite confidently estimated the height and which was put by Counsels of about 7-8 metres. He insisted it was about 10 metres. His estimation is higher than all other witnesses. I must accept that height from the base of the cliff to the top must have been 10 metres high.

The photographer went to the scene some 17 days after the deceased died. There was a question put to this witness regarding his opinion as to whether or not if someone had fallen from the top of that 10 metres cliff to the base on to the metal frame, he or she would have died. His answer was in the negative. This witness was a photographer and his evidence is compared with that of the doctor who said in his evidence that even at a fall of 3-4 metres, the deceased could have died depending on the weight and the object she fell on.

Joel Kundi was the last witness. He was the investigating officer of this case. In the course of his evidence, Mr Kumo sought to tender the statement of the accused Biyang Leme that this witness had taken. No objection was made by the two Counsels provided that its contents would only go to prove that the witness made a statement with the accused Biyang Leme, but not as to the truth of what was said in it. I have a discretion to either accept or refuse that statement not only to prove that it was made by the accused Leme Biyang, but it could also be used by the State as evidence against herself had she made adverse statements against herself. The practical difficulty the State now faces here is that, at the outset of the investigation in this matter the three co-accused were proposed to be called as witnesses. When the bill of indictment was drawn up, the three co-accused were made co-accused with John Wanjil. It would be most unfair for the State, which now seeks to tender Biyang Leme’s statement when such a statement was obtained under the context that she would be a State witness.

It used to be thought that where two people are under arrest for the same crime and one of them is informed of the statement implicating him which had been made by the other, the statement could not be used as evidence for the prosecution if tried together with the other: Mills and Lemon [1947] KB 297 at 299. This practice was repudiated in 1964 by r 5 of the English Judges’ Rules. That rule provided that if a police officer wanted to draw the attention of someone charged with the same offence he is obliged to hand to the accused a copy without saying or denying anything and invite him to make a reply. If that person received a copy of his co-accused statement and desired to make a reply, the usual caution could be administered. Under such circumstances, it would be perfectly proper to receive such a statement as evidence. (see Cross on Evidence (2nd Edition) pp. 510-511).

In Mawaz Khan and Another v R [1966] UKPC 26; [1967] 1 All ER 80 the Crown relied on circumstantial evidence connecting both appellants with the crime. In addition the Crown relied on statements made at the police station by each of the appellants in the absence of the other in which they both set up the defence of alibi that they were elsewhere at the time the crime was said to have been committed. Their explanation as to how they received injuries at a certain locality during which the two accused said they had fought each other was also relied on by the Crown. Evidence of these statements was admitted to show that the appellants had fabricated a joint story. On appeal to the Supreme Court of Hong Kong against their convictions, the appellants argued that the statement of one accused made in the absence of the other had been wrongly admitted against the other.

On appeal, the Privy Council held that the statements of each appellant had not been admitted for the purpose of proving the truth of the facts stated, but in order to show by reason of the fact that the statements were made to show that the appellants acted in concert to show a common guilt. For this purpose the statements were admissible without breach of the hearsay rule. In the case of Subramanian v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965, 970 the Court observed that:

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and is admissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made".

In an earlier case R v Rudd (1948) 32 Cr. App Rep 138 at 140 Humphreys J said:

"Ever since this Court was established it has been the invariable rule to state the law in the same - that while a statement made in the absence of the accused person by one of his co-defendants cannot be received against him, if a co-defendant goes into a witness - box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purpose of the case including the purpose of being evidence against his co-defendants".

I am unable to refer to any local authorities concerning the reception of evidence from an accused as a witness for the prosecution. There was no such assistance given to this Court by all the lawyers. I note the limitation placed by s 14 of the Evidence Act, which says that a person who is charged with an offence cannot be called as a witness by the prosecution in any legal proceedings in connexion with the offence charged. When an accused is, however, called as a witness for his case s 14 (2) seems to say, he may be asked questions in cross-examination notwithstanding those questions may incriminate him.

The case before me concerns the issue of whether or not I should accept the statement made between the interviewing officer and the accused Biyang Leme. On the authority of R v Rudd (supra) and s 14 (1) of the Evidence Act, I would accept only the fact that such a statement was made, but I must refuse to accept its content as to the truth of what was said.

Part of Sgt. Major Joel Kundi’s evidence was that although he obtained statements from the three accused, there was nothing in their statements that could implicate the three of them or even the accused John Wanjil. He said the reason why he had charged the four accused was that he wanted this Court to further investigate. This witness also went to the scene 17 days after the death. All evidence about the estimations he gave on distances was mere guesses. He confirmed that he found an iron metal frame bed half buried in the ground, but one end of the frame was protruding up to the surface. This witness had to dig this iron frame out. It was brought to Court as an exhibit. He was asked both in chief and cross-examination if someone was to jump from the top of the cliff to the base, they receive injuries or even die. He answered that, it was not possible, but in this case he had a strong conviction that the first accused might have killed the victim.

The doctor who performed the post mortem gave oral evidence that on October 4, 1995 he conducted a post mortem on the body of the late Ruth Jerry. He identified the report as the one he had made about the deceased in this case. Part of his written report says:

"The tablets which were given for identification turned out to be aspirin and there is no chance of overdosing. In my conclusion she was either hit on the back of the head with a sharp object leading to severe subdural haematoma or she might have been pushed or fallen from a height landing on to some sharp object hitting her head leading to same. Cause of death is from head injury".

At the end of the evidence of the investigator, Mr Kumo made an application to adjourn awaiting his last witness who was still in Mendi. The two defence counsels objected on the basis that the State has been given sufficient time to prepare for its case. I noted that this case was originally set for two weeks. The date the application was made, was merely two days before the close of the two weeks. I rejected the application and ruled that the trial must continue.

Mr Kumo submitted that he no longer wanted to call the last witness. The prosecution case was therefore closed.

At the end of the State’s case, Messrs Aipe and Korowi made brief submissions on "no case to answer". To support their submissions the case of The State v Roka Pep (No. 2) [1983] PNGLR 287 was cited. There the Supreme Court adopted and applied the principles enunciated in The State v Paul Kundi Rape [1976] PNGLR 96, that when a "no case submission" is made, the question that the Court must decide is not whether on the evidence as it stands, the defendant ought to be convicted, but whether on the evidence as it stands an accused could lawfully be convicted. In The State v Roka Pep (No. 2), it was held that it is a question of law for the judge to decide. The test is whether the evidence so far adduced by the State supports the essential elements of the offence.

It is understood from the reading of both The State v Paul Kundi Rape and The State v Roka Pep (No. 2) that, at this stage of the proceedings, the question of proof beyond reasonable doubt does not come into play. The question will be decided ultimately at the end of all the evidence by both the State and the defence. I am fortified in this view by my reading of the case of Zanetti v Hill (1962) 108 CLR 438. Kitto J said at 442:

"The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in Chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands - whether that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt". (Emphasis added).

It was unusual and rather unfortunate for the State Prosecutor not to reply to what the defence counsels said in their no case submissions. Be that, as it may, the State’s case involved two issues or possibly three. First, the prosecution’s case substantially rested on circumstantial evidence. Second, during the course of the State’s case, the prosecutor sought to bring evidence under the res gestae rule and third, whether there was a conspiracy by the four accused to kill the deceased.

The State relied heavily on certain allegations. When the first and third accused were returning from Mendi that morning the first accused told Clara John that there was some trouble in the house. John Wanjil would kill either Clara or the deceased. There was no direct evidence. This Court was left to grope in darkness amidst the string of circumstantial evidence.

