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State v James [2021] PGNC 137; N8887 (25 June 2021)

N8887

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1122 OF 2019, CR NO 1124 OF 2019 AND CR NO 390 OF 2020

BETWEEN:
THE STATE

AND:
SOROU JAMES, MENEI KELTUN AND GUISE BUKON

Lorengau: Narokobi J
2021: 15^th February

2021: 25^th June

CRIMINAL LAW – Wilful murder – Criminal Code, Division V.3 – Section 299, – s 7 – aiding and abetting - trial on conviction.

The State alleges that on the night of 30 December 2012 Sorou James was in the company of Guise Bukon and Minei Keltun. He stood watch and Guise Bukon was with Minei Keltun. Guise Bukon hit Gabriel Kira at the back of his head, causing his death. They then brought him to his house, tied a rope around his neck and hung him, to create the impression that Gabriel Kira hung himself. The State has charged each of them for wilful murder under Section 299(1) of the Criminal Code to which they pleaded not guilty. The State has also pleaded Section 7 of the Criminal Code for aiding and abetting.

Held:

(1) The evidence was such that the case was to be proven by circumstantial evidence.

(2) There was no direct reliable evidence of the accused aiding and abetting the commission of the offence.

(3) Admission of an accomplice is only admissible against himself and not the other co-accused (Pritchard v The State (2016) SC1541, followed).

(4) It is dangerous to convict on an uncorroborated evidence of an accomplice. Where evidence of an accomplice is involved, the trial judge should take heed of such danger and warn himself. (The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, and The State –v- Amoko – Amoko [1981] PNGLR 373 referred to).

(5) In a case sought to be proven on circumstantial evidence, the guilt of the accused must be the only rational inference from the evidence considered as a whole (Paulus Pawa v The State [1981] PNGLR 498, followed).

(6) Since there was a rational explanation, other than the guilt of the accused through reliance on alibi evidence, the accused are entitled to be acquitted.

Cases Cited:
The following cases are cited in the judgment:

Aieni v Tahain [1978] PNGLR 37
John Jaminan v. The State (No.2) PNGLR 318
Paulus Pawa v The State [1981] PNGLR 498
Pritchard v The State (2016) SC1541
The State –v- Amoko – Amoko [1981] PNGLR 373
The State –v- Nataembo Wanu [1977] PNGLR 152
The State –v- Titeva Fineko [1978] PNGLR 262
The State v Tom Morris [1981] PNGLR 413

Legislation cited:

Criminal Code Act, Ch 262

Counsel:
Mr. P. Kaluwin, for the State
Mr. K. Pokiton, for the Accused

JUDGMENT ON VERDICT

25^th June, 2021

1. NAROKOBI J: Guise Bukon, Minei Keltun and Sorou James stand charged that they wilfully murdered Gabriel Kira on 30 December 2012 thereby contravening Section 299(1) of the Criminal Code. The State further invokes Section 7 of the Criminal Code against each of the accused.
   
2. Gabriel Kira was found hanging on the verandah of his house at Derembat Village in Manus Province.
   
3. The State did not offer any direct evidence of the involvement of the three accused. In my view this is a case sought to be proven on circumstantial evidence. The strongest evidence provided by the State was that of Steven Loshen Muir who says that Sorou James confessed to him that on the night of 30 December 2012 he was in the company of Guise Bukon and Minei Keltun. He stood watch and Guise Bukon was with Minei Keltun. Guise Bukon hit Gabriel Kira at the back of his head, causing his death. They then brought him to his house, tied a rope around his neck and hung him, to create the impression that Gabriel Kira hung himself.
   
4. The law on circumstantial evidence is as determined in Paulus Pawa v The State [1981] PNGLR 498, where it was held that where the evidence in a criminal case is wholly circumstantial, the Court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused.
   
5. What led to the initial conclusion that this was a suspicious death was Dr Otto Numan’s medical opinion, that it was quite likely that Gabriel Kira did not die from hanging. He says that the stool used by the deceased to stand on it was immediately under his feet. In a suicide case, the automatic reaction of the body would be for the feet to kick upon hanging and this would have pushed the stool away. There was nothing wrong with the body except for a boggy swelling at the back of his head. But the medical report stops short of saying what was the cause of the swelling. Finally, Dr Numan says the cause of death is unknown.
   
6. Joe Payor also gave evidence that Minei Keltun told him that he killed Gabriel Kira.
   
7. I accept the evidence of Steven Loshen Muir and Joe Payor but will consider what weight I should give to it after I consider the issue of the admissibility of Steven Loshen Muir’s evidence. Essentially, on the authority of Pritchard v The State (2016) SC1541, Sorou James’ confession is only admissible against himself and not against Guise Bukon and Minei Keltun.
   
8. After considering the evidence of Guise Bukon and his wife Freda Guise, I have drawn the conclusion that they are not witnesses of truth. Their evidence was rehearsed, and they both planned to say the same thing about what they did on the night of 30 December 2012. I agree with the State that an untruthful alibi goes towards corroborating the State’s case (John Jaminan v. The State (No.2) PNGLR 318), but there is no other direct evidence linking Guise Bukon to the crime other than the confession of Sorou James, which as it stands is inadmissible. Saor Kaor told the court of what Mendak Bukon told her that if she wanted to know about her father’s death she should go and see Guise Bukon. In the absence of other evidence, I consider this to be hearsay evidence and do not give much weight to it.
   
9. The evidence of the police from Detective Agrerum and Sergeant Kumasi that they arrested Guise Bukon for another crime on the morning after the night when Gabriel Kira was alleged to have been killed is not disputed. What is disputed is that Freda Guise told Detective Agrerum that Guise Bukon had just returned. It is an open-ended answer and since there was no other details, I make nothing of this statement. Guise Bukon could have returned from some other engagements for all we know.
   
10. It is well settled law in this jurisdiction that it is dangerous to convict on an uncorroborated evidence of an accomplice. Where evidence of an accomplice is involved, the trial judge should take heed of such danger and warn himself. See The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373.
    
11. What I have then is the confession of Sorou James and Minei Keltun. They both have provided alibi evidence to say where they were at the time of the incident. In a case sought to be proven on circumstantial evidence, this weighs heavily on my mind. I have considered the record of interview of Guise Bukon, Sorou James and Minei Keltun and they have raised alibi evidence in their record of interview which was tendered by consent and admitted into evidence at the earliest. Where an alibi is raised at the last moment, it would considered as a recent invention and not given much weight. Here Sorou James’ mother, Engei James and his brother Pawih James came and testified that her son was at home of the night in question. Similarly, Mendak Bukon, Trevor Leha and Andrew Kerr N’rakum gave sworn evidence that Minei Keltun was at Buyang at the time in question, building a house.
    
12. On the basis of the foregoing, it would not be safe to convict Sorou James and Minei Keltun on the basis of their admission and acquit Guise Bukon. I will therefore return a verdict of not guilty on all three accused, as the State has not proven beyond reasonable doubt the first of the three elements of wilful murder – that of killing another person.
    

Orders accordingly.

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused