Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Rioke (No. 1) [2016] PGNC 77; N6288 (11 April 2016)

N6288

PAPUA NEW GUINEA N
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1088 OF 2015

THE STATE

V

PHILIP RIOKE (N0.1)

Palmalmal: Lenalia, J.
2016:6^th 9^th& 11^th April

CRIMINAL LAW – Aiding suicide – Plea of not guilty – Criminal Code s.310.

CRIMINAL LAW – Aiding in suicide – Procuring another person to commit
suicide – Victim blood sister of accused – Evidence on trial – No witnesses called – State tendered all documents by consent.

CRIMINAL LAW – Accused chose to remain silent and call no witnesses- His
Right to remain silent and did not wish to call any witnesses – No incriminating inferences can be drawn.

Cases cited.

John Peng v The State [1977] PNGLR 331
Paulus Pawa v The State [1981] PNGLR 498
R v Lupalupa Sisarowe [1967-1968] PNGLR 455
The State v Marava Kanaio [1979] PNGLR 319
The State v Tom Morris [1981] PNGLR 493
The State v Mariano Wani Simon& Allan Oa Koroka [1988-89] PNGLR 131

Counsel:
Mr. L. Rangan, for State
Ms. J. M. Ainui, for Accused

11^th April, 2016

1. LENALIA, J: The accused is charged with one count of procuring another person to commit suicide. This is an offence against s.310 of the Criminal Code. On arraignment, he entered a plea of not guilty. Mr. Rangan submitted that, the State will not be calling any witnesses as the defense has consented to all documentary evidence contained in the District Court depositions.
   

Prosecution Evidence

2. The prosecution evidence consisted of all documents tendered by consent. Those documents include the following:

- A set of photos Exhibits “1” – “4”
- A plastic containing bush ropes Ex. “5”,
- Medical report Ex. “6”,
- Two photos Ex. “7” & “7a”,
- The record of interview Ex. “8” & “8a” Pidgin and English translation,
- Statement by the interviewing officer Ex. “9”,
- By the corroborator Ex. “10”,
- Statement by S/C Ben Tokulau Ex. “11”,
- Statement by Ben Kumbu Ex. “12”,
- Statement by Guae Solomon, Ex. “13”,
- Statement by Aguna Clara Ex. “14”,
- Statement by Mat Joe Ex. “15”,
- Statement by Michael Poule Ex. “16”,
- Statement by Mokena Maria Ex. “17”

3. After tendering the above documents, Mr. Rangan closed the prosecution evidence.

4. The court called on the defence to begin their case. The accused was informed of his right in terms of s.572 of the Criminal Code to give evidence, make a statement from the dock or remain silent. He indicated he wanted to remain silent. He was asked if he wanted to call any witnesses. He replied that he did not have any. Ms. Ainui confirmed that her client wanted to remain silent and he had no witnesses to call. Counsel closed the defence case.

Addresses on Verdict

5. For the prosecution, Mr. Rangan argued that the accused committed the crime of procuring the victim to commit suicide. Counsel briefly addressed the court on the history of the case and the essential elements of the charge and submitted that, what the accused was doing to his own sister caused her to take her own life because the accused was or may have had incestuous relationship her Clara Remo. The court does not however agree with part of counsel’s submission that, the court may consider s.7 (1) (b) of the Criminal Code, and find the accused guilty of aiding in the commission of the crime of procuring. Counsel rephrased his argument that, this was the case where the accused omitted to do anything to assist the victim and stop her from committing suicide. He asked the court to find the accused guilty.

6. For the accused Ms. Ainui argued that, the accused never did anything to his sister that caused her to commit suicide. Counsel referred the court to questions 29 and 30 in the record of interview where the accused was asked why he did not do anything to get the poisonous rapes away from the victim. The accused answered that, he wanted to get the poisonous ropes away from her but she already went away. Counsel asked the court to find the accused not guilty.

Decision on Verdict

7. The court has read all documents tendered by consent. In the record of interview, the accused was asked where he was on 27^th March 2015 between 4pm and 8pm. He answered he was at the Open Bay Timber Logging Camp. He told the interviewing officer Roger Tarata on and his corroborator July Pennie that he was in the aforementioned logging camp sitting under a jerry fruit tree chewing betel nuts. Asked if anyone met him, he said as he was sitting there, a person by the name of Ben Kumbu and Clara Remo walked toward the accused but when they saw him, Ben Kumbu disappeared and the victim walked back .(See Ex. “8A”).

