N4678

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 82 of 2010

THE STATE

V

YUTICUS SUMA

Lae : Batari, J
2012 : 12, 27 April

CRIMINAL LAW– particular offence – murder –– evidence - deceased sustained leg injury from knife stab resulting in severe bleeding and death – whether stabbing accidental or caused by the accused – circumstantial evidence – principles of - whether evidence sufficient to support finding that the accused stabbed the deceased and the stabbing was the cause of death.

CRIMINAL LAW– particular offence – murder – Criminal Code s.300 (1)(b) – application of - whether death by “act done in prosecution of unlawful purpose,” which act likely to endanger life – delay in seeking help and medical attention – whether stabbing caused in execution of an “unlawful purpose” – whether accused guilty of murder. 

Facts

The deceased, wife of the accused, was stabbed on the thigh and prevented by the accused from seeking medical treatment. The accused denied stabbing the deceased. He was charged under s. 300 (1) (b) that, the death was caused by means of an act – (i) done in the prosecution of an unlawful purpose; and (ii) of such a nature as to be likely to endanger human life.

Held : (1)	Section 300 (1)(b) of the Criminal Code relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful; the dangerous act and the unlawful purpose being distinct. 
Joseph Maino v The State [1991] PNGLR 254, The State v. Nelson Tuli [1997] N 1534 followed.

(2)	In the circumstances of the case the only reasonable inference to be drawn from the evidence is that the accused caused the death of the deceased.

(3)	Section 300(1)(b) of the Criminal Code was inapplicable to the circumstances of the case.

(4)	The charge of murder being laid under s. 300(1)(b) of the Code only, an alternative verdict is not available under s. 300(1)(a). The only alternative verdict is that of manslaughter under s. 539 (2) of the Code: Pasi v. The State [1991] PNGLR 254, followed.

Cases Cited

Papua New Guinea Cases

Joseph Maino v The State [1977] PNGLR 404
R v. Hone Dorope [1970] SC 608
Pasi v The State [1991] PNGLR 254
The State v. Nelson Tuli (1997) N 1534
Devlyn David –v- the State (2006) SC 881
State v. Tom Morris [1980] PNGLR 493
Paulus Pawa v. The State [1981] PNGLR 498

Overseas Cases

Barca v The Queen [1976] 50 AL JR 10 
McGreevey v DPP [1973] I WLR 276
R v. Hansen [1974] Qa R 404

Counsel

H. Simon, for the State
K. Pais, for the Accused

VERDICT
27 April, 2012

1. BATARI, J: The accused, Yuticus Suma stands charged that he murdered his wife, Anita Joyce Suma on 23rd July, 2009. He denied the charge.

Background – Undisputed Facts

2.	The common facts are that, on 23rd July, 2009 between 6:30pm and 8:30pm Anita was alone with the accused at their home at Awagasi Block, Kamkumung, Lae, when she sustained a stab wound and died. She had left the matrimonial home for some three months to live with a Robis Awesa, at SIL, Ukarumpa, Kainantu and the accused got her back upon her pleas. The couple had just returned from Kainantu, when Robis called Anita on her mobile phone. That call precipitated an altercation between the couple and the stabbing. 

3.	The Medical Post Mortem Report compiled by Dr. Kobby Bomareo described the injury as a, “Deep penetrated stabbed wound 4cm x 11cm deep, located 3cm above the posterior aspect of the knee joint”. This caused rupture of the main artery leading to severe bleeding and subsequent death.

4.	It is also undisputed that, after a brief struggle, the accused sat on the doorway blocking off exit and entry into the couple’s room while Anita lay bleeding from a knife wound in the room. She managed to leave the room on her own and called for help from the neighbours. She was assisted to the hospital but died upon arrival.

5.	The accused is alleged to have caused the death of the deceased in the prosecution of an unlawful purpose. Hence, his charged with murder pursuant under s. 300 (1)(b) of the Criminal Code. 

Application of s 300 (1)(b) of the Criminal Code 

6.	Section 300 (1) set outs five different situations in which a person may be guilty of murder as follows: 

“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 the person killed or to some other person; or

(b)	if death was caused by means of an act—

(i)	done in the prosecution of an unlawful purpose; and
(ii)	of such a nature as to be likely to endanger human life; or

(c)	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i)	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii)	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d)	 if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e)	if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).”

7.	The difficulty in appreciating the applicability of s.300 (1)(b) lies in the distinction to be drawn between the “act” and the “unlawful purpose.” To sustain a conviction under this provision it must be established that, the “act” which is done in the prosecution of an unlawful purpose is separate and distinct from the “unlawful purpose”: The State v. Nelson Tuli (1997) N 1534.

8. 	The “act” must be of such nature as to be likely to endanger human life when the “act” is done in prosecution of a further purpose which is unlawful. That is to say, the provision can only apply where the dangerous act itself did not constitution the unlawful purpose. This has been clarified by the Supreme Court in Joseph Maino v. The State [1977] PNGLR 404.

9.	In Pasi v. The State [1991] PNGLR 254 the Supreme Court affirmed the cases of R v. Hone Dorope (1970) SC 608 and Joseph Maino v. The State as setting out the correct application of s.300(1)(b) where, Kapi DCJ (then) said;

“The applicability of s. 300 (1)(b) ..... is set out in the cases of R v. Hone Dorope [1970] SC 608 and The State v. Joseph Maino [1977] PNGLR 404 (sic). These two cases stand for the proposition that the “act” which is done in the prosecution of an “unlawful purpose” is separate and distinct from the “unlawful purpose”. In the present case, assault on the deceased which constitutes the act cannot also constitute the unlawful purpose. In such circumstances s. 300 (1)(b) cannot be applicable.”

10.	The appellants in Pasi v. The State attacked the deceased by punching and kicking him in the region of the ribs several times resulting in death. They were charged and convicted under s. 300 (1)(b). The Supreme Court held the circumstances of the assault on the victim could not constitute the “act” and the “unlawful purpose.” Therefore, a conviction based thereon was an error. The Court also held that, where a charge of murder is laid under s. 300 (1)(b) of the Criminal Code only, an alternative verdict of murder under s. 300 (1)(a) is not available. The only alternative verdict is manslaughter. 

11.	In Joseph Maino v. The State, the Supreme Court set aside a conviction for murder charged under s. 305 (b) (now s. 300 (1)(b)) of the Code in the circumstances where the appellant assaulted the deceased by knocking the deceased down and stamping on his neck 6 or 7 times resulting in death. The Court held that s. 305 (b) was inapplicable to the circumstances of the case. 

12.	It is apparent from these case authorities that the “unlawful purpose” postulated by s. 300 (1)(b) must be something other than personal injury to the victim. A classic example of a situation where s. 300 (1)(b) will apply is where an old woman was killed by a shot discharged by the accused from a rifle when she surprised him ransacking her house and the accused had armed himself in the event of being discovered: R v. Hansen [1974] Qa R 404. 

13.	Similarly, a person who breaks into the premises with the intention to steal but is confronted by the occupier and he stabs the occupier to death will be lawfully convicted under s 300 (1)(b) of the Code. In this example, the act of knifing which caused death was done in the prosecution of an unlawful purpose namely, the act of breaking and entering of premises with intent to steal.

Proof of Murder under s. 300(1)(b) of the Criminal Code.

14.	The State does not allege that Yuticus stabbed the deceased. Counsel, Mr Done in presenting the Indictment for Mr Simon to prosecute confirmed that position by amending the Indictment to charge only that the killing was done in prosecution of an unlawful purpose pursuant to s.300(1)(b) of the Code. 

15.	Having preferred a charged of murder under s. 300 (1)(b), the relevant questions to ask are:

(i)	What was the “act” that was done in the course of an “unlawful purpose?”
(ii)	What was the “unlawful purpose” in course of which the “act” was committed?

16.	To establish these elements, the prosecution must adduce evidence showing the “act” and the “unlawful purpose” as separate and distinct factual occurrences. The evidence must show that the death of the deceased was caused by an “act” that was of such a nature as to be likely to endanger human life and that crucially, the “act” was done in the course of an “unlawful purpose”. 

17.	There is no dispute that the deceased died as a result of the stabbing. There are two probable causes. The first possibility is that the accused stabbed the deceased in which case the stabbing would constitute the unlawful “act.” The question which then raises the applicability of s. 300 (1)(b) of the Code is whether the stabbing was “done in the prosecution of an unlawful purpose.” The other possibility is that the stabbing was accidental in which case, the accused may not be guilty of any wrong-doing.

18.	The prosecution case is conducted on the assumption that the stabbing was accidental. It postulates that, because the accused deliberately denied his wife early medical treatment, he is guilty of murder under s. 300 (1)(b). 

19.	It is obvious from this proposition that the prosecution has misapprehended the facts and the applicability of s 300 (1)(b). This is a serious blunder. It is critical to diligent prosecution of the State’s case as will be shown shortly. But first, it is necessary to consider the evidence surrounding the injury and whether it was accidental or whether it was caused by the accused. 

20.	Granted that Anita died from a stab wound and accepting that there is no direct evidence to show how she sustained the injury, there is on the other hand, a very strong circumstantial evidence implicating the accused.

Circumstantial Evidence – Application of.

21.	The evidence on the stabbing is wholly circumstantial. So, I bear in mind settled principle of law in this jurisdiction that, the Court must acquit unless the facts proved in the evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. See, Paulus Pawa v. The State [1981] PNGLR 498 which affirmed the common law principle in Barca v. The Queen [1976] 50 AL JR 108; McGreevey v. DPP [1973] I WLR 276 adopted and followed by Miles J in State v. Tom Morris [1980] PNGLR 493. These cases also state that the inference to be drawn as to the guilt of the accused must make sense and follow logically from all the facts and circumstances.

22.	A more recent Supreme Court case in Devlyn David –v- the State (2006) SC 881 restated the principle with much clarity and brevity in proposing 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.

Whether the only rational inference is that accused stabbed the deceased.

23.	The accused is the only person who knew how his wife sustained the leg injury. The only other person who would know was Anita. She cannot speak for herself. She is dead. The State’s two witnesses, Jackson Tamo and Tusi Tamo, were the landlords who lived in the room next to the accused and Anita in the same building. Their evidence is peripheral to Anita’s injury. They heard Anita calling out for water and upon investigation; they found her on the ground outside the door bleeding heavily from a stab wound to the leg. Mr Tamo left to look for transport while his wife attended to her injury. Anita was assisted to the hospital in a vehicle but was dead upon arrival.

24.	In his oral testimony, the accused spoke of arriving back in Lae from Kainantu accompanied by his wife. She prepared some food and after they had their meal, he laid down on the floor resting. His wife sat next to him. She then received a call from Robis Awesi. He enquired about the call, but she reacted angrily and attempted to stab him on his head with a kitchen knife. He quickly grabbed Anita’s hand and pushed it away. He then moved to the doorway and sat down with his back to his wife. Sometime later he realised his wife was bleeding heavily from her leg so he fetched water to clean out the blood.

25.	I find the accused incoherent, evasive and unimpressive under oath. He told an incredible tale of deflecting a sharp kitchen knife deliberately aimed at his head by a very angry wife and sitting down a short distance away with his back to her. It seems so illogical and defied common sense that one would simply shift his location and offered his back to very a hostile wife who had just tried to murder him. That would be the most unthinkable and death-defying thing to do. 

26.	It is more probable that the accused sat with his back to his wife because he knew she had been injured and no longer posed him any threat. This inference is open on the circumstances of the case, supported by independent evidence of Mrs Tamo who saw him going into the house with a bucket of water about three times before Anita called for help. The accused also spoke of fetching water to clean out blood from inside the room where his wife was lying. 

27.	This is a clear admission of his knowledge of his wife’s situation before he sat on the doorway. He knew his wife was inside the room lying down on the floor and slowly bleeding to death. He then entered, not to help her, but to clean out blood from the floor. An uncanny impression is left of him being more concern with the condition of the floor than the welfare of his own wife. 

28.	There is also overwhelming evidence of his deliberate hindrance and prevention of help for his wife. He could have easily alerted the neighbours. Or the least the accused could have done was to apply simple first aid by tying a cloth around the wound to stop the bleeding. It is clear from his evidence and his conduct that, he was not concerned about her life; he showed no compassion and was unremorseful. 

29.	This could only be consistent with the conduct of a very angry, uncaring and unforgiving husband. The intervening period was no doubt long so that by the time help arrived; Anita’s condition had worsened. According to Dr Kobby Bomario, the deceased would have died after some hours without medical intervention or simple first aid to stop the bleeding. 

30.	The evidence also shows a strong motive for him to attack his wife. Anita had earlier eloped with another man to Kainantu. After some three months, she pleaded within him to take her back and he obliged. He went up to Kainantu on 22nd July, 2009 but Robis Awesi could let him take Anita away. When his attempts to seek assistance from Robis Awesi’s supervisor failed, he sought help from Kainantu Police. Upon their return to Lae the next day, they had hardly settled down when Robis rang and spoke with Anita. That phone conversation led to altercation, production of a kitchen knife and Anita’s demise. 

31.	Given that scenario, it is reasonable to expect the insults and bigotry conduct of Anita would likely deprive an ordinary person of the power of self-control and induced him to react. The accused in fact confronted Anita about the phone call. It is highly probable he was angry when he did that. If the Anita had indeed produced a kitchen knife as the accused spoke of, that would have been the “last straw that broke the camel’s back”. It is highly probable that the accused had then disarmed Anita and had used the same knife to stab her. 

32.	This inference is strengthened by the medical evidence of the wound being located on the thigh at the back of the knee joint. According to Dr Kobby Bomario, the location, point and direction of entry and the dept of the wound were consistent with a forceful thrust of the knife directly from the back. 

33.	Did the deceased stab herself or was the injury the resulted of an accident? These possibilities were dismissed by Dr Bomario as unlikely. Furthermore, the accused did not say Anita received the injury in a struggle over the knife or that she accidentally stabbed herself. He spoke only of grabbing Anita’s hand and pushing it away with the knife. 

34.	What is clear from the whole of the evidence is that, a knife was within the grasp of the accused. The prevailing circumstances were such that the occasion presented itself for the accused to use the knife in reprisal against Anita’s aggression if she indeed was the aggressor as the accused spoke of. 

35.	The only rational inference that all the circumstances would enable the Court to draw is that the accused stabbed the deceased. The inferences drawn from the proven facts are reasonable and based on something more than mere conjectures. See, The State v. Tom Morris [1981] PNGLR, 493

Whether the stabbing was done in the prosecution of an “unlawful purpose” 

36.	I now return to the prosecution case. Accepting that the stabbing of Anita satisfies the element of “act”, what was then, the “unlawful purpose” in pursuit of which the stabbing was done?

37.	First, I have great difficulty following the State’s contention on what the “unlawful purpose” was as the evidence does not disclose that element. Prosecution apparently relies on the findings that, the accused deliberately prevented and denied Anita early medical intervention and that accelerated Anita’s death. It postulates that such conduct make him guilty of murder under s 300 (1)(b)of the Code. 

38.	Anita died from an unlawful “act” namely, the stabbing. The stabbing cannot also constitute the “unlawful purpose” under s. 300 (1)(b) as the “act” must be distinct from the “unlawful purpose.” The “unlawful purpose” is the underlying element in the prosecution of which a further unlawful “act” is committed as in the example given of a killing in the course of a house- breaking.

39.	Second, the State’s contention that s. 300 (1) (b) of the Code applies on the basis of accidental stabbing is misconceived. This resulted from an inexplicable concession from the outset that the intention to cause grievous bodily harm under s. 300 (1)(a) of the Code was not open on the allegations. Such misapprehension of the facts and misapplication of the law is critical -to diligent prosecution of the State’s case.

40.	I have found that, the oral testimony of the accused does not support the State’s presumption of accidental stabbing. The prosecution’s contention flies in the face of strong circumstantial evidence that was apparent from the outset. The accused could have been the only person responsible for the stabbing. As the Court has found, the evidence supports a murder charge under s. 300 (1)(a) of the Code. The accused intended to cause Anita grievous bodily harm when he stabbed her and because she died, a conviction of murder is open.

41.	The prosecution has not shown that the accused stabbed the Anita in the prosecution of an “unlawful purpose.” That element has not been proven. Hence, the accused cannot be lawfully convicted of murder under s. 300 (1)(b) of the Code. 

42.	An alternative charge of murder under s. 300 (1)(a) was not preferred by the prosecutor. So, despite the strong circumstantial evidence supporting an intention to cause unlawful grievous bodily harm and hence, a murder verdict under s 300(1)(a), that alternative verdict is not available. The only alternate verdict is that of manslaughter under s. 539(2) of the Code according to the authoritative proposition of law in Pasi v. The State [1991] PNGLR 254.

43.	I find the accused not guilty of murder but guilty of manslaughter under s.539 (2) of the Code Act: Pasi v. The State [1991] PNGLR 254.

Verdict : Not Guilty of Murder and acquitted.
: Guilty  and convicted of manslaughter.

___________________________________

Public Prosecutor: Lawyer for the State
Pais Lawyers: Lawyer for the Accused