The State v Paul Yepei (No 1) (2004) N2570

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 17 March 2004
• Citation: (2004) N2570
• Court: National Court
• Year: 2004
• Judgement Number: N2570

Full Title: The State v Paul Yepei (No 1) (2004) N2570

National Court: Kandakasi J

Judgment Delivered: 17 March 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Accused failure to fully put defence case to prosecution's witnesses—Effect of—Recent inventions and unreliable and has no weight.

2 CRIMINAL LAW—Particular offence—Wilful Murder—No direct evidence of accused causing deceased death—Strong and credible circumstantial evidence suggesting accused involvement and playing a significant role—Accused failing to rebut prima facie case against him—Guilty verdict returned—Criminal Code (Ch262) s300.

3 EVIDENCE—Circumstantial evidence—Principles governing the acceptance of—Accused presence at scene of crime—Dealing with deceased body—Conduct consistent with guilty mind—Failure to rebut strong circumstantial evidence against him—Guilt only inference available.

4 SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28, The State v Ben Noel (2002) N2253, The State v Peter Malihombu (2003) N2365, The State v Kevin Anis (2003) N2360, The State v Onjawe Tunamai (2000) N1989, Jimmy Ono v The State (2002) SC698, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, Garitau Bonu and Rosanna Bonu v The State (1997) SC528, Paulus Pawa v The State [1981] PNGLR 498, The State v Tauvaru Avaka (2000) N2024, Gibson Gunure Ohizave v The State (1998) SC595, The State v Tom Morris [1981] PNGLR 493, The State v Tony Pandau Hahuahori (No 1) (2002) N2185, John Jaminan v The State (No 2) [1983] PNGLR 318, Tony Imunu Api v The State (2001) SC684, Browne v Dunn (1893) 6 R 67 (HL) referred to.

Decision on verdict

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 97 of 1998

THE STATE

-V-

PAUL YEPEI

(NO.1)

VANIMO: KANDAKASI, J.

2004: 9th and 17th March

DECESION ON VERDICT

CRIMINAL LAW - PRACTICE & PROCEDURE - Accused failure to fully put defence case to prosecution’s witnesses – Effect of – Recent inventions and unreliable and has no weight.

CRIMINAL LAW- Particular offence – Wilful Murder – No direct evidence of accused causing deceased death – Strong and credible circumstantial evidence suggesting accused involvement and playing a significant role – Accused failing to rebut prima facie case against him – Guilty verdict returned - Criminal Code (Chp. 262) s.300.

EVIDENCE – Circumstantial evidence – Principles governing the acceptance of – Accused presence at scene of crime – Dealing with deceased body – Conduct consistent with guilty mind – Failure to rebut strong circumstantial evidence against him – Guilt only inference available.

Papua New Guinean Cases cited:

SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.

The State v Peter Malihombu (unreported judgment delivered on 29/04/03) N2365.

The State v Kevin Anis & Martin Ningigan (Unreported judgment 07/04/03) N2360.

The State v. Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989.

Jimmy Ono v The State (unreported judgment delivered on 04/10/02) SC698.

The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.

The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.

Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.

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

The State v. Tauvaru Avaka & Anor(Unreported judgment delivered on 2/11/00) N2024.

Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.

The State v. Tom Morris [1981] PNGLR 493 at p 495.

State v. Tony Pandua Hahuahori (unreported judgment delivered 19/02/02) N2185.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

Tony Imunu Api v. The State (unreported judgment delivered on 29/08/01) SC684.

Overseas Cases cited:

Browne v Dunn (1893) 6 R 67 (HL).

Counsel:

F. K. Popeu for the State

D. Kari for the Accused

17th March, 2004

KANDAKASI J: On Tuesday last week (09/03/04), you pleaded not guilty to one count of wilfully murdering one Jack Mandari (deceased) on 2nd March 1997 here in Vanimo. You took that position because you claimed that you did not kill the deceased even though, you were at the scene with the deceased both prior to and after he met his death.

Issue

This necessitated a trial on the issue of, did you cause the death of the deceased? Alternatively, if you did not cause the death of the deceased, were you involved in his killing?

The Evidence

In a bid to establish the charge against you, the State called three witnesses one of which was an eyewitness. All of these witnesses gave oral evidence against you. Added to this was a copy of a medical report by Dr. Edwin A. Doliente dated 18th April 1997 by consent of the parties, which was marked as exhibit “A”. You then took the stand and gave a sworn oral testimony in your defence.

(a) The State’s Case

(i) First Witness – Kellie Lyons

A Kellie Lyons was the first witness called by the State. She originally comes from Wutung and she has been living in this Province all her life. She recalls staying in the village when a Lucy went passed her in a vehicle with some iron roofing. On Lucy’s way back, the witness jumped in the vehicle. Lucy told her that, they were going to a sawmill to get some timber to build a house.

On the way, they stopped at Baro. This was around 12:00 noon. As they were getting down, uncle Jack (the deceased) and Paul (yourself) drove up. Lucy went with a bunch of betel nuts and stopped you and the deceased. When the vehicle came to a stop, Lucy asked her to get in the car with her and she did. At that time, you were driving the vehicle. As you were driving along, Lucy asked you to use a short cut road to Dawi and stopped the vehicle and you took over the driving.

Once the vehicle came to a stop, you, the deceased and Lucy went at the back of the vehicle and told stories. She refused to join in. After you three finished telling your stories, you all got back in the vehicle and drove to Wutung as you wanted to check uncle Mark Ando for a cheque.

After seeing Mark Ando, you drove to Otour Resort or Hotel. There, you stopped the vehicle and you all went down to the beach. By then, it was already dark and in the middle of the night. Whilst at the beach, the three of you, Lucy, the deceased and you drank some beer bought at the Resort. Then a Thomas Wara and Mark Ando asked the deceased for the vehicle key to take Thomas Wara’s wife home.

It seems you continued to remain at the Resort and the deceased gave the witness a K1.00 to pay the gate to the dance place, which she did and entered the dance place. Not long after, Lucy joined her and told her that the deceased broke a bottle. Therefore, she wanted her to come out of the dance place so they could leave the Resort and she did. This was sometime toward the morning of the next day (02/03/97).

Upon getting out, she got in the vehicle with the rest of you, the deceased, Lucy and you. You and the witness sat at the back seat, while Lucy and the deceased sat in the front. You then drove out of the Resort with the deceased driving the vehicle, following another vehicle, heading Vanimo town way. As you got to the gravel pit, Lucy asked the deceased to stop the vehicle, as she wanted to urinate. The witness asked the deceased to stop on the side of the road but Lucy wanted the deceased to drive off the road so she could use the bush. The deceased followed Lucy’s wish and he drove into the gravel pit area and stopped the vehicle.

Once the vehicle came to a stop, Lucy got out of the vehicle and so did the rest of you. Lucy then waited for the deceased to follow her and they went...