State v Siwing [2006] PGNC 107; CR 933 & 934 of 2006 (11 December 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 933 & 934 OF 2006

THE STATE

-v-

KRIMBU SIWING & CHRIS KIPI

Bulolo: Manuhu, J
2006: November 14 & 15, December 11.

JUDGMENT ON VERDICT

CRIMINAL LAW – Particular offence – Wilful Murder –Causation – Intention – Accused persons repeatedly punched and kicked defenceless deceased on body causing broken arm and lacerated lung – Grievous bodily harm a reasonable foreseeability – Guilty of Murder, in the alternative.

No cases were cited.

Counsel:
Ms. T. Barrigan, for the State.
Mrs. A. Raymond, for the Accused Persons.

11 December, 2006

1. MANUHU J.: The accused persons, Krimbu Siwing and Chris Kipi, both of Biawen Village, Bulolo, Morobe Province, were indicted by the State for the wilful murder of deceased Sanik Nalu following an alleged brutal assault on him at about 3:00 pm or 4:00 pm on 21 February 2005 at the said Biawen Village.

Allegations

2. The State alleges that, at the relevant time, the accused persons, who were acting in concert, confronted the deceased, Sanik Nalu, on a road at Biawen Village. They punched him and he fell onto the ground. While on the ground, the accused persons continued to assault him by hitting and kicking him all over his body, even when he was unconscious, until they were stopped by the deceased’s family members. At that time, the State says that each of the accused persons was armed with a bush knife and they were both wearing boots.

3. As soon as the assault was stopped, Siwing stated to the deceased’s family that if they had not arrived, the deceased would have been chopped on the neck. Siwing also stated that if anyone reported the assault, he and Kipi would put a bullet through his head. The deceased was assisted by his family to his house.

4. The deceased was taken to Wau Health Centre ("WHC") on the following day and was examined, given treatment and was asked to reside with relatives. The WHC, due to water problems, was not able to have the deceased sleep in the ward. The deceased was consequently taken to Mairu Block in Wau where he stayed.

5. While at Mairu Block, the deceased continued to receive treatment until 10 June 2005 when he died as a result of, it is alleged, the injuries inflicted by the accused persons on 21 February 2005.

Issues

6. On the facts, two legal issues stand out. It has to be determined, first, whether the accused caused the death of the deceased who died from respiratory complications as a result of an old injury found on his left lung; and, secondly, whether the accused intended to cause the death of the deceased. It is open to the Court, in relation to the second issue, to alternatively convict the accused for murder or manslaughter. In the course of the trial, the manner in which the deceased was assaulted was contested by the accused persons. The Court will consider the assault first.

The alleged assault

7. The alleged assault by the accused upon the deceased is vigorously denied by the accused. The State contends that the accused persons inflicted the fatal injury in the course of a brutal assault on the deceased on 21 February 2005. Two State witnesses testify that they saw the accused persons punching and kicking the deceased even when he was unconscious and lying on the ground. Siwing admits that he assaulted the deceased but he denies punching and kicking the deceased. He only slapped the deceased twice. He went on to state that after he slapped the deceased, the deceased did not immediately fall. The deceased moved backward and then fell when he slipped over on a slippery surface. And, when he fell, he was able to support himself, so he harmlessly fell on his bottom. Kipi maintains that he did not physically assault the deceased. He came to the scene of the assault later and tried to kick the deceased but he was stopped by Siwing.

8. Where there are two versions of facts on how the assault took place, it is obvious that somebody is telling lies. There are various ways for separating lies from truth. One way is by assessing the demeanours and credibility of the relevant witnesses. The other mode is to consider the disputed evidence with any independent and or uncontested evidence.

9. I have observed and noted the demeanours of the accused persons and State witnesses Bintao Rarobu and Wakuo Bintau Sanik. These witnesses gave evidence on the alleged assault. Generally, they all gave good evidence but they added bits and pieces here and there to suit themselves. However, where it matters most, the Court is impressed with the evidence given by the State witnesses. They appear to be ordinary villagers who got confused at times but they were generally consistent and credible. The accused persons, on the other hand, were smarter witnesses but they were not impressive witnesses. On their versions of facts, the Court cannot accept, for instance, that a smart person like Kipi, would charge at the deceased without knowing what the real reason was for Siwing to assault him. The Court does not accept Kipi’s explanation that he wanted to kick the deceased, an old man of more than 60 years, on mere assumption that the deceased who was already on the ground might have insulted Siwing.

