The State v Lasi Pale Nicholas (2002) N2270

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 19 June 2002
• Citation: (2002) N2270
• Court: National Court
• Year: 2002
• Judgement Number: N2270

Full Title: The State v Lasi Pale Nicholas (2002) N2270

National Court: Jalina J

Judgment Delivered: 19 June 2002

N2270

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 404 OF 2002

THE STATE

-v-

LASI PALE NICHOLAS

Wabag : Jalina, J.

2002 : 13th, 18th & 19th June

Criminal Law – Evidence – Wilful Murder – Circumstantial Evidence – Accused alleged to have killed a 6 year old stepson by pushing him into a fast flowing river – No eyewitnesses – Evidence of history of child abuse – Conflict in evidence of prosecution witnesses and the accused – Both counsel failing to challenge respective witnesses’ evidence - Whether accused’s words and conduct consistent with guilt – Inferences to be drawn – Criminal Code s.299 (1).

Papua New Guinea cases cited:

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

Counsel:

S. Kesno for the State

P. N’dranoh for the accused

19th June 2002

JALINA, J: This accused has been charged that she on 29th October 2000 at Sakarip Village, Wabag in the Enga Province wilfully murdered one Brian Nicholas who was then aged about 6 years.

Following her plea of not guilty, all the evidence for the prosecution were tendered by consent of Defence Counsel except for Kambuas Kainakali whose statement was tendered by consent but was subjected to cross-examination after a brief evidence in chief. In the course of Kambuas’ evidence, the Court visited the scene of the alleged crime.

The accused gave part of her oral evidence at the scene of the alleged crime at Sakarip and completed it in court yesterday.

From all the evidence adduced by both the prosecution and the defence, it is clear that there is no direct evidence. That is that no one saw her throw or push or did whatever to the deceased except of course the Almighty God who knows and sees everything. So as correctly pointed out by both Counsel, the case against the accused is based on circumstantial evidence.

The law on circumstantial evidence is as enunciated by the Supreme Court in Paulus Pawa –v- The State [1981] PNGLR 498, which is that when the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

In Papua New Guinea we do not have juries so the judge performs both functions. So I have to decide on the basis of the circumstantial evidence before me whether that evidence is such that no other reasonable hypothesis than the guilt of the accused can be inferred.

So I propose to consider the defence aspect of this case as well as the prosecution aspect of the case at the same time. May I also point out that as correctly stated by both Counsel, the prosecution and defence evidence are in direct conflict in the sense that what the prosecution witnesses allege in their respective statements the accused has denied in her evidence.

The first prosecution evidence that tends to provide some link in the chain of circumstances and events that may lead to the accused being the perpetrator of the crime is from the accused’s husband Phlilipus Nicholas.

Apart from speaking of being with the accused, the deceased and their young daughter that evening and leaving the house to look for betelnuts after they finished their meal, he speaks of the accused behaving strangely that afternoon and also prior to that of her speaking of the deceased constantly going to the Lai River as well as her mistreating the deceased after she gave birth to their daughter and learnt of the deceased’s mother giving the deceased some money.

He goes on to speak of the accused’s mistreating of the deceased being so bad that he had to take the boy to one of his sisters in the Ambum area. Whilst the evidence would appear to support the charge in so far as the accused’s state of mind and conduct may be concerned, the...