The State v Henry Toliu (2011) N4237

• Jurisdiction: Papua New Guinea
• Judge: Sawong, J
• Judgment Date: 23 March 2011
• Citation: (2011) N4237
• Docket Number: CR. 125 of 2010
• Court: National Court
• Year: 2011
• Judgement Number: N4237

Full Title: CR. 125 of 2010; The State v Henry Toliu (2011) N4237

National Court: Sawong, J

Judgment Delivered: 23 March 2011

N4237

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 125 of 2010

THE STATE

V

HENRY TOLIU

Kokopo: Sawong, J.

2011: 15, 16, 17, 18 & 23 March

CRIMINAL LAW – Wilful Murder – Plea of Not Guilty – Admissions in confessional statement – Whether safe to convict on uncorroborated confession: need for corroboration – Unsafe to convict an uncorroborated confessional statement.

Cases Cited:

Papua New Guinea Cases

R –v- Namiropa Koinbondi [1969 – 1970] PNGLR 94

The State –v- Malepo (2) 1996 PNGLR 252

The State –v- Ungum Ovohe [1980] N 245

The State –v- Thomas Some (1982) N 366

Devlene David –v- The State [2005] SC 881

Onama Andrew –v- The State (2009) SC 997

Overseas cases

R –v- McKay (1935) 54 CLR 1

Counsels:

Ms. V. Mauta, for the State

Ms. A. Hombunaka, for the Accused

23 March 2011

1. SAWONG, J.: The accused was jointly charged with another accused on

one count of wilful murder, an offence contrary to Section 299 of the Criminal Code as amended to date. Both of them pleaded not guilty and a trial was conducted.

2. In the cause of the trial, a voir dire was conducted in relation to the confessional statement in relation to this accused. After hearing the evidence and submissions, I ruled that the confessional statement be admitted into evidence. The confessional statement was admitted into evidence as part of the State’s

case and is marked as exhibit “S8”.

3. After that the State then called other witnesses whose evidence I will

refer to shortly hereafter. After the State closed its case, counsel for the two accused made a no case to answer submission. After considering the submissions, I gave brief rulings and found that the accused Rayson Tiun had no case to answer and acquitted and discharged him. However, I found that the accused Henry Toliu had a case to answer. At the end of the State’s case, counsel for the accused closed the defence case.

4. In order to prove it’s case, counsel for the State called six witnesses who

gave sworn oral evidence. In addition, the State relied on several documentary evidence. Except for the confessional statement, all the documentary evidence were tendered and accepted into evidence by consent. This documentary evidence included:

(a) The record of interview between the accused and the police investigating officers (exhibit S 1(a) & (b).

(b) the affidavit of Dr. R. Malien together with post mortem report – (exhibit S3).

(c) the statement of the police investigating officer Orim Konge (exhibit S4).

(d) the statement of the corroborator (exhibit S5).

(e) confessional statement dated 2 September 2008 (exhibit S8).

(f) one page containing 6 photos of the deceased’s wounds (exhibit S9).”

5. The statement of the two police investigating officers may be disposed of

quickly. There is no evidence in those statements which are relevant. They are of no probative value at all.

6. The record of interview does not have any admissions. However, there are

aspects of it, which I will refer to later in this judgment. To that extent, I will refer to the relevant parts.

7. The photographs of wounds and the post mortem report may be dealt with

together. The photographs show in graphic detail the wounds that have been described in the autopsy report. The autopsy report describes the different wounds that had been inflicted and the photographs compliment and shows those wounds in graphic detail. This shows that , the deceased was brutally and savagely attacked. These demonstrate the viciousness with which the deceased was attacked. The viciousness and the force that was applied are clearly depicted in the photographs.

8. Turning now to the oral evidence. The first witness was Judas Waninara.

He is a former councillor and a friend of the deceased. His evidence relates to him and the deceased, meeting that afternoon and going to the witness’s house. There, they chewed some betel nut and some time later the deceased rode away in his motor bike. Not long after that, he heard that the deceased have been attacked and killed. Upon hearing this, he went to the scene of the attack and saw his friend lying there dead. His evidence is of no or very little relevance. It is only relevant so far as it relates to seeing the wounds on his friends body and finding out that his friend was dead.

