24 October 2018

Husband acquitted of Wife's Murder

"before the victim died the victim was assaulted by a person with a pillow who smothered her mouth and nose and the victim could not breathe until her lungs burst and this killed the victim. The court found that the victim died because she was hung up by someone in the house,.....The court also found that the victim had injuries to her mouth and throat."

JSMP has published its Case Summary The Dili District Court August 2018. Included in the Case Summary is a case of aggravated homicide where it was alleged that the husband had murdered his wife. The case number is 0049/15.PGGC. The following is an extract from the Case Summary relating to this matter.

"On 31 August 2018 the Dili District Court conducted a hearing to announce its decision in a case of aggravated homicide involving the defendant CGP who allegedly committed the offence against the victim HS (deceased), his wife, in Dili District.

Charges of the Public Prosecutor

The public prosecutor alleged that on 7 October 2014 the defendant and the victim argued about a WhatsApp (WA) message that the victim received from the victim's former boyfriend that he still kissed the victim's photograph in his bedroom. After reading this message the defendant immediately left the house.

On 8 October 2014, at approximately 7am, the defendant returned home and again argued with the victim about the message he saw on the victim's WA and said “you are not ready to be with a man”. The victim responded to the defendant by saying “Be quiet, you hypocrite”.



After arguing the defendant took one change of work clothes and left the home but the victim stopped the defendant. At the same time the defendant knocked her hand away and struck the victim in her stomach. The defendant also told the victim that he would not come back and live with the victim and would not withdraw his statement. The defendant got on his motorcycle and took off from the house revving the motorcycle loudly and collided with the wall of the house. The victim's mother was also at the home (MMF), as well as the victim's younger sibling (AdS) and another person (RdC) who works at the home of the victim and the defendant.

From 10 am to 2.00pm the defendant and the victim sent messages to each other via their mobile phones in relation to this problem.

The victim sent a message to the defendant that she would go far away, and asked the defendant to not take anything from the home when he left if he wanted to end the relationship with the victim. The victim also sent a message that she would cut her wrists. In addition, the victim sent a message to the defendant that their separation would make the victim happy, and she wouldn't want to kill herself. The victim also sent a response (to the defendant's message that the defendant cried when he read the victim's message) and told the defendant to return home so that the victim could hug him and also sent a message to the defendant telling him that there was US$500 in her pocket, which was the final message from the defendant.

The defendant also sent a message to the victim's mother saying that “Tell that woman to show those messages to her father about the conversations she had on WhatsApp”. In addition the defendant also told the victim's mother that she did not want to be with the victim because he had no more dignity as a husband and he would not call on the family to resolve this problem.

At about 12.00 the victim told RdC that the defendant sent a message to her about having lunch at the home. So RdC prepared some lunch and placed it on the table. After putting the food on the table the victim told RdC to go home because the victim saw that RdC was sick. The victim took the witness to the front gate and asked the victim to close the gate.

At about 4.00pm the victim's mother (MMF) contacted the victim via mobile phone but the victim did not respond. MMF tried to contact the victim but there was no response, until the victim's telephone went dead. In response to this situation MMF started to suspect that something was wrong and that something had happened to the victim. MMF rang RdC, who had returned to her home, and asked her to go and see if the victim was okay. RdC went to the victim's home and saw that the front gate was locked from inside and the victim's motorcycle was parked in front of the house before the witness returned to her home.

AdS, who is the victim's younger brother, returned from school and was waiting for the victim to pick him up because normally the victim picked up AdS from his school at about 3pm. On that day AdS waited a long time but the victim did not come. So AdS decided to use public transport and when he arrived home, AdS saw RdC standing in front of the gate. RdC and AdS decided to climb the back wall near the kitchen. When they arrived inside, RdC and AdS were shocked and cried when they saw that the victim was hanging by a rope. RDC and AdS asked the neighbours to help and many neighbours went to the scene until the police arrived.

At the same time the defendant received a phone call from MMF about the victim and he returned home and saw a lot of people. The defendant decided not to go inside the house and just stood about 100 metres away. When the defendant was standing there and watching all of the people he received a phone call from a police officer telling the defendant that the victim was dead because she had hung herself and the defendant was asked to return to his home. When he received the phone call the defendant decided to hand himself in to the Kaikoli Police at 7.30pm.

At 10pm the defendant sent a message to his family in Fatuhada explaining the root cause of the problem which caused the victim to end her life. The defendant also asked his family via a message to move from Fatuhada to Fatuahi and also asked his family to arrange a car to pick up the defendant and take him to Sagadate-Baucau because he was afraid of threats made by the family of the victim. However, the defendant was not threatened at that time by the family of the victim, the defendant avoided the victim's family and did not attend the victim's funeral ceremony and did not go to their house in Aimutin.

The prosecutor also alleged that the results of a forensic examination showed that the victim died at approximately 2.00pm and the victim's skin had started to peel because of the sun, and one leg was on a chair and the other leg was touching the ground. The rope was wrapped around the victim's throat and was 5.34 long and the rope was tied to the ventilation above the door with two loops that were 2.68 cm long.  The victim suffered a bruise to her cheek near her throat and bruising and injuries to her bicep.

In addition, the autopsy report stated that the victim was smothered by the defendant who covered her mouth and nose until the victim died. The autopsy report also stated that the victim's top and bottom lips had been injured, and there was bruising on the victim's lower cheek near her neck and her lungs had burst and she bled from her nose and foam came out of the victim's mouth. This report also stated that the victim died before the defendant tied rope around the victim's neck and hung up the victim on the door because the autopsy results did not find any signs on the victim's neck.

The police identified the body and found US$500 in the victim's pocket, a red necklace around the victim's throat and a mobile phone above the door.

The public prosecutor alleged that the defendant violated Article 139(g) of the Penal Code on aggravate homicide that carries a prison sentence of 12 years to 25 years prison as well as Articles 2, 3 and 35(a) and 36 of the Law Against Domestic Violence.

Presentation of evidence

During the trial the defendant partially confessed to the facts set out in the indictment of the prosecutor in that he left the house on the evening after reading a message sent by a man to the victim using WA. The defendant also stated that he returned home in the morning to get a shirt and left the house again. However, the defendant denied that he killed the victim and hung her up. The defendant acknowledged that when they were at a meeting in Gopal, he received a telephone call from MMF. The defendant stated that at lunch time he ate at a canteen near his work place and did not go home to have lunch.  At 2pm the defendant attended a meeting and sent a message to the victim, but the victim did not respond.

The defendant stated that he handed himself in to the police to ask for security, because the defendant said that those people are from Baucau, and if there is a problem like this, the family would blame the defendant. The defendant stated that he did not participate in the funeral ceremony of the victim because the victim's family did want the defendant to be there.

The witnesses MB and AdS, from the investigative section of the police, and FdR and LdX who are police forensic officers, testified that they went to the scene and saw many people there. The witnesses saw the victim hanging from a rope with eight loops around the victim's neck. Two strands of rope were tied to the kitchen door, one leg was on a chair and the other leg was touching the ground.

The witnesses also saw US$500 in the pants pocket and a red necklace around the victim's neck and also saw a mobile phone on top of the ventilation above the door. The witnesses also saw foam coming out of the victim's mouth, black marks on the victim's body and in the bedroom they also saw blood on a pillow slip.

The witnesses also saw that the victim was dead and her hands were open and her lips had been injured. The witnesses testified that they did not manage to take finger prints because many members of the community were at the scene.

The witnesses from the police testified also that based on their experience, a person who hangs themselves only puts one loop around their neck, but in this case there were eight loops wrapped around the victim's neck. Therefore they suspect that a person killed the victim using a pillow to smother the victim so the victim could not breathe until she died and the dead victim was hung up.

The witness MMF, who is the victim's mother, testified that on the evening in question she and the defendant ate together at the table. After dinner the defendant went into the bedroom with the victim's younger sibling (AdS). The witness testified that she did not hear the defendant and the victim argue but suddenly the defendant left the house and the victim followed him out and told the witness that the defendant read a message from the victim's male friend in England. At 8.00am the defendant returned home and took a shirt and told the witness “that woman is not yet ready to be with a man.”

The witness also testified that when the defendant left the home the victim stopped the defendant from leaving, but the defendant pushed her hand away and struck the victim in the stomach, got on his motorcycle and collided with the gate in front of the house. The witness testified that at 09.30 the victim took her to Mandiri Bank to collect US$500. Then the victim dropped the witness at Becora terminal because the witness was going to Baucau. On the way the witness had regular contact with the victim.

When she got to Baucau the witness was still calling the victim but the victim did not pick up so the witness called the defendant to go to the victim's house. However, the defendant said that he was in a meeting. The witness did not feel right and kept calling the defendant but the defendant's phone was switched off. Therefore the witness rang RdC who works in the victim's home and told her to find the victim because the victim's phone was off.

The witness RdC, who was working at the victim's home, testified that on this day the defendant came home because the witnessed prepared breakfast in the kitchen. The witness also testified that after she cooked lunch the victim told the witness to go home because she was ill and told the witness that the defendant sent a message saying the he would eat lunch at home. The victim took the witness outside and closed the gate.

The witness testified that when she arrived home she received a telephone call from the victim's mother who told her to go to the victim's house to check on her. When she arrived at the victim's house the gate was shut and not long after the victim's younger brother returned from school. The two of them decided to go into the home by climbing a gate at the back of the house. When they got inside the witness and the victim's younger brother were shocked to see the victim was hanging by a rope.

A witness from the hospital (expert on autopsies) testified that based on photographs the victim could have died from hanging herself or she could have been first killed and then hung up, because the victim's throat was not injured.

Final recommendations 

The prosecutor stated that the defendant was guilty of killing the victim even though the defendant denied the facts. The prosecutor relied on the testimony of witnesses including the police that based on their experience in the field a person who hangs themselves does not use 8 loops, but only one. Also, the autopsy report showed that the victim was smothered with a pillow until she could not breathe and her lungs burst. The autopsy report also reported that the victim's left cheek was bruised, her lips were injured, and there were no signs of injury to her throat. Also, some police officers stated that only someone in the house could have killed the victim because the victim still had US$500 in her pocket and was wearing a red necklace. In regards to her relationships with other people, the victim got along well with her neighbours, had no enemies, and nobody disliked the victim and she had no problem with anyone else.

The prosecutor also argued that only the defendant had a problem with the victim because he found a message sent by another person to the victim. Also, when the defendant heard that the victim was dead, the defendant did not go and look at the victim's body but immediately handed himself into the police and also the defendant did not attend the victim's funeral ceremony. If the defendant did not kill the victim then why would the defendant need to feel afraid and hand himself in to the police? Based on all of these facts the public prosecutor requested for the court to sentence the defendant to 20 years in prison.

The defence requested for the court to acquit the defendant from this crime because even though the defendant and victim argued about the message that the defendant discovered on that evening the defendant left the house and returned in the morning to get a shirt and returned to work. There was no physical assault against the victim. At lunch time the defendant ate at a canteen near his work place. At 2.00pm the defendant attended a meeting in Gopak.

The witness AP also attended the meeting and said that the defendant was sitting near him in the meeting which finished at 5pm.

The police officers stated that the victim died at 2.00pm. At 5.30pm the defendant received a telephone call from the victim's mother who told the defendant to come home because the victim's telephone was off.

The defence added that the defendant did not go and see the victim's body but handed himself in to the police, and the defence believed that the defendant made this decision to save himself because previously the defendant and the victim had a problem.

Based on testimony from the witness RdC, who was working at the victim's house, in the morning before the witness went home she did not see the defendant come home, and did not see the victim and the defendant arguing. In this case, based on the autopsy report and expert statement the victim's death was not very clear, either a person killed her or the victim died from hanging herself. Based on all of these considerations, the defence requested for the court to acquit the defendant.

Decision

After evaluating all of the facts the court found the facts proven that the defendant and the victim argued about a message sent by a man to the victim. The court also found that the defendant left the home and returned to get a shirt and told the victim's mother that the victim was not yet ready to be with a man and the defendant went to his work place. The court found that the defendant pushed the victim's hand away and struck her stomach because the victim was stopping the defendant from leaving the home and he told the victim that he would not come back home and the defendant got on his motorcycle and collided with the gate.

In addition, it was also proven that before the victim died the victim was assaulted by a person with a pillow who smothered her mouth and nose and the victim could not breathe until her lungs burst and this killed the victim. The court found that the victim died because she was hung up by someone in the house, because there was still US$500 in her pocket and she still had her necklace on. The court also found that the victim had injuries to her mouth and throat.

The court also proved that the defendant went to the scene but did not go inside to see what had happened to the victim and went and immediately handed himself in to the Kaikoli Police Station to ask for security. The court proved that the defendant did not attend the funeral ceremony of the victim and also found that the defendant attended a meeting in Gopak, based on a video presented to the court.

Based on the aforementioned consideration and evidence during the trial, the court found that the victim died due to an act of homicide (because a person killed her) not from hanging herself (suicide) but the court had doubts that the defendant was the perpetrator of this case of homicide.

The court had doubts because of messages sent between the defendant and the victim that started at 10 am and continued until 2.00pm and the final message of the defendant was sent to the victim at 14.30 and there was no response from the victim, as well as other facts that did not match up and were inconsistent.

With the consideration of these proven facts and based on the principle of in dubio pro reo[5], the court decided to acquit the defendant from this crime but requested for the Public Prosecution Service to continue investigations into this case.

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