State v Ruga [2007] PGNC 52; N3152 (13 June 2007)

N3152

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 149 OF 2003

THE STATE

V

BRIAN RUGA

Buka: Hartshorn J.
2007: 6, 7, 13 June

CRIMINAL LAW – Murder - Trial – s.297, 300 - Criminal Code

Cases Cited:

Papua New Guinea Cases

John Beng v. The State [1977] PNGLR 11
Biwa Geta v. The State [1988-89] PNGLR 15,
The State v. Lineth Aselin [1991] PNGLR 408
Jimmy Ono v. The State (2002) SC698.

Overseas Cases

R v. Smith [1959] 2 All ER 193
R. v. Jordan [1956] 40 Cr App R 152

Counsel

R. Luman, for the State
P. Kaluwin, for the Accused

13 June, 2007

1. HARTSHORN J. The accused Brian Ruga has pleaded not guilty to murdering Lawrence Talei on 3 July, 2003 at Buka.

Undisputed facts

2. The undisputed facts are that at about 2 pm on 1 January, 2003 Brian and his wife were at Habitsina Hamlet in Madasang village, Buka. Brian was drunk. Lawrence and Victor were also present. There were other men present who were also in various stages of intoxication having celebrated the New Year for 2003. Lawrence approached Brian, an incident occurred, Lawrence landed onto a pile of timber and then landed on his head on the ground. Lawrence was unable to move and was in great pain. Relatives of Lawrence began to approach Brian and Victor stopped them. Lawrence was taken to hospital and was diagnosed as a quadriplegic. Lawrence died on the 3 July 2003. He died after developing very bad pressure sores which led to serious poisoning of the blood, septicaemia, causing his death.

State witnesses

3. The State called two (2) witnesses, Victor and Hotence Victor said that he had been drinking with his in-laws, Elizabeth and her husband that night until the next day. They completed their drinks and then told stories until the morning. Victor then started walking to go to his village at Hangan to look for more beer. On the way he met Lawrence and told him to go with him to look for beer. Lawrence said he was not feeling well to drink and that Victor should go himself.

Victor then met a person called Mr. Hanga and had some homebrew with him. Victor then went to where Brian was drinking and started talking with Lawrence who had arrived independently of Victor. Brian and his wife started arguing. Lawrence then went and stood in the middle of Brian and his wife to try and stop them arguing. Brian then said to Lawrence words to the effect of "you want to help your sister, I will kill you", Lawrence continued to try to stop Brian and his wife arguing. Then in a fast movement, Brian lifted Lawrence and dumped him backwards and twisted in the course of lifting Lawrence. As a result Lawrence landed on his back onto a pile of timber about 1 m high. Lawrence called out, "you’ve spoiled me already", and then Lawrence landed on the ground on his side.

Victor said that he was between 4 to 6 meters away from the incident and that there was nothing impeding him from seeing the incident.

After Lawrence had fallen onto the ground, some other men who were drunk who are relatives of Lawrence wanted to confront Brian and fight with him, but Victor told them not to do anything as what had happened was not serious. Victor then took the knife off Brian that he was holding, bent it and threw it towards Brian's in-laws. Brian had previously taken the knife from his wife and had been swinging it around to defend himself.

Victor said that although he had been drinking the night before and in the morning, he had not been drinking through to daybreak. He then later had some homebrew with Mr. Hanga. He considered himself to be a bit drunk but that he knew what he was doing and remembered what he saw. When confronted with the statement that he made to the police in which he said, "We were just sitting quietly and sifting out drinks till daybreak ..." he said that he was not asked specific questions by the police and was asked to give his version of what had happened. He said the version that he had told in court was correct.

4. Hotence said that she remembered the incident on 1 January, 2003. At the time she was sitting outside her kitchen was between 7.30 and 8 a.m. in the morning. She said she had breakfast earlier in the morning. She said that she heard people arguing but that she did not know who those people were. Hotence decided to go closer to have a look but remained within the yard of her house. She estimated the distance to be 40 m between her and where the group of people were. When she moved to her yard she saw a person whom she was later told was Brian, holding the legs of a person, Lawrence, above his ankles, with Lawrence hanging down with his head about to hit the ground. She said that Brian was standing up at the time while holding Lawrence's legs and then Lawrence fell down, hit the pile of timber and hit his head on the mud.

Hotence said that her view of the incident was not impeded. After Lawrence had fallen to the ground, she said that people came to assist him and he was taken to hospital. She said that she stood and watched and then went to her in-laws house.

Under cross-examination Hotence maintained that she saw what she described and was not told what had happened. She said there were no flowers around her yard to impede her view. Hotence stood up and indicated to the court how she said that Brian was holding Lawrence's legs and the height of the pile of timber upon which Lawrence landed before hitting his head on the mud. She said that although she could not see clearly the position that Brian was standing because there was a pile of timber in front of him she could see Brian’s face. She estimated the height of the pile of timber as being about 1 m high.

Defendant’s evidence

5. After an unsuccessful no case to answer application, Brian gave evidence. On the day in question Brian said that he was drinking with others when an in-law of his began to throw drinks on the ground and turn the volume knob of the radio up and down. His name is Sabin. Brian said that he told him to go away and leave them alone. When Sabin was leaving them, he informed Brian’s wife that Brian had not given any drink to Sabin. Brian's wife became upset when she was told this. She got hold of a knife and started to begin to argue with Brian.

The radio was on loud at the time and he did not initially realise that his wife was talking to him. When he did realise he began to approach her and it was then that he felt someone hold his shoulder from behind. Brian said that in a quick motion he brushed the hand from his shoulder without turning around. He said that he did not know who the person was who had put his hand on his shoulder and that the person had fallen down. He said that he never did talk to his wife as he saw people approaching him. He then turned around and saw Lawrence lying on the ground. The people that were approaching him wanted to fight him because of what they thought that he had done to Lawrence. Victor told them that Brian had not punched Lawrence and that Brian had merely removed Lawrence's hand from his shoulder and he fell to the ground.

Brian said that he never removed a knife from his wife and never at any time held a knife. He said that he never tried to lift Lawrence, he did not know where he came from or whether he had been drinking. He said that he never threatened Lawrence and that Lawrence did not come between him and his wife. He said that at no time did he hold Lawrence's legs, he knew that Lawrence was distantly related to his wife and that he would not knowingly hit one of his in-laws when he was staying at his in-laws.

In cross examination Brian admitted that he was drinking homebrew since the previous night celebrating New Year, that he was drunk, but knew what he was doing. He denied that he was very angry with his wife and was arguing with her. He initially said that his wife was about 20 m away from him and that he began to walk over to her when he realised what Sabin had said to his wife. He then conceded that his wife was a lot closer to him. He maintained that all he did was to brush off the hand from his shoulder and he did not know whose hand it was at the time.

6. It is necessary for me to determine which evidence is more probable by assessing the credibility and demeanour of Brian and the witnesses Victor and Hotence.

7. Both Victor and Hotence identified Brian at the scene of the incident. Brian in his evidence, confirms that Victor was at the scene after the incident but he does not mention Hotence. The law on identification evidence is settled in this jurisdiction.

8. In assessing the identification evidence, I apply the principles set out by the Supreme Court in John Beng v. The State [1977] PNGLR 11, Biwa Geta v.The State [1988-89] PNGLR 153, and Jimmy Ono v.The State (2002) SC698.

9. Although I do not believe it is strictly necessary to do so in this case, out of an abundance of caution I warn myself;

of the dangers of relying on the correctness of identification to support a conviction.

that if the quality of the identification evidence is good the matter should proceed to verdict but if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.

of the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that a witness is both honest and accurate.

that in assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?)

that if there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

Quality of evidence

10. As to the evidence given by Victor, I am of the view that it was truthfully and honestly given. Counsel for the defence submitted that Victor’s evidence was honestly but mistakenly given. The defence queried Victor’s evidence because he said that he had taken shortcuts in the answers that he gave to the police when they were conducting the interview of him, that he was drunk and that his evidence therefore, was unreliable and there were inconsistencies in his evidence given to the court when compared to his answers when interviewed by the police.

As to him taking shortcuts in his answers to the police, Victor said that he was not asked specific questions by the police and was told to give his version of events. Consequently his answers to the police were not as specific as the answers he gave to specific questions put to him in court.

As to the inconsistencies, the first was that in his statement to the police he said he was 10 m away from the incident but in court he said that he was between 3 and 4 m away. Secondly, in his interview with the police, Victor said that he was sitting quietly and sifting his drinks till daybreak of New Year 1 January 2003 when in his evidence to the court he said that he did not drink until daybreak but stayed awake telling stories. Earlier, he said that they were drinking until the drinks ran out.

11. It has to be remembered that the incident occurred on the 1 January 2003. Victor gave his statement to the police on 7 July 2004 and he again gave his evidence, to the court, on 6 June 2007. It would be unnatural if there were not some inconsistencies in one's recollection of events over such a period of time. In my view the evidence that Victor gave substantially was the same and was not inconsistent. As to the level of intoxication of Victor, there is no doubt that he had been drinking. In court, when asked on a number of occasions, he maintained that although he had been drinking and that he was intoxicated, he knew what he was doing and could remember what had happened. In his police interview he said that he had been sifting his drinks, which I interpret to mean sipping his drinks. In his evidence to the court he said that he went to look for some more beer. This is consistent with his statement that they stopped drinking when they ran out of drinks and then told stories until daybreak. He said that later that morning he had some homebrew with Mr. Hanga but not that much. I am of the view that Victor’s level of intoxication was such that he was affected by alcohol but that he knew what he was doing and was aware of events happening around him. Brian confirms what Victor said about Victor stopping the persons approaching Brian after the incident although he disputes that Victor took a knife off him.

