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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO 69 OF 2010
BETWEEN
RAPHAEL NIAKRA
Appellant
AND
THE STATE
Respondent
Waigani: Kandakasi DCJ, Makail & Miviri, JJ
2020: 18th June & 31stAugust
SUPREME COURT APPEAL – Appeal against conviction – Offence of wilful murder – Element of intention contested – Conspiring to cause death of deceased – Proof of – Proof based on circumstantial evidence – Guilt only rational inference – Criminal Code – Sections 7 & 299
Facts
The Appellant was charged with one count of wilful murder under Section 299 of the Criminal Code. He pleaded not guilty. The evidence tendered by the State to establish the charge was circumstantial. The circumstantial evidence included:
The National Court accepted the State’s evidence and convicted him of the charge. Pursuant to Section 7 of the Criminal Code, he was found guilty of procuring the death of the deceased by conspiring with another person to kill the deceased. He was sentenced to a term of 30 years imprisonment.
Held:
there was no other reasonable hypothesis other than the guilt of the Appellant and it was open to the trial judge to convict the Appellant for the crime of wilful murder.
Cases Cited:
John Beng v. The State [1977] PNGLR 115
Ambros Lati v. The State (2015) SC1413
Paulus Pawa v. The State [1981] PNGLR 489
Garitau Bonu& Rosanna Bonu v. The State (1997) SC528
Denden Tom v. The State (2008) SC967
Vincent Rauma v. The State (2016) SC1578
Counsel:
Mr. L. Mamu & Mr. R. Pariwa, for the Appellant
Ms. H. Roalakona, for the Respondent
JUDGMENT
31stAugust, 2020
1. BY THE COURT: The Appellant was charged with one count of wilful murder under Section 299 of the Criminal Code. He pleaded not guilty. The evidence tendered by the State to establish the charge was circumstantial. The National Court accepted the State’s evidence and convicted him of the charge. Pursuant to Section 7 of the Criminal Code, he was found guilty of procuring the death of the deceased by conspiring with another person to kill the deceased and was sentenced to a term of 30 years imprisonment.
Brief Facts
2. The facts on which the Appellant was convicted were that, the Appellant, the (name of deceased) deceased and the wife of the deceased named Susan Aria were close friends. During their friendship, the Appellant had sexual intercourses with Susan. He gave more then K100,000.00 to her and the deceased in the course of their relationship. Eventually the Appellant expressed a desired to have Susan as his wife. However, he was unable to marry her. The deceased was in his way. He, therefore, conspired with one Heni Eli Saku to kill the deceased. To facilitate his intentions, he hired a motor vehicle from Hertz-Rent-a-Car and gave it to Heni.
3. On 17th November 2001, Heni picked up the deceased in the motor vehicle at the home of the deceased according to the plan devised by the Appellant. He drove to Vailala Bridge where the deceased was assaulted by other persons in the presence of Heni. The deceased died from the injuries sustained from the assault and later placed in the motor vehicle at the scene made to look like a motor vehicle accident involving the same motor vehicle.
4. The learned trial Judge found the Appellant guilty of procuring the death of the deceased by conspiring with Heni to kill the deceased. That was pursuant to Section 7 of the Criminal Code.
Principles of Appeal
5. The appeal is brought pursuant to Section 23 of the Supreme Court Act. It will be upheld if the Appellant is able to establish that the conviction was unsafe or unsatisfactory, it was based on a wrong decision on a question of law and or there was a material irregularity in the trial or a miscarriage of justice has occurred during the trial. These principles were clearly enunciated in a number of decisions of this Court starting with John Beng v. The State [1977] PNGLR 115 and many subsequent cases one of them being Ambros Lati v. The State (2015) SC1413.
Grounds of Appeal
6. Relying on eight grounds of appeal, the Appellant attacks the safeness of the conviction for the following reasons:
Safeness of Conviction
7. The Appellant said that he did not plan with Heni to kill the deceased. Thus, the question of pre-planning by the Appellant and Heni to kill the deceased comes to the forefront. Ideally, Heni or any person who had witnessed the Appellant planning how to kill the deceased would have been an advantage to the State to proving the element of intention to kill. However, this evidence was not available at the trial. That does not mean that the lack of it is fatal to the State’s case.
8. Where a case is entirely on circumstantial evidence as is the case here, it must be established that the guilt of the Appellant is the only rational inference to be drawn from all the circumstances. This principle is well settled in our jurisdiction starting with the often-cited decision in Paulus Pawa v. The State [1981] PNGLR 489. Subsequent decisions of the Supreme and National Courts have adopted and applied these principles in our country.
9. An early example of that is the case of Garitau Bonu & Rosanna Bonu v. The State (1997) SC528. That was a case of murder turning against the appellants purely on circumstantial evidence. In that case, there was no evidence linking the appellants to the murder of the deceased. There was however, evidence of the fatally stabbed and wounded body of the deceased found in the appellant’s house. There was some evidence of some attempts being made by them to give medical attention to the deceased prior to seeking help from the neighbours. The appellants made no admission either to the Police during their record of interview or at the time of their arrest or to anyone else. In their record of interviews, they both declined to offer any explanation or say anything and they both declined to give evidence at the trial. There was therefore, no explanation from them as to how, when or why the deceased was found in their house and bleeding heavily with stab wounds to his body. The National Court found them guilty. On appeal the Supreme Court confirmed the verdict and conviction. More recent decisions of this Court continue to affirm the soundness of these principles and continue to apply them: see Denden Tom v. The State (2008) SC967 and Vincent Rauma v. The State (2016) SC1578.
10. In this case the State called four witnesses. They were Sydney Arisa, Susan Arisa, Miriam Arisa and Mabata Ganiga. Their evidence pointed to the Appellant as the person behind the death of the deceased, that he planned the killing of the deceased with Heni and Heni was the person who executed it.
11. Sydney Arisa is the father of the deceased and his evidence which was largely undisputed is that the deceased and Susan were friends of the Appellant. The Appellant gave money to the deceased and Susan. On the date of death, he attended at the scene of the motor vehicle accident. He observed that the deceased had chain marks on his body and a deep wound on his left forehead just above the eye-brow.
12. The learned trial judge also had the benefit of the sworn statement of the mother of the deceased Mrs Teka Lucy Arisa that was tendered by consent. She arrived at the scene of the motor vehicle accident. She observed that the deceased was seated in the motor vehicle and was motionless. The motor vehicle had come into contact with a rain tree from its frontal but there were no other serious damage to it.
13. At the Port Moresby General Hospital when a member of the Police was taking photographs of the deceased, she observed that the deceased had a series of black marks of injuries and cluster of circle marks on his body which were visible on his chest and abdomen. She further observed that the deceased had blood stains on his mouth and forehead. He also sustained a cut above his left eyebrow and blood stains at the back of his head.
14. A number of photographs tendered by the State without objection from defence counsel show injuries consistent with the description of the injuries given by the parents of the deceased.
15. A more detailed description of an intimate relationship between Susan and the Appellant was given by Susan. She testified and the Appellant does not deny giving money in exchange for sex with Susan with full knowledge and consent of the deceased. On one occasion Susan said that the Appellant gave K20,000.00 to her and the deceased for them to move to Pari and to “buy me (her) off from Virgil (deceased)”.
16. What was more disturbing is that Susan asserted that the Appellant had made claims about her being his wife in front of his own wife. It was on one of the occasions where the Appellant and his wife were dropping off Susan at Gordons from Hanuabada in the wife’s motor vehicle.
17. We read about it in the transcript of the proceedings in the appeal book when Susan was responding to the questions about an argument she and the Appellant had during her evidence in chief. This is what transpired:
“A: The argument was about him saying that I was his wife.
Q: Who was saying you were his wife?
A: Raphael Niakra”.
Q: Who was arguing with who (sic)?”
A: Raphael Niakra and me, we were arguing. He was saying something like he paid my pride price already. He was arguing over that and then next morning which I went to him again and then he was crying. He was crying and he told me that he did all of this because of me”.
18. The Appellant’s wife made no drama about it. The trial judge’s acceptance of Susan’s claim that the Appellant claimed that she was his wife supported the inference that the Appellant had a motive to kill the deceased. It was to get him out of the way and make way for him to get to Susan. This was not an unrealistic possibility. It is further supported by other evidence.
19. That evidence is from the deceased’s sister Miriam Arisa. We note the trial judge did refer to her evidence. Her evidence supported the inference that the Appellant had a motive to kill deceased. She said that sometime prior to the death of the deceased, the Appellant called her and told her that one day, she will be sorry to see her brother’s dead body. She recalled that the statement was not of immediate concern to her nor a vile threat and she simply brushed it aside.
20. This phone call was on 3rd November 2001. About two weeks later, her brother was found dead in a motor vehicle accident just down the road where she and her parents and late brother lived at Korobosea. Could his death be a coincidence? One could argue it was. However, the Appellant’s utterance to Miriam a few weeks prior to the death of the deceased is quite difficult to overlook and the possibility that the Appellant had a motive to kill the deceased cannot be ruled out.
21. Other critical evidence comprised of a medical report and post mortem report tendered by the State by consent. The following injuries were identified in the post mortem report:
1. Multiple bruising on both sides of chest and back.
2. Fracture of all ribs on left side of chest.
3. Fracture of 5th rib on right side.
4. Collapsed left lung.
5. 50 mm laceration on corner of left eye.
23. The trial judge acknowledged that the doctor who had examined the body of the deceased was not called as a witness and that, there was no further medical explanation as to the cause of deceased’s death. However, the multiple injuries are consistent with the observation of the deceased’s father Sydney and mother Lucy on the day of the accident. There are further supported by the photographs tendered by the State.
24. The Appellant did not at the trial and now through this appeal does not challenge the post mortem report and the observation of the deceased’s parents. The injuries of the deceased could not be described as those commonly found in victims of a motor vehicle accident. Thus, the possibility that the deceased died from a motor vehicle accident could not be established with certainty and leaves open the other possibility that he died from other causes, such as deliberate assaults.
25. Added to that, the State tendered the Appellant’s hand written note to the deceased father Sydney Arisa requesting a meeting at the police station to pay compensation. The Appellant does not deny writing this note but explained that he felt obliged to pay compensation to the parents of the deceased because he was the person who hired the motor vehicle that crashed and the deceased died.
26. This explanation sounds fair and reasonable but there were two fundamental flaws identified by the trial judge and raised serious doubt about the Appellant’s genuineness to pay compensation while at the same time distancing himself from the deceased’s death. First, it is not written in that note that the money he was offering was compensation for the death of the deceased.
27. Secondly, where a large sum of money is offered, it is normally paid to correct a wrong, apology and restore peace between the disputants. In PNG context, payment of compensation is generally made public in the presence of the parents and relatives of the deceased. It does not get done discreetly as was suggested by the Appellant, at the police station between a selected-group of people.
28. These flaws emerged from the evidence of the deceased’s father Sydney during cross-examination by defence counsel in an attempt to discredit his evidence in relation to the purpose of the Appellant’s note. This is what was recorded in the National Court transcript of 1st June 2004:
“Q: Thank you. My question is, compensation about what? You got that word compensation. What is it?
A: You tell me.
Q: Well, you tell me in the court?
A: I do not know anything. Why should he be paying compensation to me? Unless he has committed something against me, he pays me compensation. I cannot pay him compensation.
Q: Witness, I am suggesting to you that you do not know the meaning of that note. Is that correct?
A: I know the meaning of this note. What is the compensation for, possible compensation. Now, why?
Q: Okay, I am telling you this. The meaning of this note that was written was, there was very heated atmosphere between your family and Elly Saku.
A: That is a different story.
Q: Because of the death of your son.
A: This is Elly – Mr Saku Elly did not write this note. He did not sign this note.
Q: No, I am telling you, this is the meaning of that note which we do not deny he gave it to the police to go and give it to you?
A: Well, maybe you got your meaning different, I got my meaning different”.
29. The Appellant’s counsel maintained that the offer of compensation to the deceased’s father was to prevent a fight between the deceased’s family and Heni’s family but this reason was not expressed in the note. Its omission leaves open the possibility that the appellant was the man behind the death of the deceased and it could not be completely ruled out. For these reasons, it was open to the learned judge trial to doubt the Appellant’s explanation for the compensation offer and his genuineness.
30. Significantly, the evidence that largely favoured the prosecution which led the trial judge to conclude that the Appellant had a reason to kill the deceased was the hire and lending of the motor vehicle by the Appellant to Heni on the day before the deceased was found dead in it.
31. The Appellant did not deny the hiring of the motor vehicle from Hertz-Rent-a Car and lending it to Heni on 17th November 2001. His explanation was that his motor vehicle broke down and was in the workshop for repairs and he needed a replacement. The one he hired, he lent it to Heni because Heni was in need of a motor vehicle to organise a gathering for Sir Mekere’s visit to the village to present sporting gears at a local rugby league competition.
32. Significantly, he admitted that he had a spare office vehicle and his wife also had a motor vehicle. The possibility that he could have used the spare office vehicle or his wife’s to get around was open to him and could not be ruled out. Instead, he chose to hire one. The trial judge rejected his explanation because he gave conflicting accounts in relation to the reason for hiring the motor vehicle. On the one hand, he said he had access to an office vehicle and used it to drive to the Port Moresby Tennis Club to play tennis after Heni did not return by 2 o’clock that day. On the other hand, he called his wife and she picked him up at the office.
33. The motor vehicle was the critical evidence connecting him to the crime of wilful murder where the deceased was found on the afternoon of the next day, 18th November 2001. It was open to the trial judge to reject the Appellant’s explanation because it was contradictory and lacked credibility in all of the circumstances. The doubt created by this contradictory evidence of the Appellant added further support to the inference that the motor vehicle was hired purposely for the use of the murder of the deceased in the way it was and ultimately to make it look like the deceased died from a motor vehicle.
34. The long history of a sexual relationship between the Appellant and the wife of the deceased with the connivance and encouragement of the deceased is neither coincidental nor an isolated incident but one which goes to the heart of the case. Where sexual intercourse was the underlying reason for the relationship between the Appellant and Susan over a long period, it is quite difficult to exclude the possibility that the Appellant was dissatisfied with the arrangement, that he had to share Susan with the deceased. Further, that it is possible that he had developed a strong desire to have Susan to himself. These possibilities could not be completely ruled out.
35. Thus, despite the Appellant’s claim that Susan was a prostitute, engaged in sex for money and was an unfaithful wife, where money was given in exchange for sex, especially in large quantity over a long period of time with the deceased standing in between them, it is not unreasonable to infer that the Appellant had a strong desire to marry Susan. At the end of the day, it does not make sense for someone who is unrelated to Susan and the deceased to be giving large sums of money to them as financial assistance over a long period of time.
36. While the inference that as the Appellant and Heni are unrelated and Heni and the deceased are related by blood as uncle and nephew and the Appellant could not have asked Heni to kill the deceased, it is discounted by the strong bond between the Appellant and Heni. As the trial judge rightly pointed out:
“But given their relationship which can be best described as mutual, the accused had no problem lending the hired vehicle to Heni Eli Saku. The accused trusted him, he was a good friend”.
37. Even the absence of payment of large sums of money to Heni by the Appellant to procure the death of the deceased leaves open the possibility the Appellant was not responsible for the death of the death is discounted by the strong bond between them.
Conclusion
38. Based on the circumstantial evidence which comprised of:
there is no other reasonable hypothesis other than the guilt of the Appellant and it was open to the trial judge to convict the Appellant for the crime of wilful murder.
39. For these reasons, the Appellant has failed to establish an identifiable error in the trial judge’s reliance on circumstantial evidence to find that the only rational inference drawn from all the circumstances is his guilt. The conviction must, therefore, be affirmed as being safe and the appeal must fail.
Order
40. The orders are:
1. The appeal is dismissed.
2. The conviction is affirmed.
________________________________________________________________
The Public Solicitor: Lawyer for the Appellant
The Public Prosecutor: Lawyer for the State
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