State v Kua [1995] PGNC 7; N1331 (21 February 1995)

Unreported National Court Decisions

N1331

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 196 OF 1994
THE STATE
V
LEO NUL KUA

Kundiawa

Injia J
8-10 February 1995
13-16 February 1995
20-21 February 1995

CRIMINAL LAW - murder - death caused by act done in prosecution of unlawful purpose which act is likely to endanger human life - attack on several persons in a group including victim - assault on victim subsequent to attack on other person in the group - whether assault on other person constitutes an “unlawful purpose” - Criminal Code Ch No 262, ss. 300 (1) (b).

CRIMINAL LAW - murder - cause of death - severe visceral shock following blows to the body, neck and epigastric region of an old man aged 53 years old - whether two blows to the neck and one blow to the stomach causing severe visceral shock was sufficient to cause death - verdict of manslaughter - Criminal Code Ch No 262, ss. 300 (1) (b), 539.

The accused, a 24 year old man, got himself drunk and went to attack one Peter Taul who was sitting in a “hausman” (men’s house) with the victim and others. The victim wa leader of hiof his clan and the householder of the “hausman”. The victim was aboutears oars old. The ac hit Peter. Th0; The victim and his relatives intervened to stop the attack and in thin the process hit the accused and pushed ut ofprecincts of the “hausman”. The; The accused retaliated by hitting the vihe victim twice on the neck and once on the abdomen area. The deceased collapsd died died about 1/2 hour later. The medical evidence stated the probable cause of das “several visceral eral shock following blows to “vital areas of body, neck and epigastric region”.

Held

(1) aeressa aant lttt attackstacks persons who are gathered in a group, in close sequence, and the victim is one of those persons who is attacked, the attack on other members of the same group cannot constitute an “unlawful purpose” within the meaning of S. 300 (1) (b) of the Criminal Code Ch No 262 Joseph Maino v The State [1977] PNGLR 404 applied.

(2) There being no evidence of any other person assaulting the victim on the material day other than the accused’s attack on the victim in the form of two blows to the neck and one blow to the abdomen area, and there being sufficient medical evidence to show that death was caused by “severe visceral shock following blows to vital areas of the body, neck and epigastric region”, it was safe and reasonable to infer that the blows inflicted by the accused caused the victim’s death.

(3) e th fiwo blots to the nehe neck and one fist blow to the abdomen was neither intended to cause grievous bodily harm nor was it an act which was likely to endanger human life, an alternative verdict of manslaughter should be substituted- Criminal Code Ch 262, ss. 300 (1) (a), (b); 302, 539.

Cases Cited

Joseph Maino v The State [1983] PNGLR 404

Counsel

F Kuvi for the State

B Aipe for Accused

20 February 1995

INJIA J: The accused pleadedguilty ilty to a charge that he on the 16th of December 1993 at Konma village murdered one Simon More Morua (the deceased) thereby contravening Section 300 (1) (b) of the Criminal Code Ch No 262 (the “Code”). Thte alleged that on ThursThursday the 16th, the accused drank some beer and assaulted one Peter Taul thereby provoking a fight.&#In the fight, two old men intervened to separate the accused from Peter Taul in the course urse of which the accused punched one of the old man twice; once on the chest and once on the neck. old man was the deceased.&sed. ly later the deceased walk walked back to his house, collapsed and died from severe shock to vital parts of his body caused by the punch to his neck and ch/p> The accused gave sworn worn evidence. He called 3 other witnesses namely Shirley Michael, William Wamel Waipel and Kilau Ka#160; The accused’s case in brief is that he drank sonk some beer at James Maimai’s club and went to the Dre “house8221;, where Peter Taul wasl was sitting, to hit Peter Taul because he refused to comply with a certain request made by the accused. He hit Peter Taul in the presence of the deceased, his brother Joseph Sine Morua, and others. Then the deceased and his brother and others there who were drinking beer at that time retaliated by hitting him with sticks and rendered him unconscious.& Then William Wamel poured water on him and he regained consciousness. He got up and and had af rief argument with Kilau Kaupa. He didn’t fight back. nt back to James MaimaRa’s club where he continued drinking until he was toldhe news by Anton Koni that the deceased died from smoking &ing “brus” (smoke) and drinking beer. He was “forced” by Anton Koni to vacate the area in fear of retaliation. The ney, he surrendered hied himself to police. His explanafor the caf thef the deceased’s death was that the deceased was an old man who had prad pre-existing asthma disease and his deas pro by his smoking &ing “brus” and drinking beer that day.

