State v Donia [2010] PGNC 228; N4536 (14 October 2010)

N4536

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1226 OF 2006

THE STATE

V

STEVEN DONIA

Bialla: Kawi J
2010: 17th, 19th, 21st July and 14th October

CRIMINAL LAW – practice and procedure – homicide – murder – caused by the prosecution of an unlawful purpose – Criminal Code Section 300 (1)(b)(i)ii) – Evidence – dying declaration – whether admissible in evidence- weight given to dying declaration – Section 20 of the Evidence Act – whether statement of deceased amounted to dying declaration. Causation in homicide cases – accused's conduct – substantial cause of death – Sexually transmitted Infection in deceased – not a supervening act – whether the conduct and expressions of the deceased before and after time of the declaration are relevant in a consideration of the state of mind of the deceased – significance of a dying declaration – homicide – murder – death caused by an act done in the prosecution of an unlawful purpose - likely to endanger human life – Sexual penetration of a 12 year old girl – penetration of vagina constitutes an unlawful act – sexual penetration of a 12 year old girl likely to endanger her life- Accused guilty of murder under section 300(1)(b)(i)(ii) and is accordingly convicted.

Facts

The accused was indicted with one count of murder under section 300(1)(b)(i)(ii) of the Criminal Code. The State led evidence to show that the accused met the deceased, young 12 year old girl by herself at the Barema River and taking advantage of her lone presence, he took her over to the river bank and sexually penetrated her. For the next three days the deceased did not move around but stayed in her house bleeding. On the night of the third day, in front of her relatives as well as the accused, his wife, and brother in law, the deceased uttered the following statement: "Steven (the accused) kisim mi go long Wara Hemendi and em holim mi. Mi singaut na em holim mi na passim maus blong mi na em rapim mi". After uttering this statement the deceased never said anything else until her death the next morning. Her post mortem Report revealed that she died from hypovoelemic shock due to heavy loss of blood which triggered off a cardiac arrest in her leading to her death. The medical Report also revealed that at the time of her death the deceased was also suffering from a sexually transmitted infection. On the issue of whether the statement of the deceased is admissible evidence as a dying declaration:

Held: (1) In order to qualify as a dying declaration under section 20 of the Evidence Act, the Statement of the deceased:

(a) must be made orally

(b) that the deceased believed that her death was imminent.

(c) that the deceased would have been a competent witness in a criminal proceedings constituting the subject matter of her statement

d) that direct oral evidence of the matter declared was admissible.

(2) The statement attributed to the deceased satisfied the criteria for dying declarations and consequently it is admitted as admissible evidence under section 20 of the Evidence Act.

(3) The effect of a dying declaration once it is admitted into evidence is that in much the same way as circumstantial evidence accumulates and strengthens, so it is in the present case, the evidence against the accused has accumulated; the dying declaration has added a lot of weight to the prosecution case and in fact gives it an important strength.

(4) On the question of the presence of the sexually transmitted infection in the deceased and whether that fact constituted a supervening factor:

Further held:

(5) Essentially causation arises when there is an intervening act or event in the cause of the death. The question therefore is whether the accused's conduct was so connected with the deceased's death that it must be said to be a substantial cause of the death.

(6) In relation to the sexually transmitted infection as being the intervening or supervening act:

Held:

(7) The major precipitating cause of the death and which was also a substantial cause of the death was massive loss of blood, caused by the sexual penetration of the deceased by the accused.

(8) The massive loss of blood triggered a hypovoelemic shock leading to cardiac arrest in the deceased. The sexually transmitted infection detected in the deceased is a treatable disease and could not have been the substantial cause of the death of the deceased or a major supervening act.

(9) The actions of the accused was caused by means of an act done in the prosecution of an unlawful purpose; and the act of the sexual penetration of a young girl under sixteen years was of such a nature as to be likely to endanger human life; The sexual penetration of the deceased directly led to her death. The elements of the charge under section 300(1) (b)(i)(ii)

viz (a) The accused killed another person; and

(b) The circumstances are that the death was caused by means of an act done in the prosecution of an unlawful purpose; and

(c) The sexual penetration of a minor was an act of such a nature as to be likely to endanger human life;

These 3 elements have all been proven beyond reasonable doubt.

Cases cited:

PNG Cases Cited

State –v- Tom Morris, [1981] PNGLR 498
Paulus Pawa –v- The State [2001] SC
Devlyn Donald –v- The State [2006] SC 881
State –v- Enny Bullen [1990] PNGLR 43
State –v- Dr. Moses Manwau [2009] N3797
R –v- Kiandari [1967-68] PNGLR 31
R –v- Koito Kartogati [1974] PNGLR 225
Joseph Maino –v- The State [1977] PNGLR 404
Herman Pasi –v- The State [1991] PNGLR 254
The State –v- Tau Ted Lahui [1992] PNGLR 325
The State –v- Jimmy Bellam [1979] N192

Overseas Cases Cited

R –v- Woodcock [1789]
Hallet –v- R [1969] SASR 141
R-v- Rogers [1950] SAStRp 15; [1950] SASR 102

Counsel:

Mr F. Popeu, for the State
Ms J M Ainui, for the Accused

20th October, 2010

1. KAWI J: Introduction: Steven Donia of Kesa Village, Walium in the Madang Province is accused of the murder of a young 12 year old girl, Monica Joseph at Soi Oil Palm Block Settlement at Bialla, West New Britain Province. He is charged and indicted under Section 300(1)(b)(i)(ii) of the Criminal Code. The offence is alleged to have been committed on the 2nd of March 2006. On arraignment he pleaded not guilty and a trial was conducted.

State Allegations

2. The State alleges that the deceased had accompanied the accused to the local Barema River, where he is alleged to have prosecuted an unlawful purpose that subsequently resulted in the death of the deceased. The unlawful purpose prosecuted by the accused was that he sexually penetrated the vagina of the deceased Monica Joseph with his penis. The deceased Monica Joseph was then a girl under the age of Sixteen (16) years which is a criminal offence under Section 229A of the Criminal Code, Sexual offences and Crimes Against Children's Act 2002. As a result of this unlawful sexual penetration, Monica Joseph is alleged to have suffered from massive loss of blood through her vagina which eventually led to her death. Hence the charge under Section 300(1)(b)(i)(ii) of the Criminal Code.

State Evidence

3. To sustain its allegations, the State called three witnesses, David Aragel, Gabriel Akue David and Michael Yappa.

4. David Aragel and Gabriel Akue David gave evidence to establish that:

(a) On Sunday 25th February 2006, the accused Steven Donia came and called out the deceased, Monica Joseph to follow him to the Barema river to fish;

(b) Monica Joseph returned to the house about 6:30 that evening and went straight to her room to sleep.

(c) She slept the whole day on Monday and Tuesday. On Tuesday evening she was feeling very hot in her stomach and asked her cousin brother David Aragel, to take her to the river to bath. David put her on a wheelbarrow and pushed her down to the river to bath.

(d) Again on Wednesday she was pushed on a wheelbarrow down to the river to wash after she complained of feeling very hot in her stomach. That night she started bleeding heavily. Seeing this David Aragel went and fetched Monica's uncle, Gabriel Akue David. In front of her uncle Gabriel Akue David and his cousin brother David Aragel, the deceased who was sleeping on her bed and bleeding profusely through her vagina told the two of them that "Steven took me down to the river Hemendi and tried to rape me. I screamed and he held my mouth and raped me. Now I am bleeding, looks like, I am going to die."

(e) When the deceased allegedly uttered these words, David Aragel told her not to say anything else, and both David Aragel and Gabriel Akue David went to fetch Steven Donia at his house in the block. Steven Donia, his wife Elina Donia and his brother in law, Martin Linge accompanied the two Davids to their house where the deceased was sleeping. At the house, they all went inside the room, where Monica Joseph was sleeping.

(f) David Aragel then woke up Monica Joseph and held her by her hand and told her to say what she told them earlier. At this the deceased said, "Steven Donia, kisim mi go daun long wara Hemendi, yu traim long kuapim me, mi singaut, na yu passim maus blong mi wantaim han bilong yu, na yu kuapim mi, na nau mi laik indai nau."

English: "Steven Donia, you took me down to the river Hemendi, you tried to sexually penetrate me, but I screamed and you covered my mouth with your hands, and then you raped me. Now I am going to die."

The two witnesses David Aragel and Gabriel Akue David attribute the uttering of these words to the deceased Monica Joseph, on Wednesday night about 10:00 pm in front of, David Aragel, Gabriel Akua David, Steven Donia, his wife Elina Donia and his brother in law Martin Linge.

(g) After she uttered these words she went back to sleep. She did not say anything else until the next morning, Thursday when she was taken to Bialla Health Centre, where she died. She never uttered anything else while everyone was there or on her way to the Bialla Health Centre until her death on Thursday morning.

5. Michael Yappa, the elder brother of the deceased also gave evidence for the prosecution; the thrust of his evidence is that;

(a) He went down to the river to fish that Sunday together with two of his friends whom he identified as Joe and Markus, the sons of Marang.

(b) At the river, Joe and Markus Marang were fishing upstream while Michael Yappa went to fish downstream.

(c) As he stood there fishing, he looked further downstream and saw the accused Steven Donia and the deceased Monica Joseph walking upstream towards his direction.

(d) Prior to that, Michael was still fishing when he saw Elina Donia, the wife of the accused, come down to the river to take a bath. Upon seeing Steven Donia and the deceased, Elina became very angry that she started to argue with her husband, accusing him of wasting time, and questioning him as to what he was doing at the river that whole morning. This was well after lunch. The deceased was still with Steven when Elina Donia was arguing with her husband, the accused.

(e) As Steven and his wife were arguing, the deceased left them and walked upstream to join her brother and his two friends. The four of them were together and came home at about 5:30 pm that day. When they returned home the deceased went straight to bed without staying around to eat her meal.

The Defence Case

6. For the defence, the accused and his brother in law, Martin Linge gave evidence. The thrust of their evidence is that:

(a) On Sunday about 7:00 am, the accused Steven Donia took his brother in law, Martin Linge and his son Steven Philip and proceeded down to the Barema River to check Steven's fishing lines which he had set the previous day in the river. Two of the fishing lines had no fish while one had hooked a fish, but this got entangled in the roots of a tree. This forced Steven Philip, the son of the accused who dived into the river to free both the hook and the fish.

(b) After getting the fish out of the river, the trio were still there trying to remove the hook from the fish, when Elina Donia, Steven's wife found them. She took her husband Steven to their garden to get some food while both Martin Linge and Steven Philip left them at the river and went home to cook the fish. This was about 9:00 am.

(c) The accused says that he was still in the river when his wife Elina came down to meet him and together they went to the garden where they spent nearly the whole day and then the two of them returned together to their home in the afternoon.

(d) The accused does not say that he was fetched at his house by David Aragel and Gabriel Akue David to go to their house to see the deceased, Monica Joseph. The accused was accompanied by his wife, Elina, his brother in law Martin Linge and his son Steven Philip. When they entered the room where the deceased was sleeping, she was forced harshly by her uncle David Aragel to tell them as to what happened at the river on Sunday.

She is alleged to have said; "Steven holim mi long wara long Mandei (Steven held me at the river on Monday)." Steven then said to her that he was at a mediation meeting the whole day on Monday, and that she is falsely accusing him of doing something wrong. Steven then advised them all that they would sort out the issue the next day and then left for his house accompanied by his family members.

Analysis of Evidence and findings of Fact by the Court

7. The State evidence is largely circumstantial and depends upon logical and reasonable inferences being drawn and a conviction in this case depends entirely on reception of circumstantial evidence.

8. So too is the finding of guilt or innocence which is entirely dependent on the reception of circumstantial evidence. On the basis of the evidence before me and also drawing reasonable and logical inferences the Court makes the following findings of fact:

(a) The accused Steven Donia went down to the Barema River by himself to check on his three fishing lines. At the river, he caught up with his son, Steven Philip and his brother in law, Martin Linge, who went to the river by themselves.

(b) After they caught one fish, Steven Philip and Martin Linge took the fish back home to cook it. In the meantime, the deceased Monica Joseph went to the river to have her bath and bumped into the accused. Taking advantage of her lone presence, the accused Steven Donia penetrated her vagina, with his penis. Initially when Steven Donia grabbed her, (Monica Joseph) she tried to scream, but the accused covered her mouth with the palm of his hands and sexually penetrated her).

Michael Yappa and his two friends went down to the river after lunch that day. His two friends, Markus and Joe Marang, went upstream to fish while Michael Yappa went down stream to fish. While Michael Yappa was fishing he saw Elina Donia, the wife of the accused also go down to the river to have her bath.

(c) Michael was still fishing when he saw the accused Steven Donia and the deceased Monica Joseph walking upstream and came to the spot where Elina Donia his wife was having her bath. When Elina Donia saw her husband Steven and Monica Joseph together, she became suspicious of their movements and started arguing with her husband. Elina accused her husband Steven of wasting the whole morning in the river. The court finds that Elina argued with her husband not for wasting time, but on suspicions that he was having a sexual affair with Monica Joseph. While wife and husband were still arguing, Monica left them and went upstream where she sought refuge with his brother Michael and his two friends, Joe and Markus Marang. They all returned to their houses about 5:00 pm that afternoon.

9. The above findings and inferences are drawn on the basis of the authorities of State –v- Tom Morris, [1981] PNGLR 498, Paulus Pawa –v- The State [2001] SC and Devlyn Donald –v- The State [2006] SC 881. I draw the following additional inferences and conclusions.

a) The Court finds that this statement and the words were indeed uttered by the deceased, Monica Joseph in front of his uncle, Gabriel Akue David, his cousin brother, David Aragel, the accused Steven Donia and his wife Elina Donia and Martin Linge, the brother in law of the accused. This statement was uttered sometime between the hours of 9:00 pm and 10:00 pm on Wednesday 1st April 2006.

(b) The deceased never said anything else after making this statement either that Wednesday night or on Thursday the 2nd April 2006 on her way to the Bialla Health Centre. She never said anything else until her death at the Bialla Health Centre on Thursday 2nd April 2006 at about 10:am.

(h) During cross examination learned counsel for defence, Ms Ainui suggested to both Aragel David and Gabriel Akue David that, all the deceased said was "Steven holim mi" and not Steven "kuapim mi." The two State witnesses however, maintained what they said in their evidence in chief.

(i) During final submissions, I asked Defence Counsel Ms Ainui what her interpretation and understanding of the pidgin phrase "Steven holim mi" meant in the context of what is being alleged. According to Defence Counsel, the phrase simply means a touch as in an ordinary human touch.

(j) I do not think that Defence Counsel really understood this issue but this Court, finds that the phrase "Steven holim mi" in the context of her pain and agony and the situation she was in simply means Steven grabbed me in pursuance of his sexual lusts and carnal desires, or simply Steven held or grabbed me for sexual purposes. It could not be given any other interpretations and one need not be a rocket scientist to understand this.

Dying Declaration

10. After the close of the case for the defence, the Court invited both counsel to address me in their final submissions on whether the statement uttered by the deceased Monica Joseph can be construed as amounting to a Dying Declaration or not and whether it can therefore be admissible evidence under section 20 of the Evidence Act.

11. Defence counsel, Ms Ainui simply submitted that the deceased never uttered or made any statement which can be construed as a dying declaration. State Prosecutor, Mr Popeu on the other hand submitted that the statement was made by a young girl who knew she was dying, and that she never made any other statements. He further submitted that if the deceased was still alive, she could have been a competent State witness if the subject matter of her statement were to be pursued in Court.

12. Because of these factors, Mr Popeu submitted that the Court should find that the statement "Steven Donia, you took me down to the river Hemendi, you tried to rape me, but I screamed and you covered my mouth with your hands and then you raped me. Now I am loosing blood and I am going to die." has satisfied all the elements of what is a dying declaration, and so should accept this statement as a dying declaration and have it admitted as admissible evidence under section 20 of the Evidence Act. I do find a lot of merit in this submission.

Admissibility of Dying Declaration as Evidence

13. Is this a dying declaration and is it admissible evidence? There is a fundamental rule of the law of evidence that the assertions of persons other then the witness who is testifying in Court are inadmissible as evidence of the truth of that which is being asserted. There are however, a number of exceptions to that rule of law.

14. One such exception is a dying declaration. The admissibility of such evidence is governed by Section 20 of the Evidence Act which provides:

Section 20 – Dying Declarations

A statement made orally by a person before his death relating to the circumstances, resulting in his death is admissible in any legal proceedings if:-

(a) at the time when the person made the statement, he believed, or may be reasonably supposed by the Court to have believed, that his death was imminent, whether or not:-

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person made the statements, he would have been a competent witness in the legal proceedings; and

(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

15. During cross-examination and also during final submissions, Ms Ainui learned counsel for defence suggested that the deceased was compelled and forced to make that statement by his uncle Gabriel Akue David and therefore she submitted that the statement is inadmissible by virtue of Section 28 of the Evidence Act.

16. In cross-examination Gabriel Akue David was asked:

"Q. Did you force Monica to talk? correct?

A. We said, you are bleeding and tell us what happened and she said; Steven holim mi long wara."

So we said that we will go to Court over this; and so she said; "Steven holim mi long wara, na mi singaut, em holim mi long maus, na kuapim mi long wara."

17. The Court finds that there was no compulsion or threat applied to the deceased to make that statement. If any, her uncle mentioned going to Court over the subject matter of her statement which prompted her to make the statement. The court finds that the deceased made the statement voluntarily.

18. In deciding whether or not the statement of the deceased is a dying declaration, I must also assess the credibility of the three state witnesses who are all directly related to the accused. I was quite impressed with the witnesses, the uncle of the deceased, Gabriel Akue David, the cousin brother of the deceased, David Aragel, and Michael Yappa, the elder brother of the deceased.

19. The trio gave their evidence clearly and in my view did their utmost best to recount what had happened. They were cross-examined at length, but not shaken at all in cross examination. Their respective demeanors were not shaken at all or impeached during cross-examination. Their evidence was not discredited in any way at all during cross examination. I find the three to be witness of truth. I believe what they told the Court.

20. I cannot make the same observation of Steven Donia and Martin Linge. Their evidence matched each other very well in almost minute detail. This leaves me with one unavoidable conclusion: Their evidence was rehearsed over and over and concocted to hide the truth. Both were evasive and shifty in cross examination and their words cannot be believed and relied upon.

21. The nature of a dying declaration has been described in this words by Eyre CB in R –v- Woodcock [1789]1 Leach 500 at 504.This is also referred to in our Criminal Law and Practice at page 648 to 650.

"The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and where every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice."

22. This principle is based upon the Christian belief in life hereafter and about the "most powerful considerations to speak the truth" are those which exercise the mind of a Christian about to meet his Maker. The exception to the hearsay rule evolved under a strong sense of punishments for falsehood and sin.

23. Be that as it may, section 20 of the Evidence Act, makes no mention of religious beliefs of the declarant. I see absolutely no reason to bring into interpretation of section 20, religious beliefs or conviction.

24. So in PNG the situation is that a dying declaration may be admitted into evidence only if such a declaration comes within the ambit of section 20. Religious beliefs or convictions has nothing to do with section 20. See The State –v Enny Bulen [1990] PNGLR 43.

25. In the South Australian case of R-v- Rogers [1950] SAStRp 15; [1950] SASR 102, Napier CJ said (at page 108):

" The fact to be proved is the state of mind at the time when the declaration was made, but the conduct and expressions of the deceased before and after that time cannot be ignored. The question of fact falls to be determined upon a consideration of all the circumstances in evidence."

Here the deceased Monica Joseph was in a lot of pain and agony. She knew that she had no hope of recovery. Her mind was not preoccupied with anything but induced by the most powerful considerations to speak the truth of what happened. After uttering that statement, she went back to sleep oblivious of the presence of those who were there.

26. In the State –v- Enny Bullen [1990] PNGLR 43, the then Chief Justice, Sir Buri Kidu said that for purpose of admitting a dying declaration in evidence under Section 20 of the Evidence Act the Statutory conditions require that:

(a) the declaration be oral.

(b) that the declarant believed that death was imminent.

(c) that the declarant/deceased would have been a competent witness; and (d) that direct oral evidence of the matter declared was admissible.

27. The onus of proving the conditions precedent to the admissibility of a dying declaration is upon the prosecution. It was unnecessary for me to decide whether the standard of proof is the criminal standard of proof beyond reasonable doubt or on the balance of probabilities because in any event the facts have been proved beyond reasonable doubt.

28. Having heard from witnesses David Aragel and Gabriel Akue David, this Court is satisfied and it is the judgment of this Court that in relation to the statement alleged to be a dying declaration attributed to the deceased:

(1) It was made orally.

(2) It was made by the deceased before her death.

(3) It related to the circumstances resulting in her bleeding and eventual death.

(4) The sexual penetration resulting in her bleeding was the major precipitating cause of her death.

(5) In so far as it identified the accused as the aggressor or perpetrator, and the circumstances surrounding the sexual penetration in the river, it related to the circumstances resulting in why she was bleeding very heavily.

(6) at the time when the deceased made the statement and said "na bai mi dai nau" and thereby believed that her death was imminent, this court is satisfied in addition that, apart from her expressed belief that her death was imminent, the belief which this court supposes that she had at that time was a reasonable belief.

(7) At the time when the deceased made the statement she would have been a competent witness in criminal proceedings against the accused.

(8) The deceased could if she had not died have given direct oral evidence in criminal proceedings against the accused of the subject matter of her statement. See The State –v- Jimmy Bellam [1979] N192 followed.

COURT FINDINGS AND ADMISSIBILITY OF THE DYING DECLARATION

29. This Court so finds and it is the judgment of this Court that the statement of Monica Joseph, viz, "Steven grabbed me at the river, and tried to sexually penetrate me, and when I screamed, he covered my mouth and then raped me in the river, now I am bleeding and I am going to die," has satisfied all the statutory conditions under Section 20 of the Evidence Act.

30. Accordingly this court finds and declares that the statement of Monica Joseph uttered in front of her relatives as well as the accused and his wife on the night of Wednesday 1st April 2006 is a dying declaration. It is therefore capable of being admitted as admissible evidence in the proceedings under section 20 of the Evidence Act.

31. And this court so admits into evidence the statement of the deceased identifying the accused as the aggressor or perpetrator of a sexual penetration incident as a dying declaration under section 20 of the Evidence Act.

32. If Steven Donia is innocent as he claims to be, one would not have expected a deceased person to have blamed him or branded him as the perpetrator.

33. The significance of a dying declaration in this case as a whole is to be found in the fact that there is yet another person (the deceased, Monica Joseph in this case) whom the court is being asked to disbelieve. And there is no legal basis for this court to do that.

34. In much the same way as circumstantial evidence accumulates and strengthens, so it is in the present case, the evidence against the accused has accumulated; the dying declaration has added a lot weight to the prosecution case and in fact gives it an important strength.

Causation

35. There is yet one issue which neither counsels addressed me on in their final submissions. And that is the issue of causation. This issue arose to an extent, in relation to the medical evidence revealing the presence of the sexually transmitted infection found in the deceased.

36. Essentially causation arises when there is an intervening act or event in the cause of the death. The question therefore is whether the accused's conduct was so connected with the deceased's death that it must be said to be a substantial cause of the death. Could infection from her sexually transmitted infection be said to have supervened between the time the decease started bleeding and the time when she died? The State –v- Jimmy Bellam [1979] N192 followed.

37. In the South Australian case of Hallet –v- R [1969] SASR 141 (at p 149) the issue was stated as follows:

"The death of the deceased is the material event. The question to be asked is whether an act or series of act (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event, that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event."

38. The question, therefore, is whether the accused's conduct was so connected with the deceased's death that it must be said to be a "substantial cause" or a major precipitating cause of the death.

39. Bearing this in mind, at the close of the Defence case, I brought to the attention of both counsels, especially the defence counsel, the National Court decision in the case of the State –v- Dr. Moses Manwau [2009] N3797. Copies of this judgment were even provided to both counsel. Sadly in the final submissions, Defence counsel simply failed to read the angle of the court's thinking to pick up on this issue.

40. In that case, the accused was indicted on one count of preventing an unborn child from being born alive contrary to Section 312 of the Criminal Code. The accused was alleged to have induced a 14 year old girl in giving birth to a fresh still born baby girl by administering a drug called misoprostal which in turn ruptured the membrane leading to the still born birth.

41. Medical evidence also showed another cause of the still born birth: the untreated sexually transmitted infection of the mother. Specifically the young mothers' untreated syphilis infection.

42. The question here is could the sexually transmitted infection found in the deceased be said to have supervened between the time the deceased was sexually penetrated and the time when she lost a lot of blood and died? Another question to be asked is; could there have been some other supervening factors from the time of her being sexually penetrated on Sunday and her death on a Thursday morning where evidence is that she did nothing in terms of seeking medical treatment but was just sleeping in her house?

43. As I said earlier both counsel did not make submissions in Court on this issue of causation.

44. In the absence of defence and prosecution counsel's in put in submission on this threshold issue, I will therefore not make any definitive findings on this issue of causation, save to say that the Court is content with and needs to look no further than to the medical evidence. The medical evidence does show that there was a massive loss of blood which is attributed to the sexual penetration which in turn gave rise to the hypovoelemic shock which triggered off a cardiac arrest in the deceased leading to her death.

45. It is the judgment of this Court and the Court so finds that the major precipitating cause of the death and was at the very least, a substantial cause of the death was massive loss of blood, caused by the sexual penetration of the deceased by the accused. This massive loss of blood triggered a hypovoelemic shock leading to cardiac arrest in the deceased. The court finds that the sexually transmitted infection detected in the deceased is a treatable disease and could not have been the substantial cause of the death of the deceased or a major supervening act.

Elements of the Offence Charged

46. The accused is charged with murder under Section 300(1)(b)(i)(ii) of the Criminal Code.

47. The elements of this offence which the prosecution must prove beyond reasonable doubt are that:

(1) The accused killed another person; and

(2) The circumstances are that the death was caused by means of an act done in the prosecution of an unlawful purpose; and

(3) The act was of such a nature as to be likely to endanger human life.

48. These are the three actus reus elements of the offence. In determining the first actus reus element, whether the accused has killed another person, Section 291 is very relevant. It states:

s.291: DEFINITION OF KILLING

"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."

49. The second and third actus reus elements must be separately proven. The unlawful purpose (second element) and the dangerous act (third element) relied on by the prosecution must be shown to be distinct. The dangerous act must be done while prosecuting some purpose other than doing of the dangerous act itself. The provision is aimed at a situation where an act, eg striking, occurs where some other and distinct purpose eg. armed robbery is pursued – see R –v- Kiandari [1967-68] PNGLR 31 (pre Independence Supreme Court, per Clarkson J), R –v- Koito Kartogati [1974] PNGLR 225 (pre Independence Supreme Court, Kelly J), Joseph Maino –v- The State [1977] PNGLR 404 (Supreme Court, Frost CJ, Raine J, Williams J) Herman Pasi –v- The State [1991] PNGLR 254, (Supreme Court, Kapi DCJ, Los J, Salika J) The State –v- Tau Ted Lahui [1992] PNGLR 325, (National Court Hinchliffe J).

50. If an accused is charged under only Sections 300(1)(b) and the elements are not proven, the Court cannot substitute a conviction for murder under another paragraph of Section 300(1), eg Section 300(1)(a), which applies if the offender intended to do grievous bodily harm to the person killed or to some other person. The only alternative verdict is manslaughter, under Section 539(2), (See Herman Pasi –v- The State [PNGLR] 254 Los J dissenting on that issue). Section 300(1)(b) does not expressly prescribe the essential elements that has to be proven in order to sustain a conviction for murder under this provision. Section 300(3) says that in a case to which s300(1)(b) applies, it is immaterial that the offender did not intend to hurt the particular person. It is to be inferred that it must be proven beyond reasonable doubt that the accused voluntarily committed the act, with the intention of doing it, and with honest and reasonable knowledge that it was not an innocent act. (see The State –v- John Okun [2000] PNGLR 60 (Kirriwom J).

(1) Killing

51. In the present case the Court finds that the State has proven beyond reasonable doubt, that the accused Steven Donia directly caused the death of Monica Joseph; by sexually penetrating her which resulted in a massive loss of blood that led to hypovoelemic shock, which triggered off a cardiac arrest in the deceased. The first actus reus element is proven.

(2) Unlawful purpose

52. It has been proven beyond reasonable doubt that the accused Steven Donia sexually penetrated the deceased Monica Joseph, who is a girl under the age of 16 years. Under Section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act, it is a serious indictable offence to penetrate a girl under sixteen (16) years.

53. Monica of course bled heavily after she was sexually penetrated. The massive loss of blood resulted in hypovoelemic shock which in turn triggered a cardiac arrest in the deceased leading to her death. The second actus reus is proven.

(3) Endangering human life

54. When the accused sexually penetrated the deceased he knew or ought to have known that forcefully penetrating a young girl against her will may likely result in heavy bleeding to the young girl. And this was likely to endanger her life.

55. Medical evidence revealed that the deceased also sustained lacerations to her vaginal walls and around her genitalia.

56. This clearly demonstrates use of force to subdue her in order for the forceful penetration to be effected. And it was a very hard and forceful penetration. The Court finds that this was an act which was likely to endanger human life. The third actus reus element is proven.

Intention

57. It has been proven beyond reasonable doubt that the accused Steven Donia intentionally penetrated the vagina of the deceased, knowing full well that she was only a young girl. His carnal lusts and desire prompted him to do what he did. He never for one moment considered the serious consequences and the gravity of his actions. He put carnal desires for the flesh ahead of common sense and reasoning.

Verdict

58. All elements of the offence have been proven beyond reasonable doubt, and the Court finds and it is the judgment of this Court that Steven Donia of Kesa Village, Walium District in the Madang Province guilty of the murder of Monica Joseph, as charged and I accordingly convict him under Section 300(1)(b)(i)(ii) of the Criminal Code.

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Public Prosecutor: Lawyer for the State
Acting Public Solicitor: Lawyer for the Accused