State v Henry [2019] PGNC 59; N7800 (16 April 2019)

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CRIMINAL LAW – Murder – section 300(1)(a) – Criminal Code Act Chapter No. 262 – evidence –- dying declaration – circumstantial evidence – elements of offence – effect of dying declaration discussed

The accused was charged in relation to the death of his wife. The prosecution alleged that he murdered his wife by beating and kicking her in her stomach. No one saw the incident, and the evidence were circumstantial except one witness who said that the deceased had made a dying declaration. The accused and his father gave evidence which was that the accused was not at his house at the time when the incident was alleged to have occurred but that he was elsewhere, and as such, he did not know how the deceased had suffered her injury (ruptured spleen) which led to her death.

State v. Kevin Henry (No, 2 of 2019) N7766
State v Enny Bulen [1990] PNGLR 43
Martin Kalak v The State (2016) SC1505
State v. Miriam Kakun (1997) N1673
State v. Titila Tomur and Ors (2017) N6837
State v Morris [1981] PNGLR 493

1. ANIS J: This was a trial on verdict. The accused was charged with the murder of his wife under section 300(1)(a) of the Criminal Code Act Chapter No. 262 (the Criminal Code). He pleaded not guilty, so the trial on verdict was heard on 11, 12, 13 and 14 March 2019, and on 5 April 2019. I reserved my ruling thereafter to 9:30am on 11 April 2019 and then to 9:30am on 16 April 2019.

3. The accused was indicted on 11 March 2019. The indictment reads, and I quote in part, Kevin Henry of Menabonbon Village, Bitapaka LLG, Kokopo District, East New Britain Province stands charged that he on the 11^th day of July, 2016 at Menabonbon Village, East New Britain Province in Papua New Guinea murdered GETRUDE JOSHUA.

4. The brief facts that support of the indictment read, and I quote in part, On 11^th July, 2016 at between 9 pm and 10 pm, Kevin Henry (the accused) and Getrude Joshua (the deceased wife of the accused) were at their home at Menabonbon Village, Bitapaka LLG, Kokopo District, East New Britain Province. At that time and place, the accused and the deceased had a fight where the accused kicked the deceased’s stomach. She died a short while after as (a) result of a spleen rupture. The State alleges that when the accused kicked the deceased on her stomach, he caused her spleen to rupture and ultimately her death. The State says that his actions contravene section 300(1)(a) of the Criminal Code in that he intended to cause grievous bodily harm to Getrude Joshua and unlawfully killed her.

5. The prosecution called three (3) witnesses, namely, Shirelyna Kavanamur (Shirelyna), Catherine Penden (Catherine) and Bosco Lavai (Bosco). The defence called two (2) witnesses, namely, the accused and his father Henry Vuga (Henry). All the witnesses were cross-examined. Several exhibits were tendered by consent of the parties. I set them out here in a table format.

Exhibit No.	Description	Date Filed
“P1”	Post Mortem Examination Report	27/07/16
“P2”	Affidavit of Dr Tommy Walters	31/10/16
“P3”	Photographs of the deceased	31/10/16
“P4”	Statement of Mary Marut	13/07/16

6. The issues are as follows, (i), whether the words uttered by the deceased to witness Catherine constitutes a dying declaration within the meaning of section 20 of the Evidence Act Chapter No. 48 (the Evidence Act), and (ii), whether the circumstantial evidence are sufficiently established beyond reasonable doubt to return a guilty verdict of murder against the accused under section 300(1)(a) of the Criminal Code.

7. The death and the injuries sustained by the deceased, were not contested. I find that the prosecution has established the death and the cause of death of the deceased. The accused did not deny that he was within the vicinity of the crime scene, and that at one point, he had gone to his house to talk to or to locate his wife Getrude Joshua (the deceased). I find that there is evidence which shows that the accused was within the vicinity of the crime scene at the material time. The accused’s evidence however is that although he was within the vicinity of the crime scene, he was at is parent’s house and he denied that it was he that fought with his wife; he also denied kicking her in her stomach which led to her death. The prosecution did not call any direct evidence to show that the accused was seen with the deceased at their house at the material time of the incident. The only indirect evidence called which directly mentions the name of the accused and which also mentions what he was alleged to have done, was the evidence of witness Catherine. I plan to deal with that first, but before I do that, let me quickly clarify an error in my decision in State v. Kevin Henry (No, 2 of 2019) N7766. In my decision, I firstly identified witness Catherine as the person who had said that she heard the deceased uttered the words, “Kevin kicked my stomach,”. That was the correct position in terms of what the witness said she heard at that time. However, in my conclusive remark, I referred to witness Shirelyna Kavanamur as the person who uttered the words, “Kevin kicked my stomach.” Obviously, my reference to Shirelyna there was an error. The correct person was witness Catherine whom I had identified earlier in my said judgment. The typographical error or mistake regarding the witness’s name I note is minor and would not have affected my ruling on the no case to answer application by the defence.

8. Having clarified that, I note that witness Catherine was vigorously cross-examined by the defence. It was put to her that she never heard the words “Kevin kicked my stomach.” However, Catherine maintained what she had heard from the deceased before the deceased died. Witness Catherine gave her evidence with ease and I found her to be a credible witness. I did not find any material discrepancies or inconsistencies in her testimony. I also find nothing wrong or suspicious of her demeanour in Court. It is hard for me not to believe what she had told the Court. But even so, that would not be the end of the matter.

10. The relevant provision is section 20 of the Evidence Act. It reads, and I quote,

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—

(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and

(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

11. Let me look at the case law. Then Chief Justice, Sir Buri Kidu, in State v Enny Bulen [1990] PNGLR 43 summarised the considerations of what shall constitute a dying declaration under section 20 of the Evidence Act. His Honour held, and I quote in part,

For the purpose of admitting a dying declaration into evidence under s 20 of the Evidence Act (Ch No 48), the statutory conditions require that:

12. The Supreme Court in Martin Kalak v The State (2016) SC1505 also held, and I quote in part,

(3) Dying declarations are an exception to the rule against hearsay. However, before ruling that a dying declaration should be admitted into evidence it is necessary for the trial judge to rigorously address the preconditions set out in Section 20 of the Evidence Act.

(4) Here the verdict is unsafe and unsatisfactory as the trial judge allowed hearsay evidence to be admitted, without conducing due inquiry into whether the evidence was admissible under Section 20 of the Evidence Act and, without that evidence, the applicants could not lawfully have been convicted. Furthermore, for the same reasons, the convictions entailed a wrong decision on a question of law and there was a material irregularity in the trial. Consequentially there was a substantial miscarriage of justice.

13. I note that the defence did not formally object to witness Catherine’s evidence which was hearsay when she said heard the deceased say, “Kevin kicked my stomach.” The defence also did not address, in its written submission, the issue of dying declaration in its no case to answer application. The prosecution had addressed that in the no case to answer application. It had submitted that Catherine’s recollection constituted a dying declaration. I note that in my decision in State v. Keven Henry (No. 2 of 2019) (supra), I declined to address the issue of dying declaration as I was only required to consider the prosecution’s evidence of facts at their highest value to determine whether there was a case to answer. That of course included considering the whole of witness Catherine’s evidence.

14. So, the issue of whether Catherine’s recollection amounts to a dying declaration is now properly before me for consideration. Let me say this. Although the defence has not formally objected to part of the evidence of witness Catherine, the prosecution is the one that is seeking the Court’s consideration of witness Catherine’s evidence, including the part where the witness has said that the deceased had uttered the words, “Kevin kicked my stomach.” The prosecution is seeking admission of the said hearsay evidence pursuant to section 20 of the Evidence Act. That being the case, the prosecution is required to show, and I must be satisfied, of two (2) things. Firstly, I must be satisfied that witness Catherine was a credible witness. Secondly and most importantly, the prosecution is required to prove to me beyond reasonable doubt that the facts in the evidence have met the requirements under section 20 of the Evidence Act.