At the outset, Iet, I should say that despite what appeared to be bitterly contested and protracted trial, there is a lot of areas of consensus between witnesses on both sides on many areas of their evidence. I wet out the uncontested sted evidence, as I go along. Where the nce is disputed,uted, I will specify those areas and make findings on them.

The accused and the deceased come from the same village and the same big trib from different small clans. Bome from Konma vila villavillage. Their tribe name is Bimelku and the accused’s clan is Konmagau whereas the deceased’s clan’s name is Koruku. The deceased is an old man aged about 53 years old and isleader of the Koruku clan. As the leof the clan,clan,clan, he is the householder of the Dre “hausman”, that is the 8217;s house. The deceased’s yr brer brother iser is Joseph Sine More. The “hausman&#82as nwas newly built at this time.

Situated next to the Dre “hausman” is the home of Kilau Kaupa who is the village Magistrate. He is anrly lg man in his his late 50’s or early 60’s.17;s. He tes a canteen where he e he sold beer and provided dart gamr the public. He has an imposing loo a pd a powerful voice.

Situated about 100t 100-200m away is another club or canteenated by one James Maima whea where he sold beer. At that time, his der-in-l-in-law Mrs Shirley Michael was the canteen keeper who was serving the beer customers. JMaima’s clan is Dins Dinga.

The accused is a young man in the 30’s.&#160is a well built man with a th a towering appearance. Prior to 16/12/he accused used and the deceased or their respective relatives did not have any differences. Rathey were on friendly tely terms.

Peter Taul is an uncle of the accused. He opd another where he sohe sole sold beer.

On 16/12/93, around 12pm, the accused was drinking beer at James Maima’s club where hght a carton of beer on credit. Also present there drinking was Anthony More, Anton Kton Koni and others including Peter Taul. The accused says he asked Peter Taul to assist him in paying bride price for their adopted son but Peter Taul refused.&#16e State witnesses deny this this and say he asked Peter Taul to lend him beer on credit from his club but Peter Taul refused. Becauser Taul has not been been called by the State to say what the accused’s request really was, I accept the accused’s vn. I find that the accused asked Peter Taul to contribute to or assist in paying brid bride price for their adopted son.

After Peter Taul refused, and knowing the accused would get angry and fearing him, he sneaked out of James Maima’s club. The accused continued drinking. He drank 6 bottles from the carton which he bought. At about he got angry at P at Peter Taul for his refusal to pay bride price for the adopted son. State wses Anton Koni and and Anthony More say he took off hirt at the ground with with his hands and said words to the effe effect that he will kill someone from the Dre “hausman” that #160; Further down the road road, he told Mathias More the same thing. On both occasions, the ad used did not mention any names. The accused does not really contest this evidence. I find th did utter these hese words within the hearing of everat James Maima’s club and Mathias More. I also also find that the threat was targeted not only at Peter Taul whom he knew had to the Dre “hausman&#man” but also the deceased and Sine Morua who were with Peter Taul and who were the householders of re “hausman”.

There is some dispute as to whether the accused was drunk when he got angry and uttered the threat to kill. The accused se had only 6 ly 6 bottles of beer before he got angry, uttered the threat and went to the Dre “hausman” and that he was not drunk. All the State wies say he y he was drunk at that time. It is clear from the evi tnce that the drinking at James Maima’s club started at about 12pm and the fight occurred at around 4pm. So thnkingames ’8217;8217;s club lasted for some 4 hours. It is also cleat the accusaccusaccused did not get angry and utter these ts when he first confronted Peter Taul with his request and Peter Taul refused his request.uest. It asonable to infer thatithatid not get angry and fight ight Peter Taul then because he was a normal person as he was only starting to drink. I find that heintoxd or dror drunk by 4pm or thereabouts when the effectsfects of liquor aroused his anger and made him angry, hit the ground with ist, took off his shirt and went down to the Dre “hausman”.

There is soms some dispute as to the distance between James Maima’s club and the Dre “hausman”. State witness Mathias More said it was 100m whereas defence witness Shirley Michael said it is like from the courtroom to “Day High School”, wherever that is. Shirley Michas an e witnesitness who was even certainly mistaken on a lo a lot of things including the day on which the incident occurred. Ipt Ma More’s evidenvidence which was brief, clear and virtually unshaken in cross exas examination. I find that the distaas about 100-200m, which was a close distance.

After the accused got angry, he went went down to the Dre “hausman”proceeded to assault Peter Taul which caused Peter Taul’s face to bleed. There here is sospute as t as to where this assault took place; whether it was inside the “hausman” or outside the “hausman”. There is also a disps to ehat exactly happened after Peter Taul was assaulted.&ted. It ithis point that I thin think it is appropriate to decide oncredibility and reliability of some witnesses on both sides of the case because so much of h of their evidence seek to describe what ly happened at this fight aght after the accused’s attack on Peter Taul. This fight is ale most crit critical phase of the whole trial; the issue being one of whether or not the accused punched the deceased twice after the deceased and others intervto push the accused away from Peter Taul. It is clearclear thate wite witness Anthony Bilhe More was drinking at James Maima’s club when he was called to the scene after the deceased collapsed. So was Anton Koni.&#16ey chey could not have seenfight from beginning to theo the end. State witness Mathias More never saw the fight. Defence witneirley and Kild Kilau Knever saw the actual fight either. Key fi whose hose names haes have been mentioned in the trial who saw the fight or had sometto do the fight from trom the beginning to the end were Joseph Seph Sine More, Peter Sine, William Wamel, Peter Taul, the deceased himself and the accused. The State caloseph Sine Mone More but not Peter Taul and Peter Sine. The Stad William Wamel lisl listed on the indictment on the basis of a certified statement he gave to police on 10/1/94 but he switched to the defence, changed his stod gave a different version for the defence, which version fion favoured the accused and contradicted his earlier statement in material areas. And so I am left the storystory of Joseph Sine More on one hand and the accused and William Wamel on the other.

In summary, upon a close examination of their evidence, I accept Joseph Sine More’s evidence and reject the evidence of the accused and the evidence of William Wamel which he gave in court. I accept William Wame17;s 17;s prior certified statement which he gave to police, which is in evidence for the prosecution, as evidence of the truth of what happened.

This stnt was tendered by the State as a prior inconsistent statemtatement in cross-examination and it is in evidence. This evidence isistent witt with the sequence of events described by Joseph Sine More. More particularly, I mae fthe following findings o evidence.

1. ټ&#U60; reon reachingching the Dre “hausmhausman”, the accused headed straigh the house, and hit Peter Taul on the face which caused hisd his face to bleed. There is some dispute as to where Peter Taul was situated in relation to the “hausman’ when he was hit. The accusys he was “8220;near the doorway” and outside tuse. State witness Sine More says he was inside the hthe house. Bute is no dispute that that the “hausman” walosed or fenced. I th I think where exactte Peter Taul was attacked is unimportant or irrelevant; the fact being that the accused en the premises of the Dre &#re “hausman” and assaulted Peter Taul in the presence of Sine More and the deceased.

2. There is no dispute that then the accused hit Peter Taul, the deceased and Sine More intervened to stop him. They came t aid of Peter Tter Taul, who was a guest in their “hausman”. They were not wrong ing song so. They were led or dutnd to d to protect their guest.

The accused says they responded by hittingtting him with sticks. He also says drunple talse also helped the deceased and Sine More.More. He says, Petee who is Sins Sins Sine More’s son also attacked him.as rendered unconscious and lay on the ground. Then William Wamel powaterwater on himn him and he regained consciousness. e facts ar seriously csly csly contented by the State witnesses.

Sine More says the accused came inside the house where they wittin60; Peter Taul waul was sitting opposite to him near the doorway. The accused hit himt him on his forehead and he did not retaliate. He wore a ring on one of iis finger. Then the deceased iened toed to stop the fight and the accused hit him onneck and issued further challenges to fight. After ther this the accused left. As he walked past Kilau K#upa’s store, Kiaupa told him to leave the the area and described him as a trouble-maker and a “pipia man”. ccused replied byring obsc obscene words.&#1s. When this was gon, the acce accusaccused’s sister and mother came around with sticks. The accusturned andlted Sied Sine More and the deceased and rushed thed towards them and was about to throw punches at them. By this time, Peine cnd pund pushed the accused away. The accused got ready and hit the deceased twic twice, the first one landed on his stomac the second one on his neck. Then theased responded by d by hitting the accused on &#on ـ hids ands and with with a piece of stick.&#160 Then they pushed ht of thef the fence. At the same, the deceased ased lost balance and went backwand coed inside the house. That was the evidence of Sinf Sine More More.

The certified Statement of William Wamel is consistent with Sine’s story. Sine Sine More&;s evidencedence is consistent and not destroyed in cross examination. He did not show any signiaf bias towards the accused even though he lost his own brother. He described every episode of the fight and implicated ene including his own son Peter Sine. I accept his story.

3. & &160; In relatoon e nth of defendefence witness William Wamel, I accept his first evst evidence as contained in the statement he made to police. He wa ince oeat when he mahe madt statement. His memoryemory and anenintenintention tion to tell the police of the truth of what he saw was unaffected. He wasutral witness then. Now events have ed. 160; Hi0; His own brother was one of 2 men from his clan who were killed by the deceased’s clan when a tribal fight broke out between them after the death of the deceased. He has b man under pressuressure toge his story to suit the dehe defence. He says he lied to the police - his only reason for telling lies being Anthony Billie Mold him to say that the accused hit the deceased. Afte After giving hatementement, it occurred to him then that he had told a li felt scared of God’s217;s judgment. But he made no effort to co back to the police and tell them he lied until last week he came to court and gave gave his evidence. I do not think the feathe the Lord played any part in making him change his mind0; It is absurd and nonsensnsense that he did not fear the Lord’s wrath and the law when he gave the statement to police but onared the Lords wrath after fter he gave the statement. I find that he told the pohe police is the truth of what happened. He wesent throughout the ethe entire episode and saw everything just as Sine More. His statement onwhole is c is consisteth Sire’s evidenvidence. I reject hidence in court ourt as a new invention to suit cuit change in circumstances which occurredr deceased’s death and which circumstances affect himt him personally.

4. &##160;; A60for for the ache accused’s story, it is wholly self-serving. He expressed his intention to kill those persons in the Dre “hausman&# incl the sed and Sine More and Peter Taul. #16en Then he h he hit Pete Peter Taul which made the deceased, Sine More and Peter Sine to ste assault. He was oves overpowered afd left the “hausman” and returned with re-enforcement and turned his attack on the deceased and Sine More. But he when he got hit andt and was rendered unconscious and recovered, he walked back to James Maima’s club without any hint of retaliation. I do not think he have dove done that when he was clearly the aggressor. I find he did retaliate ante and hit the deceased before or after deceased hit him with a piece of stick. If the accused stos tharetaliated in seln self-defence or he that was provoked by the actions of the deceased and and Sine More who were not the focus of htack in the first place, then such story might have some ring of truth in it.

5.&#16. ҈ A60; As to the degr e ofe orce applied on the deceased, I accept Sine More’s evidence that the accused prepared himself and delivere twos witficierce that they caused the dece deceased to reverse back and loose his bais balancelance.&#16. He well built man who was was capable of delivering heavy blows. His blow to Peter Taul on his forehead caused his head to bleed. Likewise, 2 blows ae earlier first blow to the deceased were heavy blows.

6. ټ T60; The conduct of the adcused lf aners at the scene cene clearly pointed to the accused as the only aggressor and the only pery person who hit the deceased. Firstthe sth ofaccused&#8 17;s own evidence, he was a man wman who waho was feas feared by all, even by Peter Taul - his own uncle. Secondly, he waused e vill village Magistrate Kilau Kaupa who was there. His conducused the Mage Mage Magistrate’s anger and he ended uping or swearing at the accused and branded him as trouble-maker and a “pipia man̶”. & Thirdly, after he hitdecetdeceased and returned to Jato James Maima’s club, Anton Koni “forced” him to vacate the area and seek refuge in Kom’s home. The accused saysn told himd him that hhat he (accused) did not hit the deceased but that the deceased smoked “brus” and died so he had to vacate the area. He refus do so but Anton Kton Koni held his hands and forced him to leave and seek refuge in the house of Koma Dom’s who is from another clan. The accused says hrendereddered to police the day. I find it hard hard to understand how Anton Koni would tell him all this out of the blues when the accused was not respon for the victim’s death. I thie truth is t is that that Anton told the accused that the deceased died from the blows he inflicted and that he should leave the area and seek refuge elsewhere in case of retaliation. Then inown right mind, kno, knowing that he was guilty, he surrendered himself to police.

7. ҈ T60; The medical evedencposupports tplication of force in the two parts of the deceased’s217;s body described by State witnesses. According to Dru, abnotiesoties foundhe neck area and the epigastric region.&#160 The; There ware was swelling of both lobes of the Thyroid gland and presence of blood i liver. These findings were consistent with blunt fort force being applied to these areas. AccordinDr. Rana’s a7;s al report, no other abnormanormalities, fractures, bruises or swelling in any part of the body was found. That is consistent with theased being hit with fist.

The cause of death is a ms a matter of serious contention in this trial. The State case is the dec ased died from “severe visceral shock” caused by the two blows to the nece neck and one blow to the chest or the &#epigastric region”. The ad’s case is thas that no such assault took placeplace, that the deceased had pre-existing asthmatic disease which was complicated by his consumption of beer and smoking “brus” that day which suddenly claimed his life. However, I have alrfound tund that the accused delivered the three blows. The reale is whether the ithe injuries resulting from the 3 blows was the cause of death. If it was not other relateelated issue is whether the deceased did have re-existing abnormalities or disease which caused his deathdeath, with or without the assistance of consumption of alcohol and smokin“brus” that dayt day. In deciding these issues, the medical evidence is important. Dr S Rana’s post mortems examination that the deceased was aged about 53 years old and he died at about 6pm on 16/12/93. Dr Rana states:

<220;Tis no open wound ound in any part of the body no bruise or swelling. On opening the nthe neck, both lobes of Thyroid gland showence of swelling (congestion) (taking) for histology on opening the abdomen no fluid in pern peritoneal cavity liver on exposure (shoyperaemic area of impression of xiphisternum (area taking fing for histology) hyperaemic and hyperaemic areas.

Heart found to be empty all chambers.

Lungs show no abnormality.

No ribs showed no evidence of fracture on other side.

Abdomen showed nothing significant in any viscera.

Probably cause of death severe visceral shock following blow to vital areas of body neck and epigastric region.”

In the absence of Dr Rana, the State called Dr Kubu to explain the report. The court was told Dr Kubu was not only the incumbedent Medical Superintendant of Kundiawa Hospital in which Dr Rana was employed but also that he signed the report on behalf of Dr Rana and that he is familiar with the contents of the examination report. No objection was taken by the defence to Dr Kubu’s appearance because I presume his evidence was vital to the defence case. Therefore, I allowed Dr tobu to give evidence.

Dr Kubu said there were two abnormalities found upon opening the body. The first one was the expnnsion or swelling of the two lobes of the thyroid gland. These were removed and sent down to Port Moresby for histology test. econd abnormality was the the presence of increased blood activity in the liver (hyperaemic areas). Part of the breast bone surrounding the liver was sticking out which made an impression or dent on the liver itself (impression of xiphisternum). This wao not normal. #160; It was consi with exth external force being applied to that area. There wasver no fracture oure of the ribs on both sides. The lung and heere normal.rmal. Samples of ther abnormalitmalite takd also sent to Poto Port Moresby for histology test. Results of both of ttests ests hsts have yet to be received to this day.&#Once were made availavailable, a conclusive cause of death coul could be established. In the interim, one probabrobable cause of deould be ascertained and thad that was “severe visceral shock” following blow to vital areas of the body, and neck aigastegion.&#160 Visceral shock refe the shhe shock cock caused to vital organs of the body such as lung, heart, brain, liver a on by the application of traumatic force in those areas. When the putor put to t to t to him the specific fact situation in this case, Dr. Kubu said “at any age, the amount of shock applied to any vital organ can and may cause death. That depends rcumss surrouurrounding theg the death such as the degree of force use. Any severe shock applied to any part of the body, the n send message to the brain and the brain sends the message back to the heart to stop.”#8221; &#1f the pain and shock ilok ilonged by lack of prompt medical attention, death can ensueensue.

In cross examination, Dr Kubu did admit that there can be mauses of instant death such as heart failure, blood clots ints in the brain and other neurogenic causes. He said if the victim hhisa history of asthma especially at the age of 53, coupled with drinking and smoking, it can be a potential killer. He almittet Dr Rana’8217;s stated cause of death was not 100% conclusive but it may dependepend on the histology tests which are yete received.

State witness Anthony Billie More attempted to give some evidence of abnf abnormalities found in the neck and liver. He was present observin pohe post mortem examination by Dr Rana. Anthony has worked foyearsyears as a specialist health assistant in various hospitals and had assisted many doctors performing post mortem examinations but had not performed one him I think it is not safe to accept his evidence becausecause he himself admitted in cross examination, that whether there were manormalities or not were matters beyond his capability.

As to the theory of the deceased’s death advanced by the ad, there is no medical evidence before me to show that the deceased was suffering from asth asthma. But then there is some medical evidence which might assist the defence case. There were ablities found ound in the thyroid glands and liver. Whether abnormalities were pre-existing or caused by the blows administered by the accused or a co a combination of both is something which the results of the histologtology tests can conclusively establish. It is the State’s duty to produce this evidence and this has not been done.

Then there is the added question of whether the consumption of alcohol and smoking of “brus&; had anything to do with these abnormalities and the eventeventual cause of death.

There is some dispute as to whether the deceased did smoke “brus” and drink beer both before and after he was assaulted. The only evidence of this comes from the accused and defence witness Anton Koni and William Wamel. As Anton Koni was not present for most of the time wit deceased, his evidence is not reliable. The accused was not there too so he would nold not know.

Only William Wamel wouow but I have rejected his evidence in court. His cers certified stat whnt which I accepted does not say anything about this.&#Therefore it is not safe tofe to find that he did consume liquor and smoke “brus” that day. I accept Sine More&#821vidence that the deceased dsed did not drink and smoke that day.

Nevertheless, I think there is sufficient evidence of some crl abnormalities found on the neck and liver which only the results of the histology tests csts can ascertain and conclusively establish whether or not they were pre-existing abnormalities. There are some other unsatunsatisfactory aspects of the medical evidence. (1) Dr Kubu’s medevil evidence is only secondary to Dr Rana’s. (2) Dr Rananot sign the mehe medieport (which is in evidencedence, exhibit “B”) himself. It waned by Dr Kubu. #160; (3) The caf death is h is only t8220;probable” case. (4) All parts e deceadeceadeceased’s body were normal; ie the lungs, heart, brain, etc. uise elling wasd ound in t in these areas where he was hit even even though the accused is said to have used a ring. (5) The accused was d maniin his early 50’s. He woo doubt have been expn expected to have some kind kind of abnormalities in his body due to ge. bu says his normal life exfe expectancy was 60-65 years old. Hesome 7-me 7-12 years lefs left at the least.

Despiteexistence of the above anomalies, how can one explain the premature death of the deceased bsed between 4pm-6pm on Thursday 16/12/93.& I say pre-mature because huse he had at least 7-12 years more to live. He had no abnormalitiesthe other parts of his body except in those areas where the accused allegedly hit the deceased. And I have found that he did execute those 3 blows. edical evi stated “s220;severe visceral shock to the the body following blow to vital areas of body, neck and epigastric regio21; a probable cause. It is the onlye statestatestated. No one elseuted the bloe bloe blows that day except the accused. No one eluld have because ause he was attacked in his own house in the presence of his own brother and other clansmen. Was it ter oe coince thae thae that the deceased had those abnormalities in those areas where he was hias hit, that he chose to die on 16/12/93 a-6pm at the Dre “hausman”, and on no other date and time than this? Or toOr to put another wayr way - was it pure coincidence that the accused came to attack Peter Taul at the Dre “hausman” on this day and time, that the deceased d “brus” and consumed beer and then die? 160; I do hink so. I60; I think there is her ther reasonable hypothesis open as to the cause of the deceased’s death other than the cause established by the medical report and supported by Switnein particular, Jor, Joseph Sine More. And I am entitlntitled to draw this inference which is clearly established by the evidence and it is a reasonable inference.

Those are my findings of fact on the evidence. The Srelies on S. 300 (1) (1) ( the Criminal Code.

>

Section 300 (1) (b) provides:

(1) “Subject to uce sdioeediovisions of this Code, a person who lacks kills another perr person under any of the following circumstances is guilty of murder:

b)҈&ـ ifh is caused by mean means of s of an acan act:

>

(i) done ineprosonuti anofnlawunlawful purpose; and

(ii) oh sucata n asreo betlikellikely to endanger human life.”

he prles ring tterpron of00 (1) (b1) (b) wer) were sete settled tled by thby this&#1is Court in Joseph Maino v The State [1977] PNGLR 404. It wad in that case that what when a dangerous act is done in the prosecution of an unlawful purpose, the dangerous act and the unlawful purpose must be distinc60; I also held that &hat “where personal injury to the vihe victim is the unlawful purpose relied upon, that provision is not applicable and the prosecution must rely on S. 305 (a)” (S. 300 (1) (a) of the Revised Code) (per Frost CJ at p. 407). Mr for the State submits tits that the accused’s attack on Peter Taul was the unlawful purpose, in the of execution of whichdeceased was hit.

In my view, the facts in Joseph Maino v The State have some resembesemblance to the facts of this case. In that case the appellant who was drunk had an argument with the deceased man and another man named Koga. In the process, theased pued punched Koga and they fought and damaged the house wall of the appellant. The appellot angry at this this and f with both men. Whilst Koga ran away appelappellant struck the deceased causing him thim to fall down on the floor. Then amped on tck some 6-7e 6-7 times causing blood to flow from from his mouth. He died sometimes later that day. The trial judge the appellant guilty of murder under S. 300 (1) (a). The Supreme Court orned thed thed this verdict and substituted a verdict ilty nslaughter saying the trial judge erred in decidieciding that the assault on the victim alsm also constituted an unlawful purpose.&#1xcept for some very minute nute differences which are not significant, the facts of this case is on all fours with Joseph Maino’s case. The accused exprehis intenintention earlier on to “kill” someone who was there in the Dre “hausman” at that time. He kneer Taul was there wire with the deceased and Sine More who were the householders of the Dre “hausman”. His threat wrected at them them all. Then hceeded to assault Pelt Peter Taul as well as the deceased who came to separate him. Then when h beaten badly, dly, he returned with re-inforcement and caused a further fight with the dec. Thused’s217;s attackttack on the deceased was part of his scheme of attack on the Dre “hausman”. I considet in uation wherewhere a person attacks persons who are gathered in a group, in close sequesequence, and the victim is one of those ps who is attacked, the attack on other members of the same group cannot constitute an ̶“unlawful purpose” within the meaning of Section 300 (1) (b) of the Code.

There is another reason why I think the facts do not support a case of murder under S. 300 (1) (b). Eveuming the State to be c be correct, the act of hitting Peter Taul must be of such a nature as to be likely to endanger human life. In other words it must be dangerous. The State submits thataccu accused’s attack on Peter Taul was a dangerous act. t is clear to me that the the accused’s attack on Peter Taul was not dangerous.; He y punched Peter Tter Taul on his face. It was not an t an act of such nature as to endanger his life.

I also think the accused did not intend to cause grievous bodily harm to the deceased when he delivered those two punches. Therefore, a charge un. 300 (1) (a) was not correcorrectly relied upon by the State.

I have found that the cause of death was the accused’s as on the deceased. Section 291 o Code, providrovides that any person who causes the dehe death of another, directly or indirectly by any means, shall be deemed to have killed that person. Sec298 says a person who kwho kills another person is guilty of crime of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case. Section 302 provides a pewson who unlawfully kily kills another person under such circumstances not to constitute wilful murder, murder and infanticide ilty of manslaughter. Pursuant t539, this court ourt is empowered to return a verdict dict of guilty to manslaughter on an indictment charging the accused with murder if the evidence establishes the offence of manslaughter.

Apply these provisions, in all the circumstances, I am not satisfied beyond reasonable doubt that a crime of murder under S. 300 (1) (b) has been proven by the State. I acquit him on tharge.&#1e. However, I am satisbeyond yond reasonable doubt that the State has proved a case of manslaughter against the accused and I convict him accordingly.

Lawyer for the State: P Prosecutor

Lawor awor the Accused: PubliPublic Solicitor