State v Manwau [2009] PGNC 198; N3797 (4 December 2009)

N3797

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1452 OF 2006

THE STATE

V

MOSES MANWAU

Wewak: Cannings J
2009: 16, 17, 18, 19, 20 November
Waigani/2009: 4 December

VERDICT

CRIMINAL LAW – killing unborn child – Criminal Code, Section 312 – trial – elements – whether the accused prevented an unborn child from being born alive – circumstantial evidence.

The accused is a doctor. He was alleged to have deliberately and unlawfully performed a medical procedure (an abortion) on a pregnant 14-year-old girl who had been brought to him by the girl’s aunt, which resulted in the baby which the girl was carrying being stillborn. He is charged with an offence under Section 312 (killing unborn child) of the Criminal Code.

Held:

(1) The offence of killing an unborn child has three elements: (a) there must be a woman who is about to be delivered of a child; (b) the accused must prevent the child from being born alive; (c) by an act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child.

(2) As to element (a): "woman" means a female person of any age; "about to be delivered" does not put any limit on the period before the end of the term of pregnancy which it applies to; and "child" refers to an unborn child and includes a foetus (however that term is described).

(3) As to (b): it must be proven that the direct or indirect consequence of the accused’s act(s) or omission(s) was that the child was not born alive, ie that there was a causal connexion between the accused’s acts or omissions and the child not being born alive.

(4) As to (c): it must be proven that the acts or omissions were unlawful, ie that they were not authorised or justified by law; in particular that any defence raised by the accused, eg performance of a surgical operation in good faith and with reasonable care under Section 280 (surgical operation) does not apply.

(5) In the present case elements (a) and (c) were not in dispute as (a) it was clear that the complainant – the 14-year-old girl – was pregnant and (c) the accused’s defence was a general denial rather than any specific defence.

(6) The only contentious element was (b): did the accused by any act or omission prevent the child being born alive?

(7) The State relied on circumstantial evidence, which meant that the court had to apply the principles about entering a conviction based on circumstantial evidence arising from 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.

(8) Here the proven facts did not reasonably lead to only one conclusion: there was another reasonable hypothesis available to explain the death of the child.

(9) The accused was accordingly found not guilty.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Jack Gopave v Francis Kugame (2003) N2482
Paulus Pawa v The State [1981] PNGLR 498
The State v John Wanjil [1997] PNGLR 64

TRIAL

This was the trial of an accused charged with killing an unborn child.

Counsel

D Mark, for the State
M Murray, for the accused

4 December, 2009

1. CANNINGS J: The accused, Moses Manwau, is a doctor in private practice in Wewak, East Sepik Province. He is charged with one count of killing an unborn child contrary to Section 312 of the Criminal Code. He is alleged to have induced an abortion on a pregnant 14-year-old girl. The accused pleaded not guilty so a trial has been held.

2. The girl – the complainant, "M" – is from Morobe Province and she had been brought to Wewak in 2003 to be raised by her uncle and aunt. The State’s case is that the uncle sexually abused M over a long period and in early 2006 made her pregnant. The aunt became aware of this and in May 2006 as M was approaching her fifth month of pregnancy resolved to arrange an abortion. (The uncle and aunt have been committed for trial on various charges and are awaiting trial.) It is alleged that the aunt took M to the accused, Dr Manwau, on Wednesday 31 May, that he that day carried out a procedure on her in his clinic and that the next day, Thursday 1 June, M went into labour and was taken to Wewak General Hospital where she gave birth to a stillborn baby.

ELEMENTS

3. Section 312 (killing unborn child) of the Criminal Code states:

A person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

4. This offence has three elements:

(a) there must be a "woman" who is "about to be delivered" of a "child";

(b) the accused must "prevent the child from being born alive";

(c) by an "act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child".

Element (a): woman about to be delivered of a child

5. There is no definition of "woman" in the Criminal Code and given its context in this provision the term must be given a more expansive definition than its ordinary meaning, which is an adult female human being. Woman should be read as including a female person of any age. As to "about to be delivered" the provision does not put any limit on the period before the end of the term of pregnancy which it applies to. As to "child", this refers to an unborn child and includes a foetus (however that term is described).

Element (b): preventing the child from being born alive

6. The State must prove that the direct or indirect consequence of the accused’s act(s) or omission(s) was that the child was not born alive, ie that there was a causal connexion between the accused’s acts or omissions and the child not being born alive.

Element (c): unlawfulness of acts or omissions

7. The State must prove that the accused’s acts or omissions were unlawful, ie that they were not authorised or justified by law. A defence that might apply in this sort of case is prescribed by Section 280 (surgical operation) of the Criminal Code, which states:

A person is not criminally responsible for performing in good faith and with reasonably care and skill a surgical operation on—

(a) any person for his benefit; or

(b) an unborn child for the preservation of the mother's life,

if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.

Alternative verdicts?

8. When an accused is indicted under Section 312 there is no alternative verdict available. By contrast, if the accused is charged with wilful murder, murder or manslaughter and if on the evidence it appears that the person alleged to have been killed was a child of which a woman had recently been delivered an alternative verdict of guilty under Section 312 can be entered under Section 540 (homicide of a child, alternative verdicts).

9. The accused will be either convicted under Section 312 or acquitted.

THE KEY ISSUE

10. In the present case elements (a) and (c) were not in dispute as it was clear that the complainant, M, was pregnant and the accused’s defence was a general denial rather than any specific defence such as Section 280. The only contentious element was the second: did the accused by any act or omission prevent the child from being born alive?

DID THE ACCUSED PREVENT THE CHILD FROM BEING BORN ALIVE?

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 prevented the child from being born alive.

EVIDENCE FOR THE STATE

12. The complainant, M, did not give evidence. She is now living in Morobe and the State was unable to secure her presence at the trial. I refused an application by the State under Section 555 of the Criminal Code for adjournment of the trial to allow time for her to be brought to Wewak. As more than one month’s notice of the trial was given to the State, I was not satisfied that the State (the Office of the Public Prosecutor and the Police) had taken reasonable steps to locate M. It was more than three years since the accused was committed for trial and he has a right under Section 37(3) of the Constitution to a fair hearing within a reasonable time and he is a practising doctor and his professional reputation and standing as well as his integrity are at stake.

13. The State’s case was built on oral testimony (with references in some instances to previous reports and statements) by six witnesses:

1. Dr Jimmy Kambo, the doctor who delivered the stillborn baby;

2. Rose Mauyat, a family friend;

3. Snr Const Lynne Sailan, police investigator;

4. Veronica Kurufher, provincial welfare officer;

5. Catherine Wangi, M’s class teacher;

6. Snr Const Maggie Kavun, police investigator.

14. (1) Dr Jimmy Kambo is the Medical Registrar, Obstetrics & Gynaecology, at Wewak General Hospital. He was on duty on 1 June 2006 when M was brought to the labour ward with pre-term labour pains. His report of the incident reveals that she was "nervous but co-operative". He conducted an ultrasound scan which revealed:

Intra-uterine single non-viable pregnancy, no foetal heart present, no liquor present and bi-parietal diameter (BPD) equivalent of 20 weeks gestation.

15. The report continued:

She progressed on to deliver a female fully formed 450 g premature fresh stillbirth baby at 1.28 pm. The placenta was delivered complete at 1.35 pm. ... Post-delivery vitals were stable so she was transferred to the post-natal ward and was discharged on 2 June 2006.

Conclusion

The young girl is 14 years or may be younger, has had penetrative sexual intercourse and was five months pregnant. The pre-term labour pain was induced by Misoprostol and the artificial rupture of membrane (ARM) done at the private clinic. She was also infected with syphilis as with positive VDRL report.

16. In evidence-in-chief Dr Kambo said that his conclusion about the cause of the death of the baby – that M had been given Misoprostol and her membrane was artificially ruptured – was based on what had been told to him about the circumstances of the pregnancy by those who had accompanied M to the labour ward: M’s aunt and two police officers. He was told that something had been done at Dr Manwau’s clinic the previous day.

17. He explained that Misoprostol is a drug administered in tablet form through the vagina to induce labour. It was not appropriate for it to be administered in this case as M was only five months pregnant but it might have been the cause of the premature birth.

18. As for the artificially ruptured membrane, this was also a likely cause of death as he noted that the cervix was dilated and the fluid had gone.

19. As for the likely time of death of the baby Dr Kambo said that it had probably died within 24 hours before birth. He based this opinion on the appearance of the baby and also the generally healthy condition of M.

20. As for the syphilis infection Dr Kambo said that if it is untreated it can cause premature delivery. However, some women have syphilis but proceed to have a normal delivery. He added that his record of this infection was based only on a blood test and he could not say that M was showing any clinical symptoms of syphilis.

21. In cross-examination Dr Kambo agreed that the conclusion in his report – that Misoprostol was administered and/or the membrane was artificially ruptured – was speculative and presumptive, as it was based on information received from others. He said, however, that because M was a healthy young girl and was physically capable of giving birth to a healthy baby it was natural to suspect that somebody had done something to induce pre-term labour. The stories told to him – which included the claim that the day earlier M had been ‘normal’ – supported his suspicion and that is why he drew the conclusions stated in his report.

22. Asked whether there was any evidence of the use of Misoprostol Dr Kambo said the only way to confirm this was by a blood test of the mother or the baby but no tests had been done as Wewak General Hospital lacked the lab facilities. He doubted whether it was possible to do the tests anywhere in PNG; probably blood samples would have to be sent overseas.

23. Questioned as to his statement about artificial rupture of the membrane Dr Kambo said he saw no sign of surgical intervention and no sign of the foetus being killed. It was a normal, fully formed foetus. Spontaneous rupture of the membrane (without artificial intervention) was a possibility. It was also possible that someone might have applied severe pressure to the mother eg by standing on her tummy. Rupture of the uterus can occur in such situations but that was a remote possibility in this case as no one including M alleged that anything of the sort happened and there was no suggestion that M had had water running down her legs.

24. Dr Kambo confirmed that an untreated syphilis infection can cause the death of a foetus, especially if there is no treatment before the end of the 15th week of pregnancy. He was aware of the allegation that M had been sexually abused but that was not the reason he tested for syphilis. Testing for sexually transmitted diseases is a baseline study undertaken when any pregnant teenager is admitted to the labour ward, Dr Kambo said.

25. (2) Rose Mauyat is employed by the East Sepik Provincial Aids Committee. She is a friend of M’s aunt, "A". On 31 May 2006 A asked her if she could help transport M to the doctor, so she helped her. She met M and A and became aware that M was pregnant. She spoke with A about the problem and they prayed together.

26. In the early hours of the next morning, about 3.00 or 4.00 am, A came to her house and woke her up to tell her that M was vomiting and having pains. So they drove to where M was staying and picked her up and then they all went to Dr Manwau’s residence and woke him up. It was still dark and the doctor told everyone to stand some distance away while he spoke to M. Rose overheard him say to A that "it would take six or seven hours before anything could happen". That is all that she heard. She does not know why the doctor said that. They were outside his residence only for a short time. Then they took M back to her (Rose’s) house by which time it was daybreak.

27. Later that morning Rose went to Wewak General Hospital regarding another matter and while she was there M was brought into the labour ward. There were a number of people accompanying her so Rose left and then came back at 2.00 pm and went to check on M at the labour ward to find that M had given birth already and that the baby was dead. She was told by a nurse that the baby had died due to the after-effects of an injection. Prior to hearing that she thought that nature had taken its course and it was a normal miscarriage but when she heard that, she was shocked.

28. (3) Snr Const Lynne Sailan is a police investigator. She arrested the accused and conducted the police interview on 3 July 2006 at which the accused exercised his right to remain silent. Soon afterwards she assisted the Provincial Welfare Office in moving M out of Wewak and returning her to the village in Morobe. It was not considered safe to leave her in Wewak as the perpetrator of the sexual abuse was her uncle.

29. Snr Const Sailan secured a search warrant and with four other police officers conducted a search of the accused’s clinic in mid-June 2006. She conceded in cross-examination that no incriminating evidence had been found though she said that in her view the clinic had been rearranged. They found only office furniture and stationary such as receipt books. There were no surgical instruments.

30. She agreed that she apologised to the accused for arresting him, saying that she was being ‘pressured from the top’, and said that she had instructions from the then Provincial Police Commander to arrest the accused.

31. (4) Veronica Kurufher has been the East Sepik Provincial Welfare Officer for 16 years. An important part of her job is protecting the rights and welfare of children. An undated statement she gave to the police was admitted into evidence as exhibit D.

32. M’s case was brought to her attention by M’s teachers in mid-May 2006. She interviewed M on 29 May and on 31 May she was told by M’s class teacher, Catherine Wangi, that her uncle and aunt were planning to take M to the accused for an abortion. On 1 June Mrs Wangi told her M had been taken to the doctor the previous day. On hearing that, she and Mrs Wangi went to the police station and with two police officers including Snr Const Maggie Kavun they went looking for M and were told that she had been taken to the hospital. They went to the labour ward and by that time M had given birth so they spoke to Dr Kambo.

33. M’s aunt, A, was present at the labour ward and the police then took her to the station for questioning where she said that she was under pressure from her husband to arrange an abortion for M but denied taking M to the accused for an abortion.

34. Mrs Kurufher said that she was present when M’s aunt was interviewed by the police and she was also present when M’s uncle was interviewed and charged.

35. She visited M at the hospital on the evening of 1 June. M was hungry, bleeding and crying. She asked M if she had consented to an abortion and M cried and said that she had no idea about the arrangement. Her aunt had only told her that she was taking her to the doctor for help.

36. Asked about the decision to repatriate M to Morobe Mrs Kurufher said that this was done as M was traumatised and no longer trusted her uncle and aunt as her uncle had been abusing her since she was 11 years old. There was never any discussion with her (Mrs Kurufher) about terminating M’s pregnancy. If anyone had suggested an abortion she would have consulted the doctor and other people, Mrs Kurufher said.

37. In cross-examination Mrs Kurufher denied at any time pressuring M. She gave her story freely.

38. (5) Catherine Wangi was M’s class teacher at Mongiol Primary School. She taught her in grade 4 in 2005 and M topped the class. She was bright and academically outstanding. M was also in her class in 2006 but early in the year her performance dropped and she became shy and withdrawn. In early May 2006 it was ascertained that M was pregnant and she complained of being sexually abused by her uncle. The head teacher, Mrs Koikoi, took M to Dagua Clinic where she was examined and a pregnancy test was carried out by HEO Cletus Bon. On 8 May Mr Bon prepared a report (exhibit S) stating that M was below the childbearing age and may face complications at the time of delivery.

39. M asked if she could stay with her (Mrs Wangi). Mrs Kurufher agreed that that would be a good idea so M started staying with her on 9 May. The arrangement worked well until early on the morning of 31 May when M’s aunt, A, came and took M to Dr Manwau’s clinic. She told A that if there was to be any termination of pregnancy there had to be a letter of consent from the welfare officer. A replied that she had peace in her heart and would do it after obtaining a letter of consent from the welfare officer.

40. That afternoon after school M told her that ‘the doctor put something in me and broke one of the ropes in my tummy’.

41. At about 4.00 am the next day, 1 June, M was experiencing severe pain so she (Mrs Wangi) took M to her aunt and uncle’s residence. She (Mrs Wangi) went to work later in the morning until Mrs Kurufher arrived at the school and took her to the labour ward at Wewak General Hospital by which time M had been delivered of the dead baby.

42. M was removed from her care on 6 June 2006 for safety reasons.

43. (6) Snr Const Maggie Kavun is a member of the police investigation team for this case and the cases of M’s uncle and aunt. Her evidence was confined to the steps that had been taken to get M to Wewak for the trial.

EVIDENCE FOR THE DEFENCE

44. Two witnesses gave evidence: the accused and another doctor, Dr Alois Kawa.

45. (1) The accused, Moses Manwau, is a 50-year-old East Sepik man. He graduated from the University of Papua New Guinea in 1983. After working in the public health system for several years he established his own clinic in Wewak in 1987 and has run it ever since. He is presently the only doctor in private practice in Wewak. From 2004 to 2008 he had a room on the top floor of the Moore Stationery Building in town. This was where he examined M. The clinic was searched a couple of weeks later when a police squad arrived unannounced with a search warrant. It had no separate toilet or sink. He had to share those facilities with other tenants. His was only a consultation clinic. He did not carry out any surgical procedures there as there were no facilities.

46. He recalls 31 May 2006. M and her aunt, A, were outside the clinic when he arrived at 8.30 am. They had no appointment. He had not seen either of them before. The aunt said that she was worried about M and wanted to have a doctor confirm her pregnancy as it was being alleged that her (A’s) husband had impregnated M. He then examined M alone, while A waited outside. M did not know when her last period was so to assess the gestational age of the pregnancy he had to do a pelvic examination. Using a disposable rubber glove and cream he inserted his finger in her vagina to check for the size of the uterus. He confirmed that she was pregnant and that the gestational age was about 20 weeks. As it was her first pregnancy he needed to assess the adequacy of the pelvis and his assessment was that she had a suspect pelvis. When he withdrew his finger he observed pus and a foul smell in the vagina.

47. This was an indication that something was not right so it was important to see the state of the cervix and the vaginal canal. He therefore decided to do a routine examination with a Simms speculum. This involved inserting the speculum with the aid of antiseptic obstetric cream into the vaginal canal in order to get a clear view of the cervix. M experienced some discomfort when the speculum was introduced as she was very dry. There was pus and thrush (fungal infection) around the cervix. The examination took no more than 10 minutes.

48. He asked A to come back in and explained to her his findings: M was about 20-weeks pregnant, she appeared to be carrying an infection and she needs to be checked out at the hospital as he did not have the facilities at his clinic to do any further examination. The normal fee for such a consultation was K20.00 but he had not been paid, which is not unusual as many of his patients are unable to pay him.

49. At 4.00 am the next day he was woken at his residence and when he went outside there was a carload of people and they had brought M to him. He excused the others and spoke to M privately and could see that she was definitely having pains. He advised the people to take M to see a doctor at the hospital and told them that they would probably have to wait. Asked whether he said something about ‘six or seven hours’ (as claimed by Rose Mauyat in her evidence) the accused said he might have said something along those lines in relation to how long they might have to wait at the hospital. But what he said was not in relation to any procedure he had carried out as all that he did was examine M.

50. He feels that Dr Kambo’s report is consistent with his clinical examination. It is highly likely that M’s infection was untreated. It is well known that if syphilis in a pregnant woman is not treated by the end of the 15th week of pregnancy the risk of premature delivery of a stillborn foetus is extremely high.

51. He denied conducting any surgical procedure on M or doing anything to terminate her pregnancy. He is aware that abortion is unlawful. He would lose his registration by the Medical Board if he carried out an unauthorised abortion. ‘I am not an abortionist’ the accused said.

52. He confirmed that during the police interview in July 2006 he did not answer most of the questions. He does not think that the police officers conducting the interview understood the nature of his work. Snr Const Sailen apologised for having to charge him. She said she had instructions ‘from the top’. He is concerned that the case is politically motivated. He had been a candidate for the Wewak Open seat at the 1992, 1997 and 2002 elections and it was well known in 2006 that he would be standing again in 2007. He was indeed a candidate in 2007 and had to deal during the campaign with allegations that he was a ‘murderer’. Despite those difficulties he was the runner-up and is still in the process of challenging the result through the courts.

53. In cross-examination the accused was questioned as to why he introduced a speculum into M’s vagina. A layperson can tell if a female is pregnant, so why was it necessary to use an instrument that would cause pain? The accused replied that it was his duty as a doctor to undertake this routine procedure. He cannot just look at a woman and say ‘you are pregnant’. This woman (M) had an infection of some sort and he needed to be able to see the cervix and the vaginal canal. He denied using any other instrument or equipment on M or conducting any other procedure that resulted in her going into early labour.

54. He denied being responsible for the artificial rupture of the membrane, as claimed in Dr Kambo’s report. ARM is a procedure carried out to induce delivery of a child. It is not a method of termination of pregnancy. Spontaneous rupture of the membrane can occur when there is an infection, the accused said. In his opinion M aborted because of her untreated syphilis infection.

55. (2) Dr Alois Kawa is a member of a private medical practice in Madang, with 24 years experience as a general practitioner. The purpose of his giving evidence for the defence was to act as an expert witness. He did not give evidence as to the acts allegedly committed by the accused.

56. Dr Kawa said that in his opinion it is standard procedure for a doctor to conduct a vaginal examination on a female said to be pregnant, in order to establish the size of the uterus and therefore the length of the pregnancy. It is normal to examine the vagina or cervix with the aid of a Simms speculum.

57. An untreated syphilis infection can cause early termination of pregnancy. The longer it is left untreated the more likely it will affect the pregnancy.

58. If a surgical procedure is conducted to terminate pregnancy, this will lead to pain and bleeding, Dr Kawa said.

PRELIMINARY ASSESSMENT OF THE STATE’S CASE

59. In his closing address the prosecutor, Mr Mark, relied on the evidence of Dr Kambo, supported by the circumstantial evidence, to submit that the accused had caused the death of the unborn child by artificial rupture of the membrane. The allegation that the accused had administered Misoprostol was not pursued. The accused’s evidence that he had conducted a routine medical examination should be rejected as he was a very shifty witness intent on raising political motives for his being charged. The police search of his clinic was not conducted until two weeks after he dealt with M, giving him ample time to rearrange the clinic and remove evidence of what he did.

60. The circumstantial evidence was very strong, Mr Mark submitted. One day M was healthy and nothing appeared wrong with her; the next day she gave birth to a stillborn baby. Dr Kambo observed that M was healthy and the baby was ‘fresh’ – so something had obviously happened in the day prior to M giving birth. The only thing that happened of any consequence is that M went to the accused’s clinic.

DEFENCE COUNSEL’S SUBMISSIONS

61. Mr Murray submitted that the State had failed to prove beyond reasonable doubt that the accused had done anything to prevent the child from being born alive. In particular he submitted that:

1. It was incumbent on the State to prove that the child had been born alive and then died.

2. The State’s case was dependent on hearsay evidence.

3. The medical evidence was speculative.

4. The accused was a credible witness whose evidence should be accepted.

5. The State cannot rely on circumstantial evidence to establish guilt.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

1 Child had to be born alive and then died

62. This was a surprising argument, included in the defence counsel’s written submission, which demonstrates a misconstruction of the wording of Section 312. It is not an element of the offence that the child (or baby or foetus, all those terms can be used interchangeably for the purposes of Section 312) be born alive. In fact the opposite is the case.

63. The second element of the offence is that the accused prevents the child being born alive. If the child is born alive but later dies an accused should be charged not under Section 312 but under Section 299 (wilful murder), Section 300 (murder), 301 (infanticide) or 302 (manslaughter). Sections 290, 291 and 292 make that clear.

64. Section 290 (when a child becomes a human being) states:

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether or not—

(a) it has breathed; or

(b) it has an independent circulation; or

(c) the navel-string is severed.

65. Section 291 (definition of killing) states:

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.

66. Section 292 (death by acts done at childbirth) states:

When a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do the act shall be deemed to have killed the child.

67. The argument that to sustain its case the State had to prove that the child was born alive and later died is devoid of merit.

2 State’s case dependent on hearsay evidence

68. It is correct that there was a considerable amount of hearsay that was admitted into evidence. For example:

- The evidence of Mrs Kurufher that Mrs Wangi told her on 31 May 2006 that M’s aunt and uncle were planning to take M to the accused for an abortion.

- The evidence of Mrs Kurufher that M told her on the evening of 1 June that she had no idea about an abortion.

- The evidence of Mrs Wangi that M’s aunt told her on 31 May that she had peace in her heart and would take M to the accused’s clinic to terminate the pregnancy after obtaining a letter of consent from the welfare officer.

- The evidence of Mrs Wangi that M told her on 31 May that ‘the doctor put something in me and broke one of the ropes in my tummy’.

69. In accordance with the normal rules about hearsay the above statements are evidence of conversations having taken place but not of the truth of the events recounted in the conversations (The State v John Wanjil [1997] PNGLR 64, Jack Gopave v Francis Kugame (2003) N2482). This evidence by itself does not establish that the accused did anything to prevent the child from being born alive. It has, however, been admitted into evidence, which means that the court can have regard to it when determining what acts, if any, the accused did that contributed to the death of the child.

3 Medical evidence was speculative

70. This is a valid point to make about Dr Kambo’s evidence. The firm conclusion reached in his written report – that "the pre-term labour pain was induced by Misoprostol and the artificial rupture of membrane (ARM) done at the private clinic" – was heavily qualified after he was cross-examined by the defence counsel. Dr Kambo conceded that his views were based on what was told to him by other people and that his report was speculative and presumptive.

71. Dr Kambo attempted to explain in his oral testimony why there were good grounds to suspect that something irregular had happened – by pointing to the healthy condition of the mother and the ‘fully formed’ and ‘fresh’ characteristics of the foetus – but failed, in my view, to justify the firmness of the conclusions in his written report. The court is entitled to expect that when doctors prepare reports that are likely to be admitted into evidence in court proceedings they will confine their reports to events and conditions that they observe. Doctors should refrain from passing on and relying on information that has been conveyed to them by others, especially laypersons.

4 Accused was a credible witness

72. I agree generally with this description of the accused. He was not a shifty or evasive witness, as Mr Mark tried to make him out to be. His demeanour was satisfactory. Although he to some extent brought politics into the trial, this was only because he was asked a question about whether he had any idea why he had been charged with the offence. He did not labour the point and I thought he handled himself well in the witness box.

