State v Uratigal [2018] PGNC 467; N7583 (7 November 2018)

N7583

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1831 OF 2016

THE STATE

V

PETER URATIGAL

Kokopo: Susame, AJ
2018: 18, 22 -24 October & 7 November

CRIMINAL LAW – Particular Offence –Murder – S 300 Criminal Code- Evidence – No Direct Evidence – Circumstantial Evidence Relied On – Law On Circumstantial Evidence – Principle of Logic and Commonsense Applied – Murder – Intention to Cause Grievous Bodily Harm – Proving of Intention –Requires Examination of Accused’s Conduct

ISSUES:
Whether accused struck his wife with the spade on her head?
Whether accused intended to cause grievous bodily harm?

Held:

1. The only inference drawn from the assessment of circumstantial evidence and the discussions is that accused struck his wife with the spade with such great force to cause multiple injuries to her head which led to her demise.
2. It can also be inferred from the conduct demonstrated by the accused prior, at the time and subsequent to the act constituting the crime that accused had an intention to cause grievous bodily harm resulting in death.
   

Cited Cases:

The State v John Peng v The State [1982] PNGLR 331
Paulus Pawa v The State [1981] PNGLR 498
Vali Rocky Maury v The State [2001] PGSC 16; SC668
The State v Raphael Kuanande [1994] PNGLR 512

Counsels:

Miss. Batil, for the State
Ms. Pulapula, for the Accused

DECISION

07 November, 2018

1. SUSAME, AJ: Accused is charged for causing the death of his spouse in a domestic violence setting. The State alleges accused hit his spouse with a spade on her head. She passed on due to the head injuries she sustained. Accused is cited for crime of murder of his wife pursuant to s 300 (1) of the Criminal Code. There was a general denial by the accused for causing his wife’s death.
   

Section 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;

(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;

(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);

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

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

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

ELEMENTS TO PROVE

• Accused was the person
• There was intention to cause grievous bodily harm
• Death occurred.

FACTS ALLEGED

2. The accused is the husband of his late wife Mary Tadapia. They reside at Rainau village, Kokopo East New Britain Province (ENBP). On 14 July 2016 between 7pm and 8pm the accused had an argument with his late spouse at their residence. During their argument accused threw a plate of food at his late spouse and attempted to chase her. He grabbed a spade and threw it at her causing a deep cut on her head. She fell unconscious and died due to loss of blood.
   
3. It is important to note the facts alleged are based on the accused statement to the police investigator. No one saw what actually happened. So the State’s case rests purely on circumstantial evidence.
   

EVIDENCE

4. The following are documentary evidence State relied on which were tendered by consent:

No.	DOCUMENT	DATE	EXIHBIT
1	Aloisia Uratigul’s statements (Pidgin & English)	19 July 2016	A1 -2
2	Stephanie Uratigul’s statements (Pigin & English)	19 July 2016	B1-2
3	Junie Puipui’s statements ( Pidgin & English)	19 July 2016	C1-2
4	Julie Palakai’s statement	18 July 2016	D
5	First Constable Robert P Gigie’s statement	26 August 2016	E
6	Constable John Kamau’s statement	26 August 2016	F
7	Accused’s confessional statement	23 July 2016	G
8	Dr. Tommy Walters’s statement	31 October 2016	H
9	Autopsy Report	3 August 2016	I
10	Record of interview (Pidgin & English)	25th July 2016	J1-2
11	4 Photographs taken during the autopsy	2 August 2016	K1-4
13	6 Photographs of the crime scene	26 July 2016	L1-6
14	Sketch map of the crime scene	27 July 2016	N
15	Spade used in the commission of the crime		O

5. Tommy Walters the medical officer was the only witness called by the State. He gave evidence of the autopsy he did and his medical opinion of the head injury that caused the death.
   
6. Defence relied on the accused oral evidence. He gave evidence that he had a quarrel with his wife in the morning of 14 July 2016 just before the wife went out to do her marketing. The quarrel was over his wife using some money from his salary without his permission. He stayed home and left for work in the afternoon before the wife returned. He felt unwell and turned back and got home. Wife had already arrived home and was having shower. While he was having his meal accused started up the argument again with his wife. The wife had her shower and she was walking passed him he shot at his wife with the plate of food he was having. It was a plastic plate. He never chased her. The wife felt scared and ran away. She bend down to go underneath the house and bumped her head on the sharp edge of the spade tucked away by the children under the floor joists and bearers. He denied striking her with the spade.
   
7. But what comes out are two competing versions concerning the death. The assertion by the accused is that his wife while fleeing from him caused her own death by bumping her head on the sharp edge of the spade which caused the head injuries that led to her death. The State’s allegation is that accused hit his wife with the spade on her head causing the injuries that caused the wound on the skin, fractured skull and penetrating wound through the skull causing the brain tissue to flow out.
   

ISSUES

1. Whether accused struck his late spouse with the spade on her head?
2. Whether there was intention to do grievous bodily harm?
   

LAW ON CIRCUMSTANTIAL EVIDENCE

8. There is no direct evidence from witnesses accused had hit his wife with the spade during their argument. State relies on circumstantial evidence.
   
9. The court is entitled to enter a conviction on circumstantial evidence if it is credible and strong enough for the court to draw reasonable inferences in applying principles of logic and commonsense. That the court being the tribunal of law and fact must be satisfied beyond reasonable doubt that the only rational inference that can be drawn from the circumstances is the accused is guilty of the crime. If, however no reasonable inferences can be safely drawn from the facts accused is entitled to the benefit of doubt and must be acquitted.
   
10. There are ample authorities on this point, Miss. Batil had referred to few of them. (The State v John Peng v The State [1982] PNGLR331, Paulus Pawa v The State [1981] PNGLR498 & Vali Rocky Maury v The State [2001] PGSC 16; SC668 (20 July 2001).
    
11. In Maury v The State (supra) the Supreme Court bench of Injia, Sawong & Kandakasi JJ in reaffirming the law stated:

“Further, the law also allows in appropriate cases for convictions to stand even where there is no direct evidence connecting an accused person to the commission of an offence if the circumstances of the case dictate an inference only of the guilt of the accused beyond any reasonable doubt. This is the principle that is usually applied in a case where the State’s case is entirely circumstantial. The case of Paulus Pawa v. The State (supra) at p. 501, per Andrew J quoting Miles J. in The State v. Tom Morris [1981] PNGLR 493 at p. 495 spells out the law in these terms:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’."

12. The position of the law is settled and applicable in deciding the present case.
    
13. There is no direct evidence linking the accused to the death. The question is, do the facts support an inference of guilt against the accused beyond all reasonable doubt and that is the only rational inference to be drawn?

ARGUMENTS

14. Ms. Pulapula did not put up a strong argument in my view. Generally, she asked the court to accept the accused as a credible witness and accept his evidence.
    
15. Miss. Batil argued inter alia the court can infer from the circumstances surrounding this case that the wound was sustained by applying the blade of the spade on the head with great force. The medical findings and professional medical opinion of the Medical Officer who did the autopsy lends support of greater force applied to the head of the deceased by someone. That being so the extent of the injury is inconsistent with the accused’s versions of facts.
    

ANALYSING OF EVIDENCE

16. The following facts have been established by the evidence. In the morning of 14 July 2016 accused had argument with his late wife just as she was going out to do marketing. According to the accused he was cross at the wife excessing funds from his account using his credit card. She had done that without his prior consent.
    
17. What actually happened during the argument is not certain except for the story accused had come up with. What actually happened no doubt is within his own knowledge. Whether story is to be accepted as credible and truthful is for the court to consider. That is depended on whether State’s evidence is convincing enough to dispel any doubts court may have in obtaining a conviction.
    
18. Is it more than likely the wife bumped her head on the sharp edge of the spade causing the head injury?
    
19. The daughter Stephanie Uratigul stated in her statement dated 19 July 2016 (exhibit B) she prepared his father’s meal at about 3pm that day. After having his meal her father left for work. Her mother retuned home at about 7pm and was having her shower. She was surprised to see his father return to the house and argued with her mother. She said her dad pulled her to the kitchen. When they saw that, they ran out to their grandmother’s house.
    
20. Accused gave evidence he turned back from going to work feeling kind of sick. He got home and having his meal when the wife was having her shower at the back of the house. He started to get cross at his wife again. In his confessional statement dated 23 July 2016 (exhibit G) he stated he was having his dinner the wife walked passed him and swore at him to this effect “you eat a vagina”. He got angry and he threw the plate of food at her and wanted to chase her. She was scared of him and tried to go underneath the house. The house was too low and she bumped her head on the sharp edge of the spade protruding from the floor cutting her head on the right side. Upon impact the spade never fall off on the ground. The spade remained tucked under the floor of the house where it had been placed.
    
21. In his record of interview (question 11, 13 & answer) he was clearing the block and when he came home he was hungry and got cross. He left for work at about 4 pm & 5pm and returned to the house at about 7pm or 8pm. His wife had then come home. He was having his dinner when his wife was having her shower. He started to argue with his wife again over the money. He got the plate of meal he was having and shot his wife with it.
    
22. Aloisia Uratigul in her statement dated 19 July 2016 (marked exhibit A) stated he heard a loud bang of corrugated iron roof and accused saying fucking bastard and they ran over to their house. Junie Puipui in her statement dated 19 July 2016 (marked exhibit C) also mention she heard a loud banging noise of corrugated iron from their house.
    
23. What has been established by the evidence is that the injury to the head was caused by the metal spade. Julie Palakai has in her statement dated 18 July 2016 (marked exhibit D) stated there was evidence of blood stains on the edge of the spade. The spade was handed over to her by the daughter of the accused during the mediation held on 16 July 2016 two days after the death had occurred.

The house.

24. Is there a real possibility the fleeing wife bumped her head onto the sharp edge of the spade?
    
25. Photographs were taken of the crime scene. Sketch plan was done up. They have been tendered into evidence by consent. Court has had the benefit of inspecting the scene of the crime for a much clearer observation.
    
26. The dwelling house is on stilts, 1.33 meters off the ground. The steps going up to the house is parallel with the house. One would climb up straight onto the balcony then excess the rooms. Just by the steps on the right is one or 2 inside posts from the one right at the corner. The posts are in line. There is a wooden brace nailed across between the corner post and the one inside.
    
27. According to the accused’s version of facts the passage between the two posts was the spot deceased would have attempted to follow and got her head wounded on the sharp edge of the spade tucked away under the floor joists and bearers.
    
28. Applying logic and common sense she could not have easily managed to go underneath through that passage. The brace nailed straight across the two posts created a barrier and would have blocked her entry, even before she could go bend down and go underneath. If she was fleeing there were three possible routes she would have taken. She would have gone straight up the steps and locked herself inside, or follow the passage immediately in front of the house and go right around to the back of the house or run straight out in the open towards the direction of her sister-in-law’s house.
    
29. Court has heard evidence accused threw the plate of food but never chased her. The wife would have simply walked on. There was no reason for her to run unless she was being chased and scared of being assaulted. In such a situation it is beyond ordinary for the wife to just decide to take cover under the house.

The spade

30. Most often people would normally hold a spade by its handle and tuck it away with the handle end sticking out. Accused assumed the spade would have been tucked underneath the house by his children with its sharp edge protruding out. That would not have been normal for the children to do. Again accused is only assuming this.

Medical evidence

31. Autopsy conducted of the body made the following significant findings externally and internally.
    
32. External injuries on the head showed right temporal scalp laceration measuring 11cm X 3cm X3cm extending into the skull. There was an open skull fracture exposing brain tissue.
    
33. Internal injury of the head showed rugged temporal skull fracture approximately 9.0cm long. There was collapsed right frontal cerebral/brain tissue with collection of blood in the base of the skull.
    
34. The cause of death was that the deceased died of cardiorespiratory arrest due to a penetrating right skull fracture with cerebral hemorrhage secondary to physical assault.
    
35. The court has heard from Dr. Tommy Walters, the Surgeon who performed the autopsy. According to him the injury could have been caused by a sharp object applied on the head with great force. The skull of a human is pretty hard. It requires a great force to cause a fracture and penetration.
    
36. In examination-in-chief and under cross-examination he agreed the significant findings of external and internal injuries on the head is consistent with someone applying the spade on the head with great force. Doctor was asked if such an injury could have possibly been caused by someone (wife) running into the spade?
    
37. From his expert opinion he considered that it really depends on the distance and speed. Such an injury can be possible if someone ran at great speed over a fair bit of distance and accidently bumps his head into a solid object. The velocity and the force will be greater to cause a skull fracture and even penetration.
    
38. Conversely it is not possible to cause such a result if there was less speed as there will be less force. Only a minor injury/laceration on the skin would have resulted. That would have been the situation going by the story given by the accused. There would not have been any fracture to the skull even to the extent of being penetrated. To produce such a result would require a force much greater. The surgeon’s medical opinion is logically and medically sound. It makes a lot of sense.
    
39. Accused started the whole argument again when he got home in the afternoon. As it happens in every domestic dispute the late spouse must have responded and said something unpleasant or insulting to her husband. That certainly agitated him more emotionally and he used the spade on her with such great force without giving a second thought driven by fury. When the accused realized his wife was lying dead on the ground he was regretful and became apologetic.
    
40. Two possible scenes accused may have struck his wife with the spade. Either by holding the spade and striking her on the right side of the head with the edge of the spade or by throwing the spade at her with the sharp edge landing on the right side of the head.
    
41. The banging sound that was heard from the corrugated iron roof could have been caused by the spade coming in contact with the stilts holding up the shelter causing vibration of the entire structure. It could not have been caused by a light plastic plate thrown at the wife which missed her.
    
42. The fatal injuries could not have been possibly caused by the wife running into the sharp edge of the spade under the circumstances. The story accused came up with had no credibility and makes no sense in applying logic and commonsense. It was just invented and made to believe the story.
    
43. The inference, and the only inference that can be drawn from the assessment of circumstantial evidence and discussions that followed is that accused struck his late wife on the right temporal side of her head with the spade with such a great force causing the laceration measuring 11cm X 3cm X 3cm, a fractured skull and a penetrating wound through the skull causing the brain tissue to flow out.
    

INTENTION TO CAUSE GRIEVOUS BODILY HARM

44. To make the offence of murder complete there must be an intention on the part of the accused to cause grievous bodily harm resulting in death.
    
45. Miss. Batil had referred the court to authorities of The State v Raphael Kuanande [1994] PNGLR 512. His Honour Injia AJ (as he then was) stated:

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. “

46. I adopt the principle and examine the conduct of the accused prior to and at the time he acted in committing the crime.
    
47. Direct evidence is lacking from the State accused had made representation directly or indirectly prior to or at the time he acted that there was intention on his part to assault his wife and do her grievous bodily injury.
    
48. However, can it be inferred from the conduct he exhibited he had such an intention? There was no argument from the defence on this point except from the prosecution. Miss. Batil urged the court to consider the accused’s conduct prior to the attack, his choice of the use of a spade which is a dangerous weapon at a vulnerable part of the human body and the extent of injury. She argued his intention to cause grievous bodily harm was shown by the amount of force used in the light of the above factors.
    
49. There is some merit in that argument.
    
50. Accused was in a state of anger over use of his salary by his late wife without his permission. He got into an argument with his wife starting in the morning of the day death occurred. He got back home and started up the argument again. The wife responded at him and that made him angrier. To vent his anger at her he went for the spade and struck his wife on her head causing serious fatal injury.
    
51. A spade is a working tool. It may be regarded as a dangerous weapon capable of causing grievous bodily harm or even death if used indiscriminately in the attack of another person. Consequences are foreseeable. If death occurs the attacker cannot later say he never intended to cause such a result. The law on the offence of murder stipulates that it is immaterial the offender never intended to cause grievous bodily harm to the particular person killed. [s300(1)(2)]
    
52. Why would the accused go for a tool such as a metal spade without giving a second thought and use it on his wife unless he was determined to inflict some bodily injury on her?
    
53. In the circumstances it can be safely inferred that accused had the intention to cause grievous bodily injury to his wife when he chose to use the spade (dangerous tool) and applied it with such great force on her head. Consequently, the multiple head injuries she received was fatal causing her instant death.
    
54. In concluding I make mention that none of the statutory defence available had been specifically pleaded by the accused so it is not an issue to be considered.
    

SUMMARY OF FINDINGS

55. Issue No. 1: Whether accused struck his late spouse with the spade on her head? Answer: Yes
    
56. Issue No.2: Whether there was intention to do grievous bodily harm? Answer: Yes
    
57. The end result of all the discussions is that accused is guilty of murder of his spouse. Accordingly, court returns a guilty verdict for the State.

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