State v Yandapu [2002] PGNC 16; N2357 (28 August 2002)

N2357

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1581 of 2001

THE STATE

-V-

JOHN IKI YANDAPU

Mt. Hagen: Jalina J

22nd, 26th – 28th August 2002

PARTICULAR OFFENCES – Wilful murder – evidence – Cause of death – medical evidence as to cause of death inconsistent with evidence of Witnesses – Cause of death vital in a homicide case – the lack of injuries being inconsistent with evidence of assault on various parts of the deceased’s body is prima facie evidence that no assault was inflicted upon the deceased – the accused therefore has no case to answer.

Cases cited:

State –v- Roka Pep ( No. 2) (1983) PNGLR 287

Counsel:

J. Waine for the State

B. Aipe for the Accused

28th August 2002

JALINA, J: This accused is a prison officer at Baisu Institution. He has been charged with the wilful murder by drowning of one Lucas Kapilyo at Waghi River on 29th November 2002, after two other colleagues and himself had caught the deceased and one Albert Andlai who escaped with other prisoners earlier that day and severely assaulted him and thrown him into the Waghi River. He has pleaded not guilty to the charge. The issue is whether the accused was the perpetrator of the crime.

At the commencement of evidence for the prosecution, the State Prosecutor, Mr. Waine tendered by consent of Defence Counsel Mr. Aipe the record of interview, the statement of the investigator Sergeant Puis Nukundi and his corroborator Laki Tute as well as the statement of Lukas Kandapol. The Post Mortem Report and the Medical Certificate of Death issued by Dr. James Iboro were also tendered by consent.

The Statements of the two policemen relate to conducting of the interview so they are not relevant to the issue before me. Lucas Kandapol’s statement shows that he was involved in the retrieving of the deceased’s body from the Waghi River and taking it to the Mt. Hagen General Hospital morgue, about 2 days later. I will refer to other aspects of his statement particularly as to what he found on the deceased’s body later in this judgment. As regards the record of interview the accused only admitted to assaulting the escapee Albert Andlai with the back of an axe to restrain him but denied assaulting and killing the deceased.

Two escapees namely Jerry Punali and Albert Andlai have given oral evidence. Jerry Punali basically said that as they were escaping he, the deceased, and one Albert Andlai say that they could not swim. When he reached the Waghi River, he found that not only was the river deep but it was also flooding. Out of concern for the two escapees, particularly the deceased who came from the Enga Province as himself, he hid among some pitpit on the other side and waited to see what would happen to the two escapees. He saw them try to swim but the current kept taking them back and not long after that the accused and two other warders arrived. The accused first pulled the deceased out of the river and handed him over to his two colleagues and then pulled the other escapee out. They took the two escapes a little further from the bank of the river and started assaulting them. The accused hit the deceased on the legs, forehead and throat with the back part of an axe and he fell down to the ground backwards. When other prison officers and people from the nearby village started crossing the river he run away.

The other escapee who gave oral evidence was Albert Andlai. He was caught by the accused and two other colleagues on the banks of the Waghi River. He said that the deceased and himself were caught because they were exhausted from running and could not swim to the other side. The accused and his two colleagues took them both further from the bank of the river and started assaulting them. The accused used the back of an axe to attack them. He stated that the accused smashed both his kneecaps and also both elbows. He was also hit above the left arm, on his head and had the skin on the fingers of his right hand sliced with the sharp part of the axe. I have observed those parts of the body and the scars are clearly visible. A separate indictment for attempted murder of this witness has been presented against the accused and is to be tried at a later date.

This witness also described the injury he saw the accused inflict upon the deceased with the back part of the same axe. They included the accused smashing both kneecaps, both elbows, forehead, nose and throat of the deceased and then throwing the deceased into the Waghi River. He said that the deceased was still alive when he was thrown into the Waghi River. He said that during the attack upon them, the deceased and himself were told not to shout or fall down but continue standing. They fell down when they could not stand it any more.

The witness Yanes Kombe who comes from the Enga Province lives on a block near Baisu. He was collecting firewood when he heard people shouting about prisoners escaping so he ran to his house and while standing there he saw the accused and two other warders assaulting someone about 60 meters away from him. He saw one use an axe and the other two use sticks against those they were assaulting.

He became scared of being assaulted so he moved to where other members of the public were. While he was there he heard a person who was assaulted call out in the Enga language, "mother, I am dying." Later the accused and the other warders took the other escapee to where he and others were and took him to Baisu prison. He did not check to see if the person who was being assaulted and who called out in the Enga language was still there.