73. The same thing can be said about other witnesses. The demeanour of none of the State witnesses was unsatisfactory. I do not think any of them gave false evidence.

5 Circumstantial evidence

74. Mr Murray included in his written submission an argument that requires careful consideration. He submitted that ‘the State’s case must not be built around circumstantial evidence but hard credible facts’.

75. That submission is fundamentally misconceived as there is no rule of law that says the State can only prove its case by ‘hard, credible facts’ or direct evidence. It is open to the State in any criminal case to prove its case by circumstantial evidence and in this case the prosecutor conceded that a conviction was dependent on the acceptance of the circumstantial evidence, which he submitted, unsurprisingly, was very strong.

Principles about entering a conviction based on circumstantial evidence

76. 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.

77. 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.

What are the proven facts in this case?

78. These are:

- M, whose biological parents are from Morobe Province, had been living in Wewak with her aunt and uncle for three years.

- Because of an allegation that her uncle had sexually abused her and was the person who made her pregnant she was in early May 2006 removed from their custody and placed with her class teacher, Mrs Wangi.

- A test carried out by an HEO at Dagua Clinic in mid-May confirmed that she was pregnant.

- On the morning of 31 May M’s aunt unexpectedly took M away from Mrs Wangi and took her to the accused’s clinic.

- M was 14 years old and 20-weeks pregnant.

- The accused had not examined or treated M before that morning and M and her aunt arrived without an appointment. The accused ran a consultation clinic only and did not have the facilities to perform any surgical procedures on patients. The consultation lasted only 10 minutes. (This was the uncontroverted evidence of the accused.)

- During the course of 31 May a number of conversations took place between Mrs Wangi, Mrs Kurufher and M’s aunt in which the subject of getting an abortion done at the accused’s clinic was discussed.

- M’s performance at school had suffered during the period of her pregnancy but she had ostensibly remained healthy and was free of physical pain or distress until the early hours of 1 June.

- In the early hours of 1 June – 18 to 20 hours after being at the accused’s clinic – M suffered severe pains and was distressed.

- At 4.00 am on 1 June M was taken to the accused’s residence and the accused was woken up and he talked to M. He then spoke to M’s aunt and told her "it would take six or seven hours before anything could happen".

- At 10.45 am M was admitted to the labour ward at Wewak General Hospital with pre-term labour pains.

- At 1.28 pm she delivered a female, fully-formed 450-gram, premature, fresh stillborn baby.

- Apart from the pain and distress experienced in connection with the labour pains and delivery M was a healthy young girl and physically capable of giving birth to a healthy baby.

- Neither M nor the stillborn baby showed signs of surgical intervention or the baby being killed. It was a normal, fully-formed foetus, which appeared to have died only in the previous 12 to 24 hours.

- M tested positive for syphilis.

What inference(s) can be drawn?

79. On the basis of those proven facts it is not unreasonable to draw an inference – as contended for by the prosecution – that the cause of death of the child was an artificial rupture of the membrane by the accused – he being the only person who could reasonably be suspected of having done that.

80. But is that the only reasonable hypothesis available? No, there is at least one other: that M had an active syphilis infection that was untreated and this caused her to go into early labour and was the direct cause of the baby being stillborn. The accused’s evidence that he detected pus and a foul odour when he examined M is strong evidence of an untreated infection. Dr Kambo could not exclude this as a possible cause of the stillbirth.

81. The hypothesis that the accused prevented the child from being born alive by artificial rupture of the membrane is therefore not the only rational inference that can be drawn from the proven facts. The test in Paulus Pawa’s case has not been satisfied. Put another way and applying the test in Devlyn David’s case: the proven facts do not lead reasonably to only one conclusion – that the accused prevented the child being born alive.

FINAL DETERMINATION OF WHETHER THE ACCUSED PREVENTED THE CHILD FROM BEING BORN ALIVE

82. The State has not proven this element of the offence. The accused is entitled to an acquittal.

VERDICT

83. Moses Manwau, having been indicted on a charge of killing an unborn child under Section 312 of the Criminal Code, is found not guilty of that offence and not guilty of any other offence and is discharged from the indictment.

Verdict accordingly.

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Public Prosecutor: Lawyer for the State
Murray & Company Lawyers: Lawyers for the Accused