State v Namah (No.1) [2015] PGNC 58; N5996 (9 June 2015)

N5996

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 611 of 2013

THE STATE

V

CAIN NAMAH
(No. 1)

Vanimo: Geita J
2015: February 10, 11: June 9

CRIMINAL LAW – Trial – Not Guilty – Victim shot with a 9 mm calibre pistol on his right thigh – The bullet penetrated his muscles and severed his right femoral artery and veins – Serious injury – Heavy loss of blood profusely from the artery and veins - Section 302 Criminal Code Act - Manslaughter.

CRIMINAL LAW – Verdict –Cause of death due to severe injuries and heavy loss of blood –Epileptic fit not fatal and ruled out as an intervening cause of death – Accused’s conduct ruled as the substantial cause of death – Guilty verdict entered - Section 302 Criminal Code Act - Manslaughter.

Cases cited

Jaminan v The State (No 2) [1983] PNGLR 318
Paulus Pawa v The State [1981] PNGLR 498
The State v Steven Donia (2010) N4536
The State v Tom Morris [1981] PNGLR 493

Counsel

Ms Barbra Gore, for the State
Ms Renatta Yayabu, for the accused

JUDGMENT ON VERDICT

9 June, 2015

1. GEITA J: Upon arraignment the accused pleaded not guilty to the charge of manslaughter contrary to s. 302 of the Criminal Code Act, Chapter 262 (hereafter referred to as the “Criminal Code”).

Brief Facts

2. The State alleged that on 22 September 2012 between 7pm - 8pm the accused unlawfully shot Abraham Nok on his right thigh with his 9 millimetre calibre pistol. The deceased had accompanied a friend to the accused house at Wara Mon Oil Palm Base Camp to enquire about his friend’s wife when the incident happened. The deceased was rushed to Vanimo General Hospital and received emergency medical treatment. On 24th September 2012 he suffered an epileptic fit around 6pm and eventually died one hour later around 7 pm.

3. Section 302 Criminal Code Act creates the offence of manslaughter and it is in the following terms:

A person who unlawfully kills another person under such circumstances as not to constitute wilful murder, murder on infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

Elements of the Offence

4. The elements of the offence of manslaughter are-

1. That a person killed,
2. Another person,
3. That the killing was unlawful.
   

Undisputed Facts

5. There is no dispute that the deceased was shot by the accused with his 9 mm calibre pistol on his right thigh.

Disputed Facts

6. The facts in dispute are:

(a) Whether it was the pistol wounds which caused the deceased’s death?

Evidence

7. The following materials were tended into court by consent viz.

• EXHIBIT "1” – Medical Report/Medical Certificate of death dated 24/09/2012.
• EXHIBIT "2” – Pistol License
• EXHIBIT "3” - Pistol and several rounds of bullets wrapped in brown paper wrapping. (Excel Serial No. BCC424)
  

Brief summary of State evidence

8. The State also called two witnesses who gave oral testimonies.

State Witness 1- Mrs Lona Malo

9. The witness is greatly advanced in age estimated to be between 60 to 70 years and said she came to court to give evidence on what she heard and saw that fatal day. She said they have a house at Wara Wom and live there. Two people came, Melpa, Apais and Raymond and his family remained behind. She said Morris quarrelled with the accused and enquired whether his wife was there. The witness said she went across to the other house and heard a big “bang” and took off. She than told another woman to come and see what had happened and become a witness. She said she was shocked from the “bang”. Children were shouting and crying for their daddy when he was still alive. The witness testified of being at Cain’s house that night at Wara Wom. She pointed to the accused seated at the dock as the man who shot and called him by name...Cain. Saying she did not see what happened but only heard a noise as “bang”? She said she forgot the name of the “small thing” referring to the pistol.

10. The witness testified of seeing Cain climbing up the ladder with one leg on the ground and one leg on the steps as she walked past him. She said she saw Cain holding something on his side but did not know what it was. She described the thing as “Pairap”. (tok pisin for loud noise)

11. There was no cross examinations.

State witness No. 2 Ms. Priscilla Nok

12. This witness is the deceased’s sister. She testified of hearing a gunshot as she sat at her cousin’s house and hurried across to Cain’s house and saw Abraham lying on the ground. She saw Cain with pistol in his hand. The witness said she heard Cain call out that after he returns from gaol, he would kill the rest of Nok’s family members. The accused rounded up all his family members and took them into town whilst they assisted Abraham to the hospital. Cain told us that he would go to the police station and surrender himself, the witness said.

13. In examination in chief she said as neighbours they know that Cain owns a pistol and was seeing that night with the same pistol in hand with Abraham lying on the ground.

14. In cross examination the witness said she did not see the shooting but as soon as she heard the sound she ran up and saw Cain with a pistol in hand that night.

No Case Submission

15. At the end of States evidence defence made a no case submission. The thrust of the no case submission being insufficiency of evidence and the dangers inherent in lawfully entering a conviction against her client. After hearing both counsels I ruled against the defendant’s no case submissions. (refer separate judgment on no case).

Defence Evidence

16. In the Defence case the accused exercised his rights to remain silent. No other witnesses were called. Defence Lawyer Ms Yayabu informed court that all due diligence was accorded to the accused and that all three options were explained to his client. The Court having satisfied itself that the accused understood the consequences of his right to remain silent, accepted his position. The accused' rights are well protected under Section 37(4) (a) of the Constitution which provides:

"(4) A person charged with an offence –

(a) shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge ..."

Submissions on Verdict-Defence

17. Ms Yayabu submitted on behalf of her client that the deceased was shot by the accused and is not disputed. However what is disputed is that the deceased did not die from the pistol wound but he died of other collateral causes: an epileptic fit. She submitted that the cause of death recorded in the medical report was not conclusive in attributing the victim’s death solely to the gunshot wound. This case was referred to the court to find support for her submissions for her client to be acquitted with reliance on the principle of causation. (The State v Steven Donia (2010) N4536) I quote.

“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.”

18. Defence aggressively argued that the deceased died as a result of suffering an epileptic fit, independent from the gunshot wound. In light of the above Ms Yayabu submitted that a verdict of not guilty be entered in favour of her client as it was unsafe and called for an acquittal.

Submissions on Verdict – The State

19. State Prosecutor Ms Gore submitted that State called two witnesses after the accused pleaded not guilty. The witnesses testified of seeing the accused at the crime scene, with one of them actually seeing the accused with his pistol in hand after it was discharged with the deceased lying on the ground in agony after the shooting. It is not disputed that the accused used his licensed 9 millimetre calibre pistol and shot the deceased. It is not disputed by the State that the Doctor’s opinion on the cause of death was open ended or two pronged. Although he attributed the initial cause of death to respiratory arrest (breathing complications) he did not totally rule out complications and death related to the injuries the victim sustained. Ms Gore submitted that the court disregard the doctor’s initial opinion on the onset of death by respiratory arrest and instead adopts the latter opinion of death caused by complications and injuries and heavy loss of blood. She submitted that the deceased had a pre existing condition of epileptic fit and survived until the time he was shot and carried those fatal injuries.

20. Touching on the principle of causation Ms Gore submitted that the conduct of the accused cannot be isolated from the death of the deceased. His conduct was the substantial cause or a major participating cause of the death. The State found support in the detailed medical report on the nature of injury and prognosis throughout the emergency care procedures: “The deceased was shot with a gun; he suffered very serious injuries to his right thigh; bullets penetrated the right artery and veins; lost a lot of blood from the injury; given 3 litres of blood during the operation; undergone surgery for 7 hours with poor results; no blood flow to his right leg causing it to be lifeless after the surgery; the limbs cannot be saved and will be amputated on 25/09/2012.” The State submitted that the injuries caused to the deceased were substantial, causing his death. The epileptic fit alone could not cause his death and was only a catalyst per se.

21. In the alternative Ms Gore submitted that the accused be found guilty on the offence of grievous bodily harm with intention pursuant to section 313 or 319 as provided under section 539 (4) of the Criminal Code.

Application to the case

22. The question of who shot the accused is put aside as it is a non issue; the only issue is whether or not it was the gunshot wounds which caused the death of the deceased? In order to make findings on the actual cause of death, I need not look further than the medical evidence before me. The medical evidence does show that the deceased suffered very serious injuries to his right thigh; the bullet penetrated his right artery and veins; he lost a lot of blood from the injury; he was given 3 litres of blood during the operation; undergone surgery for 7 hours with poor results etc. Those types of injuries and wounds described above especially the severance of arteries and veins are no small matter. Having to undergo 7 hours in the operating theatre undergoing surgery compounded by the heavy loss of blood and no signs of improvement to the limb likewise is a cause for serious concern. And rightly so the deceased’s relatives were notified of his predicaments and advised of amputation the next day, only to find him pass on the same night. Common sense dictates that the onset of the epileptic fit during the emergency treatment triggered off the impending death. I am therefore not convinced that the epileptic fit alone was the primary cause of his death and rule out causation in this instant case. I find that the deceased’s epileptic medical condition was pre existing and could not on its own bring about his death. Especially with his already deteriorating and failing medical condition with no signs of recovery. The medical doctor’s observation are critical in my view: Firstly, he said an injury of this type “ essentially means that you can lose up to 3-4 litres of blood” causing swelling and further compromising the blood flow resulting in Compartmental Syndrome. And secondly he said...”The femoral artery is one of the body’s biggest blood vessels and it divides at the abdomen into each thigh.” In this instant case one of those vital blood supply lines was ruptured causing profuse bleeding as a result of the pistol wound. Those serious medical conditions described above by the doctor in my view supports the notion that death resulted from the injuries and complications which ensured. The respiratory arrest only triggered the onset of death and that was all.

23. I have no reason to disbelieve the two State witnesses’ and hold them to be witnesses of truth. They have nothing to gain from this trial save to come to court and tell court what happened. This is more so with the elderly witness who is the accused’s mother in-law.

Accused elected to remain silent – consequences there off?

24. The accused has elected to remain silent and so his intentions from his perspective remain unknown. A myriad of case authorities have stated that the absence of the accused from the witness box is not an admission of guilt: (The State v Tom Morris [1981] PNGLR 493; Jaminan v The State (No 2) [1983] PNGLR 318 and Paulus Pawa v The State [1981] PNGLR 498.) Quoting from the head notes in Paulus Pawa the Court said:

"Where an accused person fails to give evidence or to call witnesses to support his case the Court may draw inferences which properly flow from the evidence and reach its conclusion without being deterred by the incomplete state of the evidence or by speculation as to what the accused might have said had he testified.

Where an accused person fails to give evidence or call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1) The failure of an accused is not an admission of guilt and no inference of guilt may be drawn there from;

(2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

(3) Failure to testify only becomes a relevant consideration when the State has established a prima facie case;

(4) The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include: (a) whether the truth is not easily ascertainable by the State but probably well known to the accused;(b) whether the evidence implicating the accused is direct or circumstantial;(c) whether the accused is legally represented and (d) whether the accused has before the trial given an explanation which the State has adduced in evidence."

25. For the moment the accused's failure to give evidence in my view has become a relevant consideration in view of credible evidence before court. Furthermore the whole of the States' evidence remains uncontested coupled with vital evidence unexplained as a result of his silence. The sum total of all the evidence not negatived by defence including his right to remain silent has strengthen the State's case by leaving it uncontested and unexplained on all vital matters.

Verdict: Guilty
26. Although there is ample evidence touching the offence of grievous bodily harm I will not dwell on it, as the present indictment in my considered view is adequately made out beyond reasonable doubt. I therefore return a verdict of guilty against Cain Namah of Somboi village, Bewani for the murder of Abraham Nok and convict him accordingly under Section 302 of the Criminal Code Act.

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