Other prosecution witnesses who gave oral evidence were Sergeant Puis Nukundi and Don Kapilo the brother of the deceased. Both witnesses were present during the autopsy conducted by Dr. James Iboro on the deceased’s body at the Mt. Hagen General Hospital on 7th December 2000. They said that when the deceased’s clothes were removed, they saw injuries to the deceased’s kneecaps, forehead and throat. The skin over the area of the throat was black and when the morgue assistant cut and removed the skin upon instructions from Dr. Iboro, they found the windpipe or throat broken and the doctor tried to match or join the two broken pieces. Sergeant Nukundi went on to say that he took the medical report from the doctor about a week later but did not peruse it until some time later which was when he realized that the report did not mention anything about the injuries that were on the deceased’s body.

He then returned to the doctor and pointed out the omissions but the doctor told him that he had done many autopsies and could not remember which injuries he (Sgt Nukundi) was talking about. Upon being questioned by the Court as to whether he had taken any photographs of the deceased either before or during the autopsy, he said that he had not done so as the police photographer was not available.

The medical report refers to history of death as being murder by warders and drowning in the Waghi River after escaping from Baisu prison camp.

On physical examination the doctor found plenty of sand inside the deceased’s trousers and pants.

On external examination the doctor found a discoloration of the forehead and nose. On the chest the doctor found the mid left posterior chest skin peeling off – 4x5 cm. On the deceased’s limbs the doctor spotted a 1x1 cm discoloration on dorsum of right hand and bilateral symmetrical discoloration of the knees 4x4 cm. Nothing was found by the doctor on the neck, abdomen and perineum. So the medical report is completely contrary to the injuries described by Albert Andlai, Sergeant Nukundi and Don Kapilyo.

With regard to internal findings the doctor noted fluid and blood bubbling out of the nose upon chest compression and in the chest he found the lungs oedematous bilaterally and lung tissues filled with fluid. The doctor found nothing upon his internal examination of the deceased’s head, neck, abdomen, intestines and limbs. The cause of death was drowning due to respiratory failure.

The statement of Lucas Kandapol which I referred to earlier shows that he retrieved the body from the Waghi River and brought it to the morgue at Mt. Hagen Hospital. He removed the deceased’s clothes and dressed him and in the process found bruises on the deceased’s body. He says nothing about seeing serious injuries on the deceased’s body. So we have a case where the purported eyewitnesses evidence is inconsistent with the medical report not only as to the nature and extent of the injuries but also as to the cause of death.

At the close of the case for the prosecution, Mr. Aipe for the accused has submitted relying on the principles on no case submissions which were enunciated by the Supreme Court in the State –v- Roka Pep (No. 2) [1983] PNGLR 287 that the court must acquit the accused as a matter of law if the State has failed to prove essential elements of the charge. The second part of the principle was that though there was some evidence but if that evidence is so discredited that no reasonable tribunal could lawfully convict, then the court must also acquit the accused. He submitted that in this case, notwithstanding the evidence of eyewitness showing that the accused assaulted the deceased, an essential element namely the cause of death cannot be linked to the accused’s assault as no injuries were found by the doctor on the deceased’s body.

Mr. Waine has submitted on the other hand that the injuries described by the State witnesses accelerated the death of the deceased by drowning as he could not swim.

As I have said, the medical report is directly in conflict with the evidence of eyewitnesses as to injuries supposedly inflicted upon the deceased and the cause of death.

Mr. Waine has submitted on the other hand that the injuries described by the State witnesses accelerated the death of the deceased by drowning as he could not swim.

As I have said, the medical report is directly in conflict with the evidence of eyewitnesses as to injuries supposedly inflicted upon the deceased and the cause of death.

The medical report which shows lack of injuries is from a professional and an independent person. The witness Albert Andlai was an escapee and clearly received injuries from the accused so I must be careful about the dangers that he may try to paint a very bad picture of the accused as payback. The same can be said of the evidence of Jerry Punali who was also an escapee. The witness Don Kapilyo is a close relative but not Sergeant Puis Nukundi whose evidence of what he found on the deceased’s body is consistent with what Don Kapilyo says. But then the question remains as to why Sergeant Nukundi said nothing in his statement about the discrepancy in the medical report. Also a prudent police officer or investigator would endeavour to close any possible loophole in the case he investigates. So in this case he should have taken photographs of the deceased’s body before the autopsy was carried out. Dr. James Iboro has also not been called to clarify his report.

Apart from evidence to link an accused to the alleged crime, the cause of death particularly in a homicide case as wilful murder, is an essential element that the prosecution must establishment by evidence.

In this case, the lack of injuries being consistent with the description of the witnesses cast doubt on whether or not injuries inflicted by the accused contributed to the drowning of the deceased. Also the lack of injuries in the medical report casts doubt on the essential element of intention to kill. With the eyewitnesses evidence as to the nature and extent of injuries being in direct conflict with the medical report, I do not think that a reasonable tribunal of law and could lawfully convict the accused. I therefore find that he does not have case to answer. I accordingly acquit him of the charge of wilful murder.

I order that his bail money (if any) be refunded to him.
____________________________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor