State v Rokai [2009] PGNC 33; N3616 (21 April 2009)

N3616

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 831 OF 2007

THE STATE

V

AU NUMA ROKAI

Waigani: Paliau, AJ
2009: April 7th, 15th & 21st

CRIMINAL LAW – Murder – Verdict – Charge of – Not Guilty Plea – Criminal Code s. 300 (1)(a)

Cases cited:
No cases cited

Counsel:
Mr. D. Mark, for the State
Mr. M. Kombri, for the Accused

DECISION ON VERDICT

21 April, 2009

1. PALIAU, AJ: The accused is indicted with one count of Murder pursuant to Section 300(1)(a) of the Criminal Code.
   
2. Upon arraignment he pleaded not guilty to the following facts. On the 3rd January 2007, at 7 Mile in the National Capital District, the deceased was in company with two (2) others and they were drinking. They consumed two (2) cartons of beer. After that they went to Rokai Club at 4 Mile in Boroko, National Capital District. This was around 7pm. The accused owned Rokai Club.
   
3. At Rokai Club, the deceased together with Don Rore and Mark Aisi were joined by the deceased relatives at around 8-9pm. About 10pm, there was an argument between the deceased and the accused. The argument was about the deceased being barred from returning into the club after having left earlier. A fight broke out between the deceased and the accused. The accused punched the deceased and this caused him to fall onto the bitumen road. Some men who were bystanders also attacked the deceased and his friends.
   
4. The police were called in and the fight stopped. The deceased refused to go to the Port Moresby General Hospital (PMGH) at the request of the police. He was taken to his home instead at DCA compound, 8 Mile, National Capital District.
   
5. On the 5th January 2007, he was taken to the Pacific International Hospital (PIH) as an outpatient. He was diagnosed and treated for headache and released. On the 7th January 2007, he was admitted to the PMGH but died later.
   
6. The Post Mortem Report attributed injuries to the head as the cause of death.
   
7. The State’s case is supported by the only witness, Don Rore and documentary evidence tendered by consent. Documents tendered by consent include:
   
   • (1) Post Mortem Report of Dr. Jacob Moreyawa dated 9th February 2007, marked as Exhibit "S".
     
   • (2) Affidavit of Dr. Jacob Moreyawa sworn on the 9th March 2007, marked as Exhibit "S1".
     
   • (3) Record of Interview of Accused in Pidgin, marked as Exhibit "S3".
     
   • (4) Record of Interview of Accused in English, marked as Exhibit "S4".
     
8. The accused testified on his own behalf by giving sworn evidence.
   
9. The issue for determination is whether the accused when delivering the punches on the deceased head intended to cause grievous bodily harm, thus resulting in the death of the accused.
   
10. The accused is charged under section 300(1)(2) of the Criminal Code which states that a person who kills another person is guilty of murder, if he intended to do grievous bodily harm to that person.
    
11. The State in order to secure a verdict of guilty has to prove beyond reasonable doubt all the elements of murder. Has the State in its evidence proven all the elements without the benefit of a doubt?
    
12. The elements of the offence of murder are:
    
    • - a person,
    • - who kills another person,
    • - and the person who kills intended to cause grievous bodily harm,
    • - to the person killed
      
13. To determine the issue of guilt, all the evidence must be examined carefully, including the assessment of credibility of witnesses.
    
14. I now deal with the evidence and I start with the State’s evidence.
    

STATE’S EVIDENCE

15. The only witness that testified for the State was Don Rore. This is his account of what took place. On the 3rd January 2007 the witness together with the deceased and 3 others drank 2 cartons of beer at 7 Mile. This was at 4 pm after work.
    
16. At 7pm the witness together with the deceased and Mark Aisi got a taxi and went to Rokai club, 4 Mile. They were drinking beer and playing snooker. At around 8 and 9 pm, they were joined by the deceased relatives.
    
17. The witness saw the deceased arguing with the accused at 10pm apparently for the reason that the deceased has left the club premises earlier on and was not allowed to be re-admitted. Sometimes later when the witness returned after he visited the toilet, he noticed the deceased absence from the club. He walked out of the club to the car park to check on him.
    
18. Don Rore, the witness said as soon as he was at the car park he saw the accused and the deceased exchanging punches. He approached them with a view to stop them fighting. The accused turned to him and swung a punch at him. He avoided him and the accused turned back to the deceased and punched him. The deceased fell and landed heavily on the bitumen. When the witness tried to assist the deceased, the accused attacked him with the support of the by standers. The witness escaped and went home.
    
19. The witness did not go to work on the 4th and 5th January 2007 because he had too much to drink on the 3rd and was not feeling well.
    
20. The State was not able to call all its other witnesses due to their non availability. They cannot be located as they are not in the National Capital District. These witnesses were important to the State’s case. The State would have assisted the Court as well had they been called or the Defence had allowed their statements to be tendered by consent.
    
21. The witness Don Rore’s oral evidence merely confirmed his statement dated 8th January, 2007 to the Police. The Defence sought to contradict his evidence by comparing with the other State’s witnesses statements relating to where they all drank and the number of cartons, were the argument, confrontations and assaults took place, the whereabouts of the witness, Don Rore and when the deceased was admitted to the PMGH.
    
22. As the statements of the other State’s witnesses were not in evidence, they cannot be used against Don Rore to discredit his oral evidence.
    
23. When cross-examined, Don Rore maintained what he stated in his evidence in chief, except in two areas. He contradicted himself as to the time when the fight between the deceased and the accused took place. In his evidence in chief he put the time at between 7 and 8 pm. When cross-examined he stated after 7 and 8 pm. Secondly, his reasons for staying away from work on the 4th and 5th January 2007. He said he was not feeling well and was concerned of what took place at the club. When cross-examined his excuse was he had too much beer on the 3rd January 2007. And that he was afraid as people might blame him for what happened to the deceased.
    
24. The State’s witness’ demeanour as a witness is not favourable to the State’s case. At times he answered questions directly in English without the interpreter’s assistance as required. He behaved as if he was not confident. He was always not looking directly at the both counsels when answering questions put to him. Not even looking at the Judge.
    
25. There is evidence that he did not go to work on Thursday 4th and Friday 5th January 2007 because he had too much to drink. This evidence destroys his credibility, as if he had too much to drink on the 3rd January 2007, how was he able to remember correctly that the accused punched the deceased or whether the accused ever fought with the deceased at all. This definitely created doubts in my mind as well.
    
26. The Record of Interview (ROI) of the accused does not in any way assist the State’s case. There are no admissions to rely on.
    
27. The Post Mortem Report by Dr. Jacob Moreyawa concluded that the deceased died of head injury.
    
28. The Post Mortem Summary Report are in the following terms:
    

"The deceased was said to be at a Rokai Club on Wednesday, 3rd 2007, when he went out to buy a loose cigarette and was returning when the club owner and his son attacked him. He was initially seen at Pacific International Hospital on the 5th January and treated as outpatient for headaches. Skull x-ray was normal. However, he was brought to PIH at 7 pm having collapsed at home and was referred to PMGH. He was admitted at Port Moresby General Hospital but died at 9:00am on 7th January, 2007. Post Mortem examination revealed right hemisphere sub-dural haemorrhage, left scalp haematoma and left parietal bone hair line fracture and right chine laceration. It was concluded that he died of head injury."

29. The external finding reveals only laceration over right chin, 2.0cm and horizontal.
    
30. The Internal findings of the Post Mortem Report are in the following terms;
    

"Internal findings.

Head and Neck

Head – left occipito – parietal scalp haematoma.

Left parictel bone hair line facture with blood clot fracture line.

Right frontal subdural haematoma.

Right Hemisphere subdural haemorrhage with clots (haematoma).

Bilateral brain oedema.

Ears, eyes, nose and throat were normal."

31. The Post Mortem Report reveals that on the 5th January 2007, two days after the alleged incident, the deceased was treated as an outpatient at Pacific International Hospital (PIH). A skull X-ray was conducted and it was found to be normal.
    
32. The Post Mortem was conducted on the 9th January 2007. This was two days after he collapsed at home on the 7th January 2007 and two days before the skull x-ray was found to be normal.
    
33. It is believed the deceased died from head injury as a result of skull fracture and blood clot. This was when he was attacked by the accused and his son. The punches from the accused would have concentrated on the deceased head causing him to fall heavily on the back of his head on bitumen. The head would have included the face, back of the head, eyes, and sides of the head, forehead, nose, chin and mouth. If the above were to be the cause, why weren’t they shown by the skull x-ray of the deceased at PIH? Secondly, the Post Mortem Report concluded that the deceased eyes, ears, nose and throat were in tact. They were normal.
    
34. I find it hard to believe why the x-ray result was not consistent with the Post Mortem Report. This inconsistency has created a lot of doubts in my mind as to whether or not the accused actually punched or fought with the deceased at all.
    
35. The only obvious explanation would be that the deceased head injury arose as a result of him collapsing at home and was taken to the PMGH. The Post Mortem Report was conducted after he collapsed. There was no x-ray conducted at the PMGH to confirm or otherwise the head injury.
    
36. The deceased refused to be taken to the hospital on the 3rd January 2007. Had he gone to the hospital, an x-ray would have been conducted. A different outcome would have been revealed.
    
37. There is therefore great doubt as to the cause of death. There is no causal connection attributable to the deceased death as a result of the head injury sustained from the accused fighting with the deceased.
    

ACCUSED’S EVIDENCE

38. The accused testified on his own behalf. He denied that he was involved in a fight with the deceased or anyone on the 3rd January 2007.
    
39. I find no reason to doubt or disbelieve the accused evidence. His demeanour in Court was outstanding.
    
40. All in all, I find that the State has not established beyond reasonable doubt that the cause of death is attributed to the accused assaulting the deceased.
    
41. The State has not proven all the elements of murder beyond reasonable doubt. There is no proof of intention to cause grievous bodily harm.
    
42. It is therefore unsafe to convict the accused on the evidence presented by the State.
    
43. I find the accused not guilty of murder as charged in the indictment. The accused is acquitted and discharged forthwith.
    

________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused