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 was the leader of his clan and the householder of the “hausman”. The victim was about 53 years old. The accused hit Peter Taul. The victim and his relatives intervened to stop the attack and in the process hit the accused and pushed him out of the precincts of the “hausman”. The accused retaliated by hitting the victim twice on the neck and once on the abdomen area. The deceased collapsed and died about 1/2 hour later. The medical evidence stated the probable cause of death as “several visceral shock following blows to “vital areas of body, neck and epigastric region”.

Held

(1) Where an assailant attacks 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) As the two fist blows to the 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 pleaded not guilty 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”). The State alleged that on Thursday 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 of which the accused punched one of the old man twice; once on the chest and once on the neck. This old man was the deceased. Shortly later the deceased 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 chest.

To prove these allegations, the State called four (4) eye-witnesses who were at the scene of the fight or close by and who witnessed the fight. They are Anthony Billie More, Anton Koni, Mathias Bare and Joseph Sine More. The State also called Dr T Kubu to give Medical evidence pertaining to post mortem examination and findings made by another doctor who was under the former’s supervision but who has since gone finish. The State also tendered into evidence, by consent, a document purporting to be a confessional statement and the Record of Interview (ROI). (There are no critical admission in these two statements).

The accused gave sworn evidence. He called 3 other witnesses namely Shirley Michael, William Wamel Waipel and Kilau Kaupa. The accused’s case in brief is that he drank some beer at James Maimai’s club and went to the Dre “houseman”, where Peter Taul 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 had a brief argument with Kilau Kaupa. He didn’t fight back. He went back to James Maima’s club where he continued drinking until he was told of the news by Anton Koni that the deceased died from smoking “brus” (smoke) and drinking beer. He was “forced” by Anton Koni to vacate the area in fear of retaliation. The next day, he surrendered himself to police. His explanation for the cause of the deceased’s death was that the deceased was an old man who had pre-existing asthma disease and his death was prompted by his smoking “brus” and drinking beer that day.

At the outset, 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 will set out the uncontested evidence, as I go along. Where the evidence is disputed, I will specify those areas and make findings on them.

The accused and the deceased come from the same village and the same big tribe but from different small clans. Both come from Konma village. 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 is the leader of the Koruku clan. As the leader of the clan, he is the householder of the Dre “hausman”, that is the man’s house. The deceased’s younger brother is Joseph Sine More. The “hausman” was newly built at this time.

Situated next to the Dre “hausman” is the home of Kilau Kaupa who is the village Magistrate. He is an elderly looking man in his late 50’s or early 60’s. He operates a canteen where he sold beer and provided dart games for the public. He has an imposing look and a powerful voice.

Situated about 100-200m away is another club or canteen operated by one James Maima where he sold beer. At that time, his daughter-in-law Mrs Shirley Michael was the canteen keeper who was serving the beer customers. James Maima’s clan is Dinga.

The accused is a young man in the 30’s. He is a well built man with a towering appearance. Prior to 16/12/93, the accused and the deceased or their respective relatives did not have any differences. Rather they were on friendly terms.

Peter Taul is an uncle of the accused. He operated another club where he sold beer.

On 16/12/93, around 12pm, the accused was drinking beer at James Maima’s club where he bought a carton of beer on credit. Also present there drinking was Anthony More, Anton 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. The State witnesses deny this and say he asked Peter Taul to lend him beer on credit from his club but Peter Taul refused. Because Peter Taul has not been called by the State to say what the accused’s request really was, I accept the accused’s version. I find that the accused asked Peter Taul to contribute to or assist in paying 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 4pm, he got angry at Peter Taul for his refusal to pay bride price for the adopted son. State witnesses Anton Koni and Anthony More say he took off his shirt and hit the ground with his hands and said words to the effect that he will kill someone from the Dre “hausman” that day. Further down the road, he told Mathias More the same thing. On both occasions, the accused did not mention any names. The accused does not really contest this evidence. I find that he did utter these words within the hearing of everyone at James Maima’s club and Mathias More. I also find that the threat was targeted not only at Peter Taul whom he knew had gone to the Dre “hausman” but also the deceased and Sine Morua who were with Peter Taul and who were the householders of the Dre “hausman”.

There is some dispute as to whether the accused was drunk when he got angry and uttered the threat to kill. The accused says he had only 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 witnesses say he was drunk at that time. It is clear from the evidence that the drinking at James Maima’s club started at about 12pm and the fight occurred at around 4pm. So the drinking at James Maima’s club lasted for some 4 hours. It is also clear that the accused did not get angry and utter these threats when he first confronted Peter Taul with his request and Peter Taul refused his request. It is reasonable to infer that he did not get angry and fight Peter Taul then because he was a normal person as he was only starting to drink. I find that he was intoxicated or drunk by 4pm or thereabouts when the effects of liquor aroused his anger and made him angry, hit the ground with his fist, took off his shirt and went down to the Dre “hausman”.

There is 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 Michael was an unsure witness who was even certainly mistaken on a lot of things including the day on which the incident occurred. I accept Mathias More’s evidence which was brief, clear and virtually unshaken in cross examination. I find that the distance was about 100-200m, which was a close distance.

After the accused got angry, he went down to the Dre “hausman” and proceeded to assault Peter Taul which caused Peter Taul’s face to bleed. There is some dispute as to where this assault took place; whether it was inside the “hausman” or outside the “hausman”. There is also a dispute as to what exactly happened after Peter Taul was assaulted. It is at this point that I think it is appropriate to decide on the credibility and reliability of some witnesses on both sides of the case because so much of their evidence seek to describe what exactly happened at this fight after the accused’s attack on Peter Taul. This fight is also the most 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 intervened to push the accused away from Peter Taul. It is clear that State 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. They could not have seen the fight from beginning to the end. State witness Mathias More never saw the fight. Defence witness Shirley and Kilau Kaupa never saw the actual fight either. Key figures whose names have been mentioned in the trial who saw the fight or had something to do with the fight from the beginning to the end were Joseph Sine More, Peter Sine, William Wamel, Peter Taul, the deceased himself and the accused. The State called Joseph Sine More but not Peter Taul and Peter Sine. The State had William Wamel 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 story and gave a different version for the defence, which version favoured the accused and contradicted his earlier statement in material areas. And so I am left with the story 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 Wamel’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 statement was tendered by the State as a prior inconsistent statement in cross-examination and it is in evidence. This evidence is consistent with the sequence of events described by Joseph Sine More. More particularly, I make the following findings on the evidence.

1. Upon reaching the Dre “hausman”, the accused headed straight for the house, and hit Peter Taul on the face which caused 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 accused says he was “near the doorway” and outside the house. State witness Sine More says he was inside the house. But there is no dispute that the “hausman” was enclosed or fenced. I think where exactly Peter Taul was attacked is unimportant or irrelevant; the fact being that the accused entered the premises of the Dre “hausman” and assaulted Peter Taul in the presence of Sine More and the deceased.

2. There is no dispute that when the accused hit Peter Taul, the deceased and Sine More intervened to stop him. They came to the aid of Peter Taul, who was a guest in their “hausman”. They were not wrong in doing so. They were entitled or duty-bound to protect their guest.

The accused says they responded by hitting him with sticks. He also says other drunk people there also helped the deceased and Sine More. He says, Peter Sine who is Sine More’s son also attacked him. He was rendered unconscious and lay on the ground. Then William Wamel poured water on him and he regained consciousness. These facts are not seriously contented by the State witnesses.

Sine More says the accused came inside the house where they were sitting. Peter Taul was sitting opposite to him near the doorway. The accused hit him on his forehead and he did not retaliate. He wore a ring on one of his finger. Then the deceased intervened to stop the fight and the accused hit him on the neck and issued further challenges to fight. After this the accused left. As he walked past Kilau Kaupa’s store, Kilau Kaupa told him to leave the area and described him as a trouble-maker and a “pipia man”. The accused replied by uttering some obscene words. When this was going on, the accused’s sister and mother came around with sticks. The accused returned and insulted Sine More and the deceased and rushed towards them and was about to throw punches at them. By this time, Peter Sine came and pushed the accused away. The accused got ready and hit the deceased twice, the first one landed on his stomach and the second one on his neck. Then the deceased responded by hitting the accused on his hands and face with a piece of stick. Then they pushed him out of the fence. At the same time, the deceased lost balance and went backwards and collapsed inside the house. That was the evidence of Sine More.

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

3. In relation to the evidence of defence witness William Wamel, I accept his first evidence as contained in the statement he made to police. He was under no influence or threat when he made that statement. His memory and intention to tell the police of the truth of what he saw was unaffected. He was a neutral witness then. Now events have changed. 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 been a man under pressure to change his story to suit the defence. He says he lied to the police - his only reason for telling lies being Anthony Billie More told him to say that the accused hit the deceased. After giving his statement, it occurred to him then that he had told a lie and felt scared of God’s judgment. But he made no effort to go back to the police and tell them he lied until last week when he came to court and gave his evidence. I do not think the fear of the Lord played any part in making him change his mind. It is absurd and nonsense that he did not fear the Lord’s wrath and the law when he gave the statement to police but only feared the Lords wrath after he gave the statement. I find that what he told the police is the truth of what happened. He was present throughout the entire episode and saw everything just as Sine More. His statement on the whole is consistent with Sine More’s evidence. I reject his evidence in court as a new invention to suit change in circumstances which occurred after deceased’s death and which circumstances affect him personally.

4. As for the accused’s story, it is wholly self-serving. He expressed his intention to kill those persons in the Dre “hausman” including the deceased and Sine More and Peter Taul. Then he hit Peter Taul which made the deceased, Sine More and Peter Sine to stop the assault. He was overpowered and left the “hausman” and returned with re-enforcement and turned his attack on the deceased and Sine More. But he says when he got hit and was rendered unconscious and recovered, he walked back to James Maima’s club without any hint of retaliation. I do not think he would have done that when he was clearly the aggressor. I find that he did retaliate and hit the deceased before or after deceased hit him with a piece of stick. If the accused story was that he retaliated in self-defence or he that was provoked by the actions of the deceased and Sine More who were not the focus of his attack in the first place, then such story might have some ring of truth in it.

5. As to the degree of force applied on the deceased, I accept Sine More’s evidence that the accused prepared himself and delivered the two blows with sufficient force that they caused the deceased to reverse back and loose his balance. He is a well built man who was capable of delivering heavy blows. His blow to Peter Taul on his forehead caused his head to bleed. Likewise, 2 blows and the earlier first blow to the deceased were heavy blows.

6. The conduct of the accused himself and others at the scene clearly pointed to the accused as the only aggressor and the only person who hit the deceased. First, on the strength of the accused’s own evidence, he was a man who was feared by all, even by Peter Taul - his own uncle. Secondly, he was accused by the village Magistrate Kilau Kaupa who was there. His conduct aroused the Magistrate’s anger and he ended up cursing or swearing at the accused and branded him as trouble-maker and a “pipia man”. Thirdly, after he hit the deceased and returned to James Maima’s club, Anton Koni “forced” him to vacate the area and seek refuge in Koma Dom’s home. The accused says Anton told him that he (accused) did not hit the deceased but that the deceased smoked “brus” and died so he had to vacate the area. He refused to do so but Anton 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 he surrendered to police the next day. I find it hard to understand how Anton Koni would tell him all this out of the blues when the accused was not responsible for the victim’s death. I think the truth is 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 in his own right mind, knowing that he was guilty, he surrendered himself to police.

7. The medical evidence supports the application of force in the two parts of the deceased’s body described by State witnesses. According to Dr. Kubu, abnormalities were found in the neck area and the epigastric region. There was swelling of both lobes of the Thyroid gland and presence of blood in the liver. These findings were consistent with blunt force being applied to these areas. According to Dr. Rana’s medical report, no other abnormalities, fractures, bruises or swelling in any part of the body was found. That is consistent with the deceased being hit with fist.

The cause of death is a matter of serious contention in this trial. The State case is that the deceased died from “severe visceral shock” caused by the two blows to the neck and one blow to the chest or the “epigastric region”. The accused’s case is that no such assault took place, 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 already found that the accused delivered the three blows. The real issue is whether the injuries resulting from the 3 blows was the cause of death. If it was not, the other related issue is whether the deceased did have any pre-existing abnormalities or disease which caused his death, with or without the assistance of consumption of alcohol and smoking of “brus” that 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:

“There is no open wound in any part of the body no bruise or swelling. On opening the neck, both lobes of Thyroid gland show evidence of swelling (congestion) (taking) for histology on opening the abdomen no fluid in peritoneal cavity liver on exposure (shows) hyperaemic area of impression of xiphisternum (area taking 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 Kubu to give evidence.

Dr Kubu said there were two abnormalities found upon opening the body. The first one was the expansion or swelling of the two lobes of the thyroid gland. These were removed and sent down to Port Moresby for histology test. The second abnormality was 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 was also not normal. It was consistent with external force being applied to that area. There was however no fracture of the ribs on both sides. The lung and heart were normal. Samples of the liver abnormality were taken and also sent to Port Moresby for histology test. Results of both of these tests have yet to be received to this day. Once these were made available, a conclusive cause of death could be established. In the interim, only the probable cause of death could be ascertained and that was “severe visceral shock” following blow to vital areas of the body, and neck and epigastric region. Visceral shock refers to the shock caused to vital organs of the body such as lung, heart, brain, liver and so on by the application of traumatic force in those areas. When the prosecutor put 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 on circumstances surrounding the death such as the degree of force use. Any severe shock applied to any part of the body, the nerves send message to the brain and the brain sends the message back to the heart to stop.” If the pain and shock is prolonged by lack of prompt medical attention, death can ensue.

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

State witness Anthony Billie More attempted to give some evidence of abnormalities found in the neck and liver. He was present observing the post mortem examination by Dr Rana. Anthony has worked for 24 years as a specialist health assistant in various hospitals and had assisted many doctors performing post mortem examinations but had not performed one himself. I think it is not safe to accept his evidence because he himself admitted in cross examination, that whether there were abnormalities or not were matters beyond his capability.

As to the theory of the deceased’s death advanced by the accused, there is no medical evidence before me to show that the deceased was suffering from asthma. But then there is some medical evidence which might assist the defence case. There were abnormalities found in the thyroid glands and liver. Whether these abnormalities were pre-existing or caused by the blows administered by the accused or a combination of both is something which only the results of the histology 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 eventual 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 with the deceased, his evidence is not reliable. The accused was not there too so he would not know.

Only William Wamel would know but I have rejected his evidence in court. His certified statement which I accepted does not say anything about this. Therefore it is not safe to find that he did consume liquor and smoke “brus” that day. I accept Sine More’s evidence that the deceased did not drink and smoke that day.

Nevertheless, I think there is sufficient evidence of some critical abnormalities found on the neck and liver which only the results of the histology tests can ascertain and conclusively establish whether or not they were pre-existing abnormalities. Then there are some other unsatisfactory aspects of the medical evidence. (1) Dr Kubu’s medical evidence is only secondary to Dr Rana’s. (2) Dr Rana did not sign the medical report (which is in evidence, exhibit “B”) himself. It was signed by Dr Kubu. (3) The cause of death is only the “probable” case. (4) All parts of the deceased’s body were normal; ie the lungs, heart, brain, etc. No bruise or swelling was found in these areas where he was hit even though the accused is said to have used a ring. (5) The accused was an old man in his early 50’s. He would no doubt have been expected to have some kind of abnormalities in his body due to old age. Dr Kubu says his normal life expectancy was 60-65 years old. He had some 7-12 years left at the least.

