State v Kuau [2018] PGNC 483; N7573 (2 November 2018)

N7573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1471 & 1472 OF 2016

THE STATE

V

PETRUS KUAU
&
DOMINIC BUNA

Kokopo: Susame, AJ
2018: 10, 16, 17, 19, 22 October & 2^nd November

CRIMINAL LAW – Particular Crime – Murder – S 300(1) (A) Criminal Code

CRIMINAL LAW – Evidence – Witness Prior Inconsistent Statement – Cause of Death - Splenic Injury- Whether Accused Caused the Injury –

CRIMINAL LAW - Medical Evidence – Significant Findings - Multiple Ruptures of a Normal Spleen - Whether There was Intention to Cause Grievous Bodily Harm – Assault by Two Persons - Punching & Kicking of Delicate Parts of Body – Several Blows Directed - Force Applied Quite Excessive Capable of Causing Death- Conviction Sustained for Murder

Held:

1. Accused not only slapped the deceased but punched and kicked him several times on his body,
2. Accused caused the fatal injuries which led to the death of Eddy Remy Jnr,
3. Application of force by two persons on a single person to delicate parts of his body where internal organs are, is quite excessive capable of causing death.
4. Accused guilty of murder
   

Cases Cited:
Papua New Guinea Cases

Paulus Pawa v The State [1981] PNGLR 498,
David Kandakason v The State (1998) SC 558

Overseas Cases

Driscoll v R, High Court of Australia (1977)137 C.L.R 51

Counsel:

G. Tugah, for the State
Ms. Jean Marie Ainui, for the Accused

DECISION ON VERDICT

2 November, 2018

1. SUSAME, AJ: Accused were indicted for causing the death of the late Eddie Remi, Jnr pursuant to s 300 (1)(a) of the Criminal Code.

Crime

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
• He intended to cause grievous bodily harm to the other person
• Resulting in death of that other person
  

Facts Alleged

2. The allegation by the State is that accused intended to do grievous bodily harm to the late Eddie Remi Jnr thereby causing his death. The facts alleged are set out below.

3. On Friday 27 April 2016 between 8:00pm and 9:30pm the deceased was in company of Dominic Buna and other boys at Petrus Kuau’s house. They were having drinks at his residence. Petrus Kuau then slapped the deceased on his right cheek and punched him on his left chest. The deceased fell down and he kicked him twice on his back and on the bottom part of his body.

4. Dominic Buna ran towards the deceased, knelt down and punched him on his chest and stomach. He kicked him again on his back. He then grabbed the deceased by his shirt shaking him same time questioning him in pidgin language asking “Wai na u kam bihainim ol ken?” (Why did you follow them again?).

5. Dominic and Paul Tiriman dragged the deceased out of Petrus Kuau’s residence. Outside Dominic continued to punch the deceased on his chest and kicked him again on his stomach while the deceased was crying out, “Bel blo mi pen” (My stomach is aching).
   
6. The deceased was later rushed to the hospital but was pronounced dead upon arrival as a result of the injuries he received.
   

Issues

1. Whether accused caused the splenic injuries that caused the death?
2. Whether accused intended to cause grievous bodily harm to the deceased?
   

Prosecution Evidence

7. Evidence comprised of documentary evidence tendered by consent and oral evidence of three witnesses. Documentary evidence are tabulated below:
   

No	Document	Date	Label
1	Rec. of interview Petrus Kuau (Pidgin)	24/6/16	A
2	Rec. of interview Petrus Kuau (English)	24/6/16	B
3	Rec. of interview Dominic Buna (Pidgin)	24/6/16	C
4	Rec. of interview Dominic Buna (English)	24/6/16	D
5	Statement of Senior Constable Robert Tobung		G
6	Statement of Senior Constable Bartsley Rawia	3/6/16	H
7	Photographs of the deceased during post mortem examination (1-28)	16/6/16	I
8	Statement of Steven Gusa	16/8/16	J
9	Sketch map dated & photographs of scene of crime taken	27/5/16 & 1/6/16	K
10	Affidavit of Dr. Tommy Walters	31/8/16	L
11	Post Mortem Report	16/6/16	M
12	Statement of Constable Roberts P Gigie	18/8/16	N
13	Statement of Police Woman Constable Mary Tobing	23/4/16	O
14	Statement of Police Woman Constable Vanessa Neil	24/6/16	P
15	Statement of Lesley Deman (Pidgin & English)	27/4/16	Q 1-2

8. Three witnesses, Tobby Kulu, Lawrence Kuwang and Alois Kuau gave oral evidence for the State.
   

Tobby Kulu

9. He was the first State witness to give evidence. His evidence is that in the evening of that day he was having Coffee Punch with Dominic Buna, Eddy (deceased), Michael Kalimet, Martin Kuraip and Penning. They ran out of mix and they went to buy more at a canteen.
   
10. Deceased fell asleep, both himself and Dominic carried him to his house. Deceased woke up from his sleep a while later. He decided to follow the boys who had gone to buy smoke and mix. He remained with Dominic.
    
11. He then told Dominic he was going to look for smoke so both of them went and bought smoke from Petrus’ house. He wanted to leave but others stopped him and invited him to join them drinking at Petrus house.
    
12. They were drunk and deceased started dancing. He was about 6 meters and saw Petrus slap him and deceased fell down. That was outside the house. Petrus slapped him because he danced and disturbed his child.
    
13. He was really drunk and at the time deceased fell on the ground he also slipped and fell. He dozed off and did not know what happened then. He woke up and went straight to work. He said he never saw anyone else assaulting the deceased that night. He was dead drunk that night.
    
14. Under cross examination he maintained his story that he saw Petrus slapping the deceased and the deceased fell down.
    

Lawrence Kuvang

15. This witness was declared a hostile witness for the State as he gave inconsistent evidence from his earlier statement to police. He gave evidence that he was with Alois and Bernard at his house. They were not drinking. They heard music was on at Petrus’ house which was some 30 -40 meters away. Drunkards were there.
    
16. They decided to walk over to Petrus’ house when they heard Petrus get cross at the drunkards. They stood at an estimated distance of 38 - 40 meters and observed. They moved closer to about 20 – 25 meters and saw Petrus assault the deceased. Seeing that they went back to the house and continued telling stories. They heard drunkards walking along the road. Then they heard deceased cry out and saw Dominic carrying him along. From there they went back to the house.
    
17. He said he saw Petrus slap his mouth and deceased lying on the ground. He said he saw Dominic slap him when he was carrying him. He denied there were no other fights that night.
    
18. Under cross –examination he said both accused slapped him. When further questioned he said when deceased fell down Petrus kicked him. He later changed his answer and said he never saw what actually happened but he saw Petrus slapping him.
    

Alois Kuau

19. This witness was also declared a hostile witness for the State as his evidence in court was inconsistent with his prior statement to police.
20. He gave evidence of hearing drunkards at Petrus’ house and Petrus getting cross and telling them to leave. They were at Lawrence house about 35 meters away from Petrus house and watched. There was solar light at Petrus’ house but not bright. He saw Petrus slap the deceased and told him to move out of his area. The deceased fell down and Kuraip, Kalimet, Penning, Tobby and Dominic took the deceased away.
    

Defence Evidence

21. For the defence evidence came from two accused persons.
    

Accused Petrus Kuau

22. His evidence is that on the night of 27/4/16 at about 8.00 or 9.00 he was at his house with his wife, children and some students from Kabaleo Primary School. He was playing music that night. Drunkards heard the music and entered his premises. The drunkards were Dominic, Kalimet, Kuraip, Tobby and Eddy (deceased). They went right into his house. He was not drunk. They forced him to drink but he refused. They also told him to put off the music but he refused and kept it on. They started dancing inside his house as if it was a club. They danced and behaved disorderly and were unsteady on their feet.
    
23. Deceased was very drunk as he had also taken drugs that night. He was behaving disorderly and as a result he damaged the wall of the house. Deceased entered his room three times and he removed him. Fourth time deceased entered and pulled Petrus small son from the bed onto the ground. Accused went and picked up his son and was carrying him. He was comforting him when deceased bend over them and laughed at them.
    
24. Accused told deceased to go out but he never heeded. He remained standing and deceased told him to suck his penis. Accused was in a sitting position. When he heard the insults directed at him he raised his hand and slapped the deceased.
    
25. That slap sent the deceased falling on the ground and accused Dominic came over and pulled him away. Then Dominic slapped him again.
    
26. Accused was cross at them and told them to leave his house. They walked out and deceased kept calling back swearing at Petrus and his wife. After they had left he went inside the house. He does not know what happened after that. At around 2.00am police came to his house and took him to the Police Station.
27. Under cross –examination he maintained his story but denied punching, or kicking deceased on his back and side.
    

Accused Dominic Buna

28. Accused was one of the drunkards that night incident happened. He was with the deceased, Kalimet, Kuraip, Tobby and Penning. They had been drinking four 40 ounce bottles of Coffee Punch.
    
29. They ran out of tobacco and soft drinks as mix for their Coffee Punch. Kalimet, Kuraip and Penning left the group and went to Pastor Anthon’s house to buy mix (soft drinks) and tobacco. Deceased and accused remained. It took so long for the boys to return so deceased and Tobby went out to look for them. Accused followed them a short while later. He caught up with Tobby who told him to search for the other boys at Petrus’ house.
    
30. Accused went up to Petrus house and saw other boys were already there and joined them. He went and sat on the bench outside the house. Sitting there he saw deceased break the wall of the house. He went over and pulled deceased out of the house and spoke to him. Deceased listened and sat quietly.
    
31. Accused felt like pissing and left deceased with Tobby sitting on the bench. When he returned after pissing he saw deceased was lying on the ground. He asked Tobby what had happened. Tobby told him deceased had told Petrus to suck his penis and Petrus had slapped him. He told Petrus what he did was not good and he pulled deceased to go home.
    
32. As they were leaving the entrance of Petrus’ house deceased kept swearing at Kuraip and Penning. He was surprised to see Kuraip and Penning had followed them. Kuraip came and punched him at his back. Penning also punched him. Kuraip went on to punch the deceased and he fell down on the ground. While he was lying on the ground Kuraip went and kicked him. When both Kuraip and Penning saw deceased lying on the ground they ran away.
    
33. Accused woke deceased up and carried him to his house. Deceased was crying on the way to the house. They stopped by at Pastor Anthon’s house to buy smoke. Deceased’s in-law Lesley Deman met them close to the entrance of deceased’s house. He asked them what had happened. Accused told him Kuraip and Penning had assaulted him because he had sworn at them. Lesley helped him and both carried the deceased to the house. Later they took him to the hospital where they were told by the nurses deceased had passed on.
    
34. Under cross- examination accused admitted slapping the deceased because he had brought shame to him for swearing at co-accused but denied punching or kicking him. He never told the police the story that Kuraip and Penning had assaulted the deceased because of the threats he received from Kuraip. That Kuraip would kill him through act of sorcery.
    

Established facts

35. The following facts are not in serious contention and accepted by the court. On the night of 27 April 2016 around 8.00 or 9.00 the deceased was in company of Dominic Buna, Tobby Kulu, Michael Kalimet, Martin Kuraip and Penning at deceased house. They had been drinking four bottles of 40 ounce of Coffee Punch. When they ran out of mix and smoke Kalimet, Kuraip and Penning left for Pastor Anthon’s canteen to buy mix and smoke.
    
36. Dominic, deceased and Tobby remained. When the three boys did not return quickly deceased and Tobby went looking for them, ending up at Petrus house. Dominic followed them later and joined the rest of the boys at Petrus house.
    
37. Petrus was playing music that night. The boys were all drunk and dancing about in a disorderly manner. While dancing about deceased broke the wall of the house. Severally times deceased went in and out of Petrus house despite Petrus stopping him. It so happened that deceased pulled his little son out of the bed and making him fall. Petrus went carried his son and was comforting him when deceased stood close to him and laughing at Petrus. For no apparent reason he swore at Petrus to suck his penis.
    

Medical evidence

38. Photographs (Exhibits 1 -28) taken during the post mortem examination of the deceased on 16 June 2016. Photographs 1 -14 show significant findings of the multiple external injuries on different parts of the body. Rest of the photographs are shot of the body being opened up showing internal injuries identified.

Post – Mortem report dated 16/6/16 (exhibit M) contains finding by the Medical Officer Tommy Walters who conducted the post mortem.

External Findings

39. On the right side there were bruises on the shoulder and scratches extending to the chest wall. On the upper limbs, bruises and abrasions were noted on the left arm and elbow. On the lower limbs there were bruises and scratches.
    

Internal Findings

40. On the abdomen area there was massive blood approximately 2000 plus milliliters. Spleen had multiple ruptures (3X) but was normal in size. Huge amount of blood clots were seen and collected.
    

Cause of Death

41. Deceased died of cardio respiratory arrest due to raptured spleen.
    
42. Such significant findings by the medical officer deceased had sustained multiple injuries both externally and internally by being assaulted by someone.

Could he have been assaulted by the accused by Kuraip and Penning as claimed by Dominic Buna?

Main contentions

43. Allegation by the State is that both accused punched and kicked late Eddie Remy Jnr several times even when he was lying on the ground. The injuries he received from the assault subsequently led to his demise.
    
44. Defence contends otherwise State has not positively identified who actually assaulted the deceased. The only evidence State has is that accused merely slapped him. There is no evidence accused had assaulted him and caused the raptured spleen that caused his death.
    

Law on Prior Inconsistent statement

45. Inconsistencies arose with regard to evidence by Lawrence Kuvang and Alois Kuau for the State. Both witnesses had given evidence in court inconsistent to previous statements to police which were reduced in writing. Both witnesses were shown their statements and were subject to cross – examination when it became apparent their oral evidence were inconsistent with their prior written statements. Court had the benefit of reading the Statements and on application of Mr. Tugah court declared both of them as hostile witnesses.
    
46. A witness(s) may be during examination in chief or cross-examination asked questions with respect to previous statements by him reduced to writing in relation to the subject matter that was inconsistent with his evidence in court with the all purposes of contradicting or discrediting the witness. That is provided in ss 21-23 of Evidence Act in this jurisdiction.
    
47. In Driscoll v R, High Court of Australia (1977)137 C.L.R 51 the court observed:
    

“..two different situations arise when a witness is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial. The first is as to the use to which the statement previously made out of court may be put, and second is as to the effect of the previous statement on the value of the testimony given by the witnesses in court. As to the first of these questions it is clearly settled that the previous statement is admitted merely on the issue of credibility, and not evidence of the truth of the matters stated in it.....As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable.”

48. Australian authorities are of course persuasive and not binding in this jurisdiction. But time and again courts make reference to them as useful guides when confronted with issues in a particular case under consideration.
    
49. I consider the pronouncement by the High Court of Australia brings clarity and is quite useful in deciding the issue.
    
50. The learned authors of Criminal Law and Practice of Papua New Guinea, 3^rd Ed. At page 650 in reaffirming the Supreme Court decision in David Kandakason v The State (1998) SC 558 stated:
    

“The existence of prior inconsistent statement does not of itself make a witness evidence unreliable. The prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness’ previous written statement to prove that his or her subsequent sworn testimony is untrue.”

51. In David Kandakason v The State (supra) the Court deliberated on an appeal from the trial court below on a conviction of murder. One issue addressed by the court inter alia was on inconsistent statements by couple of witnesses called by the State. Witnesses had given previous statements to police which were reduced in writing. At the trial instead of giving evidence in support of the State’s case they gave evidence quite contrary to their previous statements. The reason they changed their story was that they were coached by another person to make those statements to police. Those statements were untrue and the story they told the court was the truth.
    
52. The trial judge rejected their evidence in court and accepted their previous statements as the truth as evidence for the prosecution. In addition to other evidence that was available court proceeded to enter conviction.
    
53. The Appellate Court made reference to other common law authorities. The Court considered previous statements by the witnesses are not and cannot be considered as evidence. Court held that the trial judge misdirected himself when he accepted the prior written statements and rejected the oral evidence.
    
54. My understanding of the decision is that prior inconsistent statement does not of itself make a witness’ evidence unreliable having a substantial bearing on a case. If there is other independent evidence available court may enter a conviction.
    

Law on circumstantial evidence

55. Counsels have referred the court to the authority of Paulus Pawa v The State [1981] PNGLR 498, which is perhaps the leading case on circumstantial evidence. The law on circumstantial evidence is settled. Quoting from Criminal Law and Practice of PNG 3rd edition at page 639:
    

“Where the evidence in a criminal case is wholly circumstantial, the court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused.” (Paulus Pawa v The State [1981] PNGLR 498.)

Assessment of evidence & Credibility of witnesses

56. Witnesses Lawrence Kuvang and Alois Kuau not doubt have given evidence quite contrary to their previous statement to police which were reduced to writing. Their previous statements of course are not evidence. However, they are relevant to decide how reliable the witnesses are.
    
57. Lawrence is from the same village to the accused. They live in the same community at Kabaleo. They are close relatives though not from the same clan. Petrus is an uncle to him and Dominic is a brother. He was subpoenaed to appear in court on application from Mr. Tugah when he did not cooperate to testify for reasons only known to himself.
    
58. In Examination In Chief witness stated he was never threatened to provide the previous statement to police. His story in court is the truth. When asked if the statement to police was not true he answered it was his first time so he did not know. When counsel probed on in suggesting to him the statement he told police was the truth and he agreed it was. He agreed the statement was read back to him. He understood and accepted it as his statement and he signed it.
    
59. He was further asked if there was any reason for him to change his story he said no, no one told him to change his story. Both Petrus and Dominic are not related to him.
    
60. Under cross-examination he said both accused slapped him. When further questioned he said when deceased fell down Petrus kicked him. He later changed his answer and said he never saw what actually happened but he saw Petrus slapping him.
    
61. Alois Kuau is from Kabaleo village where he lives. He regards Petrus as a brother and Dominic as an uncle. In examination in chief witness was shown his previous statement to police. He verified the statement was his but cannot remember what he actually told police as it has been a while.
    
62. During cross-examination he agreed he had told police what he had seen happened and it is the truth. The statement was read back to him and he signed it in accepting it. Police never threatened him or forced him to sign it. He agreed he was closely related to both accused. Petrus was his cousin and Dominic was his uncle. When the witness was re-examined he agreed what he told the court was the truth.
    
63. This is a witness who never cooperated to voluntarily come to court and testify for reasons only known to himself. He was summoned to appear in court and give evidence.
64. These two witnesses had willingly and voluntarily provided statements to police of what they had seen happened. That was an indication they were prepared to attend proceedings and testify at the trial when called upon. Instead they were reluctant at the commencement of the trial. I am pretty sure their reluctance was attributed to some underlying reasons or intervening factors which remains undisclosed.
    
65. The witnesses live in the same community with the accused. They are close relations. I have observed their demeanour in court. They did not impress me. They were careful they did not say the wrong thing in court.
    
66. Lawrence just did not have any reason to come to court and give a different story to his earlier statement to police. This is absolutely unbelievable. Certainly he must have a reason. Alois said he could not recall exactly what he told police. That is possible if he has some memory deficiency or poor memory.
    
67. Both have agreed what they told police was the truth of what they each saw. The statements were given freely without any threats. In their respective statements they made mention of the accused punching and kicking the deceased. In court they limited their evidence to mere slapping.
    
68. What can be drawn from the behaviour exhibited by these two witnesses? Applying logic and commonsense their change of story in court was obviously owing to some undisclosed reasons or hidden motive. I regarded them as unreliable witnesses. It can safely be inferred the two witnesses were obviously not being truthful and hiding the real facts of the assault.
    

Assessment of defence evidence

69. Petrus Kuau denied punching and kicking the deceased. He merely slapped him. From his evidence it was a single slap. That single slap sent the deceased falling on the turf.
    
70. Dominic Buna denied seeing his co accused slapping the deceased. Slapping occurred while he was away pissing. When he returned he saw deceased lying on the ground and he enquired with Tobby what had happened. During cross-examination he admitted slapping the deceased because he had brought shame to him for what he had done to Petrus.
    
71. Then he came up with the story that as he was taking the deceased home on the road Kuraip and Penning came after them. They started questioning who had sworn at them. There they assaulted him and the deceased. He said they punched and kicked the deceased.
    
72. Here Dominic was shifting the blame on Kuraip and Penning as persons who punched and kicked the deceased. Interestingly in their respective record of interview (English Versions) both accused placed blame on each other. Petrus puts the blame on Dominic as the one who had punched his chest, stomach right chick and his bottom part. (Answers to Questions 28, 34, 35, 36).
    
73. Dominic on the other hand said it was Petrus who punched him inside the house. When deceased was lying on the ground Petrus kicked him. (Answers to Questions 29, 30, 31 32). He never made mention of Kuraip and Penning punching and kicking the deceased. He came up with that story in when he gave evidence in court.
    
74. Further observation. Under cross- examination accused was asked why he did not tell police that Kuraip and Penning had punched and kicked the deceased. He said Kuraip had threatened to kill him. He is a reputable sorcerer and he was scared of his life as he had at one occasion almost taken his life. Amazingly, he saw fit to put the blame on the very person he fears most in court. He should naturally be scared of his life and mention the very person who almost took his life sometime earlier.
    
75. It makes me wonder if it was really because of his fear of Kuraip he never told police the story he told court. Could it be an attempt on his part to shift blame to Kuraip and Penning to evade conviction? Both of them gave contradictory evidence in court to what they had stated in their respective records of interview.
    
76. From the evaluations made I consider their evidence most unreliable, having less probative value in regard to the nature of assault on the deceased. My observation of their demeanour while under cross - examination was that they were not confident and quite apprehensive in answering questions directed at them.
    

Motive/Reason

77. There would have been a motive or reason for Petrus to assault Eddy. Eddy was drunk and caused great nuisance at Petrus’ residence that night. He was disoriented and exhibited disorderly conduct. Accused had pulled him out of the house few times with no avail. He was frustrated. To add more to his frustrations Eddy had damaged the wall of his house, pulled this son out of the bed making him fall down. He stood laughing at the accused as if it was of no consequence to him and directed obscenity at him. It came to a point that accused had to release his anger and frustration that had built up by assaulting Eddy.
    
78. Dominic had a reason to assault Eddy. He had observed his conduct that night. He had brought shame to them and because of that he also assaulted him.
    

Findings

79. Let me reiterate that deciding of the main issue posed will be approached by applying principles of logic and commonsense.
    
80. Firstly, court has accepted evidence which is undisputed that Eddy had fallen on the turf when Petrus assaulted him. It is not possible or likely the single fall in the circumstances could have caused the multiple injuries as evidenced by the medical report. Deceased had no pre-existing condition of an enlarged spleen. The spleen was normal in size but found to have multiple raptures.
    
81. Similarly, a single slap directed at his cheek or face could not have possibly caused such multiple raptures on the spleen which was the cause of death. There is no evidence available before this court suggestive of some other persons assaulting Eddy that night.
    
82. Accused were the two seen assaulting Eddy that night. Eddy had not been slapped once on his face or cheek. He had been punched and kicked all over his body several times as he was helplessly lying on the ground.
    
83. The end result of the discussions on the issue: Whether accused caused the splenic injuries that caused the death? Answer is in the affirmative.
    
84. That leads me to the next issue: Whether accused intended to cause grievous bodily harm to the deceased?
    
85. No arguments were advanced on this issue. I would have thought counsels should have attempted some arguments. Without prolonging the decision I decided against directing counsels to file submissions for court’s consideration. Nonetheless this is the finding of the court.
86. This is not a case of an enlarged spleen being ruptured. It is a case of a normal spleen receiving multiple raptures. To bring about that kind of result requires application of force quite excessive directed around the abdominal area where the spleen is located.
    
87. I consider punching and kicking of a defenceless person lying on the ground several times around delicate parts of the body where vital internal body organs are located by more than one person is quite an excessive force capable of or sufficient to cause death of the person.
    
88. The finding of multiple raptures of a normal spleen was a direct result of that, which brought about Eddy Remy Jnr’s demise. Accused in this particular situation cannot come to court and say he never intended to hurt the particular person who was killed because of subsection (2) of s 300. In addition to that court also considers definition of grievous bodily harm provided in s.1 of the Criminal Code which I quote:
    

“Grievous bodily harm” means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health;”

89. In my considered view circumstances of the case do not and cannot hold the accused for the offence of manslaughter under s 302. Both are no doubt guilty of the crime of murder as charged.
    
90. Accordingly, court returns a guilty verdict against each of the accused persons.

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