12. As to the evidence of Hotence, she appeared to be the only person that day who had not been drinking. Her evidence at the beginning was given erratically but after a while was given more confidently. I am of the view that this was because Hotence initially was nervous about giving evidence in a court of law, a strange environment that was a new experience for her. Hers was not much more than a fleeting glance of what happened towards the end of the incident. To my mind Hotence described quite credibly what she saw, how she managed to see it and the relationship between Brian, the pile of timber and Lawrence. I am of the view that the evidence of Hotence was given honestly and truthfully.

13. As to the evidence of Brian, it is evident that he was considerably, if not very intoxicated at the time of the incident and as a consequence his evidence is not that reliable. He gave conflicting evidence as to where he was in relation to his wife and sometimes was evasive and mumbled his answers.

14. As to whose evidence is more probable. The evidence of Victor and Hotence to my mind, complement each other. It has to be remembered that they viewed the incident from different places and angles. Victor was near the scene of the incident and says that he saw Brian lift Lawrence quickly and turn with Lawrence falling onto the timber, which from Victor's perspective was at the back of Brian, and then to the ground. Hotence, about 40 m away saw the face of Brian. This was at the time that he would have turned after lifting Lawrence. From Hotence’s perspective Brian was at the back of, but above the pile of timber and at that time Brian was holding the legs of Lawrence as his body was hanging down, with his head about to hit the ground, on the other side, the front side from the perspective of Hotence, of the pile of timber.

15. The defence says it would be impossible for Brian to have lifted someone in excess of 80 K. in weight over his shoulder. I am of the view that someone who is considerably intoxicated and who is angry, in a quick movement, could lift such a person, not over his shoulders, but up and then twisting around, onto the pile of timber. Once on the pile of timber, the momentum carries him over the top of the pile, when Brian is then holding his legs towards his feet, Brian lets go and Lawrence falls to the ground.

16. The scenario that Lawrence tripped and fell onto the pile of timber, after having his hand brushed off Brian’s shoulders, to my mind does not seem credible.

17. The argument that Brian would not fight with an in-law when he is staying with his in-laws is probably correct but I am of the view that that is not what happened here. Victor said that Lawrence went up to Brian and his wife to try and stop them arguing. Brian said words to the effect that he would kill Lawrence. Not to be deterred, Lawrence tried again. Brian, who was considerably intoxicated became angry at this interference between him and his wife and on the spur of the moment decided to move Lawrence out of the way. He did this by lifting and turning him on to the pile of timber. At the time Brian was not considering fighting Lawrence but merely moving him out of the way.

18. At the time that Brian decided to move Lawrence out of the way, to my mind the evidence does not show that Brian had the intention to cause grievous bodily harm to Lawrence. There is evidence to show that Brian was angry with Lawrence for trying to interfere between him and his wife and as I have said, the evidence shows that Brian moved quickly to move Lawrence out of the way and not to cause him grievous bodily harm.

Cause of death

19. The next question is what was the cause of death of Lawrence?

It is not in dispute that Lawrence died on 3 July 2003 some 6 months after the incident. The post mortem report of Dr. Morris Tunamo says that " after being discharged from hospital, he developed very bad pressure sores, which eventually led to serious poisoning of the blood by germ (septicaemia), and thus, causing his death". In the case of The State v. Lineth Aselin [1991] PNGLR 408, the question of the cause of death was considered. Doherty J. referred to the English case of R v. Smith [1959] 2 All ER 193 (a pre-Independence English case) in which causation in murder was considered. The Court of Appeal said (at 198):

"... if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of the death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original would merely part of the history can it be said that the death does not flow from the wound."

The court also cited with approval R. v. Jordan [1956] 40 Cr App R 152 which stated (at 157): "that death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury", but that the same principle does not apply where the treatment applied is abnormal.

Here there has been no evidence that the treatment rendered to Lawrence was abnormal. I presume therefore that the treatment that Lawrence received at the hospital and later back at his home was the normal treatment that a person would receive for his condition in Papua New Guinea. On the evidence before me I can see no new cause that is either unreasonable or extraneous coming in to disturb the sequence of events in the situation before me.

Decision

20. I am satisfied for the reasons given that there is sufficient evidence to convict the defendant, Brian Ruga for the death of the deceased. I am not satisfied that there is evidence that he had the intention to cause grievous bodily harm.

21. Accordingly pursuant to s.539(2) Criminal Code, I convict Brian Ruga of the crime of manslaughter of the deceased Lawrence Talei.

___________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant