State v Roth [2018] PGNC 470; N7591 (20 November 2018)

N7591

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 716 OF 2015

THE STATE

V

SAMUEL ROTH

Madang: Canning J
2018: 18 June, 9 July, 27 September, 20 November

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – death allegedly resulting from assault in domestic setting – elements of murder – defences of self-defence, provocation – alternative verdicts, Criminal Code, Section 539.

Facts

The accused was charged with murder under Section 300(1)(a) of the Criminal Code. The deceased was his wife. A domestic dispute took place in the family home. The accused struck the deceased, who died about 18 hours after the incident. The accused denied causing the death of the deceased, who he claimed died due to her taking an overdose of medicine. He also raised the defences of self-defence and provocation.

Held:

(1) There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(2) If the first element is proven but not the second, the accused will be convicted of manslaughter unless the killing of the deceased is authorised, justified or excused by law.

(3) Killing the deceased will be excused if the defence of self-defence (under Criminal Code, Section 269), or the defence of provocation (under Criminal Code, Section 267) applies.

(4) Here the State proved that the accused killed the deceased, but failed to prove that he intended to do her grievous bodily harm.

(5) As to the defences of self-defence and provocation, the evidence of the accused was not credible and the State disproved both defences.

(6) The accused was accordingly found guilty of manslaughter.

Dates

The events referred to in this judgment occurred in 2015 unless otherwise indicated.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498
R v Paul Maren (1971) N615
Tapea Kwapena v The State [1978] PNGLR 316
The State v Alphonse Dumui (2009) N3686
The State v David Yakuye Daniel (2005) N2869
The State v Raphael Kuanande [1994] PNGLR 512
The State v Roland Rebon (2008) N3495
The State v Silas Anjipi (2007) N4963
The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

This was the trial of an accused charged with murder.

Counsel

D Ambuk, for the State
G Pipike, for the accused

20^th November, 2018

1. CANNINGS J: Samuel Roth, the accused, is charged with the murder of his wife, Lenneth Rus (the deceased). The State alleges that the accused killed the deceased by assaulting her during a domestic dispute at their house on the campus of Divine Word University, Madang, on the afternoon of Sunday 11 January 2015, and that the injuries he inflicted on her led to her death early the following morning. The State alleges that he intended to cause her grievous bodily harm and should be convicted of murder under Section 300(1)(a) of the Criminal Code.
   
2. The accused does not deny striking the deceased but denies that he killed her. He claims that her death was caused by her overdosing on medication. He denies intending to do her grievous bodily harm. He raises the defence of self-defence and provocation. He says that he had to strike the deceased to defend himself against an unprovoked assault by her on him, which put him in a life-threatening situation, and that she provoked him to strike her.
   

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:
   

• In January 2015 the accused was a lecturer in the department of PNG Studies and International Relations at DWU, aged 35 years. He was living in staff accommodation on campus with his wife, Lenneth Rus, aged 30 years. They had been married since 2011. They are both from Western Highlands Province. The accused is from Wara-Bukapena village, Mul-Baiyer District. The deceased was from Warakum village, Hagen District.
  
• Other members of the household on the day of the incident, Sunday 11 January 2015, included the accused’s sister, Priscilla Roth, and the deceased’s cousin-sister, Charmaine George, both of whom gave evidence at the trial.
  
• Several days before the incident the deceased left Madang with Charmaine and went to Mt Hagen, Western Highlands Province, as she had had a difference of opinion with some of the accused’s male relatives.
  
• Lenneth and Charmaine arrived back in Madang by bus on the morning of the incident. They went to the DWU house. Samuel was not there. They did other things, including sleeping, until Samuel came home about midday.
  
• Samuel rebuked Lenneth for going missing and not returning his many mobile phone calls and text messages.
  
• Samuel and Lenneth went into their bedroom and had an argument. During the course of the argument Samuel struck Lenneth (he says acting in self-defence and under provocation).
  
• The next morning, Monday 12 January, Samuel rushed Lenneth to the nearby Modilon General Hospital after finding her unconscious, lying on the bedroom floor.
  
• Lenneth was dead on arrival at the Accident and Emergency Department.
  

ISSUES

4. The accused has been charged with murder under Section 300(1)(a) of the Criminal Code, which states:
   

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

if the offender intended to do grievous bodily harm to the person killed or to some other person.

5. The two elements of the offence are that:
   

• the accused killed the deceased; and
• he intended to do grievous bodily harm.
  

6. If the court is not satisfied that the first element is proven, the accused will be not guilty of murder and an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is proven but not the second, an alternative verdict of manslaughter can be considered under Section 539(2). If manslaughter is considered as an alternative or if the Court is satisfied that both elements of murder have been proven it will then consider whether the defence of self-defence and/or the defence of provocation applies. If either of those defences applies, the accused will be not guilty of murder and not guilty of manslaughter. The primary issues are:
   
   1. Did the accused kill the deceased?
      
   2. Was there an intention to do grievous bodily harm?
      
   3. Should an alternative verdict of manslaughter be considered?
      
   4. Does the defence of self-defence apply?
      
   5. Does the defence of provocation apply?
      

1 DID THE ACCUSED KILL THE DECEASED?

7. Determination of this issue requires a:
   
   • summary of evidence for the State;
   • summary of evidence for the defence;
   • summary of submissions;
   • formal determination of the question whether the accused killed the deceased.
     

Evidence for the State

8. Four witnesses gave evidence for the State, as summarised in the following table.
   

No	Witness	Description
1	Charmaine George	Cousin-sister of deceased
She and Lenneth arrived at the DWU house around 7.00 am on Sunday 11 January – on their way from Mt Hagen to Madang Lenneth told her that she was afraid Samuel would be cross with her and would hit her – Samuel was not home so they did other things until Samuel arrived in the afternoon. As soon as Samuel arrived he showed her (the witness) a piece of paper that contained a list of unanswered calls and text messages and said that’s why he was going to hit Lenneth – Samuel held on to a piece of timber – he took Lenneth into their bedroom and locked the door – there was no one else in the room. Lenneth was at that point in good condition. She (the witness) heard Samuel assaulting Lenneth and heard Lenneth screaming ‘Samuel. Please stop. Enough! Enough!’ She did not like to hear her sister screaming in pain so she left the house, together with Priscilla, who also heard what was happening. Priscilla said ‘it’s beyond our control, we should not do anything’. They went for a stroll around the campus together with another member of the household, a small boy called TJ. After a while they went back to the house and saw Lenneth lying on the ground at the back of the house – Lenneth was in pain and had excreted in her trousers and was struggling to breathe – Samuel was pouring water over her – she and Priscilla washed Lenneth with a hose – Samuel was there, standing and watching them – then Samuel asked them to help him take Lenneth to the hospital – this was still on Sunday afternoon – she and Priscilla helped to get Lenneth to the car as she could not walk by herself – they took Lenneth to the hospital, to the accident and emergency department – Samuel looked after Lenneth there while she (the witness) and Priscilla walked to the nearby Tree Line Store to buy some mobile phone credits. She and Priscilla walked back to the house late in the afternoon – Samuel and Lenneth were in the house – Lenneth was in the bedroom but she (the witness) did not go into the bedroom to observe her condition – Priscilla cooked dinner and the household ate dinner then went to sleep. During the night she (the witness) heard Lenneth calling out for water – she heard the bedroom door opening and closing several times and presumed that that was Samuel fetching water for Lenneth. Upon waking on Monday morning she and TJ watched television – she heard Samuel call out for Priscilla, telling her to get an ambulance for Lenneth who was not in a good condition and unconscious – Lenneth was lying on the bedroom floor – she (the witness) could see no sign of movement. Samuel tried to resuscitate Lenneth without response. Neighbours then rushed in and assisted Samuel in getting Lenneth into Samuel’s car – Lenneth could not walk and her eyes were closed and her skin was swollen – he took her back to the hospital. She (the witness) did not go with them – this was the last time she saw Lenneth – soon afterwards she and Priscilla and one of the DWU lecturers walked to the hospital – they went to the accident and emergency department but were not allowed to go inside – after a while Samuel came out and asked her and Priscilla to go with him back to the house to find the medicine on which, Samuel claimed later, Lenneth had overdosed, and bedsheets and a blouse. Samuel said that Lenneth was OK, and was on a drip. Samuel left the house again. Soon afterwards she received the news that Lenneth had passed away. In cross-examination the witness said that when Samuel and Lenneth came back from the hospital on Sunday afternoon there was no further argument between them – on Monday morning she heard Samuel say that Lenneth had overdosed.
2	Snr Sgt Frank Kikoli	Police officer
He attended the house, which he referred to as the crime scene, on Monday afternoon – he went into the bedroom and observed that various personal properties were strewn about the room. He gathered bedsheets and pillow cases containing blood spots – Sergeant Elisha took photographs of the crime scene. He was the corroborator in the police interview of the accused, conducted by Snr Const Sagem.
3	Dr Vincent Atua	Director of Medical Services, Modilon General Hospital
Dr Atua conducted the post-mortem examination jointly with Dr Jiuth Gawi (who also gave evidence). Dr Atua is the senior practitioner and was the primary author of the post-mortem report and the medical certificate of death. It was noted that the deceased had a height of 159-cm, a weight of 85-kg and was approximately 30 years old. Dr Atua summarised the significant, abnormal findings on examination: Bilateral severe contused posterior lung (grossly contused posterior lobes). Dr Atua explained that this condition is usually caused by blunt trauma – lung tissues become mashed, and tiny blood vessels and capillaries leak into lung tissues, causing blockages in vessels required for oxygen exchange – commonly caused by blunt injury and transmitted force (similar to injuries common in car accidents) – lung cavity was relatively dry, most injury was in the back of the lungs, front of lungs also dry. These injuries were indicative of significant force being applied to the back, which was transmitted to the lungs, causing tissue damage. Extensive deep bruising of entire upper back and posterior upper right and left arms (multiple linear bruises and deep haematomas on the entire posterior chest, and deep bruising covering whole of the posterior and lateral surfaces of both upper arms, extending from shoulder tips to elbows): this finding indicated soft tissue injuries mainly on upper back and arms, most likely caused by a blunt implement. Extensive deep bruising to both buttocks, hips and posterior thighs (deep bruising over right and left iliac crests): soft tissue injuries – most injuries were on the back (posterior) areas of the body. Other observations: blood noted in trachea and main bronchi (the windpipe): indicating that blood had seeped from the lung tissue into the bronchi; swollen left and right eyelid; deep bruising over the left scapular region. In the medical certificate of death, the condition directly leading to death was determined to be hypoxia (lack of oxygen) due to bilateral lung contusions caused by multiple blows to back of the chest, deep haematomas and bruising of both thighs, buttocks and hips. It was recorded that the time interval between those injuries and conditions and the time of death was at least three hours. Dr Atua was shown photographs of the deceased’s body (exhibit P12) and confirmed that the photographs corresponded to the significant abnormal findings recorded in the post-mortem report. Asked to comment on the method of transmission of the blunt force suggested in the report, Dr Atua said that it was most likely caused by a blunt, heavy, linear (straight) implement, which does not have a sharp edge, such as a plank or an iron rod. In cross-examination Dr Atua confirmed that it was Dr Gawi who would have seen the deceased when she was brought to the hospital – Dr Atua was not involved in the emergency examination and treatment of the deceased, he only became involved when the post-mortem examination was conducted on 15 January 2015. Asked to comment on the assertion that the deceased was taken to the hospital for treatment on Sunday afternoon, 11 January 2015, more than 12 hours before the time of her death on the morning of Monday 12 January 2015, Dr Atua replied that that was correct. Asked about his finding that the cause of death was hypoxia, Dr Atua replied that that was correct but that it was not always necessary to conduct a post-mortem examination in order to determine hypoxia as the cause of death. Hypoxia is a common final pathway for severely ill patients with lung problems, eg pneumonia or lung trauma causing the lungs to be unable to provide adequate oxygenation to the body. Hypoxia is a complication of lung injuries. Asked to comment on the hypothesis that the deceased had overdosed on medication, which was the actual cause of death, Dr Atua confirmed that that issue was not addressed in the post-mortem report. To determine whether a person has died due to a drug overdose a pathological test is desirable, but the capacity for such examinations to enable an opinion to be formed on whether a drug has been taken in sufficiently lethal quantities to cause death is not routinely available in Madang. Could he rule out the possibility that the deceased died due to a drug overdose? Dr Atua responded that it would be necessary to determine the quantity and nature of the drugs taken, and when they were taken, but it could not be ruled out as a possible cause of death in this case. It was put to Dr Atua that the deceased had taken large quantities of Panadeine and paracetamol and amoxicillin. Asked whether that was a possible cause of her death Dr Atua stated that a paracetamol-caused death would take place over about 48 hours and death would be caused by liver failure. As to mixing paracetamol with drugs like amoxicillin this would not significantly enhance the onset of death as amoxicillin is a relatively non-lethal drug even in high quantities. Dr Atua stated that though he could not objectively exclude the possibility that an overdose of drugs was a cause of death, he maintained his finding that the cause of death was hypoxia induced by lung trauma. If the deceased had taken a large quantity of paracetamol it would be expected that death if it did occur would be around 48 hours after ingestion and would be evidenced by liver failure. Here there was no such evidence.
4	Dr Jiuth Gawi	Medical Registrar, Emergency Department, Modilon General Hospital
He assisted Dr Atua in conducting the post-mortem examination – it was found that the liver and other systems were OK but there was heavy bruising on the back – both lungs had an accumulation of blood, air and fluid as a result of direct trauma, causing breathing difficulties and a lack of oxygen to the brain, eventually causing the heart and brain and other organs to fail, resulting in death. Dr Gawi confirmed that the cause of death was bilateral lung contusion, as a result of direct trauma caused by a blunt object and extensive force. In cross-examination Dr Gawi stated that the deceased was brought to the adult outpatients section of Modilon General Hospital on the morning that she died – two persons brought her to the hospital – Dr Gawi examined her by checking her pulse, but there was no pulse and no signs of life – the deceased was regarded as “dead on arrival”. Dr Gawi agreed that hypoxia (lack of oxygen reaching the tissues) could result from factors other than bilateral lung contusion, eg choking, exposure to cold, severe anaemia, asthmatic attack, severe anaesthetic drugs. Asked whether it was necessary for diagnostic equipment such as a pulse-oximeter to be deployed to conclusively determine hypoxia as a cause of death, Dr Gawi stated that such equipment is just one of a number of parameters that could be used. Hypoxia is a common cause of death connected with bilateral lung contusion. Asked to comment on the accused’s claim that when he took the deceased to the hospital he showed Dr Gawi some medication and told the doctor that she had overdosed on it, Dr Gawi stated that he recalled the deceased’s husband (the accused) saying something about the possibility that she had overdosed, but he (Dr Gawi) did not make any note of that in the medical notes he made prior to dispatching the body to the morgue. There was no test done to assess the claim that she had overdosed. Defence counsel Mr Pipike departed from the subject of death of the deceased to ask Dr Gawi questions relating to one aspect of the defence case: that in the course of the fight between the accused and the deceased, she squeezed his testicles so hard he feared for his life. Dr Gawi said that such squeezing would cause excruciating pain but would not normally be expected to lead to death unless perhaps the testicles were torn off and there was heavy bleeding. As for the manner in which blunt trauma was inflicted, Dr Gawi said that it could not be identified – the only thing he could say is that it was something blunt. Asked whether he could rule out an overdose of drugs as a possible cause of death, Dr Gawi stated that if the deceased had overdosed the effect would have been detected in the liver – it is a highly vascular organ and excessive drug ingestion would result in blackness on the liver – but here the liver was normal. Dr Gawi agreed that the only way to rule out a drug overdose as a cause of death was to conduct a pathology test – here he could not remember whether any pathology examination was carried out. In re-examination Dr Gawi was asked about the possibility of an aspirin overdose – he stated that if such a drug were taken in sufficiently large quantities death would be expected to occur 12 to 24 hours after ingestion; as for amoxicillin, its toxicity is not strong and the risk of death from an overdose of such a drug is very minimal. Here there were no gross signs of any drug overdose such as yellowing of the eyes or skin or other signs of jaundice.

Exhibits

9. The following exhibits were admitted into evidence by consent:
   

No	Description
P1	Witness statement, Paul Rus, adult male, father of deceased: Lenneth was the second-born of his five children – she completed a tourism and hospitality degree at DWU in 2012 and was employed by Madang Provincial Government – she enrolled in a Masters degree program at DWU in 2014 – he (the witness) had heard that the accused had assaulted the deceased on a number of occasions before the incident on 11 January 2015 – she came home to the family village, Warakum, Hagen District, on 7 January 2015, explaining that she had had an argument with her in-laws in Madang – he (the witness) and his wife were glad to see her as they were worried about her well-being – they told Lenneth that they would come back to Madang and remove her from her husband – however on Saturday 10 January Lenneth told them that she needed to go back for her studies so they agreed and Lenneth went back to Madang that day with her cousin Charmaine George – on the afternoon of Sunday 11 January they received a phone call from Charmaine that the accused was beating Lenneth – he (the witness) and his wife made plans to travel to Madang the next day but at 9.30 am he received a call from a relative to say that Lenneth was dead.
P2	Witness statement, Nancy Rus, adult female, mother of deceased: She was very concerned about her daughter’s safety in view of hearing stories that Lenneth was a victim of wife bashing ever since her marriage to Samuel Roth.
P3	Witness statement, James Rus, adult male, uncle of deceased: he lives at Warakum – came to Madang in early January 2015 and stayed two nights with Samuel and Lenneth at their DWU house – Lenneth confided in him that she was having problems with Samuel and his brothers – on 6 January he drove Lenneth and her cousin Charmaine to Warakum.
P4	Witness statement, Rex Tupiap, adult male, friend of deceased: he is from Balama village, Madang District – he became a friend of the deceased when she was a business development officer with Madang Provincial Government – on 6 January 2015 Lenneth rang him and said she was having problems with her husband and in-laws and she wanted to run away to Mt Hagen – he helped her on 7 January 2015 get a lift with her uncle.
P5	Witness statement, Mathew Tes, adult male, DWU campus resident, friend of deceased: he saw Lenneth arriving home on the morning of 11 January and greeted her – he next saw her in the afternoon of that day, lying outside her house – he observed Priscilla and another young female pouring water on her – on Monday 12 January between 7.00 and 8.00 am he heard that there was an emergency at Lenneth’s house so he went over there and assisted Samuel Roth and two other men, Yoksie and Simon, carry Lenneth to Samuel’s car so she could be taken to hospital – Samuel told them that they had to rush as Lenneth had overdosed herself, and he had some tablets to show the doctors at the hospital .
P6	Witness statement, Eva Ali, adult female, relative of deceased: she is living at Sagalau, Madang District – she received a phone call from her aunt Regina Ropra on the morning of 12 January, saying that Lenneth had been killed by her husband – she rushed to Modilon General Hospital and saw Lenneth’s body then went to the police station and reported the matter – she then went to Lenneth’s house and saw Charmaine George who was crying – she fought with another young female who was in the house trying to cover up some of Lenneth’s things – Samuel Roth was hiding in the house and soon afterwards the police arrived and took him to Jomba Police station.
P7	Witness statement, Regina Ropra, adult female, relative of deceased: she is living at Sagalau, Madang District – she received a phone call on the morning of 12 January, saying that Lenneth had been admitted at Modilon General Hospital – she and her husband rushed to Lenneth’s house at DWU and found a young woman locked inside the house, who told them that Lenneth had been beaten by her husband and was having difficulty breathing – they then went to the hospital and were informed by staff that Lenneth’s body was in the morgue – she informed relatives by phone what had happened and reported the matter to the police.
P8	Witness statement, Willy Ropra, adult male, relative of deceased, husband of Regina Ropra: on 15 January he and his wife packed Lenneth’s personal items and took them to Warakum.
P9	Witness statement, Emerald Rus, adult female, younger sister of deceased: she lives at Warakum – she helped to unpack Lenneth’s personal items after the death of Lenneth, which were brought to Warakum on 15 January – she collected some typed stories that Lenneth had written about problems she was going through with her husband – she gave the external hard drive of Lenneth’s computer to the police investigator on 15 February.
P10	Witness statement, Const Salir Aweti, Madang police station: on 16 January he was on duty at Jomba police station – he removed a mobile phone from the accused, who was in custody in connection with the death of his wife, and handed the phone to the police investigator, Chanel Sagem.
P11	Witness statement, Snr Const Chanel Sagem, investigating police officer, CID Madang: he commenced investigating the death of the deceased on 12 January, on receipt of a complaint from her relatives that she had been killed by her husband – Samuel Roth was taken into police custody for questioning – he claimed that his wife had died due to a drug overdose – on 14 January Samuel Roth was charged with murder – the formal police interview was conducted on 3 February.
P12	Witness statement, Sgt Tangi Elisha, crime scene examiner, CID Madang: on 15 January he attended the DWU house where the deceased had lived and took photographs inside and outside the house, including in the bedroom, where he took photographs of blood-stained pillows and bedsheets – he also attended the morgue and took photographs of the deceased’s body.
P13	Record of interview, the accused, Samuel Roth: he gave his personal details but declined to answer questions regarding the death of his wife, saying that he would speak to his lawyer later.
P14	Post-mortem report, the deceased Lenneth Rus, 15 Jan 2015: the contents are summarised in the evidence of Dr Atua.
P15	Medical certificate of death, the deceased Lenneth Rus, 15 Jan 2015: the contents are summarised in the evidence of Dr Atua.

Evidence for the defence

10. Five witnesses gave evidence for the defence.
    

No	Witness	Description
1	Samuel Roth	The accused
He was happily married to Lenneth – they met in 2010 and married in 2011 – it was both a customary and statutory marriage – they had a good marriage except for interference by her parents and other relatives and especially her uncle, James Rus, who came to their house at DWU in early January and took her to Mt Hagen without informing him – he (the accused) was very cross when that happened. Lenneth had started an argument with his cousins regarding a small block they had at Nagada – he did not support her as she was the one who started the argument – James came to pick her up and took her away – he (the accused) looked for all over Madang – he called and texted her but she did not respond until a few days later, by which time she was in Mt Hagen. Late on Sunday morning, 11 January, he found out that she had returned – he was out at the time, then went to the house, he was very happy to see her and welcomed her – he showed Charmaine all the text messages he had sent her – Lenneth was still angry with him for not defending her in the argument with his cousins – she was rowdy and wanted to fight – so he went into the bedroom as he did not want to argue in front of the children – Lenneth followed him in – he tried to calm her down but she would not listen – he told her that her parents needed to stop interfering in their marriage. The argument developed into a fight – she started it by punching him – it was an intense fight – she was hitting him with a bilum that had heavy objects in it – she grabbed his testicles and squeezed them so hard he struggled to breathe – she had done it once before and it was very painful and it made him very angry – he grabbed a leather belt and used it to slap her across the back – she eventually released her grip on his testicles and he started punching her – he had to do this to defend himself – he told her ‘Never, ever grab my testicles again’ – his frustration was very high – so she stopped – he was exhausted – the room was in a mess – the fight had gone on for 10 to 15 minutes – they both calmed down and said sorry to each other – then they made love – then they both slept. She said she was in pain – there was no Panadol in the house so she urged him to take her to the hospital – she washed her face and he took her to Modilon General Hospital – it was still Sunday afternoon – they got some tablets at the outpatients department. Neither of them had money to buy food so they drove around to Kusbau police barracks to see a policeman they knew – they borrowed K150.00 from him – they then went to Madang Bakery at Redscar to buy food – they went back to the house at about 4.00 pm – Charmaine was asleep – he did some work on the computer – they had dinner at about 7.00 pm – his testicles were still very sore – Lenneth slept early but was getting up every now and again to go to the shower room but did not say that she was unwell. He slept but on waking early on Monday morning he discovered that Lenneth was not next to him in the bed – he found her on the floor – there were some open packets of medicine on the floor: Panadeine, painkillers, anti-malarial tablets. She was not in a good condition so he shouted for someone to get an ambulance – he tried his best to resuscitate her to no avail – the neighbours came in and helped him get her to the hospital but he knew she was already dead. The nurses took their time attending to her – he showed them the medication she had taken but they were not interested – he also showed the medication to Dr Gawi who eventually came and pronounced her dead – Dr Gawi gave the medication back to him – the body was taken to the morgue. He (the accused) went back to the house – he feared for his life – he was concerned about how the Hagen culture would view his wife’s death – he called a clansman and told him that he thought she had taken a drug overdose. Mrs Ropra came and made a lot of noise – he called the DWU HR Manager – then the police came and he was taken to the police station and locked up – he could not sleep as he was in great pain – he was taken to Beon Jail and his condition got worse and he started urinating blood – he was treated by a health extension officer at the jail. In cross-examination he stated that though he was very angry when he found out that Lenneth had been taken away by her uncle, James Rus, once she eventually returned his calls, he calmed down as he knew that she was safe in Mt Hagen – they had an intense fight and he used the leather belt to hit her – he was acting in self-defence – he did not strike her with any piece of timber. Asked how he could explain the blunt force that both Dr Atua and Dr Gawi considered had led to Lenneth’s death, the accused replied that it might have been when they fell on to the floor in the course of the fight – he fell on top of her – it was true that he used tremendous force against her – he had to do that to defend himself.
2	John Yama		Family friend of accused and deceased
John Yama is a member of the Police Force – lives at Kusbau police barracks – he knew both Samuel Roth and Lenneth Rus – on the afternoon of Sunday 11 January they both came to see him at his home at the barracks – they were short off cash and he had borrowed from them previously so he gave them K150.00 cash – they stayed for 10 to 15 minutes – he did not know that they had been fighting – he viewed them as two healthy persons. In cross-examination he admitted that he had been in the courtroom when the accused was giving his evidence.
3	John Rasta		Self-employed businessman
On the afternoon of Sunday 11 January he was at his market in the Admin Compound area close to DWU – he knew Samuel Roth and his wife Lenneth Rus very well – they were regular customers at his market – they came between 3.00 and 3.30 pm – they both seemed to be normal – he had no idea anything was wrong.
4	Priscilla Roth		Younger sister of accused
In January 2015 she and her adopted son, TJ, were living in the DWU house with her big brother, Samuel Roth, and his wife Lenneth Rus – Lenneth and Charmaine arrived early on Sunday morning, 11 January – they were tired as they had travelled through the night from Mt Hagen – Samuel arrived around midday – he asked Lenneth if she had any money but she had none and Lenneth raised her voice and started arguing with Samuel. Samuel went into the bedroom – Lenneth followed him in – they locked the door – then she and Charmaine heard noises, then there was silence. She took Charmaine for a walk as she was new to Madang. She and Charmaine returned to the house and did the laundry – Lenneth came out and washed her face and said that she and Samuel were going to the hospital – they came back around 4.00 pm with food and she (the witness) started preparing dinner – Charmaine fell asleep - they ate dinner around 7.00 pm. Early the next morning she was woken by Samuel who asked her to get an ambulance as Lenneth was sick – the neighbours were called and they rushed in and assisted in getting Lenneth to the hospital. Soon afterwards she was told that Lenneth had died. In cross-examination she said that she did not at any stage see any marks on Lenneth’s body to indicate that she had been injured – Samuel and Lenneth both appeared normal when they returned to the house around 4.00 pm on Sunday – she had heard them fighting but she did not notice any marks on their skin. She did not see Samuel take any timber with him when he went into the room.
5	Daniel Marum		Correctional officer, Beon jail
He recalls that when Samuel Roth was in remand at Beon in early 2015 he complained about pain from swollen testicles and problems urinating – he (the witness) authorised another correctional officer to take the accused to Modilon General Hospital for treatment.

Exhibit

11. A clinic book in the name of Samuel Roth was admitted into evidence as exhibit D1. It included an entry for 20 January 2015, apparently to record his visit to the aid post at Beon Jail and his referral to Modilon General Hospital when the accused was in remand at Beon jail. There is a record of pain in the testicles and passing dark red urine, due to an injury sustained in “domestic violence”. He was treated with doxycycline and paracetamol.
    

Submissions

12. The State’s case is that the accused killed the deceased by assaulting her with a piece of timber and a belt and by bodily assault in the bedroom of their house on Sunday afternoon 11 January 2015, and that she died the next morning due to the injuries he inflicted on her. In effect the State argues that he beat her to death, and that he intended to do her grievous bodily harm and should be convicted of murder as charged.
    
13. The defence case is that the State has not proven beyond reasonable doubt that the accused killed the deceased, and that is due to the State’s case being dependent on circumstantial evidence, as there is no direct evidence of his assaulting the deceased with a weapon and there is an alternative hypothesis explaining her death – that she overdosed – which has not been excluded. It is argued that the defence is supported by evidence that after the fight on Sunday afternoon the accused and the deceased made peace and made love and went out to find money and food. Defence counsel Mr Pipike highlighted the fact that the State did not present the alleged murder weapon – the piece of timber – in evidence, and did not even present a replica of the alleged weapon to support its case that the accused struck the deceased with a piece of timber.
    

Did the accused kill the deceased?

14. There is a definition of killing in Section 291 of the Criminal Code:
    

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

15. I adopt Mr Pipike’s submission that the State’s case is circumstantial in nature and it is necessary to apply the principles about entering a conviction based on circumstantial evidence, set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:
    

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
  

16. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying 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.
  

17. As the court is only considering the question, at this stage, of whether the accused killed the deceased it is convenient to further refine the issue as:
    

• do the proven facts lead reasonably to only one conclusion – that the accused killed the deceased? If yes, the first element of murder is proven. If no, the accused is entitled to an acquittal.
  

18. I find that the proven facts are:
    

• the accused struck the deceased in the course of the physical altercation with her in the bedroom of their house on Sunday afternoon, 11 January;
  
• he injured her so seriously that she was unable to walk by herself to the car, to go to the hospital, and she excreted in her trousers;
  
• she died the next morning when taken to the hospital a second time but she was dead on arrival;
  
• the cause of her death was hypoxia resulting from a bilateral lung contusion (being amongst the injuries inflicted on her by the accused).
  

19. I have found that those are the facts proven by the State beyond reasonable doubt, after taking account of the following considerations:
    

• Charmaine George is assessed as an honest and reliable witness. Her demeanour was sound. Her answers to questions were concise, convincing and credible.
  
• By contrast the defence witnesses, including the accused, gave evidence that was not credible and not believable. Their demeanour was poor. The accused’s evidence that after the fight with the deceased, which he says was an intense fight in which he feared for his life as the deceased squeezed his testicles so tight, they made peace and made love, was incredible, irrational and unbelievable. Priscilla Roth’s evidence is rejected as she gave every appearance of wanting to protect her brother rather than telling the truth. The evidence of John Yama and John Rasta is rejected. I consider that both these witnesses gave false testimony calculated to favour the accused.
  
• There is strong evidence that the deceased was badly injured on Sunday afternoon. As well as the injuries to her back she had facial injuries. She was in no condition to make love with her husband or drive around town looking for money and food and looking uninjured and well to people with whom she might have come into contact.
  
• The hypothesis that she died due to a drug overdose is unsupported by any worthwhile evidence. The drugs on which, the accused suggests, she might overdosed have been described very vaguely and their quantity is unknown. Though both Dr Atua and Dr Gawi stated that they could not rule out the possibility that a drug overdose was a cause of death (as no pathological or toxicological examination and report was undertaken) neither of them resiled from their opinion that that the cause of death was hypoxia brought about by bilateral lung contusion.
  
• It was not necessary for the State to present evidence of the alleged murder weapon; in fact I find that the State has not proven that the accused inflicted the injuries on the deceased with a piece of timber. However the State has proven that the accused struck the deceased, by his own admission, with a leather belt, and that by other means he assaulted and injured her severely. He inflicted blunt trauma on her back with considerable force.
  

20. I consider that according to the principles in Pawa’s case those facts are inconsistent with any reasonable hypothesis other than that the accused killed the deceased; and that hypothesis is the only rational inference that can be drawn. According to the principles in David’s case the proven facts lead reasonably to only one conclusion: that the accused killed the deceased.
    
21. Having weighed the competing evidence and the submissions of counsel, I have concluded that the State has proven beyond reasonable doubt that the accused killed the deceased by inflicting blunt trauma injuries on her in the course of a physical altercation at their house at the DWU campus on the afternoon of Sunday 11 January 2015. The first element of the offence of murder has been proven beyond reasonable doubt.
    
2. DID THE ACCUSED INTEND TO DO GRIEVOUS BODILY HARM?
   
22. It is at this point of a murder trial that the Court is required to consider the accused’s state of mind at the time that he acted (The State v Raphael Kuanande [1994] PNGLR 512). I find that the accused was angry and lost self-control and in the process inflicted injuries that proved fatal. However, evidence of his conduct after the bedroom incident on Sunday afternoon is indicative of a lack of intention to do serious harm. He took the deceased to hospital twice. First on Sunday afternoon, next on Monday morning, on both occasions showing concern for the well-being of the deceased.
    
23. The State has not proven that he used a piece of timber to strike the deceased. If use of timber had been proven, it would be an easier task to prove the requisite intention. Also relevant is that the most serious blows were to the back, not to more vulnerable parts of the body such as the head or spleen.
    
24. The State has not proven beyond reasonable doubt that there was an intention to do grievous bodily harm. The second element of murder is unproven.
    
3. SHOULD AN ALTERNATIVE VERDICT OF MANSLAUGHTER BE CONSIDERED?
   
25. The court now has to consider whether an alternative verdict of manslaughter should be entered in light of Section 539(2) (charge of murder or manslaughter) of the Criminal Code, which states:
    

On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

26. Section 302 (manslaughter) of the Criminal Code states:
    

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

27. Manslaughter has two elements:
    

• kill another person;
• unlawfully.
  

28. The first element has been proven. As to the second, Section 289 states:
    

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

29. The question of whether the killing was unlawful will be postponed until determination of the two defences raised by the accused: self-defence and provocation. If either is successful the accused will be acquitted. For present purposes it is sufficient to note that the accused is potentially guilty of manslaughter.
    
4. DOES THE DEFENCE OF SELF-DEFENCE APPLY?
   
30. The accused states that he acted in self-defence. Mr Pipike argues that it is a complete defence under Section 269 of the Criminal Code (self-defence against unprovoked assault), which states:
    

(1) When 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.

(2) If—

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

31. Section 269 actually creates two defences: under Section 269(1) or Section 269(2).
    
32. The defence under Section 269(1) has these elements:
    

• the accused was unlawfully assaulted; and
• the accused did not provoke the assault; and
• the accused used such force to the assailant as was reasonably necessary to make an effectual defence against the assault; and
• the force used was not intended to cause, and was not likely to cause, death or grievous bodily harm.
  

33. The defence under Section 269(2) has these elements:
    

• the accused was unlawfully assaulted; and
• the accused did not provoke the assault; and
• the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and
• the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and
• the accused used such force as was necessary for his defence.
  

34. If all those elements of either Sections 269(1) or (2) exist, the force used by the accused is lawful even though it has caused the death of the assailant (The State v Takip Palne of Dumbol [1976] PNGLR 90, Tapea Kwapena v The State [1978] PNGLR 316).
    
35. The prosecution must prove beyond reasonable doubt that one or more of the elements of both defences does not exist. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate (The State v David Yakuye Daniel (2005) N2869, The State v Silas Anjipi (2007) N4963).
    
36. It will be observed that in the case of both Sections 269(1) and (2) the defence only applies if the accused was unlawfully assaulted. I consider that the State has proven beyond reasonable doubt that the accused was not unlawfully assaulted by the deceased. I find that the accused was at all times the aggressor. He started the fight. He was the one who was angry. The deceased was passive.
    
37. There is uncontested evidence in the witness statements that the deceased had had problems with the accused before. This was not the first instance of physical violence. She left for Mt Hagen because she was upset and scared due to the argument with the accused’s brothers and the accused’s failure to protect her. She was fearful of what the accused would do to her. The accused’s evidence that she was the aggressor is not credible and is rejected.
    
38. As to his evidence that she squeezed his testicles, and that he was in pain, this is probably correct. But that does not turn what happened into an unprovoked assault by the deceased upon the accused. I find that it was the deceased who was acting in self-defence. It is unnecessary to consider any other elements.
    
39. The prosecution has disproved to the required standard of proof the defence of self-defence under both Sections 269(1) and (2). The defence of self-defence does not apply.
    
5. DOES THE DEFENCE OF PROVOCATION APPLY?
   
40. The accused states that he was provoked into assaulting the deceased. Mr Pipike argues that it is a complete defence under Section 267 of the Criminal Code (defence of provocation), which states:
    

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not—

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact.

41. As Mr Pipike pointed out, the accused has given evidence in support of the defence of provocation: the deceased started the fight by complaining about money and squeezed the testicles of the accused and struck him with a bilum containing heavy objects.
    
42. The onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being, as explained by Lay J in The State v Roland Rebon (2008) N3495, that:
    
1. the accused was deprived by the provocation of the power of self-control; and
   
2. the accused acted on the provocation on the sudden and before there was time for his passion to cool; and
   
3. the force used was:
   
   • (a) not disproportionate to the provocation; and
   • (b) not intended to cause death or grievous bodily harm; and
   • (c) not likely to cause death or grievous bodily harm.
     
43. If the State cannot disprove at least one of those elements the defence of provocation will succeed. The killing of the deceased will be regarded as lawful (R v Paul Maren (1971) N615, The State v Alphonse Dumui (2009) N3686).
    
44. There is a definition of provocation in Section 266 (provocation) of the Criminal Code:
    

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

(a) to an ordinary person; or

(b) in the presence of an ordinary person to another person—

(i) who is under his immediate care; or

(ii) to whom he stands—

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) in the relation of master or servant,

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(3) A lawful act is not provocation to any person for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

45. I find that the State has proven beyond reasonable doubt that the deceased did not provoke the accused in any way. The accused’s evidence that she provoked him and the evidence of Priscilla Roth, which supported that version of events, is rejected. It is assessed as false and untruthful evidence. The defence of provocation does not apply.
    

CONCLUSION

46. The State has proven that the accused killed the deceased but not proven that he intended to do her grievous bodily harm. The State has disproven the defences of self-defence and provocation. The State has proven that the killing of the deceased was unlawful as it was not authorised, justified or excused by law. The accused is found guilty of manslaughter.
    

VERDICT

47. Samuel Roth, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder, but guilty of manslaughter under Section 302 of the Criminal Code.
    

Verdict accordingly.

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