Despite the existence of the above anomalies, how can one explain the premature death of the deceased between 4pm-6pm on Thursday 16/12/93. I say pre-mature because he had at least 7-12 years more to live. He had no abnormalities in 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. The medical evidence stated “severe visceral shock to the body following blow to vital areas of body, neck and epigastric region” as the probable cause. It is the only cause stated. No one else executed the blows that day except the accused. No one else could have because he was attacked in his own house in the presence of his own brother and other clansmen. Was it a matter of pure coincidence that the deceased had those abnormalities in those areas where he was hit, that he chose to die on 16/12/93 at 4pm-6pm at the Dre “hausman”, and on no other date and time than this? Or to put it in another 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 smoked “brus” and consumed beer and then die? I do not think so. I think there is no other reasonable hypothesis open as to the cause of the deceased’s death other than the cause established by the medical report and supported by State witnesses in particular, Joseph Sine More. And I am entitled 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 State relies on S. 300 (1) (b) of the Criminal Code.

Section 300 (1) (b) provides:

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

(b) if death is caused by means of an act:

(i) done in prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life.”

The principles regarding the interpretation of S. 300 (1) (b) were settled by this Court in Joseph Maino v The State [1977] PNGLR 404. It was held in that case that when a dangerous act is done in the prosecution of an unlawful purpose, the dangerous act and the unlawful purpose must be distinct. It was also held that “where personal injury to the 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 Kuvi for the State submits that the accused’s attack on Peter Taul was the unlawful purpose, in the of execution of which the deceased was hit.

In my view, the facts in Joseph Maino v The State have some resemblance 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, the deceased punched Koga and they fought and damaged the house wall of the appellant. The appellant got angry at this and fought with both men. Whilst Koga ran away, the appellant struck the deceased causing him to fall down on the floor. Then he stamped on the neck some 6-7 times causing blood to flow from his mouth. He died sometimes later that day. The trial judge found the appellant guilty of murder under S. 300 (1) (a). The Supreme Court overturned this verdict and substituted a verdict of guilty to manslaughter saying the trial judge erred in deciding that the assault on the victim also constituted an unlawful purpose. Except for some very minute differences which are not significant, the facts of this case is on all fours with Joseph Maino’s case. The accused expressed his intention earlier on to “kill” someone who was there in the Dre “hausman” at that time. He knew Peter Taul was there with the deceased and Sine More who were the householders of the Dre “hausman”. His threat was directed at them all. Then he proceeded to assault Peter Taul as well as the deceased who came to separate him. Then when he was beaten badly, he returned with re-inforcement and caused a further fight with the deceased. The accused’s attack on the deceased was part of his scheme of attack on the Dre “hausman”. I consider that in a situation where a person attacks 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 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). Even assuming the State to 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 that the accused’s attack on Peter Taul was a dangerous act. But it is clear to me that the accused’s attack on Peter Taul was not dangerous. He merely punched Peter Taul on his face. It was not 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 under S. 300 (1) (a) was not correctly relied upon by the State.

I have found that the cause of death was the accused’s assault on the deceased. Section 291 of the Code, provides that any person who causes the death of another, directly or indirectly by any means, shall be deemed to have killed that person. Section 298 says a person who kills another person is guilty of crime of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case. Section 302 provides that a person who unlawfully kills another person under such circumstances not to constitute wilful murder, murder and infanticide is guilty of manslaughter. Pursuant to S. 539, this court is empowered to return a verdict 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 that charge. However, I am satisfied beyond reasonable doubt that the State has proved a case of manslaughter against the accused and I convict him accordingly.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor