State v Aquila [2019] PGNC 35; N7705 (25 February 2019)

N7705

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 10 of 2017

THE STATE

V

KAUR AQUILA

Susame, AJ: Kokopo
2019: 15, 18 & 25 February

CRIMINAL LAW – Particular Offence-Murder S 300 Criminal Code – Trial – No Specific Defence Pleaded – General Denial – Issue - Whether Accused Assaulted The Deceased And Caused The Fatal Injuries - Accused Explanation – Deceased Sustained The Injuries When She Went Into Fit And Fell – Demeanour Of Witnesses Assessed - Accused’s False Denials And Lies Points To Consciousness Of His Guilt To The Offence Charged - Principle Of Commonsense And Logic Applied

Held:

1. In the circumstances in all probability applying logic and common sense it was not possible deceased brought about her own demise.
2. Accused explanation was a recent invention and false in the face of State’s evidence which was glaring and more credible.
3. Accused assaulted the deceased by directing several punches on delicate parts of her body causing multiple injuries externally and internally that caused her death.
4. Court returns a guilty verdict
   

Cases Cited:
Papua New Guinea Cases

The State v Avaka & Kaipu (2000) N2024

Overseas Cases

Wood v R [1964]109 CLR 529

Counsel:

Ms. Luben, for the State
Ms. J M Ainui, for the Accused

JUDGMENT

25^th February, 2019

1. SUSAME AJ: Accused was tried for offence of murder pursuant to s 300 of the Criminal Code.
   
2. No precise defence was pleaded. He generally denied causing the death of late Olivia Jack.
   
3. Offence of murder is prescribed in s 300 which is set out in part below:
   

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;...................
Penalty: Subject to Section 19, imprisonment for life.

Evidence

4. State’s evidence came from a single witness Maryanne Hosea and documentary evidence tendered by consent. These are:
   
   1. Undated statement of senior constable Robert Tobung - exhibit S1
   2. Statement of Bonny Kuta (corroborator) dated 27 April 2016 - exhibit S2
   3. Statement of Detective Sergeant Aiyofa Faregere dated 26 August 2016 –exhibit S3
   4. Post mortem report dated 9 September 2016 - exhibit S4
   5. Doctor Tommy Walter’s affidavit dated 6 October 2016 - exhibit S5
   6. Sketch map of the crime scene dated 20 August 2016 - exhibit S6
   7. Record of interview in English dated 23 August 2016 - exhibit S7
   8. Record of interview in Pidgin dated 23 August 2016 - exhibit S8
   9. Photographs of the deceased and scene of crime (1-20) - exhibit S9
      
5. Defence relied on accused sworn evidence.
   

Established Facts

6. Much of the facts from the evidence received are not in contention and which court accepts.
   
7. Accused is from Vunamami village, Kokopo East New Britain Province. Until his arrest he was the Chairman of Board of Management of Kalamanagunan Primary School, Kokopo.
   
8. He has a wife. He entered into a relationship with the deceased and regarded her as his second wife.
   
9. The Management of the Board had hosted a fund raising dance at the school on Friday 19 August 2016 at Skowhegan Club, Kokopo which the accused and deceased attended. The dance ended at the early hours of the morning of Saturday 20 August 2016. They were given a lift and were dropped off outside Tammur Centre. After buying betelnuts from JT Tyre Service the couple decided to sit down on the lawn at the back of a large 20 feet container. It was there the accused allegedly assaulted the deceased.
   

Photographic Evidence

10. Photographs taken during the autopsy conducted of deceased show the following injuries:
    
    • ➢ Bruises on her chest and neck. photograph # 8
    • ➢ Bruises on her right lower arm photograph #9
    • ➢ Bruised left lung photograph #10
    • ➢ Left lung with chest cavity full of blood photographs #11 & 12
    • ➢ Bruised right lung filled with blood photograph #13
    • ➢ Womb confirming victim was 2 months pregnant photographs # 14 - 16
    • ➢ Left side of brain and skull clotted with blood photographs # 17 - 20
      

Medical Evidence

11. Significant findings of the Medical Officer Tommy Walters is contained in the report dated 9 September 2016. Without necessarily using the medical terms and in layman’s language injuries identified were mainly around the head, chest and abdomen.
    
12. Cause of death was cardiorespiratory arrest from severe head injury with associated blunt abdominal and chest trauma due to physical assault.
    

Issue:

13. Whether the accused assaulted late Olivia Jack by directing punches on her?
    

Parties’ version of facts

14. Maryanne Hosea was the only witness called by the State. She is an aunt to late Olivia. She lives in a rented room next door to Olivia. They moved in about the same time and both been residing there for almost seven months.
    
15. She stated she was at the house between 4.30am and 5.30am when she heard the deceased calling for grand mum (referring to her) to feel sorry and help her. She felt sorry for her and she walked over to where she was. When she arrived where the couple were she saw the accused was punching the deceased on her head.
    
16. She saw Olivia fall down for the first time. Accused pulled her up onto her feet and again punched her. She fell down the second time and accused had to pull her up again onto her feet. He continued to punch her and the third time Olivia fell down. Accused punched her the fourth time and again she fell down.
    
17. Accused demanded her to stand up but Olivia never responded. She observed Olivia was weak. Accused told her not to lie or he would kill her. He held her by her two hands and woke her up but Olivia never responded. Realizing that said he was sorry and kissed her. He told Maryanne to let her sleep for a while on the grass but Maryanne told him grass was wet and cold. Accused carried her to the verandah of the house and laid her there while Maryanne carried her bag and slippers and followed.
    
18. Maryanne and her husband left for New World to look for more water. Both of them returned and found Olivia had been taken into her room sleeping. She checked her but Olivia never responded.
    
19. Accused she was told had gone off to Kalamanagunan Primary School. She went in search of him at the school but he was not there. She returned home and again checked Olivia.
    
20. She then proceeded to the Police Station and reported the matter. There was no available police car. She walked to Brain Bell and reported the incident to Olivia’s workmates and proceeded back home. Anitua Security Guards and a CID Police Officer had arrived. They checked the body. They got the body onto the vehicle and took her to Vunapope Hospital. Doctor checked her body and pronounced her. Her aunt Maryanne refuted that claim when suggested to her. She told court she had no knowledge of her niece having such medical condition or having fit seizures.
    
21. For the defence, accused offered some explanation in his denial of the alleged offence. In brief his explanation was this. After the dance was over they were dropped off at ICS trade store at Tammur Centre. From there they walked to JT Tyre Service and bought betelnuts. They walked back and met some drunkards who asked them for money. Olivia got upset over that and started arguing with him as they were walking back. Instead of going straight into the house they decided to sit down by the container. Olivia was drunk and kept arguing why the drunkards had asked him for money. Accused told her they go to the house and sleep and started walking.
    
22. Olivia ran after him, grabbed the collar of his shirt and she swore at him. Accused turned around and slapped her once. She called out to her aunt. Her aunt (Maryanne) walked over to them. Olivia saw her aunt and ran around her. Accused went after her and held her. That moment Olivia’s eyes turned and she fell down.
    
23. Accused stated Olivia has a medical condition which causes her into fit seizures. On two occasions she was admitted to the hospital and he looked after her couple of months earlier.
    
24. Under cross-examination accused persistently denied punching Olivia at any time that morning. He maintained that he merely slapped her once. He also denied causing the injuries stated in the medical report.
    
25. The implication of that story is that deceased brought about her own demise when she fell and injured herself.
    
26. Is that possible or is that more than likely?
    
27. Could it have been that deceased was assaulted by someone? If so, who was the perpetrator?
    
28. Let me analyze the evidence. The deceased and accused were at the dance at Skowhegan Club. After the dance they were dropped off. There is no evidence deceased had been involved in a fight or had been assaulted by someone at the club or any way else on the road after the couple were dropped off.
    
29. The only direct evidence court has heard was that of Maryanne Hosea. She was at the house when she heard her aunt calling for help. That call caught her attention. Being concerned she walked over to the spot where the deceased and the accused were.
    
30. Maryanne observed what was going on at distance of less than a meter. She was at a very proximate distance with the deceased and the accused. She said the moon was still up. Time was between 4.30am and 5.30am. The day was dawning and the place no doubt would by then be clearing up. I doubt she exaggerated the facts and wilfully gave false evidence under oath.
    

Demeanor of witnesses

31. I could easily follow Maryanne’s story. She gave a vivid factual account of the entire incident from the start to pronouncement of her aunt’s death by the doctor. She was never moved under cross-examination and was consistent throughout her evidence. I have observed her demeanour and I hold her to be a witness of truth.
    
32. As regards the accused I noted his explanation in court of the assault varies factually from his explanation to the Police Investigator as recorded in the record of interview which was tendered into evidence consensually. (Note Answers to Questions 47, 48, 50, 56 & 57). Accused said first he got a plastic hose and hit her on the leg, then he slapped her twice with his left hand. In court he said he slapped her once.
    
33. Accused also said deceased woke up and wanted a coke and he sent a small girl to go buy one from Emil’s store. Both of them then walked out to the spot they had fought to search for her tongs (slippers). He never said that in court.
    
34. Court is entitled to hold such insistencies weigh against the accused and puts into question his credibility.
    
35. I have also observed his demeanour. Accused never impressed me with his explanations. He was quite evasive in answering questions that required a simple yes or no answer while under cross-examination. He never gave any logical explanations as to how deceased received the multiple injuries which were fatal except only to deny them.
    
36. Court is entitled to hold that the accused’s false denials of knowledge of relevant facts and deliberate lies points to consciousness of his guilt of the offence charged on the face of State’s evidence which is more credible. (The State v Avaka & Kaipu (2000) N2024, Wood v R [1964]109CLR 529.
    
37. Further observations. The claim that deceased had a medical condition that causes her to have fit seizures came from the accused. At law one who asserts a fact must prove that fact by some material evidence. Needless to say, accused failed to prove by medical evidence deceased had a certain medical condition.
    
38. However, for the sake of argument say, the deceased had such a medical condition (which I doubt very much) and she collapsed and fell down. Going by accused story deceased ran around her aunt. Accused went after her and held her by the hand. At that moment deceased eyes turned and she fainted and fell down.
    
39. She would have collapsed while accused was still holding onto her. Hence, her fall would have been gradual and not abrupt, on the grass which would have provided some cushion.
    
40. Defence argument that deceased could have fallen onto stones or hard ground and sustained the injuries is purely an assumption and baseless.
    
41. Considering all the circumstances in all probability, applying logic and commonsense, it was not possible such a fall would have caused the injuries evidenced by the photographs taken and the medical report. Similarly, it would be unreal and unlikely a single slap or two could have possibly caused such injuries.
    
42. Having ruled out those possibilities what do I make of accused person’s story? I find his story was nothing more than a recent invention and false from a man trying in vain to make up a convincing case on the face of State’s evidence which is glaring and far more credible.
    
43. The significant findings by the doctor of internal injuries to the head and the lungs, causing massive internal bleeding was caused by application of a blunt object. That was blunt object were application of several punches on the head.
    
44. Accused is big built male person. Deceased on the other hand is small in size. Accused accepts that fact when it was suggested to him during cross-examination and in the record of interview. (Questions 69 & 70). Under cross-examination accused agreed late Olivia was short and small in size to the accused. (Questions 21 & 22, pg. 93 of notebook)
    
45. The accused is the perpetrator. He was the only person who assaulted the deceased by punches directed at her delicate parts of her body. The punches were no doubt hard and forceful capable of causing grievous bodily harm which subsequently caused death of Olivia. Finding of factual circumstances discussed above without doubt puts the case within the ambit of s 300 (1) (a).
    

Conclusion

46. This finding affirmatively answers the threshold issue in the case. There is no shadow of doubt in my mind to enter a conviction against the accused. Accordingly, accused is guilty of the charge.
    
47. Accused is now prisoner of the State except to receive sentence. In the discharge of my discretion his bail is set aside. Prisoner is taken into custody at Kerevat Jail pending judgment on sentence.

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