The State v Titila Tomur

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 14 August 2017
• Citation: (2017) N6837
• Court: National Court
• Year: 2017
• Judgement Number: N6837

Full : CR Nos 1384, 1385 and 1386 of 2015; The State v Titila Tomur, Leny Uraliu and Junious Turkeke (2017) N6837

National Court: Anis AJ

Judgment Delivered: 14 August 2017

N6837

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 1384, 1385 AND 1386 OF 2015

THE STATE

-V-

TITILA TOMUR, LENY URALIU AND JUNIOUS TURKEKE

Kokopo: Anis AJ

2017: 9, 10, 13 & 14 March; 6 June; 6, 20, 25 & 31 July; 14 August

CRIMINAL LAW – 3 accused charged with wilful murder - section 299 of the Criminal Code Act Chapter No. 262 - not guilty plea - prosecution allege deceased assaulted by the 3 accused, thrown in a hole and sustained neck injuries that led to death two weeks later - defence allege deceased was drunk, fell in a hole himself and sustained neck injuries that caused death - no case to answer application - application refused - trial on verdict - prosecution's evidence fell short to proof beyond reasonable doubt - prosecution's evidence insufficient, bad, lacked common sense and rationality - prosecution's evidence ruled out - consequences - no credible evidence adduced by prosecution - 3 accused were acquitted

Facts

The three (3) accused were charged with wilful murder of one Ereman Pulson (deceased). The prosecution alleged that the three (3) accused had assaulted the deceased over beer that he was carrying on an evening on 18 April 2015 at a village called Makurapau in Kokopo, East New Britain Province. The deceased sustained a serious neck injury and he died from it a few weeks later. The three (3) accused denied the charge. They admitted that they were with the deceased on the night in question but they denied assaulting him. They said the deceased himself fell into a hole, which was how they said he sustained his neck injury that caused his death.

Held

1. The prosecution's direct evidence were bad and uncorroborated; they lacked common sense and rationality, and as such were ruled out.

2. The indirect or circumstantial evidence were insufficient to constitute proof beyond reasonable doubt:

(i) because the facts that were proved in evidence were not inconsistent with other reasonable hypothesis, which included the possibility that the deceased could have fallen himself without any aid, into a hole or onto something to sustain the injuries received to his neck which has caused his death;

(ii) because although the guilt of the three (3) accused may be regarded as a rational inference, it was not the only rational inference that this Court could draw from to say how the deceased could have received the fatal injury to his neck;

(iii) because it was not possible for this Court to conclude with certainty that the three (3) accused had actually assaulted the deceased, or had caused him grievous bodily harm, or had pushed him whether accidently or deliberately into a hole or onto the road which had caused his neck injury;

(iv) because the deceased had consumed a lot of alcohol that evening and because he was drunk, the possibility that he could have slipped or simply fell into a hole or on the road onto something and sustained the neck injury which has led to his death, could not be ruled out.

(Cases followed: State v. Alphonse Asarombo (2010) N4035; The State v Tom Morris [1981] PNGLR 493)

3. The prosecution has failed to prove beyond reasonable doubt the first element of the offence of wilful murder, which was that the three (3) accused killed or were responsible for the death of the deceased. Consequently, it was not necessary for the Court to consider the other two (2) elements namely killing was unlawful and intention to kill.

4. Because the prosecution's direct evidence was ruled out, the possibilities of how the deceased could have sustained the injury to his neck that killed him were many and therefore the alternative charge against the three (3) accused under section 539(1) & (4) of the Criminal Code Act could not be sustained as well.

5. The three (3) accused were found not guilty of the crime of wilful murder under section 299 of the Criminal Code Act and were ordered to be immediately released from custody forthwith.

