State v Leto [2014] PGNC 291; N5924 (20 August 2014)

N5924

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 280 OF 2013

THE STATE

V

MECK LETO

Wabag: Kawi-iu, AJ.
2014 : 13, 14, 18, 20 August

CRIMINAL LAW – Particular offence – Murder – Plea of not guilty – Attribute Cause of death by motor vehicle – No proof of motor vehicle accidental death – Accused guilty of manslaughter and not murder – Criminal Code Act Ch. 262, s.300(1)(a).

Cases Cited

The State v Angela Towavik [1981] PNGLR 140
Denden Tom and others v The State (2008) SC967
The State v Godfrey Edwin Ahupa (1998) N1789
The State v Joey Apuga and Rajiv Kama Awei (2009) N3811)

Counsel:

J. Kesan, for the State
R. Bellie, for the prisoner

JUDGMENT ON VERDICT

20th August, 2014

1. KAWI-IU AJ: The accused stands charged that on the 09th day of September 2012 at Wabag he murdered one Powan Kapi thereby contravening Section 300 (1) (a) of the Criminal Code Act Ch. 262 (the Code).
   
2. The accused plead not guilty. He denied the killing of the deceased and attributed the cause of death as motor vehicle accident.
   

THE EVIDENCE

3. The State's commenced its case by tendering certain documents which were received into evidence by consent. These were:
   
   1. Record of Interview dated 23rd January 2013, English Version Exhibit A.
   2. Sketch Map of alleged scene of accident, Exhibit B.
   3. Photographs Exhibits C, Exhibit C1, Exhibit C2. Exhibit C3 Exhibit C4, Exhibit C5 and Exhibit C6.
      
4. The State then called four other witnesses, Samuel Yoke, Yakapus Pilipus, Steven Pukunara and Dr Guboro Urae who gave sworn evidence.
   

Samuel Yoke (Witness No 1)

5. This witness is employed by Lupa Security Services and was on duty at the time when he heard someone shouting that a Maramuni woman was run over by a vehicle. He went to the scene with others. The accused was standing where the deceased was lying. It was dark. He and the others carried the deceased to the Wabag General Hospital. He did not observed the deceased body to see if there were any marks or scratches as they just left the deceased on the bed and left. He says that he does not know the deceased nor the accused.
   
6. In cross-examination he states that there were a lot of them who went to the scene but he could only called the name of one he worked with. He was asked if there were other people there already at the scene when they arrived, and his answer was "no". He states that the accused was the only person at the scene. When asked what he noticed at the scene the witness said a vehicle had run over her and the accused was minding her.
   
7. In re-examination the witness agreed that he did not know what caused the woman to be lying dead there. He also agreed that he only heard someone shouting that a woman was hit by a vehicle.
   

Yakapus Pilipus (Witness No 3)

8. This witness is from Mulitaka and presently unemployed. He lives at Sakalis near the hospital gate.
   
9. He states that he was asleep at 1.00 o'clock in the night, and so everyone was asleep. He heard someone shouting and saying that a woman was killed and they were asking for assistance to carry her. He woke up and went to the hospital. At the hospital the accused and another who was with him gave the Registration Number for the vehicle. The witness and others came to town looking for the vehicle. They saw some securities and enquired if they heard anything about an accident. The securities replied that a vehicle left long time ago just before the news that a woman was run over by a vehicle. If they would have been informed earlier they would have blocked the vehicle, but they heard the news minutes later.
   
10. The witness states that they found a vehicle near the police station and asked the driver to come and confirm. The driver was locked in the police cell. The vehicle was also locked at the police station.
    
11. The witness says that after searching for the vehicle he went to the hospital and found out that the woman had died. He says there were no scratch or marks on her hands and legs. There was only a scratch on her forehead.
    
12. This witness knew the deceased. He is married to the deceased sister. They all live together in the same compound. He knew the accused as the husband of the deceased. The deceased and accused live together.
    
13. In cross-examination when asked if he saw any injuries on the deceased body, he states that there was only a single mark on her forehead. He said that he does not know how the deceased died.
    

Steven Pakunara (Witness No 4)

14. This witness is a Senior Sergeant attached with the Traffic Section at Wabag Police Station. He has been with the Traffic Section for 26 years. He took carriage of this case when it was initially reported as a traffic accident. On the 10th September 2012 the accused reported to the police station about the incident. The incident had occurred between 8 and 9 September 2012 which was over the weekend.
    
15. He took the accused statement, details of deceased and brief story of how incident happened. He interviewed the accused the next day. He also interviewed the other man who was with the accused when incident happened.
    
16. During the interview the accused told the witness the deceased was his wife. They were walking along the road. The vehicle came toward them from the hospital direction. The vehicle hit the woman and she fell on the side of the road. Peter Kak said he ran after the vehicle while the accused stayed at the scene. They found the vehicle opposite the District Court an hour later, and got the Registration Number and locked the vehicle at the Police Station.
    
17. The witness says that upon his investigation he found that this was not an accident involving motor vehicle so he referred the matter to CID. His reasons for referring the matter to CID were:
    
    • (a) The three of them were walking in a straight line, a meter apart. If vehicle was travelling at high speed and hit one person, the other two would also be affected or hit by the running vehicle.
      
    • (b) The vehicle was inspected for damage by the witness. They said the right side of the vehicle hit the deceased, but there was no such dent whatsoever. The vehicle had its right side lenses slightly damaged. The driver of the vehicle told the witness it was damaged in Pogera. The crack on the lenses is not new. It might had been weeks older. There was dirt already between the cracks.
      
18. If the vehicle was travelling at high speed and hits a person, it would cause a lot of damage to the person. He would roll on the bitumen, get scratches on the body. The vehicle was a 15 seater PMV bus.
    
19. In cross-examination the witness said he investigated the case and got statements. He also visited the crime scene and drew up a sketch plan/map. However, he said he did not compile a Traffic Report because he saw it was no longer a traffic case. He referred the case to CID.
    
20. He did not provide a sketch map to the CID as they had to do their own. He agreed that he does not know how the deceased died. Her husband said vehicle bumped her. It is up to the doctor to decide.
    
21. When questioned by the court, the witness said he did not obtain a statement from the driver. However, the driver verbally told him he does not know of the incident.
    

Dr Guboro Urae (Witness No 8)

22. This witness is a Medical Practitioner for the last 10 years at Wabag General Hospital. The deceased was alleged to have died from a motor vehicle accident. This witness conducted the autopsy on the deceased to determine whether the deceased died as a result of motor vehicle accident.
    
23. In his examination he states that he did not find any significant features of injuries as to be consistent with motor vehicle accident. He states that for a motor vehicle accident there would have been some features like cuts, abrasions and broken bones. In this case he found that the deceased had a wobbly neck and a 10mm cut on the forehead. Every other part of the body was intact.
    
24. In his professional opinion deceased died of injury to the neck cervical spine injury. He stated a probable cause of death would be neck-cervical spine injury.
    
25. Further he stated that a probable cause of death would be neck being twisted. He states it could not have been caused by a fall because there would be other injuries as well. The injury was confined to the neck only.
    
26. The autopsy report was tendered and marked Exhibit D.
    
27. In cross-examination the doctor said the autopsy was conducted a few days after the death. As the morgue was out of order the body was decomposing. The body was swollen with skin peeling off and swollen body which were sign of decomposition of body.
    
28. The doctor stated that if there were injuries they would still be evident on the body. There was a 10mm cut, superficial on the forehead. When asked how much force would cause the cut, the doctor stated the cut was superficial so a light blow would have caused it.
    
29. He also stated that the twisting of a neck could occur by other means. For example when a person was playing sport or when a person is moving forward and something suddenly intervene and hits the neck.
    
30. The photographs, Exhibits C3 and C4 were shown to the doctor. When asked if such injury would be caused by someone using force. He stated that those people with short necks succumb easily to neck injuries. In the medical profession it is difficult to treat people with short necks.
    
31. In re-examination when asked what type of neck the deceased had, the doctor said she had a short neck. This made it difficult for her with her injury and turn out to be fatal.
    
32. The court asked the doctor if the cut on the eyebrow was consistent with being hit by a moving vehicle. The doctor said this was not a hit and run that caused the cut.
    
33. The court also asked if the cut on the forehead would be consistent with being hit by a moving vehicle and falling on a bitumen road. The doctor replied that it was inconsistent.
    
34. After the close of the State's case the defence did not make any submissions but instead called the accused to give evidence. No other witnesses were called.
    

Defence Case

Meck Leto (Accused)

35. The defence case consists entirely on the sworn evidence of the accused.
    
36. He states that he was at Sagurap having few beers with his wife (deceased) and another person Peter Kak. They were going home to Sakalis and followed the main road.
    
37. Peter was walking in front, deceased at the rear and he was walking in the middle. They saw a vehicle coming towards them. The accused heard a bang and realised the woman was falling down. Her body was on the road while her head was on the concrete path. This was at the corner at Kop Creek and they were walking on the left side of the road. He said he was drunk and could not recognise the vehicle or its number plate. The vehicle was travelling towards town.
    
38. Accused then sent Peter to the Police Station while he stayed with the deceased. Securities came and assisted to carry the deceased to the hospital. At the hospital, he noticed a scratch on deceased forehead.
    
39. When asked further the accused states that he heard a small bang sound.
    
40. In cross-examination accused agreed that Peter Kak was his cousin. He agreed that the vehicle was travelling towards them going into town. It passed Peter and him. He also agreed that the vehicle was speeding.
    
41. It was put to him that because the vehicle was speeding, it would have come close to him before it hit the deceased. The accused replied that the vehicle came towards them; he saw it and ran towards the rail.
    
42. The vehicle hit the deceased. The vehicle went past and he heard a sound. He was adamant that the vehicle hit the deceased causing her death. He denied any involvement in her death.
    
43. The court enquired if the vehicle also hit the rail when it hit the deceased. Accused said it only hit the deceased and went on.
    
44. In re-examination he was asked how far he was when the vehicle passed and hit the deceased. He answered he was about an inch away.
    

The Issues

45. The accused had persistently denied killing the deceased; claiming that her death was caused by speeding motor vehicle. Thus the issue would be twofold firstly 'whether the cause of death was attributed to the driving of a motor vehicle', if found to be true then the case will not progress beyond the state's case, as the accused was not the driver of a motor vehicle that caused the death of the deceased. However, if the court finds the cause of death is not motor vehicle related then the second issue is 'whether or not the accused killed the deceased'.
    

Submission

46. Counsel for the accused submitted that the accused had consistently maintained that the deceased died as a result of motor vehicle accident.
    
47. He states in evidence that he was walking in front of the deceased. The vehicle missed him by an inch and hit the deceased walking behind him.
    
48. He further states that he does not know how the vehicle hit the deceased. He was able to hear a small noise and when he turned around the deceased was already hit by the vehicle and lying down with her head on the concrete footpath.
    
49. Whilst he kept watch over the deceased, Peter Kak ran to town to alert people and check on the alleged vehicle involved in the accident.
    
50. At the hospital he checked the deceased body and found a small cut above the deceased eyebrow.
    
51. It is submitted the evidence given by the accused is credible as he had given evidence on what he knew happened at the time. If the state thinks that he killed the deceased by strangling her neck, then the state must proof its case.
    

THE FACTS

52. The accused is the second husband of the deceased Powan Kopi. Between the late hours of 8th September and early hours of 9th September 2012 the accused was with the deceased and Peter Kak who is the accused cousin brother. The deceased, accused and Peter Kak were drinking alcohol at Sangurap. They left Sangurap and walked along the main road towards Sakalis. It is alleged that at Kop Creek the accused killed the deceased by twisting her neck.
    
53. The accused kept watch over the deceased whilst Peter Kak was sent to town and alerted the security guards that a vehicle had hit and killed the deceased. The securities came and took the deceased to the hospital. The incident was initially reported as a traffic accident.
    
54. However, upon further investigation by the Criminal Investigation Division (CID) it turned out to be a case of unlawful homicide. Post Mortem conducted revealed that the deceased had died from respiratory failure caused by neck dislocation or cervical spine injury.
    

THE OFFENCE

55. The accused is charged for murder under Section 300 (1)(a) of the Code which provides:
    

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

...

Penalty: Subject to Section 19, imprisonment for life.

...

56. The essential elements of the offence therefore are:
    
    1. The Accused
    2. Intended to cause grievous bodily harm on the deceased
    3. Caused the deceased's death.
       
57. The accused is charge with one count of unlawful killing of another person. So the issues for me to determine is whether or not the accused caused the death of the deceased? If the court finds the accused caused the death of the deceased the second issue is whether the accused intended to cause grievous bodily harm the deceased?
    

Whether accused caused the death of the deceased?

58. As far as the evidence is concerned the defence contention is that the deceased died from a motor vehicle accident, whilst the State maintained the death was not motor vehicle related, but death was a result of twisting of the deceased neck.
    
59. The evidence of the accused was that they were walking in a single file, Peter Kak in front, he was in the middle and deceased following at the rear. They were on their way to Sakalis after drinking alchohol at Sangurap.
    
60. They were walking on the left side of the road. A motor vehicle approached them from the direction of the Wabag Hospital towards town.
    
61. The vehicle missed him by an inch and hit the deceased. When he turned around he saw the deceased lying on the road, her body on the bitumen and head on the concrete foot path was facing up. At the hospital he checked the deceased and found a small scratch above the deceased eye brow.
    
62. State witness Steven Pakunara is a Senior Sergeant attached to the Traffic Section. His investigation revealed that the death was not caused by motor vehicle accident.
    
63. Another State witness Dr Guboro Urae examined the deceased body and his autopsy report suggested that the death was not motor vehicle related. There were no significant injuries consistent with motor vehicle accident. He states that for motor vehicle accident there would have been some features like cuts, abrasions and broken bones. In this case there is a noticeable wobbly neck and a 10 cm superficial cut on the forehead, whilst everything else was intact.
    
64. In his opinion the deceased died of injury to the neck cervical spine injury. He says the probable cause would be by twisting of the neck. It could not be caused by a fall because there would be other injuries as well. The injury was confined to the neck only. The doctor confirmed in re-examination to a question whether the cut on the forehead was consistent with being hit by a moving vehicle. The doctor said that this was not a hit and run that caused the death. He further states that the cut on the forehead was not consistent with being hit by a moving vehicle and falling on bitumen.
    
65. Other evidence/findings before the court which tend to support the State case that the death was not motor vehicle related are:
    
    • The motor vehicle was approaching town from the hospital, it would be travelling on the left lane opposite to the lane/footpath where the deceased, accused and Peter Kak were walking. No description of how vehicle crossed or swerve to the right lane accused and 2 others were walking on. If it had been in fact true the accused would have described the manoeuvring of the vehicle from the left lane of the road to the right lane to hit the deceased. This is such a vital evidence to be missed, for it would be impossible for a vehicle travelling on its correct lane to hit and kill a person on the footpath on the opposite lane, for it defies logic and common sense.
      
    • There is no clear evidence as to when the number plate of the vehicle that caused the death of the deceased was obtained. Was the number plate identified at the time the vehicle hit the deceased or obtained some hours or days after on an unsuspecting vehicle?
      
    • When asked further the accused states that he heard a small bang sound.
      
    • In cross-examination he also agreed that the vehicle was speeding.
      
    • If speeding how could one explain the deceased lying as if sleeping with no other sign of motor vehicle injuries to her body apart from the minor scratch on the forehead.
      
    • The most pertinent evidence against the accused is that he admitted to be drunk and did not know or observe the motor vehicle or even its number plate.
      
    • Thus the story of identifying the motor vehicle by its number plate that killed the deceased is from Peter Kak who has not been called as a witness for the accused. It is the work of Peter Kak who manufactured the theory of motor vehicle accidental death.
      
    • He is a vital witness for the defence who had gone into hiding for obvious reasons.
      
    • The theory of identification of the number plate must have been concocted for want of a better excuse to escape the commission of the crime.
    • If the car was speeding and hit the deceased it would have thrown the deceased several meters away from the point of impact. It would be impossible for a car in this case, alleged to be a 15 Seater bus while speeding and hitting the deceased, and for some strange reason the deceased did not suffer any injuries, except for a scratch on the forehead. From the evidence as portrayed by the accused is such that when the vehicle hit the deceased, she fell down on the road at the point of impact. This would be another piece of evidence not consistent with logic and common sense. Any evidence to suggest that a speeding vehicle/15 Seater bus hitting a person causing that person to fall down at the point of impact is untenable and at best nonsensical.
      
    • The State witness in the Police Traffic officer ruled out the possibility of motor vehicle death.
      
    • The Medical Doctor who examined the deceased also ruled out any possibility of a motor vehicle death, as there were no injuries consistent with motor vehicle accident.
      
66. Thus on all the findings as alluded to above I find that the cause of death was not motor vehicle related, and that such death was caused by the accused.
    

The second issue is whether the accused intend to cause the deceased grievous bodily harm?

67. It is acknowledged that intention is a state of mind. It is impossible to tell what a person's real intentions are. Intention can, however, be ascertained through an admission by the accused person or inferred from his or her conduct prior to, during or after the commission of an offence (The State v Joey Apuga and Rajiv Kama Awei (2009) N3811 and The State v Godfrey Edwin Ahupa (1998) N1789). And the evidence may be circumstantial only. (Denden Tom and others v The State (2008) SC967). The degree of force used by the accused and the nature and extent of the injuries inflicted on the victim may also justify an inference that the accused intended to cause a specific result, for instance cause the death of some other person or do him grievous bodily harm.
    
68. In the instant case there is no manifestation of the accused intention to cause the deceased or some other person grievous bodily harm. Thus I am unable to ascertain the intention of the accused to cause the deceased grievous bodily harm. It follows that this element of the charge is not present and if there is any finding of guilt of this charge it would not be one of murder.
    
69. In the absence of a manifestation to cause grievous bodily harm to the deceased I find the accused not guilty of murder, and return a verdict of manslaughter pursuant to s.539 (2) of the Criminal Code Act.
    

VERDICT

70. In the final analysis, I find that the State has proved its case beyond reasonable doubt and return a verdict of guilty for manslaughter and not murder.
    

Orders accordingly.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused