State v Alik [2021] PGNC 274; N9008 (21 June 2021)

N9008

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 994 OF 2019 & CR 995 OF 2019

THE STATE

V

PEPI ALIK
&
RALPH TOGILAN

Kimbe: Batari J
2021: 10^th, 21^st June

CRIMINAL LAW– manslaughter – evidence – accused persons alleged to have robbed and assaulted victim resulting in death – circumstantial evidence – cause of death – dying declaration – whether applied where a victim named his attackers and dies sometime later.

CRIMINAL LAW – Practice and Procedure – evidence – defence case – right of accused to respond at conclusion of State’s case – options to response – the three options be put by the court to the accused to personally respond.

CRIMINAL LAW – manslaughter – not proven – assault – evidence of – accused persons assaulted and robbed victim – alternative verdict of common assault – whether open on the proven facts – s. 539(4) Criminal Code applied – convicted of common assault and sentenced to the rising of the Court.

Held:

(1) Where the State’s case rests substantially on circumstantial evidence a guilty verdict cannot be returned unless the Crown has excluded all reasonable hypotheses consistent with innocence: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82; Conversely, the defence is not required to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference. [para 16, 17]

(2) At the end of the prosecution’s case, it is good practice for the trial judge to explain the three options open to the accused person and let him or her make a personal election to remain silent, make a statement from the dock or give sworn evidence. The failure to do so may result in substantial miscarriage of justice: Section 572 Criminal Code Act; Monde Manuel v The State (2018) SC1732. [para 8, 9]

(3) The Court was not satisfied, on the charge of manslaughter, the State had discharged the onus of proving the element of causation beyond reasonable doubt. [para 21, 22]

(4) The alternative verdict of common assault is open on the facts under s 539 (4) of the Criminal Code where the State is unable to prove the element of causation on a manslaughter killing charge, accordingly the accused persons were convicted on the alternative verdict of common assault and sentenced to the rising of the Court.

Cases Cited
Papua New Guinea Cases

Monde Manuel v The State (2018) SC1732
R v Ulel [1973] PNGLR 254
State v Enny Bulen [1990] PNGLR 43
State v Stephen Isaac Awoda (1983) N416

Overseas Cases

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

Counsel

Mr. L. Rangan, for the State
Mr. D. Kari, for the Accused

VERDICT

21^st June, 2021

1. BATARI J: The accused Pepi Alik and Ralph Togilan stand charged with manslaughter. They on the night of 11 January 2019 at Dagi Settlement, Kimbe, West New Britain Province, unlawfully assaulted Paul Anton as he was returning home from Kimbe and stole from him, newspaper sale takings and other personal properties. He died a month later. Both have all along denied involvement.
   

State’s case

2. It is alleged that the accused persons together with one other accomplice, Tode Alik confronted Paul Anton at a bridge at Dagi Settlement around 8.00pm of the date in question. Paul was then returning from Kimbe with K1,000.00 cash from his newspaper sales. He also had with him, unsold newspapers with other personal items valued at K1,087.20 all up. As he approached the bridge, Todi Alik grabbed him by his neck while Pepi Alik pinned his hands to the back. Ralph Togilan then struck Paul on his back with the blunt edge of a bush-knife. Paul managed to escape and informed his uncle, Robert Samban of his ordeal. He also named his attackers. Paul Anton lost the newspapers, K1,000.00 cash and other personal items to his attackers.
   
3. On the same night Robert Samban accompanied Paul Anton to the home of the Alik family. They confronted the accused persons and Todi Alik and demanded that they return the properties stolen from Paul. The three men retorted angrily, denying the allegations. This resulted in them being assaulted. Robert and his group retrieved the unsold newspapers and Pepi Alik also surrendered K750.00 in cash.
   
4. Paul Anton did not seek medical intervention for his injuries. He was instead treated with herbs. He died a month later, on 12 February 2019.
   
5. The Post-mortem examination conducted by Dr Lawrence Warangi of Kimbe General Hospital showed hypoxia (absence of oxygen to support body functions) as the disease or condition leading to death. The underlying cause were noted as right pulmonary confusion (a condition of the lungs) and minimum hoems thorax (something to do with area of body between neck and abdomen).
   
6. The medical report also attributed, “assaulted” as the other condition contributing to death. This is of course based on hearsay. It has little weight. However, it could have significance if the assault is not disputed and there are obvious signs of external trauma, cuts and bruises found upon post-mortem.
   

