National Court of Papua New Guinea

As she approached the first accused’s house, a girl by the name of Marrygoroka Umgnalled Lucy to come. Marrygoros standing at thet the back of the first accused’#8217;s house looking in through an open window. Witness Lucy John did noe take any notice of Marrygoroka and she proceeded toward a group of people gambling and she joined them. She was there until at timt time later when she was told that Jerry Ruth had died. Ahearing the news, she tole told the group that it was not possible for Jerry Ruth to have died because she had seen her about two or three hours before and had ved her to be healthy.

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

Marrygoroka Umba was the third witness testified that about 10 am on 1st of October she was at the Hagen Coffee premises. She had gone to a nearby, hop, did a bit of shof shopping and as she was returning she came near John Wanjil’s house where Jerry Ruth was just prior to her untimely death when Ruth called out to Marrygoroka.&#1uth was calling through theh the back window of their house and when Marrygoroka came around, Jerry Ruth asked her to urgently call for Lucy John.

It appears from the evidence that, the distance from where Marrygoroka and Jerry Ruth’s house tre Lucy John was woas would not have been really far apart because Marrygoroka said that she stood on the same place and called o Lucy John. As seen from the s witnesstness evidence, she was not really interested sted in coming to see Jerry Ruth and despite the fact that Marrygoroka urged her to come, she never came. Marrygoroka instead caught sight of John Wanjil’s sister and signalled her to come to where she was standing. the two of looked through ough the window and observed that Jerry Rut sitting on the bed. Beside her was f bottle ofle of e of pepsi drink. They came around to the main door but it was close60; They did not open it anit and so John Wanjil’s sister left to see her husband.

She was asked in chief why were they peepirough the window. She answered Jerry Ruth hath had inad initially called her and asked her to call for Lucy John but while she was there she noticed that Jerry Ruth had saliva coming out from Ruth’s mouth 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 aroutsidetside too except hersed John Wanjil’s sister. Marryg said she never saw saw the accused that morningrning until the body of the deceased was fand the only time she saw the accused was when people gathegathered to mourn. Asked in chief where whe othe other three accused, Marrygoroka said Biyang Leme had gone to the market and was just coming up. Accused Leme Sapo was ng aing a dart game with oten near the market as well.

Evidence of 4th, 5th andh and 7th witnesses Lingu Jerry, Pane Baki and Paul Nali was much similar.; These witnesses were not residents of the Hagen Coffee.&#ee. had been informed about thut the death of Jerry Ruth and they came in about 5 pm to mourn. The relevance in Lingu Jeru Jerry’s evidence was that the deceased was her real daughter hen she came to Hagen CoffeCoffee by 5 pm, she asked the mourners if anyone had reported the death to the police. She was informed to one hane had reported. She thnt to the police stae station to lay a formal complaint.

While they were mourning thght, by about 4 am, Lingu Jerry said that they discovered blood coming out from the back ofck of the deceased’s head. They hadhange the deceasedeased’s clothes. She also observed thate ware was white fluid coming from the deceased’s nos60; The 5th witness Pane Baki confirmed that she also saw blood on the deceased head. #160; All thesee witnesses sses testified when they saw the blood thed they were suspicious since they had been informed that the most probable cause of death was excessive cotion of aspirin tablets. pportallegatlegatlegation tion about overdosing, four aspirin tablets were also found beside the place where the deceased was being seen by Marrygoroka and Buyang Leme while the deceased was still alive.

During the course of 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 defencesels objected bted bitterly to this approach on the basis that this would offend against the hearsay rule. I rejected the defenjectioections and ruled that I could only accept evidence iation to what conversation tion they each had with the accused Clara John but I was not to accept any evidence in relation to what ocd between Clara John and Jond John Wanjil on their way back from Mendi to Hagen.

The sixth witness introduced himself as Kangugu Waria. On the early moron the date date in question, his boss came to pick him to go to his work place. On arrival at ork place, hce, his boss found out that there was no work for him to do. He returned to his houd hend he did not notice whme he arrived back at his house. Hise is situated in Hagen agen Coffee right near Johr John Wanjil’s house. As he wtting in huse, he h he heard something fell at the back of&k of his house0; This witness&#ess’s description of the noise was tt sounded like a “crate”. After hearing this noise, he did not take noticnotice nor did he bother to go up to the m where policemen were conduconducting a raid. He found out some 15-2utesnutes later that the noise he had earlier was the fall e deceased.

At the bthe back of Waria’s house is a cliff. According to him it is some 10-12 metres away from his ball. Immediately behi behind his hos a drain where the dece deceased’s body was found. From ack of his hto the bahe base of the cliff would be about 10 metres away.&#16. On the top of thef is situ situated the first accused’s house. Hidence is at the base of e of the cliff was an old metal beal bed frame and empty cans. Asked in chief ife was anys any noise in Wan8217;s house prio prior to hearing the noise. He answered there was ise oise and the the place was quite as everyone had gone to the market to see the police raid. His estimate ofte of the height of the cliff to where the accused house is would be aboutmetres. Other witnesstnesses elsewhere put it at 3-5 metres.

Baby Romo Boso’s evidence was that on the date of thience, he was in Baisu and wand when he heard about the deceased’s death, he made his way up to Hagen Coffee. He would have arrat Hagen agen Coffee by between 5 and 6 pm. He confirmed that but 4 am 4 am the next day, the mourners discovered blood oofrom the back of the deceased’s head. As in the evidence of 4th 5th and 7th with witnesses Baby confirmed that he too helara John mentioned somethimething to the effect that, the accused John Wanjil whilst on their way from Mendi to Hagen, had said thate was trouble in the house ouse and either Clara John or Jerry Ruth would die. There is evidencalmost allt all witnesses that the accused Clara John had left the matrimonial home for some three months. Despite this the fircused used went to Mendi to Clara John because she is one of the co-wives of the firstfirst accused.

At least the ninth witness Ena David said she spoke e first accused enquiring why was it that John Wanjil’#8217;s wives were having problems now and then. The accused John Wais said said to have said that he himself had created the problem by bringing the 4th wife back (accused Clara John) to thatrimonial home. She was also inform John Wohn Wanjil that, the deceased had overdoserdosed and she immediately fainted becausesaw the 4th wife. Mr ; Mr Aipe for td-4th deth defendants objected to this part of her evidence on asis that that this would be he evidence. I allowallowed the oion anon and ruled that I could only accept that part of his evidence as proof of the rsatiat took place between this witness and the accuseccused John Wanjil but not as the truth ofth of what occurred.

In the course of Ena David’s evidence, Mr Kumo sought to tender her statement. The defence counsels obj bted bitterly quite apparently on the grounds that certain portions of that statement contained hearsay evidence which if accepted would be prejudicial to theients cases. I upheld the tion on the same same same basis. Mr further argued that thet the State cannot have it both ways. Has a witness who had comp completed her oral evidence and was properly cross-examined by the defence counsels, I saw no purof teng the statement.ment. However ited the prosecutoecutor to cite authorities to the cohe court for purpose of enlightenment of that issue.

The next day before calling the 10th witness, Mr Kumo addressed the Court on admissibility of confessional statement. He cited from page 521 822“Cross on Evidence” 2nd Australian Edition. This contains a discussionssion on the rule enunciated in the well known case of McDermott v R (1948) 76 C.L.R. 501. At page 511 of case Dixon ixon J said:

That common law rule has been adopted into our jurisdiction and by virtue of Schedule 2.2 of our Constitution. It is alsoected in the Evie Evidence Act S. 28 Ch. No. 48. My understandi that rule iule is that it governs admissibility of confessionals statements made by accused to persons in authority. s alsell eished phed princirinciple of law that self-serving statements made by parties to a lita litigation are usually inadmissible in ece of their truth for fear of fabrication. It is also a rule ofthat what where a part party makes an adverse statement to his case it is received as proof of ontents. The SThe Statemeat Mh Kumo Kumo sought to tender was made by the witne the investigating officer.icer. Its admissibiis governed bned by the rule that it must have been made voluntarily and is referred tformaaccount of its bets being ming 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-Simons8) 6 C &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 eld that “what a at a person is overheard saying to his wife or even saying to himself is evidence” and is quite admissible.

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

Frank Siwi was 10th witness. He identified his stnt an was tendered by consent and was marked for identification Exhibit “A”.
. In hitement, he confirmed rmed te was on duty on the night of 1st of October when Lingu Jerry came to complain about the dehe death of her daughter Jerry Ruth. k advLingu Jerry to inform form their relatives not to inte interfere with the deceased’s body until a post mortem was performedetermine the cause of the death.

Ruth Nane’s evidence corroborated that of Maof Marrgoroka’s evidence that, the two of them looked through the window and saw the deceased sitting on the bed. She confirmet Marrygoroka roka and herself did not talk to Jerry Ruth. She eded past John Wanjil&njil’s house to her own house then walked right back to the marhere a raid was being conducted. She confirmed tmed that what 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 photographer Daeb Tangi were tendered by consent. Thenly show the positioninioning of the house where the deceased was last seen by Marrygoroka Umba and Ruth Nane. Daeb’s desion of thef the scene and particularly the height of the clust have been about 10 metr metres. s asked in court if he coue could estimate that distance to Court. He quite confidenttimated the height and whic which was put by Counsels of about 7-8 metres. He insisted it was about 10 metres. His estimation st higher ahan all other witnesses and I must accept that height from the base of the cliffcliff to the top must have been 10 metres

Jo

Joel Kundi was the last witness and he was the investigating officer of these cases. In the courshis evidence Mnce Mr Kumo sought to tender the statement of accused Biyang Leme which this witness statement, this witness had t No objection was taken by the two Counsels provided that its contents would onld 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 diion to either ther to acceprefuse that statement not onot only to prove that it was made by the accused Leme Biyang, but it could also be used by the State as ece against herself had she made adverse statements against inst herself. The practical difficule Sthe State now faces here is that, at the outset of the investigation in these matters the three co-accused were proposed to be called as witnesses. Whe billndictment was draw drawn up, the three co-accused were were made co-accused with John Wanjil. Ild be most unfair for tatr tate which now seeks to tender Biyang Leme’s statement when such a statement was obta obtained under the context that she would State witness.

It used to be thought that where twoe two people are under arrest for the same crime and one of them is informed of the statement implicating him which has been made by the other, the maker of the statement could not be called as that statement for the prosecution if tried together with the other: Mills and Lemon [1947] KB 297 at 299. This practice was cond in d in 1964 by r. 5 of the English Judges’ Rules. ruleided that ihat if a po a police officer wanted to the tion of someone charged with the same offence he e he is obliged to hand to the accused a cd a copy without saying or denying anythin invim to make a replyreply.&#16. If person received a copy copy of his co-accused statement desires to make a reply, the usual caution should be administered. Undch circumstances, it woit would be perfectly proper to receive such statement as evidence: see on evidence (2nd Aust Australian Edition) pp. 510-511 for detail discussion.

In Mawaz Khan and Another v R [1967] 1 All the Crown relied on circumstantial evidence connecting both appellants with the crime and and in addition 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 and their explanation as to how they received injuries at a certain locality during which the two accused said they had fought each other. Evidence ofe statements wats was admitted to show that the appellants had fabricated a joint story. On appo the Supreme Court ourt of Hong Kong against their convict the main ground of appeal being that the statement of one one accused made in the absence of the other had been wrongly admitted ag the other.

On appeaappeal, 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. Fos purpose the statementsments were admissible without breach of the hearsay rule. In the case oramanian v Pu v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965, 970 the Court observed:

“Ece of a statement made to a to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsayadmissible whle when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsd is admissible when it is proposed to establish by the evidence, not the truth of th0; the stat the fact that 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 Cous established it has been the invariable rule to state the 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 reception of evidence from an accused as a witness for the prosecution because there was no such assistance given to this Court by all lawyers to cite any authorities to guide me. I note the limit placed byed by S. 14 subsection (1) of the Evidence Act Ch. No. 48 which says that a person who is charged with an offence cannot be called as a witness by the prosecution in any legal procee in connexion with the offe offence charged. When an accused isver call called as a witness for his case S. 14 subsection (2) seem to say, he may be asked question in cross examination notwithstanding that such question may incriminate him.

The casore me concerns the issue osue of whether or not I should accept the statement made between the interviewing officer and the accused Biyang Leme. On authority e case of R-vf R-v-Rudd - supra and S. 14 (1) of the Evidence Act, I would only accept the fact that such a statement was made but I must refuse to accept is content as 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
e0; he had charged the four accused was that he wanted this Court to further investigate. This ss also went to the sthe scene 17 days after the death.&#16l evidence about the estimations he gave on distances were were mere guesses. He confirmed that he fan i an iron metal frame bef buried into the ground bynd by process of item but one end of the frame was protruding up to the surface. This witness had tothis fron frame out. It was brought urt as exhi exhibexhibit. He waed both in chief and and cross-examination if someoneto jump from the top of the cliff to the base, could they receive injuries or even die.&#16. He answered it was not poot possible b this case he had a strong rong conviction that the first accused might have killed the victim.

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

“The tablets which were given for identification turned to berin and thed there is e is no chance of overdosing.&#1n my conclusion she was either hit on the back of the head head with a sharp object leading to severe subdural haematoma or she might beened or fallen from from a he a height landing on to some sharp object hitting her head leading to same. Cause of death is from hnjd injury.”

At the end of the evidence of the investigator, Mr Kumo made an application to adjourn awaiting his latness who was still in Mendi. To defence counsels objectbjected on the basis that thet the State has been given sufficient time to prepare for their case. I nthat this case was orig originally set for two weeks and the date the application was made, it was merely two days before the close of the two weeks. I rejecte application and and ruled the trial must continue.

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

At the e the State’s case, Mee, Messrs Aipe and Korowi made brief submissions on “no case to answer”. To support theimissihe case case of The State v Roka Pep (No. 2) [1983] PN3] PNGLR 287 was cited. There the Se Court adoptedopted and ap the principles enunciated in The State v Paul Kundi Rape [1976] PNGLR 96, that when a &#82 “no case submission” is made,questhat the Court must decide is not whether on the ethe evidenvidence as it stands, the defendant ought to be convicted, but whether on the evidence as it stands an accused could lawfully be convicted. And as was said in The Sv te v Roka Pep (No. 2), it is a question of law for the judge to decide. The test is that whethe evhe evidence so far adduced by the State supports essenelements of the offence.

It is understood from the rthe reading of both The State v Paul Kundi Rape and The State v Roka Pep () that, at this stage of thof the proceedings, the question of proof beyond reasonable doubt does not come into play which question is decided ultimately at the end of all the evidence both for the State and defence. I am fied in this view by w by my reading of the case of Zanetti v Hill (1962) 108 CLR 438. Kitto J st 442:

&#8p>“The question whether there is a co answer, arising as it does at the end of the prosecution&tion’s evidence in Chief, is simply the question of law whether the dant could lawfully be conv 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 addep>

It wast was unusual and rather unfortunate for the State Prosecutor not replying to what the defence counsels said in theicase submissions. Be that, as i, the State&#ate’s case involved two issues poss possibly three. First the prosecution&#8 c7;s case substantially rested on circumstantial evidence. Sec, during the course of e of the State’s case, the proor sought to bring evidence under the res gestae rule and thirdly, whether there was a cons conspiracy by the four accused to kill theased.

The State heae heavily relied on certain allegations that when the first and third accused were returning from Mendi that morning the first accused is said to have told Clara John that there was some trouble in the house and that John Wanjil would kill either Clara or the deceased. There was no direct eve ance and 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 juction in a number of authoruthorities. the principles stated incahe case of The State v Tom Morris [1980] PNGLR 493 are that were there are number of competing inferences, it is a question of fact for the judge to decide which and what inferences should bwn, which should be rejectejected, which are reasonable, which are mere conjunctures and which they should favour and atnd at the end of the prosecution case where there are inferences inconsistent with the guilt of the accused, there is a discretion to t. These principles have been applied in subsequent cent cases as in the Supreme Court case of Paulus Pawa v The State [1981] PNGLR 498, The State v Tupui Kapera No. 567 and The State v Iamge Waea N. 915. The principles eated in thin those local auties say that failure by a trial judge who sits as a jury to warn himself of the dangers ofrs of convicting an accused on circumstantvidence could be fatal and quite dangerous. I also reso remind f that that I am only required at this stage to decide if there is a case for all the accused to answer and I am not required to determine their guilts. The temust apply is well sell setin the case of The Sthe State v Pauli Rapi Rape and The State v Roka Pep (No. 2).

The second issue was that during the c of the State’s evidence Mr Kumo repeatedly referred rred to certain evidence and urged the Court to accept them under the “res gestae” rule. The ine of res gestae is m is mainly concerned with admissibility of statements made contemporaneously with the “factum probandum”. A fact may be relevo the &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 recealthough it may infringe thge the rule against hearsay, the opinion rule or the rule against self corroboration. Thus where an of eve formsforms part of the res gestae rule, simply meansmeans that, that item is relevant on account of its being made contemporany with the matters under investigation.

To illustrate the applicability of the res gres gestal 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 successfulaimed daed damages for theh of her husband following injuries sustained when a jar ofar of sulphuric acid broke while the deceased was holding it. A shore afte accident and and while he was trying to wash the ache acid off from his legs, he told his wiat as he filled the the jae tope of the jar seemed to come away from his hand. The trialejudgitted tted tted the statement as one of the two items idence of negligence on the part of the defendant company.&any. On appealn J as he then waen was held that to be admissible, thtemen to be an integrategral parl part of the transaction and thus the statement was not admissible because it was a mere narrative explaian event that occurred alth 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 sent sought to t to be admitted under the res gestae rule must be contemporaneous with the “res” and must not be mere narrative. Thus the statement yang Leng Leme cannot be received as evidence against herself and those who are charged together with her. Secondly if her stat is reis received, it would in my view be contrary to S. 14of the Evidence Act.