8. I would like to quote some relevant questions and their answers in the record of interview. I quote questions 22 to 32 and their answers:

“Q.22. Can you tell me what happened to Clara Remo (deceased) when she approached you?

Ans: When she approached me, I only asked her that, “ATING YUPLA PLAN LONG KAM BUNG LONG HIA, HAH? And she (Clara) turned back and walked away.

Q.23. Philip Rioke, you had admitted that you were very angry and you said that to her. What will you say?

Ans: I was not angry, I only asked her that.

Q.24. Can you tell what did Clara do when you said that to her?

Ans: She cried and walked away and followed the main road.

Q.25. Philip you admitted to the police that when you said that to your sister (Clara), she really felt upset and dropped two baskets of bananas on the road and walked away from you. What will you say?

Ans: It’s true.

Q.26. Police witness reported that you followed your sister (Clara) and you were shouting angrily and assaulted her on the road and she was crying and followed the road. What will you say?

Ans: To assault her, no.

Q.27. Police witness reported that you were armed with two stones and a bush knife on the other hand and walking behind Clara Remo (deceased). What will you say?

Ans: There was no stone, I was only holding on to a bush knife.

Q.28. Philip you had admitted that your sister (Clara) got mad of you and she went into the bush and came out with some poison bush rope. What will you say?

Ans: That is true.

Q.29. When you saw that she got the poison bush ropes, what did you think she was going to do?

Ans: When I saw the poison bush ropes, I knew that she was going to kill herself.

Q.30. Philip you knew that your sister was going to kill herself, why did you done something to stop her?

Ans: I wanted to get the poison bush ropes away from her but she was already gone.

Q.31. When your sister (Clara) ate the poison bush ropes and killed herself, where were you?

Ans: I was at the main road with Maria.

Q.32. Police witness reported that you were at the road when they (Maria’s family) heard Clara Remo (deceased) cried in the bush and they went and took her outside to their house. What will you say?

Ans: It is true.

9. Witness No.4 on the back of the indictment Aguna Clara (Ex. “14”) recalls that after work, she was together with the victim Clara Remo and they were dropped off by a company vehicle at the junction near the logging camp. The victim asked Aguna’s daughter to follow her to her garden. Aguna proceeded to their house in nearby hamlets. Not long after that, her daughter returned with ripe bananas. About the same time, Aguna heard the accused shouted to the victim in Pidgin “YU GO RAON WE NA YU KAM?” Her daughter informed her that the accused got very angry with the victim.

10. Michael Poule on his statement (Ex. “16”) gives an account of what occurred on the evening of 27^th March 2015 at the Open Bay Logging Camp. He is a carpenter by profession. After he finished working he proceeded to his house. From there he wanted to go to the river. On his way down he heard someone talking to his sister and his sister in-law. After he finished from the river, he came near the girls and asked who was talking to them. They replied they were talking to Philip Rioke. As Michael walked after the accused he heard the accused shouting to nearby houses if they had seen the victim.

11. Michael inquired with accused what happened to Clara and the accused informed him that, he (accused) saw Clara having in possession of poisonous bush ropes. Michael heard the victim crying in the bush. He ran toward the direction where the sound was coming from. He found the victim lying on a stone breathing heavily. He removed poisonous ropes in the victim’s mouth and removed those in her possession. When his sisters arrived, they helped him carry the victim to their house. He ran up to the office to find a vehicle to take the victim to their Health Centre but there was no vehicle available. His mother came and told him that the victim had died.

12. On the next Exhibit, (Ex. “17”) Mokena Maria in her statement gives an account of what happened on 27^th March 2015. She recalled that between 6pm and 7pm at Open Bay Logging Camp when her children were calling out to Clara Remo in the bushes. She wanted to find out and she walked along the road to where noises were coming from. As she was walking up the road, she met Philip Rioke (now accused) standing on the road. She said, the accused told her that Clara had gone into the bushes with some poisonous bush ropes.

13. She was still with the accused when her children found the victim. The children assisted her to take the Clara to their house. Maria states that not long after that, the victim passed away.

14. Witness, No. 3 at the back of the indictment (Ex. “13”), Guea Solomon recalls that on 27^th March 20015, between 4pm and 5pm, she returned from the bush and on her way she met Clara Remo (deceased) crying.