Defence case

7. In his unsworn statement, Pepi Alik spoke of going to his new block at Oeri Mountain with his co-accused Ralph Togilan. When they returned home in the evening, he told Ralph to join him later for dinner. While he and Ralph were in the kitchen, Tode Taula arrived carrying a shopping bag and he joined them for dinner. I think this is the same person, named in the evidence as Tode Alik. A short while later, some people came to the house. They asked for Tode and about the things he had taken. Tode returned the contents of the shopping bag and they assaulted him before he fled. They suspected him and Ralph were also involved, so they assaulted them too.
   
8. Ralph Togilan gave the same version of events as that of his co-accused, Pepi Alik. He fled into the cocoa patches when he was attacked.
   

Election by accused in responding to State’s case

9. In this case, each accused gave unsworn statements from the dock at the end of the State’s case. Mr Kari initially indicated each accused will give sworn evidence. That however changed when each made a personal election under s.572 of the Criminal Code after the Court put the three options to them.
   
10. It is good practice for the trial judge to explain the three options open to the accused on how he or she intends to respond to the State’s case against him or her and let the accused make a personal election to remain silent, make a statement from the dock or give sworn evidence. The three options are put to the accused at the end of the prosecution evidence and where a no case submission is rejected. The failure to do so may result in substantial miscarriage of justice: Section 572 Criminal Code Act; Monde Manuel v The State (2018) SC1732.
    

Unsworn statement of Accused from the accused dock

11. I bear in mind when assessing the whole of the evidence, that where an accused person makes unsworn statement from the Dock, it is evidence before the Court. Hence, an accused may establish a defence in the unsworn statement, bearing in mind always, that the statement does not carry the same weight as sworn testimony. See, R v Ulel [1973] PNGLR 254; State v Stephen Isaac Awoda (1983) N416. So, the evidence of the accused here has weight to the extent that it is not inconsistent with the sworn evidence of the State witnesses.
    

Issues & Considerations

1. Whether the accused persons assaulted the deceased
   

12. To the extent that the allegations are denied by the accused persons, the State’s allegation, and the medical findings of the cause of death are substantially undisputed. The defendants’ position is that they were not present. So, the question of whether they are involved is on trial. As there was no eyewitness to the attack on Paul Anton, the State relies on circumstantial evidence, and it has called two witness in respect of that. I will return to this aspect shortly.
    
    2. Whether death resulted from the assault
       
13. There are two other pertinent issues which neither counsel raised at the trial. The first is the issue of causation. Defence counsel Mr. Kari possibly took the gamble not to prob the veracity and conclusiveness of the medical report. Counsel only raised the issue of causation in his submissions. It was possibly wise not to explore a medical report that is vague on the cause of death. A significant absence from the post-mortem report was any obvious signs of external trauma that may be attributed to being struck with a bush knife at the back part of the body or any significant signs of blunt trauma to the lung or the thorax areas. It is critical against the State’s case that the medical report is not strong or definitive on the cause of death.
    
    100. Whether evidence of a witness on what the deceased said is admissible
         
14. The second pertinent issue is what I may loosely term, a “dying declaration.” I say loosely because the evidence of the incident and the identity of those involved given by Robert Samban in Court was related to him by Paul Anton. Paul did not then die so that what he told Robert may clearly come within the meaning of a dying declaration. He died a month later. Thus, one may argue, it is not admissible as evidence of a dying declaration.
    
15. Whether the words uttered by the deceased constitute a dying declaration, s 20 of the Evidence Act Ch. No. 48 provides that:
    

“Dying declarations.

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—

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(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.”

16. In State v Enny Bulen [1990] PNGLR 43 then Chief Justice, Sir Buri Kidu summed up the considerations of what constitutes a dying declaration as follows:

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

1. the declaration be oral;
2. that the declarant believed that death was imminent;

100. that the declarant/deceased would have been a competent witness;

4. that direct oral evidence of the matter declared was admissible”

17. In this case, Robert gave evidence of what Paul had told him without objection by the defence. I infer then that the defence concedes to Robert’s evidence against the accused.
    