9. The next witness was Dr. R. Malien. He was called to clarify and explain

his findings as contained in the autopsy report. In the autopsy report the Doctor sets out in detail his finds. For reasons that will become obvious, it is unnecessary to set out that report in any great detail. Suffice to say that the report clearly shows that the deceased was savagely attacked with dangerous weapon or weapons. The injuries inflicted demonstrate the horrific and brutal injuries sustained by the deceased. The cause of death was directly from the brutal attacks.

10. It clearly demonstrates to my mind that who ever attacked this man,

intended to kill the deceased. It is obvious that the force and weapons used coupled with the nature of the injuries on the body of the deceased clearly demonstrate this.

11. Oscar Tobing’s evidence relates to the confessional statement. He gave

evidence because the accused challenged it, as being obtained involuntarily. However, I accepted Oscar Tobing’s evidence, as I find that the accused’s version was not credible. The same may be said of the evidence of Johnny Korong.

12. The confessional statement has been admitted into evidence after a voire

dire. It reads:

“Caution. You noken toktok long sampla samting tasol women kain tok bekim belong yu bai mi writim igo daon long displa pepa na behain bai mi givim igo long kot olsem evidence againsim yu ken long kot belong yu, yu klia?

Ans: Yes

Q1: Yu laik bai mi writim stori belong yu?

Ans: Yes.

Mipela ibung long Thursday 16th day long Mun Novemberr 2008 long taim olsem 7.00pm long nait long rot long marmar ples. Donald ibin kam long ples kamar na bungim mitupla, Rayson na mi. Donald ibin tokim mitupla bai mi tripla kilim Maia. Mipla bai mas kilim em long Friday em next day tasol. Mi ilaik kilim becos em komitim adultri long ples, long sister belong mi. Na wanpla samting tu em long em itok bai igo kisim ol policeman na ol boi belong tesin na bai ol bagarapim ol samting long ples. Em tok Marmar United church na Kamar United Church bai yupla olgeta ya bai yupla inap lotuim kok belong mi.

Long made tasol long displa week we bai mipla kilim em em ibin kam long ples haus lain na tok nogutim mi wantaim sister, na mama wantaem, pikinini blong em, na em kikim pot kaikai blong mipla long paia ibin kuk istap. Em tokim mipla tu olsem mipla in no blong hap, mipla belong reep.

Em nau long Friday namba 17th day long Mun November 2008 long taim olsem 1.00pm apinun mi tripla kisim tripla knaip, na mipla wokobaot antap long hill na igo daon long main rot blong Kabanga na Marmar. Mi tripla hait istap igo inap long hapinun long taim olsem 5.30pm. Em nau mi tripla harim motor bike iron ikam bek long ples igo long Kabanga station. Em ron ikam em Boss man, yet ikam na em spak tu. Mipla aproachim em tasol na paitim em tasol. Em stopim bike na em tok nogutim mipla gen olsem yupla ol mangi Marmar ya inap tasol long mi kuapim has blong ypla. Mi harim olsem na mi lukim em ikam arasait long bike na paitim Donald. Donald tanim nau na swingim naip long Maia nau na Maia iron bihainim rot igo bek olsem em ikam daon long en.

Mi lukim em olsem nau na mipla ronim em igo na katim em long naip. Mi katim em long sait reeb long body belong em.

Mi laik bai displa naip mi usim long kilim Maia bai mi soim yu na bai mi givim yu long en.

Mi lukim Donald katim em tripla taim nau na mi kirap na mi ronowe igo na mi kamap long haus. Em tasol”.

13. For the defence, only the accused gave evidence. He gave evidence during

the voir dire. Most if not all of his evidence was in relation to the confessional statement. The essence of it was that because he was brutally attacked by Oscar Tobing with an iron bar over the head, he was in great pain and he was also threatened that he confessed. He also said that because he was in fear of being further attacked he signed it. He didn’t give any evidence on his alibi defence.

14. As I have said earlier, I didn’t accept his evidence regarding the confession. I rejected his challenge and admitted it into evidence.

15. Counsel for the accused has submitted that the State has not proved its case beyond reasonable doubt. She submitted that apart from the confessional statement, there is no other independent evidence of identifying the accused as one of the perpetrators of the crime. She submitted that the court should be cautious of relying on the confessional statement as the confession statement without more, would be unsafe to rely on to convict the accused. She submits that it would be unsafe to convict the accused on the uncorroborated evidence contain in the confessional statement and if the court...