15. Following her was the elder brother of the deceased Philip Rioke (accused). Upon seeing the two of them, she asked in Pidgin, “YU PLA I PAIT LONG WANEM”? The accused replied and said, “MI PAITIM EM TASOL LONG PREN BLONG EM.” She walked past them and proceeded to the Log Point then on to her house.

16. Ben Kumbu’s statement (Ex. “12”) contains some interesting revelations. He recalled that between 4pm and 5pm on 27^th March 2015 at the logging camp at Open Bay, after he finished working, he decided to go to Toliu camp. As he was on his way through the Log Point, he saw the accused sitting by himself under a jerry fruit tree. According to Ben, when he saw the accused, he got so scared and turned around and walked back. As he was walking back, he looked back and saw the accused walking after him. He continued walking for a little distance and when he looked back, he did not see the accused.

17. On the fourth paragraph of his statement, Ben Kumbu gives the reasons why he was scared when he saw the accused. He gave an account of what happened in 2014. He said:

“I was frightened because on November last year, Philip Rioke threatened me when he found out that I was having a relationship with his sister Clara Remo. And he demanded K1, 000.00 from me and I paid it to him.”

18. The issue before this court is has the prosecution proven their case beyond reasonable doubt. This question relates to the issue of whether the prosecution evidence has established sufficient evidence upon which this court should return a verdict of guilty?

19. The accused was given ample opportunities to give evidence or call any witnesses he wanted to call. But he exercised his Constitutional rights to remain silent under s.37 (10) of the Constitution and to call no witnesses. No adverse inferences will be drawn from the above circumstances on the choices of the accused to remain silent: The State v Marava Kanaio [1979] PNGLR 319, (see also Paulus Pawa v The State [1981] PNGLR 498&R v Lupalupa Sisarowe [1967-1968] PNGLR 455).

20. In trying to connect the evidence adduced through the tendered statements, what conclusion should the court reach. It is this court’s opinion that, the evidence above corroborates each other supporting the proposition that prior to the deceased’s death, the accused had either had incestuous relationship with the victim or he had been trying to have sexual intercourse with her.

21. There is evidence by Ben Kumbu that when the accused found out that, he had befriended Clara, the accused was up against his sister (deceased). Police officer Ben Tokulau confirmed that on 29^th July 2014, there was allegation of incest reported to the Open Bay Rural Police Post against the accused and the victim. He conducted an investigation but found there was not enough evidence to support such allegations. The complainant was Patrick Mokena who laid the complaint against the accused.

22. There is evidence in the record of interview that the accused got cross with the victim on that afternoon and furiously asked if the victim and Kumbu Ben had planned to meet each other that afternoon. There is evidence by Aguna Clara that the accused asked the victim about where she had been. There is evidence by Joe Matt when he met Clara Remo on the road and said good afternoon to her but she did not reply and she was walking hastily. Then came the accused carrying a bush knife on one hand and two stones on the other hand.

23. The statement of Solomon Guae reveals that when Solomon was returning from the bushes on the afternoon of 27^th March 2015, he or she met the victim crying. The accused was right behind her. Solomon asked the accused why the victim was crying and why had they been fighting. The accused answered that he assaulted her because of her friend.

24. On the law, the evidence is totally circumstantial. It is trite law that where the evidence in a criminal trial is wholly circumstantial in nature the court cannot convict an accused unless the evidence is ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’. The principles on circumstantial evidence have been stated in many cases. In The State v Tom Morris [1981] PNGLR 493. At page 495 of that judgment, the trial Judge, Justice quoted a passage from the common law case of Barca v The Queen [1975] HCA 42; (1976) 50 ALJR 108 where the Court in that case said that, in a case there is circumstantial evidence, a court cannot return a verdict of guilty unless the circumstances are such that they are “inconsistent with any reasonable hypothesis other than the guilt of the accused”.

25. According to that case, any rational inference drawn must be the only rational inference. In other word like on the instant trial, any inference drawn by this court must be the only inference that the evidence on trial would enable me to draw. I remind myself that the bare possibility of innocence should not prevent this court from finding the offender guilty if the guilt of the accused is the only inference open to the court.

26. In this jurisdiction, the law is that where 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 conjectures and which party they should favour and at the end of the trial where there are inferences inconsistent with the guilt of the accused, there is discretion to acquit: Paulus Pawa v The State [1981] PNGLR 498, The State v Mariano Wani Simon& Allan Oa Koroka[1988-89] PNGLR 131, (see also John Peng v The State [1977] PNGLR 331.

27. The principles of law developed so far from the above cases and numerous cases after them say that failure by a trial judge to warn himself or herself of the dangers of convicting an accused on circumstantial evidence could be fatal and dangerous.

28. The issue for this court to decide is whether the guilt of the accused is the only inference that the circumstances of the evidence before me would enable me to draw. If there are any competing inferences in the prosecution evidence or if I entertain any lurking doubts in my mind as to the accused involvement then the court should not proceed to conviction. If I am satisfied beyond reasonable doubt about 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 of the evidence before me would enable me to draw: The State v Tom Morris (supra).

29. Applying the tests laid down in the line of authorities cited above, where does the accused case fall in? Looking at the evidence tendered, there is evidence that, what the accused did to his biological sister caused her to commit suicide. The accused is charged with procuring the victim to commit suicide under s.310 (a) of the Criminal Code. The situation on the current trial covers two blood relationship persons.

30. The father of the accused and that of the victim Clara Remo was one man. But their mothers are different. The accused was born from the second wife and the victim from the third wife. Being born from one father, they are biologically connected.

31. The question that can be asked now is what did the accused do to cause the victim to commit suicide? Being a biological sister of the accused, the victim is not here to give her version of the story, but the inference that the court can draw is that, the accused action in pestering her and harassing her by going after her as though she was his girlfriend or wife caused her great shame and humiliation in their community. In law, procure can be defined as “to persuade” or “cause” or “obtain” and there are other meanings. I adopt the words persuade or cause and apply them to the current case. Let us uncover some of the things the accused did to cause the victim to do what she did to take her own life.

32. There is evidence that, the accused harassed Ben Kumbu (Ex. “12”) to pay him compensation when the accused found out that the victim had a relationship with Ben. There is evidence from Guea Solomon (Ex. “13”), that the accused had been assaulting the victim the early hours of the evening she took her life, the accused told Solomon that he had been fighting the victim because of her boyfriend. There is evidence by Aguna Clara (Ex. “14”) that the accused got cross with the victim that afternoon and said to her in Pidgin “yu go raon we na u kam”.

33. There is evidence by Mokena Maria (Ex. “17”) that when she came along the road where the accused and the victim were that afternoon, she asked the accused what had happened and the accused answered her that, Clara Remo had taken some poisonous bush ropes and gone into the bush. There is evidence by Michael Poule on his statement (Ex. “16”) that when he asked the accused what happened to Clara, the accused informed him that, he (accused) saw Clara having in possession of poisonous bush ropes and was in the bush.

34. When the accused was asked in question 22 in the record of interview what did he do to Clara? In answer the accused said in Pidgin,

“ATING YUPLA PLAN LONG KAM BUNG LONG HIA, HAH? And she (Clara) turned back and walked away”. (See Ex. “8” & “8A”).

35. I reproduce question 25 and its answer in the record of interview. The accused was asked:

Q.25. Philip you admitted to the police that when you said that to your sister (Clara), she really felt upset and dropped two baskets of bananas on the road and walked away from you. What will you say?

Ans: It’s true.

36. In answer to question 26, the accused denied assaulting Clara Remo, but he admitted that he was shouting at her and talking angrily to her and the victim was walking ahead of the accused and he had a bush knife on one hand and on the other hand, he had two stones. He denied holding two stones. (Q27 & its answer).

37. The court finds that, you admitted in the record of interview that, you were going at the back of the victim getting cross with her. Due to your own admissions to the police, that what you did to your sister, caused her upset and she dropped two baskets of bananas on the ground and she fled. The reason she fled was because you pestered and harassed her and the court concludes that you procured the victim to commit suicide. You saw her running into the bushes with poisonous ropes, but you did not follow her to take the ropes away from her?

38. The accused’s actions since 2014, until March 27^th 2015 caused or persuaded the victim to commit suicide. The accused embarrassed the victim publicly so much that, she could not stand it. When she threw the two baskets of bananas away on the ground, the accused was with her. He saw her ran into the bushes and came back with poisonous bush ropes. He did not react to take the ropes away from her. The court finds you guilty of procuring the victim Clara Remo to commit suicide pursuant to s. 310(a) of the Criminal Code.

____________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused