State v Mali [2012] PGNC 230; N4801 (7 September 2012)

N4801

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1510 - 1511 OF 2010

THE STATE

-V-

ISRAEL MALI &
DANIEL FRANCIS

Waigani: Gauli AJ
2012: 4, 6, 7 September

CRIMINAL LAW – Trial – Murder – Criminal Code, section 300 (1) (a) – Killing by using blunt force trauma to the head – Self defence – Provocation - Confessional statement to police – Accused assault deceased once on the face with a beer bottle – Other injuries to the deceased body – Assault on the face was not the cause of the death - Insufficient evidence – Verdict – Not guilty of murder – No conviction on alternative verdict of manslaughter.

Cases Cited:

The State -v- John Koe [1976] PNGLR 562
R -v- Woods (1966) N399
The State v. John Koe [1976] PNGLR 562
Paulus Pawa v. The State [1981] PNGLR 498
R v. Paul Maren (1971) N615
The State v. Angela Colis Towavik [1981] PNGLR 140
The State v. Raphael Kunande [1994] PNGLR 512

Counsel:

Mr. T. Ai, for the State
Ms. Obunaka & Ms. Koek, for the Accused

JUDGEMENT ON VERDICT

7 September, 2012

1. GAULI AJ: The accused Israel Mali and Daniel Francis have been indicted on one count of murder, pursuant to Section 300 (1)(a) of the Criminal Code. It is alleged that on the 27th of May 2010 at Keasu Settlement in Gerehu, National Capital District of Papua New Guinea, the accused murdered one Kelega Kelly Anton by a blunt force trauma to the head. The accused have pleaded not guilty to the charge.
   

THE LAW

2. The law in relation to murder falls under s300 of the Criminal Code Act and is in the following terms:
   

300 Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

• (a) if the offender intended to do grievous bodily harm to a person killed or to some other person; or
  

3. The elements of the murder are:
   
   1. Did the accused kill the deceased.
      
   2. Did the accused intended to cause grievous bodily harm to the deceased.
      
4. If the first element is not established the accused may be convicted of unlawfully causing grievous bodily harm to the deceased pursuant to section 539 (4) of the Criminal Code. And if the second element is not proven that the accused had no intention to cause grievous bodily harm to the deceased, a conviction on manslaughter only may be entered under section 539 (2) of the Criminal Code: see the case of R v. Woods (1966) N399.
   

ISSUES

5. The primary issues are:
   
   • (1) Did the accused kill the deceased?
     
   • (2) Did the accused unlawfully do grievous bodily harm to the deceased?
     
   • (3) Did the accused intended to cause grievous bodily harm to the deceased?
     
   • (4) Should the alternative conviction on manslaughter be entered?
     

ONUS OF PROOF

6. Section 37 (4) (a) of the Constitution requires that a person charged with an offence is presumed innocent until proven guilty according to law. This places the onus of proof on the prosecution to prove the person charged with an offence guilty and the prosecution must prove the guilt of a person beyond reasonable doubt: see The State -v- John Koe [1976] PNGLR 562. The prosecution may not necessarily prove every facts of the case but the prosecution must prove every element of the charge beyond reasonable doubt.
   

BRIEF FACT

7. That between12.00 midnight and 2.00 o'clock in the morning on the 27th of May 2010 at Keasu Settlement in Gerehu, National Capital District, the deceased drunk alcohol with relatives. An argument ensued between them so the deceased left and walked down the street. He met the two accused Israel Mali and Daniel Francis and the deceased swore at them and a fight ensued. The accused assaulted him, he fell down and the accused fled. The deceased died soon after the assault.
   

EVIDENCE FOR THE STATE

8. The evidence for the State comprised of the two witnesses namely Detective Senior Constable Robert Ewail and Dr. Seth Fose. The State tendered by consent of the defence the following documents namely – Israel Mali's Statement to Police (Exhibit "A"); Daniel Francis' Statement to Police (Exhibit "B"); the Record of Interview on Israel Mali (Exhibit "C"); the Record of Interview on Daniel Francis (Exhibit "D"); the Affidavit of Dr. Lucas Komnapi (Exhibit "E") and the Medical Autopsy Report (Exhibit "F").
   
9. The witness ROBERT EWAIL is the police interrogating officer on both accused. He gave evidence that on the 28 May 2010, he attended to this murder incident at Keasu settlement on the 27 May 2010. He noticed blood stains on the ground near Gaima Gola's residence. Their house was vandalized and torched by the relatives of the deceased. Gama Gola and his family were not there at the time of his visit to the crime scene. During his investigation both accused Israel Mali and Daniel Francis gave confessional statements to him, (refer to Exhibits "A" and "B"). Both accused admitted that Daniel Francis assaulted the deceased during the course of an argument. When the deceased fell down they all ran away. At that time the deceased was drunk. The accused voluntarily surrendered to Gerehu police on the next day. Three other suspects, Dom Nilime, Gaima Gola and Bagar Nelemi were handed in to police later. All five suspects were arrested and charged. The cases for these three suspects were struck out due to lack of evidence.
   
10. The accused Israel Mali in his statement to police dated 9th June 2010 (Exhibit "A"), stated that while he and co-accused Daniel Francis were talking with Gaima Gola that night, the deceased came and pushed Daniel Francis. Then he pushed and punched Israel Mali and Israel fell down. Daniel Francis intervened and both Daniel and the deceased fought. They were both holding beer bottle each. Daniel swung the beer bottle and hit the deceased on the head. The deceased fell to the ground and they ran away to their houses. Gaima Gola just stood there watching them fight.
    
11. The accused Daniel Francis in his statement to police dated 9th June 2010 (Exhibit "B") stated that as he and Israel Mali were talking with Gaima Gola, the deceased pushed Daniel towards the fence. Then the deceased punched Israel so Daniel approached the deceased and asked him why he did that. The deceased then punched Daniel and Daniel threw his half bottle of beer and hit the deceased on the head and the deceased fell down. Daniel and Israel ran away. Gaima did nothing, he just stood there watching them fight.
    
12. In the Record of Interview (R.O.I) (Exhibit "C") the accused Israel Mali maintained his denial of assaulting the deceased and he relied on his statement to police as the truth. The accused Daniel Francis in his R.O.I. (Exhibit "D") elected to remain silent from answering questions put to him. Both accused suggested that the deceased may have been killed by Gaima Gola.
    
13. Dr. Lucas Komnapi, who conducted a post mortem on the body of the deceased, stated in his Affidavit (Exhibit "E") that the cause of death was from head injury due to blunt force trauma to the head. And his findings are contained in his medical Autopsy Report which he summarized them as follows:
    
    1. Fractured mid shaft of mandibles bilaterally.
       
    2. Laceration to the hip.
       
    100. Bruises to the right forehead with laceration on the right eyebrow.
         
    4. Bruised occipital scalp.
       
    5. Subgaleal haemorrhage of the occipital area of the scalp.
       
    6. Penetrating circular fracture in the occipital.
       
    7. Contused spleen with interacapsular haemorrhage with 20ml of blood within.
       
14. The Witness Dr. Seth Foe is a Pathologist attached to Port Moresby General Hospital. He was called in to explain the above medical terms both in the Affidavit and the Autopsy report provide by Dr. Lucas Komnapi who is currently out of the NCD. Dr. Seth Foe explained the term "head injury due to blunt force trauma to the head" simply means that the "injury on the head was caused by applying a blunt object with a force on the head".
    
15. Dr. Foe further explained the other medical terms as below:
    
    1. "Fractured mid shaft of mandible bilaterally" means that the middle (mid shaft) jaw bone (mandibles) around the mid lines on both side (bilaterally) was fractured.
       
    2. "Laceration to the hip" means there was cut on the hip.
       
    100. "Bruises to the right side of the forehead with laceration to the right eyebrow" means blackness or bleeding under the skin of the forehead with a cut on the right eyebrow.
         
    4. "Bruised occipital scalp" means blackness or bleeding on the back part of the head under the skin.
       
    5. "Subgaleal haemorrhage of occipital area of the scalp" means a space between the skin and the skull there was bleeding in that space at the back of the head. (Subgaleal – space between skin & skull; Haemorrhage – bleeding in that space; Occipital – back of the head; scalp – skull).
       
    6. "Penetrating circular fracture in the occipital" means there was an inward round shape fracture towards the brain at the back of the head.
       
    7. "Contused spleen with interacapsular haemorrhage with 20ml of blood within" means there is a bruised (contused) spleen with space covering the cover sheet (interacapsular) with blood inside.
       
16. Dr. Foe elaborated that if the deceased was hit with a bottle on the head it is likely to cause such injury depending on the angle, speed and the position at the time of the attacker. Any kind of bottle with a strong base or a timber or any blunt object can cause such injury.
    

EVDENCE FOR THE DEFENCE

17. The accused Israel Mali in his sworn evidence in court said that after watching the State of Origin game on the night of 26th May 2010, he and Daniel Francis walked down to Keasu settlement to buy loose bottle beer between 12.00 midnight and 2.00 o'clock in the early morning on the 27th May 2010. They stood in front of Gaima Gola's house and were chatting with him, when out of nowhere, the deceased, a huge tall guy came. He held Daniel and threw him down for no reason. The deceased went and held Israel on the collar of his shirt and he punched and threw Israel down. And the deceased smashed a bottle on Israel's face. The deceased left him and he held and punched Daniel. Daniel and the deceased each held a bottle of beer. Out of fear Daniel and Israel started to run away. As they were running away, Daniel threw a bottle.
    
18. The accused Daniel Francis gave sworn evidence in court. His evidence is very much the same as the evidence of Israel Mali. As they were chatting with Gaima Gola in front of his house, the deceased came, held Daniel and he punched Daniel forcing him to fall towards the side of the fence. The deceased went, punched Israel down and hit Israel with a bottle on the face. The deceased turned and swung at Daniel. As the deceased was coming, Daniel started to run away and as he was running away he threw a bottle not knowing where he threw it to. Both Israel and Daniel ran away.
    

SUBMISSIONS:

19. Both the defence counsel and the State made oral submission. I will allude to their submissions when I consider the issues below.
    

FINDINGS OF THE COURT

20. There is evidence that the two accused left their residences and went looking for beer that night. There was a scuffle in front of Gaima Gola's residence. The deceased died some time after that scuffle. A person by the name of Gaima Gola was all the time present during that scuffle. And he did nothing to either stop the fight nor assisted the accused or the deceased. The deceased died from head injury due to blunt force trauma. What is in dispute is whether the accused hit the deceased with a bottle on the back of the head or on the face that resulted in death. The State has not called any eye witnesses to verify it.
    
21. The evidence for the State is mainly circumstantial and I agree with the submission by the prosecutor. The law in respect to circumstantial evidence is well established in the case of Paulus Pawa v. The State [1981] PNGLR498, that:
    

"Where the evidence in a criminal trial is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused".

22. During the Court party's visit to the crime scene, the witness Robert Ewail, the police investigating officer, showed the court that the deceased was found lying some 22 metres away on the eastern side of Gaima Gola's house, some distance away from where the accused Daniel hit him with a bottle. There were blood stains in between that distance. There were also blood stains from Gaima Gola's house down to the banana patch in the westerly direction of that house. The distance was about 26 metres. There is no evidence as to what happened after the accused Daniel Francis hit the deceased with a bottle. It is possible that anything could have happened to the deceased after the accused have fled from the fight.
    
23. The evidence for the State as per the affidavit and the medical autopsy report from Dr. Lucas Komnapi is that the deceased sustained several injuries to parts of his body mainly head, hip and jaw bone. These injuries includes:
    
    1. A fracture on the middle part of his jaw bone.
       
    2. A cut on the hip.
       
    3. Bruise on the forehead and a cut on the eyebrow.
       
    4. Bruise on the back part of the head.
       
    5. A circular fracture on the back part of the head inward towards the brain.
       
    6. Bleeding in between the skin and the skull in the back part of the head.
       
24. It is questionable whether a beer bottle thrown by the accused Daniel once could have caused all these injuries, in the absence of the eye witnesses evidence. The accused Daniel hit the deceased with a beer bottle only once. The logic and common sense will tell that it is not possible for that one object been thrown once could cause all these other injuries.
    

ISSUE NO. 1: Did the accused kill the deceased?

25. From the whole of the evidence as presented before the court, it clearly established that the accused Israel Mali did not assault the deceased during the fight. The accused Israel Mali maintained his denial throughout both during the trial in court, in his statement to police and during the record of interview. He did not deviate from his statement given to police apart from the manner in which Daniel hit the deceased with a bottle. There is no evidence from the State that the accused Israel Mali assaulted the deceased. I find that the accused Israel Mali never at anytime assaulted the deceased during the fight.
    
26. In respect to the accused Daniel Francis, he was the first person assaulted by the deceased for no apparent reason. The deceased then proceeded and assaulted the accused Israel Mali. At that stage the accused Daniel Intervened and the deceased took a fight with Daniel. The deceased been bigger and stronger than the accused, both Daniel and Israel began to run away. In the process of running away, Daniel threw a bottle of beer to nowhere and both accused ran back to their respective houses some 300 metres away and slept.
    
27. In their statements to police on the 9th of June 2010, some two weeks after the incident, both accused admitted that the accused Daniel Francis hit the deceased on the face with a bottle of beer and they ran away. Prosecutor submitted that Court should accept their statement to police as the truth of what happened. The defence submitted that the Court should accept the sworn evidence of the accused in court. The accused in court said that they made those confessions because they were in fear of their lives from the relatives of the deceased.
    
28. There is no law stating that a confessional statement made to police should carry more weight than the sworn evidence in court. It is possible that such confessional statement may have been made to calm down the tension and or it may be made in fear of their lives. The confessions made to police were not made under oath therefore the truthfulness of their confession would very much depend on the evidence of the State's witnesses. The accused gave no instructions to their lawyer in regard to their change of evidence of the bottle thrown by Daniel. That confession was made when the incident was still fresh in their minds. In fact both accused said Daniel hit the deceased on the face with a bottle. This would mean the accused and the deceased were facing each other when the accused hit him. I accept that Daniel did hit the deceased on the face with a bottle of beer.
    
29. The accused hit the deceased only once with a beer bottle on the facial part. But the deceased sustained other injuries on other parts of his body including the back part of the head. According to the medical autopsy report, the deceased died of a head injury due to blunt force trauma to the head. He did not die of a fractured jaw but he died of the injury to the head. The more serious injury to the head is the one at the back of the head while the injury on the forehead was just a bruise. From the evidence as it is before the court I could not be satisfied that the bottle thrown by the accused Daniel which struck the face did cause the death of the deceased.
    
30. Having reached the findings that the accused Israel Mali never assaulted the deceased and that the assault on the face with a bottle by the accused Daniel did not caused the death, I find that neither of the accused killed the deceased.
    

ISSUE NO. 2: Did the accused unlawfully do grievous bodily harm to the decease?

31. The accused Israel Mali never assaulted the deceased therefore he never caused grievous bodily harm to the deceased. In respect to the accused Daniel Francis, he hit the deceased after he was pushed and punched by the deceased. Both accused described the deceased as a tall and big tough man. Both accused are slimly built and they seemed to be no match to the deceased.
    
32. The defence counsel submitted that the accused Daniel acted in self-defence therefore the accused be discharged. The prosecutor did not put up any challenge to the defence on self-defence. Self defence is available under section 269 (1) of the Criminal Code to the accused as they were provoked by the deceased. This provision is in these terms:
    

"Where a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause death or grievous bodily harm".

33. When the defence raises self-defence the onus is on the prosecution to show the absence of any of the requirements provided under section 269 of the Code. The prosecution must disprove self-defence: R v. Paul Maren (1971) N615. It is a trite law that for a self-defence to become available to the accused there must be prior assault on the accused person by the deceased or the victim. Without that prior assault, the self defence will not prevail, as per the case in The State v. Angela Colis Towavik [1981] PNGLR 140. There is evidence that there was prior assault by the deceased on the accused before the accused threw the bottle at the deceased. And in order for the assault to be justified by law, the force used against the assailant (victim or deceased) must be reasonable and not excessive to effect the defence against the assault. The deceased was a huge tough and tall guy and that he was aggressive towards both accused. He was armed with a bottle of beer at the time. It was a situation where who would strike who with the bottle first. I consider that the force used by the accused in the circumstance was not likely to cause death or grievous bodily harm. The force used was lawful. And I find that the State has failed to prove beyond reasonable doubt that the accused did not act in self-defence.
    

ISSUE NO. 3: Did the accused intend to cause grievous bodily harm to the deceased?

34. Defence counsel submitted that the accused had no intention to cause grievous bodily harm to the deceased at the time he threw the bottle. The State has failed to prove beyond reasonable doubt that the accused had the intention. The State submitted that there was no direct evidence but there is circumstantial evidence. The accused admitted assaulting the deceased with a bottle on the face.
    
35. Intention can be proven by direct evidence where the accused expresses his intention and followed by his action immediately thereafter or it may be proven by circumstantial evidence: see The State v. Raphael Kuanande [1994] PNGLR 512. There is no direct evidence showing that the accused had expressed his intention to kill and then acted upon it. The accused Daniel hit the deceased with a bottle immediately after the deceased assaulted him and the deceased advanced to further assault him. That clearly showed that the accused acted in a heat of passion. He did not have time to premeditate nor plan to cause grievous harm to the deceased. He simply reacted to the situation he was faced with at the time. I find the accused Daniel had no intention to cause grievous bodily harm to the accused.
    

ISSUE NO. 4: Should alternative conviction on manslaughter be entered?

36. The law is well established in the case of R v. Woods (1966) No 399 that where a trial judge is not satisfied that the accused person had the intention to kill, he may be convicted of manslaughter only. The defence counsel submitted that the accused be discharged since the State has failed to establish intention.
    

The State submitted that since the accused admitted that he assaulted the deceased it can reasonably be inferred that he killed the deceased.

37. There is evidence that the accused Daniel hit the deceased with a bottle only once on the facial region. But the deceased sustained other injuries to his body which were not from the accused, particularly the injury on the back of the head, which was the direct cause of death according to the medical report. It is possible that injury may have been inflicted by someone else after the accused have fled from the fight. Given the circumstance of this case as it stands, I am of the view that it is not safe to convict the accused of manslaughter.
    
38. In summary this Court finds that:
    
    1. The accused Israel Mali never assaulted the deceased.
       
    2. The accused Daniel Francis did assault the deceased with a bottle once on his facial region that caused a fracture to his jaw bone and bruise on the forehead.
       
    3. The injury to the jaw bone and the bruised forehead were not the cause of the deceased's death.
       
    4. The accused Daniel Francis had no intention to kill or cause grievous bodily harm to the deceased.
       
    5. It is possible that the injury on the back of the head would have been inflicted by someone else after the accused Israel and Daniel have fled.
       
39. Based on these findings, I find that there is no evidence against the accused Israel Mali. And I further find the evidence for the State against the accused Daniel Francis as insufficient.
    

VERDICT

40. Accordingly, I return a verdict of NOT GUILTY on both accused. And I dismiss the case and discharged the accused each and severally. Their bail monies be refunded.
    

Verdict: not guilty, case dismissed & accused discharged.
_____________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitors: Lawyers for the Accused