18. The deceased would have been a competent witness had he lived. There is however no strong presumption that what Paul told Robert amounted to an oral declaration and further that Paul Anton believed his death was imminent. There is no evidence by the State on that aspect and the prosecution does not rely on the evidence of a “dying declaration” through its principal witness. In fact, Paul Anton appeared to be well and able when he took part in confronting the accused at the home of the Alik family shortly after he was attacked. So, Robert Samban’s evidence may be hearsay and inadmissible.
    
19. Conversely, it is possible the evidence of what Robert Samban heard from the deceased borders on evidence of a dying declaration. In that context, I will accept the evidence of Robert on the identification of the accused persons is admissible but the weight to be given it will depend on its consistency with other proven facts and the existence of independent corroborative evidence.
    
20. Robert’s evidence is largely circumstantial, relying on what Paul Anton told him about the incident and what he did. Joseph Arnold also gave circumstantial evidence of his encounter with the accused persons on the afternoon leading up to the attack on Paul.
    

Circumstantial evidence

21. The issue of circumstantial evidence and the principles guiding proof where the State’s case is dependant substantially on circumstantial evidence, pertinently arises in this case. The common law practice adopted in this jurisdiction is settled. Where the Crown’s case rests substantially on circumstantial evidence a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104. And for any inference to be reasonable it must rest upon something more than mere conjecture: The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] relying on Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661.
    
22. Conversely, the defence is not required to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: Barca v The Queen. That proposition merely reflects the fundamental principle that the State must prove the charge beyond reasonable doubt.
    

Findings and conclusions

23. The State’s principal witness Robert Samban testified, that Paul Anton came home at about 10.00pm. He noticed Paul had no shirt on, he was bleeding from the nose and mouth. His face was also swollen. He would have no doubt appeared depressed. Paul told Robert he had been attacked and robbed. He named his assailants as, Pepi Alik, Ralph Togilan and Tode Alik. The evidence of Robert’s observation of facial injuries, naked top and depressed state corroborated Paul’s story.
    
24. On the same evening, the witness and Paul Anton together with some youths confronted the three men at the Alik family home. They retrieved the unsold newspapers and some money from the newspaper sales.
    
25. The existence of the stolen items at the Alik home is conceded by the accused persons, but they shifted the blame to Tode as the person who brought the items to the house in a shopping bag. I accept the State’s position on this issue. Too, Tode is not in Court and that made it convenient for Pepi and Ralph to blame him. The fact of stolen items being retrieved from the accused persons connected them to the attack on Paul Anton. This corroborated the identity of the accused persons.
    
26. Furthermore, the evidence of Joseph Arnold adds support to the issue of identity of persons who assaulted Paul Anton. He testified that on the afternoon leading up to the incident, Ralph Alik threateningly gestured to him about getting even with Paul Anton. He intended to warn Paul the next day, but Paul had already been attacked in the night.
    
27. Each accused generally denies involvement. Their stories are not tested on cross-examination. So, I accept the version of facts by Joseph Arnold on the incident of the afternoon at the location where he had an encounter with the accused persons. I also accept the testimony of Robert Samban on the incident of the night based on what the victim Paul Anton had told him. Robert immediately set out to confront the accused and retrieved from their possession, the items that were taken from Paul in the attack. That makes Robert’s story reliable.
    
28. Applying the principles on circumstantial evidence, it is highly probable, the accused persons were involved in assaulting the deceased. However, I am not satisfied that they unlawfully caused the death of Paul Anton. The State has not proven beyond reasonable doubt, the element of causation. On the other hand, the evidence strongly points to common assault. I am satisfied that they unlawfully assaulted Paul Anton on the night of 11 January 2019.
    
29. Under s. 539 (4) (d) of the Criminal Code, I find each accused not guilty of manslaughter but find them guilty on the alternative verdict of unlawful assault occasioning bodily harm pursuant to s. 340 of the Code. They could also be liable in the alternative for causing Paul Anton serious assault under s. 341 (a) (i).
    

Sentence

30. The maximum sentence for unlawful assault occasioning bodily harm under s. 340 of the Code is three years. The penalty is the same for the offence of serious assault under s 341. The accused persons have spent 2 years, 3 months in pretrial custody. That period is substantial. It is sufficient to have driven home to the individual offender at personal level, the consequences of breaking the law. Pepi Alik and Ralph Togilan are each is sentenced to the rising of the Court.
    
31. The offenders shall be held in custody for their trial on armed robbery.
    

Sentenced accordingly
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused