State v Jimbira [2009] PGNC 195; N3799 (18 November 2009)

N3799

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 762 OF 2009

THE STATE

V

ANTON JIMBIRA

Wewak: Cannings J
2009: 11, 18 November

VERDICT

CRIMINAL LAW – manslaughter – Criminal Code, Section 302 – trial – elements – whether the accused killed the deceased – circumstantial evidence.

The accused was charged with the manslaughter of his wife. It was alleged that he had an argument with her and assaulted her and that as a result she died of a ruptured spleen. The accused’s son was the only State witness and said that his father only slapped his mother on the face and that he stopped him from further assaulting her and that when he returned to his mother ten minutes later she was dead. A post-mortem report confirmed that the deceased died of a ruptured spleen. The accused gave sworn evidence that he only slapped the deceased. The State argued that the circumstantial evidence pointed only to the conclusion that the accused’s assault of the deceased led to her death.

Held:

(1) The offence of manslaughter has three elements: (a) the accused killed the deceased; (b) the killing was unlawful; (c) the circumstances did not constitute wilful murder, murder or infanticide.

(2) As to element (a): the question to ask, by virtue of the definition of "killing" in Criminal Code, Section 291, is whether the accused caused the death of the deceased directly or indirectly by any means.

(3) The proven facts led reasonably to only one conclusion: that the accused killed his wife.

(4) As to element (b), the accused did not rely on any specific defence so the killing was not authorised, justified or excused by law.

(5) As to element (c), the accused was not charged with wilful murder, murder or infanticide.

(6) The State proved the three elements beyond reasonable doubt. Therefore the accused was convicted of manslaughter.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498

TRIAL

This was the trial of an accused charged with manslaughter.

Counsel

D Mark, for the State
A Hombunaka, for the accused

18 November, 2009

1. CANNINGS J: The accused, Anton Jimbira, a 50-year-old East Sepik man, has been charged and indicted for the manslaughter of his wife, Rosalina Anton. The offence is said to have been committed at their family home at Yaungange No 1 in the Maprik District at 7.00 pm on 14 March 2009. He pleaded not guilty so a trial has been held.

2. The State’s case is that the accused and his wife had a domestic argument. He assaulted her and within ten minutes of the assault she died of a ruptured spleen. The accused admits to arguing with his wife and slapping her on the cheeks and gave sworn evidence that that is all he did.

ELEMENTS

3. The accused is charged with manslaughter under Section 302 of the Criminal Code, which states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

4. This offence has three elements:

1. kill another person;

2. unlawfully;

3. under such circumstances as not to constitute wilful murder, murder or infanticide.

First element: killing another person

5. There is a definition of killing in Section 291:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

Second element: killing must be unlawful

6. Section 289 states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

7. The second element is thus that the killing of the deceased was not authorised, justified or excused by law.

Third element of manslaughter: no intention to kill etc

8. All that is necessary to prove here is that the circumstances in which the deceased was killed were not such as to amount to any of the other three homicide offences: wilful murder (where there must be an intention to kill); murder (which is committed where, for example, the killer intended to do grievous bodily harm to the victim or some other person); and infanticide (where a woman by wilful act or omission causes the death of her child under the age of 12 months).

Alternative verdicts

9. If all elements of manslaughter are not proven the court can enter an alternative verdict under Sections 539(3) and (4) (charge of murder or manslaughter), which state:

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(a) unlawfully doing grievous bodily harm to such other person; or

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

(c) unlawfully wounding such other person; or

(d) unlawfully assaulting such other person.

ISSUES

10. The primary issues are:

1. Did the accused kill the deceased?

2. If yes, was the killing unlawful?

3. Is the third element of manslaughter proven?

4. Should an alternative conviction be entered?

1 DID THE ACCUSED KILL THE DECEASED?

11. Determination of this issue requires:

- a summary of the evidence for the State;

- a summary of the evidence for the defence;

- a preliminary assessment of the State’s case;

- a summary of the defence counsel’s submissions;

- an assessment of the defence counsel’s submissions; and then

- a final determination of the question whether the accused killed the deceased.

EVIDENCE FOR THE STATE

12. It consisted of:

- a post-mortem report;

- record of interview;

- oral evidence by the accused’s son.

Post-mortem report

13. A post-mortem examination was conducted by Dr Regina Nagiria at Wewak General Hospital on 18 March 2009, two weeks after the death, and she prepared a post-mortem report (exhibit B). The cause of death was "blunt abdomen trauma splenic injury".

14. Significant, abnormal findings were:

1. Swollen left lateral inferior parotid gland.

2. Laceration measuring size of a one toea.

3. Distended abdomen.

4. Abdominal haemorrhage (internal bleeding).

5. Posterior splenic ileum has multiple lacerations.

Record of interview

15. Asked how his wife died, the accused stated:

We fought and I slapped her on both cheeks and she died.

16. He said that they argued over food. He was told that he would be charged with beating up his wife and causing her death and that he could remain silent. He was then asked if he had anything to say. He stated:

Yes, I am very sorry for what I did to my wife. I did not mean to kill my wife but I am so worried for her. Back in the community I compensated my wife’s relatives K5,000.00 cash and two native shell money and they agreed and got the payment. I have eight children to look after, four are attending school and nobody is to pay their school fees. That is all.

Oral evidence of the accused’s son

17. Hilary Jimbira is aged 18. He is the accused’s eldest son. He was present when his father assaulted his mother. The incident started when his mother was upstairs in the house and his father was on the ground, beneath the house. They argued about food and his father got cross and went up into the house to hit his mother. With her was his deaf-and-dumb ten-year-old sister, Vincentia.

18. He saw his father slap his mother once on each cheek. He told his father ‘that’s enough’, so he stopped and went back downstairs and he followed him. His father did not do anything in addition to slapping her.

19. At one stage of his examination-in-chief Hilary said that his mother looked normal when she was slapped. At another stage he said that she fell on to a chair when she was slapped and this caused her spleen to rupture. Then he said he did not know how she fell. She might have slipped on the floor when she was preparing food.

20. Ten minutes later he heard Vincentia cry out so he and a family friend, Isidore, went upstairs. His mother had vomited and she was lying on a chair, dead. There was no one else other than Vincentia in the house. Vincentia did not explain to him how their mother had died. He and Isidore brought his mother downstairs and he informed his father of what had happened.

21. In cross-examination he repeated that his father had only slapped his mother on the face, once on each cheek. He did not slap her on any other part of her body. Vincentia did not call out immediately after he and his father went downstairs. It was not until ten minutes later that she called out.

22. His mother had started the argument. She was cross with her father for cooking food in the garden and bringing scraps to the house. She asked him three times who gave him that food. He was downstairs when she was getting cross with him so he walked upstairs and slapped her.

EVIDENCE FOR THE DEFENCE

23. The accused gave sworn evidence. There was no other evidence for the defence.

24. Anton Jimbira agreed with his son’s evidence. He said that he was downstairs and his wife who was upstairs asked him three times about the food he had brought back from the garden. That made him upset so he went upstairs. She was sitting down on a small chair, serving food, and he slapped her once on each cheek. Hilary was present and told him ‘that’s enough’ so he stopped.

25. She just sat there when he slapped her. She was angry with him for slapping her but she looked normal and he went back downstairs. Hilary followed him. He does not know what happened upstairs to cause his wife to die.

26. Hilary heard Vincentia crying and went upstairs to see what the problem was. That was about ten minutes after he had come downstairs.

27. In cross-examination he said that his wife was sitting on the chair when he slapped her and he was standing up. His legs did not touch her body. He was angry with her but not very angry. She did not duck to avoid his blows. She stayed sitting upright.

28. After he came downstairs he did not hear any noise or struggle from inside the house. He has no idea how his wife suffered a ruptured spleen.

PRELIMINARY ASSESSMENT OF THE STATE’S CASE

29. The medical evidence reveals that the deceased died due to a ruptured spleen. A spleen does not normally rupture spontaneously. It is well known that it is exceedingly rare for a spleen to rupture in that way. It almost invariably requires the infliction of considerable force by a blunt object. It can be caused by a heavy fall on to an object such as a tree stump or by a substantial blow to the abdomen or back, eg by a kick or a punch. As well as the ruptured spleen the deceased suffered other injuries consistent with her being badly assaulted. There is no direct evidence that the accused was responsible for any assault other than slapping his wife twice on the face. However, the circumstantial evidence supports a finding that it was the assault that led to her death.