Cases Cited:

David Kandakason v. The State (1998) SC558

Ilai Bate v. The State (2012) SC1216

Martin Kaiak v. The State (2016) SC1505

State v. Alphonse Asarombo (2010) N4035

State v. David Yakuya Daniel (2005) N2869

State v. Henry Toliu (2011) N4237

State v. Joe Ngotngot and Eremas Matiul (2016) N6306

State v. Joseph Viga (2016) N6341

State v Kelly Minong (2016) N6271

State v. Michael Tenaram Balbal (2007) SC860

State v. Ray Johnson (2016) N6379

State v. Stanley Kuma Kum (No.2)(2010) N4264

State v. Steven Donia (2010) N4166

State v. Titial ToMur, Leny Uraliu and Junious Turkeke (2017) N6798

State v Tom Morris [1981] PNGLR 493

Counsel:

Mr L Rangan, for the State

Ms J Ainui, for the three (3) Accused

JUDGMENT ON VERDICT

14th August, 2017

1. ANIS AJ: Titila ToMur, Leny Uraliu and Junious Turkeke (the 3 accused) are charged with wilful murder. They were initially arrested and charged on the 28th and 29th of May 2015. On arraignment on 9 March 2017, they each entered a plea of "not guilty". The trial on verdict proceeded thereafter under this Court. The parties gave evidence, both written and sworn. I must make mention that at the close of the prosecution's case, the defence made a no case to answer application. I had considered and refused the no case to answer application. I published my ruling as an un-reported judgment on 5 July 2017, that is, State v. Titila ToMur, Leny Uraliu and Junious Turkeke (2017) N6798. The trial continued thereafter and formally concluded on 25 July 2017. I allowed parties to reserve and present their closing submissions on 31 July 2017. Following that, I reserved my ruling on verdict to a date to be advised.

2. This is my ruling.

Charge

3. The indictment is dated 7 March 2017. Let me read it out in part as follows:

Titila ToMur, Leny Uraliu and Junious Turkeke, all of Makurapau ward, Bitapaka LLG, Kokopo District, ENBP stand charged that they each and severally on the 18th day of April 2015, at Makurapau in Papua New Guinea wilfully murdered Ereman Pulson.

4. The offence of wilful murder is prescribed under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code Act). It reads:

299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

Primary facts

5. On 8 March 2017, the prosecution, after presenting the indictment, handed-up in Court, a copy of the primary facts to the indictment. The prosecution then proceeded to read out the said facts. Let me restate the relevant parts of its content as follows:

Between eleven (11) and twelve (12) o’clock on the night of Saturday 18 April 2015, the three (3) accused persons and deceased Ereman Pulson were at Makurapau ward, Bitapaka LLG, Kokopo District, ENBP consuming intoxicating-liquor at a residence belonging to Loloma. All then left this residence and walked to the main village/ward-road. They walked along the road and at a spot, they first assaulted deceased Ereman with their hands in-order to give them beer because he was carrying some beer in his basket. They kept walking along the main village-road and at a second spot locally known as “Malolo”, they further assaulted him by punching him with their hands and hit the back of his neck repeatedly with a piece of “marmar” stick, intending to kill him from the way or manner in which they were repeatedly hitting this part of his body.

They forcefully pulled him from the ground where he was lying, and when he did not have enough strength anymore, they were asking each other as to who was going to take him to his (deceased Ereman) house. They were also talking amongst themselves to push him into a hole if they saw one. All the 3 accused persons then took deceased Ereman to a residence belonging to one Erick and laid him on a bed. On Sunday 19 April 2015, the wife of deceased Ereman and others took deceased Ereman to the St. Mary’s Vunapope Hospital where he was admitted. From Vunapope, he was referred to the Nonga General Hospital on Monday 20 April 2015, where he was admitted and died there after two (2) weeks since the time he was assaulted. He died due to the severe injury occasioned his neck from the assault executed by the 3 accused persons.

Exhibits

6. The following documents, except for Exhibit H and Exhibit I, were tendered by consent by the prosecution. I have, when accepting them, marked each one with an exhibit number. I have set them all out here in a table.

Exhibit No.	Description	Date
“A”	Record of Interview with Titila ToMur, by Sergeant Mary Tobing, English/Pidgin versions	28/05/15
“B”	Record of Interview with Leny Uraliu, by Sergeant Mary Tobing, English/Pidgin versions	28/05/15
“C”	Record of Interview with Junious Turkeke, by Sergeant Mary Tobing, English/Pidgin versions	29/05/15
“D”	1. Statement of Sergeant Mary Tobing for ROI with Titila ToMur 2...