15. In regard to the first requirement, I have already made my findings on that above at paragraph 8 of my judgment, namely, I found Catherina to be a credible witness. Let me consider the second requirement. Firstly, I note that the deceased made an oral declaration, that is, when she said, “Kevin kicked my stomach.” I am satisfied that that has been established. I also note that when the witness was asked who the deceased was referring to, she answered, “her husband.” Secondly, I ask myself this. Did the deceased believed that death was imminent? I would answer, “yes”, to this question. In evidence, firstly, the accused and his father both testified that they, including the deceased, knew of her medical condition; the deceased had a swollen spleen and that she had been undergoing treatment. Secondly and with that knowledge in mind, when she was kicked in her stomach, evidence adduced by the prosecution through all its witnesses, revealed the deceased at the material time screaming in great pain and agony and calling out to her mother and referring to her stomach. In my view, at that moment that she was kicked in her stomach, she knew that she had spleen and of the imminent consequences if the spleen was to erupt; she knew at that moment, in my view, that death was imminent. Because of the tremendous pain she was experiencing, she must have known that her spleen had ruptured and that she was going to die. On these bases, I am satisfied that the deceased believed that her death was imminent.

16. The third and fourth questions to ask are, whether the deceased would have been a competent witness had she not died, and whether she would have given such direct oral evidence, that is, whether she would have seen and known her assailant. My answer to both queries is, “yes”. Witness Bosco’s house was the closest to the accused’s house. He said that he was at his house at the material time and heard noises or banging, like of people fighting, coming from the accused’s house. Evidence of the accused and his father mentioned that the deceased was at the accused’s house at that time, and that the accused had gone over to his house to talk to or to locate her. In my view, the deceased would have known and would have identified her assailant at that time had she been alive and had testified in Court. The deceased would have been a competent witness, and she would have seen her assailant at their house when she was assaulted.

17. In conclusion, I find Catherine’s evidence of what she had been told by the deceased, that is, “Kevin kicked my stomach,” to be a dying declaration, that is, within the meaning of section 20 of the Evidence Act. I find the evidence admissible or that it is relevant for consideration by this Court.

18. I refer to the prosecution’s witnesses. Except for the deceased’s dying declaration, the prosecution’s evidence were circumstantial. Witness Shirelyna said these: She was at her house that evening on 13 July 2016. She heard her niece the deceased crying and calling out “my stomach, my stomach. He kicked my stomach. I have a spleen!” She ran out of her house and onto where the deceased was, that is, outside Bosco’s house. There she and others carried the deceased to the deceased’s in-law’s house. They put a spoon into the deceased’s month and they tried to save her. Witness Shirelyna’s house was about 15 meters away from the accused’s house. Shirelyna’s evidence was not contested except on two points. Firstly, it was put to her that she only heard noises and that she did not hear any words the deceased had said because her house was 50 meters away. However, Shirelyna maintained that she heard the words and that the distance was 15 meters away and not 50 meters.

19. Witness Catherine corroborated witness Shirelyna’s evidence, that is, in addition to her evidence which is covered above in my judgment. For witness Bosco, this is what he had to say: He was at his house that evening. He heard loud banging and noises of what sounded like a fight happening at the accused’s house. The accused’s house was right next to his house. He heard the deceased calling, “mommy, mommy, my stomach!” When he came out, the deceased had already fallen outside the front of his house. He was surprised to see people already there. He did not see the accused there. He ran straightaway to look for transport to take the deceased to the hospital. When he returned, he learnt that the deceased had died.

20. As for the defence, the accused had these to say: He recalled the incident that evening on 11 July 2016. He was at his parent’s house at a different location in the village when the incident occurred. Whilst there, his wife the deceased called out to him from the veranda of their (i.e., accused and deceased’s) house. She torched him from there and said to him, “eat vagina” in Pidgin. The accused called over to her from his parent’s house and told her to switch off the torch. The deceased turned off the torch. The accused went over to his house shortly after to look for the deceased. He could not find her over there and noticed that her two (2) children were alone in the house. He returned to his parent’s house shortly after. After a while there, they heard witness Bosco calling out that his wife had fallen at the front of Bosco’s house. The accused and his family members ran over there and took the deceased back to his parent’s house. His parent’s house was about 7 to 10 meters or very close to his house than Bosco’s house which was quite far away. He did not assault his wife because he was away at his parent’s house. He did not know what happened to her and he did not know how she had suffered the injury that led to her death.

21. The accused’s father witness Henry had these to say: The accused was with them at the material time. The accused’s wife torched the accused and swore at the accused saying, “eat vagina, eat vagina.” The accused’s house was about 15 meters from his house. The accused went over to the deceased and told her to put off the torch. The accused returned to join them. They did not know where the deceased went to after that. About 30 minutes later, witness Bosco called out from his house that the deceased had fallen in front of his house. Right then, he and his family members ran over; they picked up the deceased and carried her back to his house. He heard the deceased say, “my stomach, my stomach.” He did not hear the deceased utter any other word apart from that. He and his family were the first to arrive at witness Bosco’s house to attend to the deceased, that is, well before witnesses Shirelyna and Catherine.

22. I do not find the evidence of the defence credible compared to the evidence of the prosecution. The accused and his father Henry gave inconsistent accounts on crucial matters. Firstly, the accused testified that he actually went into his house that night after the deceased had torched him. Witness Henry however said otherwise. He said the accused went to talk briefly to his wife and returned shortly after. He insisted during cross-examination that he heard and saw all of what the accused did when the accused left them and went over to talk to his late wife. He later realised that he made a mistake because it was dark and that he could not have known or seen everything, and he conceded. Witness Henry also insisted that he and his family including the accused were the first to arrive to receive the deceased when witness Bosco called out to them. Both their evidence on this fact is contrary to what the prosecution witnesses have said. Firstly, Bosco never stated that he called out to witness Henry or to anyone from his house. Witness Bosco’s evidence was that when he came out of his house, he ran right away to look for transport. Secondly, witness Bosco said that when he stepped out of his house, he was surprised to see many people already there who were attending to the deceased. This contradicts witness Henry’s evidence that they (i.e., witness Henry, the accused and his other family members) were the first to arrive at witness Bosco’s house after witness Bosco called out to them. Thirdly, the two (2) other prosecution witnesses namely Shirelyna and Catherine never mentioned that witness Henry and the accused were present with them at the time they were attending to the deceased at witness Bosco’s house. Witness Catherine only mentioned that the deceased’s mother in-law was the person who was present at that time, that is, witness Henry’s wife. Witness Henry contradicted that and said that his wife had remained back at the house when they all (i.e., witness Henry and others) ran towards witness Bosco’s house.

23. Let me also say this. For whatever reasons, the accused did not show or appear to show any remorse for the death of his wife. He set idle in the witness box, motionless and demonstrated no expression for the loss of his wife. Both he and his father gave evidence without a slightest hint in their evidence of their concern of the death of the deceased. They did not testify on whether they each had tried to find out who the assailant could have been or how the deceased had sustained her injuries. I find that quite troublesome when I apply common sense. However, having said that, I do note that by law, it is the prosecution’s duty to prove the offence beyond reasonable doubt, and that it is not the role of the defence.

24. I find the demeanours of both the father and the son bad. To me, they both presented themselves as unreliable or untruthful witnesses. On the contrary, I find witness Shirelyna’s demeanour to be normal and indicative of someone who is willing to tell the truth. Except for the date of the incident where she said 13^th July 2016, which was a wrong date but which I find to be an honest mistake, she gave her evidence convincingly, and I did not find any significant inconsistencies in her testimony. The same can be said of witness Catherine. She gave her evidence with ease, with certainty and without inconsistencies. I do not see any reason to doubt her testimony, and I have covered that earlier above in my judgment. Witness Bosco was another convincing witness. He gave evidence based on what he heard, saw and did at that time. His looked to be the youngest amongst all the witnesses. But his demeanour in Court to me was not totally but quite impressive in that he was composed, and he gave his evidence without contradictions or inconsistencies. At times, he did look nervous in the witness box. But that may be because it may have been his first time to testify in Court.

25. These said, let me now consider whether the State, with its evidence, has proven beyond reasonable doubt, the elements of murder.

26. Section 300(1)(a) of the Criminal Code reads, and I quote in part, 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;..... Penalty: Subject to Section 19, imprisonment for life.

27. The elements of murder under section 300(1)(a) in summary are, (i), a person, (ii), kills another person, (iii), and the killer intended to do grievous bodily harm, (iv), to the person killed or to some other person. In the present case, elements (i) and (iii) are contested. The death of the deceased was not contested, but regardless, I find that the prosecution has established that, that is, deceased Getrude Joshua died in the evening on 11 July 2016, at Menabonbon village, Bitapaka LLG in Kokopo, East New Britain Province, due to ruptured spleen in her abdomen. Medical and sworn evidence have established that, and I also refer to Exhibits P1, P2, P3 and P4. The contentious issues are whether the accused was the person responsible, and if so, whether he had intended to cause grievous bodily harm to the deceased which resulted in her death.

28. I will consider the evidence in totality following the second method as held in State v. Miriam Kakun (1997) N1673, that is, considering together the evidence of the prosecution and the defence, towards finding the truth or nearer to the truth of what really happened. I find as follows in relation to the remaining elements of the offence murder. I find that the accused had returned to his house from his parents’ house, sometime between 9pm and 10pm on the night of 11 July 2016. There at the accused’s house, an argument or a fight started between the accused and his wife. It was during that time that the accused kicked her wife the deceased on her stomach. The deceased cried out in pain and she fled for help or for protection. She fell in front of witness Bosco’s house. When witnesses Shirelyna and Caherine arrived, they attended to the deceased. Witness Catherine in particular heard the deceased made a dying declaration, that is, she heard the deceased say that it was Kevin her husband that kicked her in her stomach. The deceased died, and medical evidence showed that her death was due to a ruptured spleen in her abdomen. Did the accused intended to cause grievous bodily harm on the deceased? In my view, I would answer, “yes,” to the question. Evidence disclosed by the accused and his father showed that the accused knew that her wife had spleen in her abdomen. He knew that she had been receiving medical attention in the days or months before the incident and that she was still under medication. So, when the accused kicked the deceased in her abdomen, he had intended to cause her grievous bodily harm. He knew that the deceased had spleen; that if the spleen ruptures then the deceased would suffer grievous bodily harm if not death. And with this knowledge in mind, he kicked her wife in her abdomen which resulted in her death.

29. I must say that the dying declaration was the crucial evidence. Without the dying declaration, I would not have found the accused as the only possible person who could have intended to cause grievous bodily harm to the deceased; I would have found in existence, other reasonable hypothesis of other person(s) who could have assaulted the deceased, or of how the deceased could have also received her injury, that is, of her ruptured spleen. See cases: State v. Titila Tomur and Ors (2017) N6837 and State v Morris [1981] PNGLR 493. However, in this case, the deceased herself, in her dying declaration, firstly, identified the accused as the person who had assaulted her. This to me, dismisses any other reasonable hypothesis of other person(s) who could have assaulted the deceased at the deceased’s house or elsewhere, at the time. Secondly, the deceased said in her dying declaration that the accused had kicked her in her stomach. To me, this also dismisses any other reasonable hypothesis of how the deceased could have sustained her injury, namely, the ruptured spleen. For example, if the deceased had said in her dying declaration that she and Kevin had an argument or a fight without stating that Kevin had kicked her in her stomach, there would have been room for other reasonable hypothesis. For example, the deceased could have slipped herself and fell which would have caused the spleen to rupture. Had that been the language used (i.e., that she argued or fought with the Kevin without stating that Kevin kicked her in the stomach), I would have found the circumstantial evidence lacking based on the existence of other reasonable hypothesis. See case: State v. Titila Tomur and Ors (supra). However, in this case, the deceased specifically said the accused had kicked her in her stomach. This to me has ruled out any other reasonable hypothesis of how the deceased could have suffered the ruptured spleen. That evidence plus the evidence of the deceased naming her husband as the assailant, are cogent evidence before the Court.

30. I am therefore satisfied beyond reasonable doubt that the accused murdered his wife contrary to section 300(1)(a) of the Criminal Code.

Guilty as charged.
______________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Henry [2019] PGNC 59; N7800 (16 April 2019)