DEFENCE COUNSEL’S SUBMISSIONS

30. Ms Hombunaka submitted that the State had fallen short of proving that the accused killed the deceased. There were only two witnesses and their evidence was consistent: the accused slapped the deceased only twice on the face. She was not unduly affected. She remained sitting in the chair. She was in no immediate distress and it was not until ten minutes later that there was any indication of anything being wrong with her. The accused’s actions could not be connected to the death of his wife. Even though circumstantially he could be suspected of being responsible for her death, the evidence was insufficient to prove beyond reasonable doubt that he killed her.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

31. Ms Hombunaka has validly focussed on the consistency in the evidence of the only State witness and the evidence of the only defence witness and on the lack of direct evidence that the accused did anything more severe than slap the deceased twice on the face. If that evidence is accepted as truthful it is difficult to conclude that the accused caused his wife’s spleen to rupture.

32. But should the evidence be regarded as truthful? Is it open to the Court to consider the possibility that both the State witness and the defence witness are lying? I consider that yes, this possibility should be considered, especially in this case where a young man, Hilary, was expected to give evidence against his father who was on trial for the manslaughter of his wife (Hilary’s mother). There is no rule of law that says the Court must accept either the evidence of a State witness or the evidence of a defence witness. The Court is not prohibited from rejecting the evidence of both the State and the defence.

31. With those considerations in mind I will now apply the principles about entering a conviction based on circumstantial evidence. They were set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

- the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

- to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

32. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

- do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

33. The proven facts are that the accused assaulted his wife in the upstairs area of their house in the presence of two other people, Hilary and Vincentia. Immediately after assaulting his wife, the accused and Hilary left, leaving her with Vincentia, their ten-year-old daughter, who is deaf-and-dumb. Ten minutes later, his wife was dead. No one else was in the house during that period. No noises or commotion were heard from inside the house other than Vincentia’s cries that caused Hilary and Isidore to go upstairs and find that their mother had vomited and was dead on a chair. The post-mortem report reveals that the deceased died from a ruptured spleen and suffered other injuries consistent with a serious assault. When the accused was interviewed by the police he indicated through his answers (eg ‘I slapped her on both cheeks and she died’ and ‘I did not mean to kill my wife’) that he considered that he had killed her, unintentionally.

34. There are only two reasonable inferences to draw from those facts. One is that the blows to the face caused the deceased to fall or trip on to a blunt object such as a bench or chair; and this was a delayed reaction that occurred after the accused and Hilary went downstairs. The other is that both Hilary and his father gave false evidence about what happened.

35. The second inference is far more likely. Having observed the demeanour of both Hilary and his father in the witness box and taken into account the invidious position in which Hilary was placed – by being asked to give evidence against his father – I am satisfied that both were lying. The assault was much worse than they made it out to be. I find that the accused inflicted at least one severe blow to the deceased’s abdomen or back and that this is what caused her spleen to rupture. He therefore directly killed her.

36. If I am wrong in drawing that conclusion, the only other reasonable hypothesis – that by slapping her, this caused her to fall on something and rupture her spleen – also results in the conclusion that he killed the deceased, albeit indirectly.

FINAL DETERMINATION OF WHETHER THE ACCUSED KILLED THE DECEASED

37. Whichever version of the evidence is accepted the only reasonable hypothesis to draw from the proven facts is that the accused killed the deceased. The first element of the offence has been proven beyond reasonable doubt.

2 WAS THE KILLING UNLAWFUL?

38. The accused did not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased was not authorised, justified or excused by law. The second element is proven.

3 WAS THE THIRD ELEMENT OF MANSLAUGHTER PROVEN?

39. Yes. This element is a formality as the accused was not charged with wilful murder, murder or infanticide.

4 SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

40. No. It is not necessary to consider an alternative verdict as all elements of the offence of manslaughter have been proven beyond reasonable doubt.

VERDICT

41. Anton Jimbira, having been indicted on a charge of manslaughter under Section 302 of the Criminal Code, is found guilty of manslaughter.

Verdict accordingly.

____________________________

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