The State v Kwale Dire (2001) N2178

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 10 December 2001
• Citation: [2002] PNGLR 656
• Court: National Court
• Year: 2002
• Judgement Number: N2178

Full Title: The State v Kwale Dire (2001) N2178

National Court: Gavara-Nanu J

Judgment Delivered: 10 December 2001

N2178

PAPUA NEW GUINEA

[In the National Court of Justice]

CR NO. 752 of 2000

Between:

THE STATE

And:

KWALE DIRE

WAIGANI: GAVARA-NANU, J

2001: 7th,8th, 20th August, 10th December

CRIMINAL LAW – Evidence – Circumstantial evidence – When to draw guilty inference-Appropriate test – Lies made with consciousness of guilt – Lies pointing to guilt-Inference to be drawn from the overall view of all the evidence presented to the Court.

CRIMINAL LAW – No Case Submission – Where accused could be lawfully convicted on the evidence at the close of prosecution’s case – Accused must be called upon to answer to the Charge

CRIMINAL LAW – Practice and Procedure-Contradictory statements by a witness – Cross examination of a witness on previous statement – Burden of proof-Evidence Act, (Ch. No 48) s.22 – Evidence proving the statement must be cogent and convincing.

CRIMININAL LAW – Evidence-Incriminating factual evidence including statements by witnesses and other facts admitted in evidence against the accused by consent – Application of s.589 of the Criminal Code, Act. Chapter No. 262-Accused cannot later deny or challenge such evidence – Court has no power to reject such evidence.

The accused was charged with murder, contrary to s.300 of the Criminal Code Act, Chapter No. 262. The deceased was the sister of the accused’s father inlaw. The accused, his wife and child, his wife’s parents and the deceased all lived together in one house in Erima. There was no eye witness to the murder. The evidence against the accused was all circumstantial.

In the morning of the murder, the accused woke up early and went somewhere. When he returned to the house at about 8.00 am, he told his father in law that he drove a work vehicle to Bomana, but the vehicle broke down so he left it there with the other workers.

The deceased also got up early and went to her garden near the airport but not very far from their house. The deceased was brutally murdered near her garden and never returned to the house that morning.

Prior to the day of the murder, the accused had threatened to kill either the deceased or his mother inlaw if his son got sick. He accused them of practicing black magic on his son. The child was sick but had recovered before the day of the murder. The accused assaulted the deceased and his mother in law when his son got sick.

Very soon after the deceased was killed; the accused was met by a neighbour as he was running to the main road. He told the neighbour that he was going to work. He instead went to 4 Mile and told his brother that he was going to Chimbu for a Court case. He also told his brother that the deceased was a sorcerer and she turned into a dog so he hit her with a coconut shell, and was in great pain and left her in his house, so if the brother had time, he should visit her and take her to the hospital. The accused caught a plane that same day and flew to Chimbu.

The accused told the police in his Record of Interview that he told his wife that he was going to work that morning as he left for 4 Mile. He did not tell her about going to Chimbu.

The accused also told the police in the Record of Interview that he resigned from his work in January, 2000.

Held :

(1) When evidence is all circumstantial; the test is whether the only rational inference that the evidence can enable the Court to draw is that the accused is guilty; if such inference cannot be drawn then the accused is entitled to be acquitted.

(2) In a No Case submission, where at the end of the prosecution’s case, the accused could be lawfully convicted upon the evidence as it stood, the accused must be called up to answer to the charge.

The State-v-Paul Kundi Rape [1976] PNGLR 96 and May-v-O’Sullivan (1955) 92 CLR 654 – applied.

(3) When drawing an inference from circumstantial evidence, the inference must be drawn from the overall view of all the evidence before the Court. Such inference cannot be drawn from isolated pieces of evidence.

The State –v-Tom Morris [1981] PNGLR 493,

Paulus Pawa –v-The State [1981] PNGLR 498 and

Leslie Alfred Camilleri [2001] 119 A. Crim.R.106 – applied

(4) When deciding whether the lies told by the accused emanate

from consciousness of guilt, the test is whether such lies were made deliberately and are controverted by other material evidence relevant to the issue of guilt.

Allan Oa Koroka-v-The State [1988-89] PNGLR 131-distinguished.

(5) Party cross-examining a witness on his previous statement

under s.22 of the Evidence Act, Chapter NO. 48, has the onus to prove that the witness did make the statement with cogent and convincing evidence, if the witness denies making such statement.

(6) Incriminating factual evidence admitted by consent under s.589

of the Criminal Code Act, Chapter No. 262 cannot be later denied or challenged by the accused and the Court has no power to reject such evidence.

The State –v-John Bill White (No.1) [1996] PNGLR 262-referred to.

Cases cited :

The State-v-Paul Kundi Rape [1976] PNGLR 96.

The State-v-Tom Morris [1981] PNGLR 493

Paulus Pawa-v-The State [1981] PNGLR 498

Allan Oa Koroka-v-The State [1988-89] PNGLR 131

The State-v-John Bill White (No.1) [1996] PNGLR 262

Davinga-v-The State [1995] PNGLR 263

Other cases cited:

R-v-Colling [1976] 2 NZLR 104

May-v-O’Sullivan (1955) 92 CLR 654.

Leslie Alfred Camilleri [2001] 119 A.Crim.R.106

Counsel:

Ms Zurenuoc for the State

Mr F. Pitpit for the Accused

10th December 2001

DECISION

GAVARA-NANU, J.: The accused is charged that he on 7th February, 2000, murdered one Monica Duina outside the Erima settlement in the National Capital District, contrary to s.300 of the Criminal Code Act, Chapter No. 262, (‘the Code’).

Factual Background

The facts are that on 7th February, 2000, the accused got up early and went somewhere. By about 8.00 am, he returned to the house. He was living with his wife, the deceased and his wife’s parents, Peter Taube and his wife Ogan Yoanna. The deceased was Peter Taube’s sister.

The State’s case consisted of the evidence by Clara Clive and Ogan Yoanna, who both gave sworn evidence and the statements by Clive Gideon, Joe Puana, Peter Taube, Joe Mickey and Konii Peter, which were tendered by consent, pursuant to s. 589 of the Code. Besides these were the accused's pidgin Record of Interview and its English translation and the affidavit sworn by Dr Phillip Golpak which were also tendered by consent.

Clara Clive was the first to give evidence for the State, she said, in the morning of 7th February, 2000, she was in

her house, which was near the house the accused lived in, when she heard a scream. When she came out of her house to investigate, she met the accused’s wife, who said something to her which implicated the accused on the death of the deceased, she did not see the accused at that time. Clara, her husband Clive Gideon and some others went to look for the deceased in her garden nearby, based on what the accused’s wife told Clara. They searched for the deceased in her garden but did not find her. Others who joined the search later found the deceased’s dead body in the nearby bush among the tall grass.

The second State witness to give evidence was accused’s mother in law, Ogan Yoanna. She said, in the morning of 7th February, 2000, she was getting ready to go to her garden which was near the airport, when she saw the accused coming back from somewhere. Shortly after, she and her husband Peter Taube, went to their garden. She said as they were going to their garden, they passed the deceased who was working in her own garden which was in the same area but some distance away from their garden. The deceased was planting some corns and sweet potatoes, when they saw her. Sometime after arriving in their garden, she heard the deceased scream several times calling her husband’s (Peter’s) name. She and her husband ran to the deceased’s garden where they thought the deceased was screaming from, but when they arrived at the garden, they could not find the deceased. Later, they found the deceased’s dead body with the assistance of other neighbours some distance away from her garden.

The deceased’s body had multiple stab wounds. A couple of stones and a metal pipe were found lying next to the body. The body was seriously beaten and lost a lot of blood.

Both Clara Clive and Ogan Yoanna told the Court that, the accused had threatened the deceased and Ogan Yoanna many times before the incident saying, if his child was sick, he would kill one of them. Ogan Yoanna also told the Court that every time the accused got drunk, he accused her and the deceased of practicing black magic. She said the accused also accused her and the deceased of practicing sorcery on his son when the child was sick. The accused and his wife only had one child.

Clara told the Court that the accused’s child was sick but had recovered before the day of the incident. She also told the Court, that the accused physically assaulted the deceased and Ogan Yoanna, after his child got sick.

According to Ogan Yoanna, when she went to the garden in the morning of 7th February, 2000, the accused’s wife was in the house, but the child was outside. By then the...