The principle governing reception of circumstantial evidence has been stated in this jurisdiction in a number of authorities. The principles stated in the case of The State v Tom Morris [1981] PNGLR 493 are that, were there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party they should favour. At the end of the prosecution case where there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit. These principles have been applied in subsequent cases as in the Supreme Court case of Paulus Pawa v The State [1981] PNGLR 498, The State v Tupui Kapera (Unreported) N567 and The State v Iamge Waea (Unreported) N915. The principles enunciated in those local authorities say that failure by a trial judge who sits, as a jury to warn himself of the dangers of convicting an accused on circumstantial evidence could be fatal and quite dangerous. I also reminded myself that I am only required at this stage to decide if there is a case for all the accused to answer. I am not required to determine their guilt. The test I must apply is well settled in the case of The State v Paul Kundi Rape and The State v Roka Pep (No. 2) (supra).

The second issue was that during the course of the State’s evidence Mr Kumo repeatedly referred to certain evidence and urged the Court to accept them under the "res gestae" rule. The doctrine of res gestae is mainly concerned with admissibility of statements made contemporaneously with the "factum probandum". A fact may be relevant to the "factum probans" because it throws light on it by reason of its proximity in time, place or circumstances. It is said that under this doctrine evidence may be received although it may infringe the rule against hearsay, the opinion rule or the rule against self-corroboration. Thus, where an item of evidence forms part of the res gestae rule, it simply means that, that item is relevant on account of its being made contemporaneously with the matters under investigation.

To illustrate the applicability of the res gestae doctrine, I cite the case of Adelaide Chemical Fertilizer Co. Ltd v Carlyle (1940) 64 CLR 515. It is a leading Australian High Court case on the subject containing a dicta that restricts the operation of the doctrine of res gestae. A widow successfully claimed damages for the death of her husband following injuries sustained when a jar of sulphuric acid broke while the deceased was holding it. A short time after the accident he tried to wash the acid off from his legs. He told his wife that as he filled the jar, the top of the jar seemed to come away from his hand. The trial judge admitted the statement as one of the two items of evidence of negligence on the part of the defendant company. On appeal Dixon J as he then was held that to be admissible, the statement had to be an integral part of the transaction. Thus, the statement was not admissible. It was a mere narrative explaining an event that occurred although only a minute or two prior to an event that was complete when the jar broke and spilt on the victim’s leg.

I would rather adopt the proposition expressed in Nalder v Dutch - Australian Contracting Company Pty Ltd [1960] VicRp 70; [1960] V.R. 458 that, a statement sought to be admitted under the res gestae rule must be contemporaneous with the "res" and must not be mere narrative. Thus, the statement of Biyang Leme cannot be received as evidence against herself and those who are charged together with her. Secondly, if her statement is received, it would in my view be contrary to s 14 (1) of the Evidence Act.

Applying the tests laid down in The State v Paul Kundi Rape (supra) and The State v Roka Pep (supra) can it be said that in the recent case there is evidence supporting the essential elements of the offence of murder? Or alternatively, on the circumstantial nature of the State’s evidence, can one say from the primary findings of the instant case that the facts are such as to be inconsistent with any reasonable hypothesis other than the guilt of the four accused? Or would it be said that their guilt is the only rational inference to be drawn: see Allan Oa Koroka v The State and Mariano Wani Simon v The State (supra). I must answer in the negative. No elements of the charge have been established.

The evidence of the instant case rather leaves several hypothesis. First and the most probable was that the deceased could have died from the fall she sustained, when she jumped from that 10 metre cliff, most probably hitting her head on that metal frame half buried into the earth. The second hypothesis was that of overdosing herself, although the medical report seems to reveal a negative result. Be that as it may, there was overwhelming oral evidence from all witnesses that the deceased overdosed herself. Four aspirin tablets were taken from the bed where she was sitting before she died. Together with this was a half-pepsi cola bottle beside the aspirin tablets. The third and remotest possibly would be that the accused had killed his wife. There is no evidence to support this view. There is no evidence of any conspiracy between the first accused and the three co-accused to support the view that the four accused conspired to kill the victim.

That being the case, I find that there is no case for all the four accused to answer. I order dismissal of this case and further order that their bails be refunded.

Lawyer for the State: The Public Prosecutor.
Lawyer for the 1st accused: Paulus Kunai Lawyers.
Lawyer for 2-4 accused: The Public Solicitor.