10. In addition, it is not denied that the deceased was taken to WHC on 22 February 2006. It is not denied that he was medically examined at WHC and his complaints were recorded into his Helt Buk. It is argued otherwise but there is no evidence which seriously undermines the authenticity of the medical records in the Helt Buk. The entry of the 22 February 2005 in the Helt Buk is crucial. The entry would have been made by a nurse who was not related in any way to any of the accused persons or the deceased. The health worker would not have known that the deceased would die. It would not have been known that the Helt Buk would end up as evidence in Court. The deceased would not have known that he would die when he raised the complaints as recorded in the Helt Buk. There is no evidence that the deceased made up the complaints as recorded in the Helt Buk. Accordingly, the Court finds that the Helt Buk contains genuine records of the complaints of the deceased and the nature of treatment he received at WHC.

11. According to the records of 22 February 2005, as shown in the Helt Buk, the deceased person’s complaints are as follows:

"C/O - Having injury to face and hand body as well due was heavely punch by a young boy @ home during argument yesterday afternoon. Stated was using some of words ... was using sorcery practice @ home.

O/E – Adult old age having

- swelling on nose
- swelling on right eyelid
- punch on mouth causing bleeding, cut on tongue
- punch on Rt hand (elevated arm)
- punch on chest causing pain
- booted on left hip joints causing pain
- hand movable
- couching and slight blood
- unable to eat well
- pain internal region
- afebile and alert-conscious." (my underlining)

12. When the records in the Helt Buk are compared with the two versions of facts on how the assault was inflicted, the medical record is clearly consistent with the State witness’s story. The accused persons say that the deceased fell into a sitting position when he slipped; and there was no further punching and kicking. The accused persons did not make any mention of blood on the face, nose or mouth of the deceased. The reports in the Helt Buk are consistent with the deceased being punched and kicked or booted a number of times. The reports are not consistent with the deceased slipping over as mentioned by Siwing. The complaints are not consistent with somebody falling on his bottom as mentioned by Siwing.

13. Accordingly, the Court accepts the evidence of State witnesses on how the assault took place. The Courts findings, therefore, are as follows. About 3:00 pm or 4:00 pm on 21 February 2005 both accused persons confronted the deceased, Sanik Nalu, on the road near Siwing’s house at Biawen Village. Each of the accused persons was armed with a bush knife and they both wore boots. They punched him and he fell onto the ground. The accused persons continued to assault the deceased on the ground by hitting and kicking him all over his body even when he was unconscious until they were stopped by the deceased’s family members.

14. As soon as the assault was stopped, Siwing stated to the deceased’s family that if they had not arrived, the deceased would have been chopped on the neck. Siwing also stated that if anyone reported the assault, he and Kipi would put a bullet through his head. The deceased was assisted by his family to his house because he was badly beaten by both accused. He was then assisted the following day to WHC for medical attention.

15. On the evidence, the motive for the assault is not apparent. It was suggested that the deceased was suspected by the accused persons for the death of their father also on the same day through sorcery. Unfortunately, the suspicion is not based on any credible evidence. In addition, according to Siwing, when he was mourning his father’s death, the deceased laughed at him. Siwing did not state if the deceased knew of his father’s death and what the deceased was laughing at. Whatever the motive, it is the Court’s further finding that the assault on the deceased by the accused persons was unjustified and unlawful.

Causation

16. The arrests and appearances of the accused in Court seem unusual because the deceased did not die on the day the accused persons assaulted him. The assault took place on 21 February 2005. He died three and half months later on 10 June 2005. Whether the accused persons caused the death of the deceased is a question of fact and a question of law.

17. On the evidence, which was not contradicted, the deceased was healthy and well before the 21 of February 2005. There is evidence that he became unwell after the fight on 21 February 2005 and he remained unwell until his death on 10 June 2005. The Helt Buk clearly shows that the deceased was unwell from 22 February 2005 and remained unwell until his death on 10 June 2005.

18. The accused persons called witnesses who testified that they saw the deceased at various times in various places, namely, Wau and Bulolo. The deceased appeared well to them during those times. These witnesses would appreciate, however, that the deceased is dead; and he is dead because, quite contrary to what they thought, he was indeed unwell. The deceased overstayed at Mairu Block which was closer to WHC because he was not healthy enough to return to his village. His daughter visited him three times a week at Mairu Block. His son in law was always at Mairu Block with him. The deceased fought hard to overcome his condition by moving around but he has not succeeded.

19. The accused persons attempted to show that the deceased fell on a pile of stones when he fell from a house three metres high at Mairu Block. Such attempt was apparent from the line of questioning by defence counsel. But the only evidence before the Court shows that the deceased person’s sick bed was on the ground underneath the house. In any case, the accused persons did not produce any credible evidence to support their claim that the deceased fell on a pile of stones.

20. The deceased was healthy and well before the 21 of February 2005. He became a sick person after the accused persons assaulted him. The Helt Buk clearly shows that he was consistently receiving treatment for the injuries the accused inflicted on him. He was still receiving attention and treatment for those injuries when he died. The deceased was not involved in any other fights, any fall, or any accident between 21 February 2005 and 10 June 2005.

21. Dr. Jack Marcus has given evidence that the injury to the deceased person’s lung is consistent with the type of assault the accused inflicted on him. The injury to the left lung is consistent with application of substantial force such as punching and kicking. Dr. Jack Marcus is not related to the accused persons or the deceased. He is a specially trained person. He is the only independent witness. He knows what he was talking about. What he says, without any other evidence by another doctor, is credible evidence on the cause of death.

22. The Court can make a finding on direct as well as indirect evidence. If the Court is going to make a finding on indirect evidence, it has to be cautious. In this case, the evidence against the accused persons is based on indirect evidence so the Court has to be careful in analysing the circumstantial evidence.

23. Accordingly, on the evidence, there is no other possible explanation for the deceased person’s lung injury. The only practical and logical conclusion that can be drawn, in the circumstances, is that the deceased person’s lung injury was inflicted by the accused persons when they punched and kicked him on 21 February 2005. The nature of the assault by the accused persons upon the deceased is consistent with the complaints and treatment as recorded in the Helt Buk which are consistent with the findings of Dr. Marcus after the autopsy. The Court finds that the accused persons brutally punched and kicked the deceased and caused the injury to the deceased person’s lung.

24. Under s. 295 of the Criminal Code, when a person causes a bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured; or his death from the injury might have been prevented by proper care or treatment. This means that a person who causes an injury which became the cause of death is still responsible for the death even if the dead person did not take proper precautions. It also means that a person who causes an injury which became the cause of death is still responsible for the death even if death might have been prevented by proper care or treatment.

25. In addition, under s. 297 of the Criminal Code, a person shall be deemed not to have killed another if the death of the person does not take place within a year and a day of the cause of death. The law gives a time limit of one year and one day. In this case, the deceased died three and half months after the brutal assault by the accused persons. The deceased died because of the injury to the lung. The accused persons are responsible for the death of the deceased because the death occurred within the one year and one day period under s. 297.

26. The Court is ultimately satisfied that the accused persons each and severally caused the death of the deceased.

Intention to kill

27. It remains to be determined whether the accused persons should be found guilty of wilful murder, murder or manslaughter. In this case, the deceased was an old man of 60 to 65 years old. The deceased was alone. There is no evidence that he was able to defend himself or retaliate. The accused persons wore boots which they used to kick the deceased several times together. The deceased was unconscious when the accused continued to kick him. The assault resulted in a broken arm which is itself a grievous bodily harm. The accused persons also kicked the deceased so hard that an injury was caused to his lung. That injury is also a grievous bodily harm. Repeatedly booting somebody on the head or stomach or body could be deadly, particularly when, as in this case, the deceased was an old man.

28. The Court is, however, not satisfied that the accused persons intended to cause the death of the deceased. Siwing stated that he would have chopped the deceased person’s neck but it was a mere threat after the fight was stopped. The accused persons had the opportunity and would have killed the deceased with the knives they held if they wanted to at the first instance. It is, therefore, unsafe to convict the accused persons on wilful murder.

29. The Court is, however, satisfied that the brutal assault by the accused persons on the deceased resulted in actual grievous bodily harm in two places. An arm was broken and the left lung was injured. The deceased, an old man of 60 to 65 years old was unconsciously lying on the ground when he was repeatedly kicked by two young males who wore boots. In the circumstances, grievous bodily harm or life threatening harm was reasonably foreseeable to the accused persons. The accused persons are smart enough to comprehend the real risk of grievous bodily injury or a life threatening injury during the brutal assault.

30. The Court is, therefore, satisfied that the accused persons intended to cause grievous bodily harm to the deceased during the brutal assault and such harm was in fact inflicted upon the deceased. The deceased died as a result of one of the two grievous bodily harms that were inflicted on him. One of those grievous bodily harms was the cause of the death of the deceased on 10 June 2005. Accordingly, the Court finds each of the accused persons guilty of murder.