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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 758 OF 2021
BETWEEN:
THE STATE
AND:
BHOSIP KAIWI (No 4)
(Verdict)
Waigani: Wawun-Kuvi, AJ
2022: 13th-15th & 24th June, 1st & 25th July, 3rd August & 6th December
2023: 27th February,13th, 27th & March, 12th May & 15th June
CRIMINAL LAW- HOMICIDE-MURDER-Causation and Intent-Whether the accused caused the death of the deceased? And whether in causing her death, he intended to cause her grievous bodily harm?
CRIMINAL LAW-EVIDENCE- Circumstantial Evidence- Whether inference that death was caused by accused, was the only rationale inference?
CRIMINAL LAW-EVIDENCE-Opinion Evidence-Assessment of Conflicting Expert Evidence-Foundation of opinion? Whether information provided to pathologist had factual foundation?
CRIMINAL LAW- EVIDENCE-Documentary Evidence-Prior statements used to discredit? Whether there was a prior inconsistent statement and if so, what is its effect?
CRIMINAL LAW-EVIDENCE-Circumstantial Evidence- Relationship Evidence- Nature of relationship- Whether inference can be drawn?
CRIMINAL LAW-EVIDENCE- Circumstantial Evidence-Post Offence Conduct-Whether all other rationale inference excluded? Whether only inference is consciousness of guilt?
Cases Cited:
Papua New Guinean Cases
State v. Kaiwi (No 2) (2022) N10089
State v. Namaliu [2019] PGNC 261; N8080
State v. Epei [2019] PGNC 225; N7845
Kitawal v. State [2007] PGSC 44; SC927
State v. Raphael Kuanande [1994] PNGLR 512
Pari and Kaupa v. The State [1993] PNGLR 173
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Tom Morris [1981] PNGLR 493
Overseas Cases
R v. Collins [2017] QCA 113
R v PL [2009] NSWCCA 256
Nicholls v. R [2005] HCA 1; 219 CLR 196; 213 ALR 1; 79 ALJR 468
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWR 705
R v Moffatt [2000] NSWCCA 174
R. v. Lavallee [1990] 1 S.C.R. 852 (Supreme Court (Federal) of Canada
R. v. Turner [1975] QB 834
Holtman v. Sampson [1985] 2 Qd R 472
Graat v. The Queen [1982] CanLII 33 (SCC), [1982] 2 SCR 819
R. v. Abbey [1982] 2 S.C.R. 24
Brown v. Dunn (1893) 6 R 67 (HL)
Legislation
Criminal Code(Ch 262)
Evidence Act
Reference
Salamo Injia, Injia on Evidence in Papua New Guinea and the Pacific (Port Moresby, UPNG Press, 2013
Counsel
Ms Elisabeth Kave & Ms Helen Roalakona, for the State
Mr Malcom Sumbuk, for the Accused
DECISION
15th June 2023
1. WAWUN-KUVI, AJ: Bhosip Kaiwi, 24, and Jenelyn Kennedy, 19, were married. They have two children, aged 3 and 1. The young family resided at Section 71, Allotment 6, Pipigari Street, Korobosea, National Capital District.
2. It is alleged that the couple’s relationship was marred with violence and abuse. And that those acts of violence and abuse eventually led to the tragic and untimely death of Ms. Kennedy.
3. The State’s case is that Mr. Kaiwi caused the death of Ms. Kennedy by continuously assaulting her between 18 June and 23 June 2020. He is charged with murder pursuant to Section 300(1)(a) of the Criminal Code.
BURDEN OF PROOF
4. The State bears the burden of proving its case beyond a reasonable doubt and disproving any defences properly raised on the evidence also beyond a reasonable doubt.
ELEMENTS OF THE OFFENCE
5. On a charge of murder, the State must prove the following elements beyond a reasonable doubt:
(i) Mr. Kaiwi killed the deceased. That is, the State must show that the actions or omission of Mr. Kaiwi caused the death of Ms. Kennedy; see ss. 300 (1)(a) and 291[1] of the Criminal Code.
(ii) Mr. Kaiwi’s acts or omissions were unlawful; see Section 298 of the Criminal Code.
(iii) Mr. Kaiwi’s acts or omissions were done with an intent to cause grievous bodily harm; see 300(1)(a) of the Criminal Code.
6. In summary, the State must prove (1) causation, (2) unlawfulness, and (3) intent.
ISSUE(S)
7. There is no dispute that the relationship was marred with violence and abuse. There is also no dispute that the couple was always together between 18 and 23 June 2020.
8. The issues requiring determination are:
(i) Whether Mr. Kaiwi caused the death of Ms. Kennedy? And
(ii) Whether he intended to cause her grievous bodily harm?
EVIDENCE
9. The State’s case is circumstantial in nature. Circumstantial evidence is evidence of circumstances that can be relied on to point to the existence of a fact rather than directly prove it.
10. I remind myself that a verdict of guilty can only be returned if there is no other rationale inference than the guilt of the accused. That is, the State must prove beyond a reasonable doubt that:
(i) the accused guilt is a rationale inference; and
(ii) Given the facts in evidence, it is the only rationale inference.
See Paulus Pawa v The State [1981] PNGLR 498 at 501 and The State v Tom Morris [1981] PNGLR 493 at 495.
State’s Case
11. The State called four witnesses and tendered the following documents during the trial:
12. RACHAEL IPANG. She is Ms. Kennedy’s childhood friend. She helped Ms. Kennedy with the care of the children. She and the children slept in the room adjacent to the couple’s room.
13. In March 2020, they celebrated Ms. Kennedy’s birthday. They consumed alcohol. Mr. Kaiwi was upset with Ms. Kennedy and hurled a Red Label bottle at her. The bottle landed on Ms. Kennedy’s head. She was in the room and was not aware of the incident. Ms. Kennedy walked into the room and told her. Ms. Kennedy was bleeding. She informed Ms. Kennedy that they needed to flee.
14. The opportunity to leave the residence came when Mr. Kaiwi left for the hospital. He took the person he cut for medical attention. Mr. Kaiwi cut the individual's ear after he had attempted to pick up the couple's crying baby following Ms. Kennedy's assault.
15. Between 12 and 1 a.m., they tried to leave through the main door, but it was locked. They returned to the room and exited via an escape door. Ms. Kennedy, Grace, and the children were with her. They attempted to exit through the main gate, but it was locked. They discovered a breach in the fence and passed through it. They passed through a neighbor's yard. The security guards from Korobosea International School assisted them with transport. They requested to be dropped off at Boroko because they were afraid of being followed. They took a taxi to Murray Barracks.
16. They knocked on the door when they arrived. Ms. Kennedy’s grandmother came out and questioned them. They didn't get any sleep. She heated some water and sponged Ms. Kennedy’s head.
17. Ms. Kennedy asked Shaun Nicholas to purchase medicine. Towards the afternoon, Shaun Nicholas arrived at the Murray Barracks' residence. He drove them around town looking for medicine. He took them back after purchasing the medication. She'd met him on three previous occasions. Ms. Kennedy had told her that he was a good friend of hers.
18. They stayed in Murray Barracks for a few days before heading back to Korobosea. The soldiers stationed at the main gate informed them that they needed to leave the barracks. Mr. Kaiwi had contacted Ms. Kennedy and vowed that he would not assault her again. A soldier accompanied Mr. Kaiwi when he arrived at the house in the morning. He took them back to Korobosea. She returned to Murray Barracks at some point and, after some days, returned to Korobosea.
19. Sometime in April 2020, she and Ms. Kennedy fled the Korobosea residence again. They went to the Westpac ATM and fled from there with Grace and the children. This time, Mr. Kaiwi broke Ms. Kennedy’s hand. They stayed at Murray Barracks for a while and again returned to Korobosea.
20. On 18 June 2020, she was sitting on the veranda with the children. Mr. Kaiwi, Ms. Kennedy, and Isaac returned home. Ms. Kennedy and Mr. Kaiwi remained in the vehicle. After a while, Ms. Kennedy entered with her head down. Mr. Kaiwi accompanied her into the house. He then came back out on his own. He appeared agitated. He asked Isaac to fetch him his pliers and tools. Isaac walked over to the sports car and took the tool bag. Isaac handed the tool bag to Mr. Kaiwi. Mr. Kaiwi requested the blue masking tape. She went and got it for him. He told her to take the children and stay outside. Mr. Kaiwi entered the house and locked the door. She and the children stayed outside. Only Mr. Kaiwi and Ms. Kennedy were in the house. At around 8 p.m., Mr. Kaiwi unlocked the door and allowed them inside.
21. Ms. Kennedy was still in the room when they entered the house. She put the kids to bed and prepared dinner. Only Mr. Kaiwi came out, took his food, and returned to the room. Mr. Kaiwi and Ms. Kennedy stayed in their room until 11 a.m. the next day.
22. On 19 June, 2020, Mr. Kaiwi and Ms. Kennedy emerged from the house. They approached her and the children. Ms. Kennedy had two black eyes. Her legs were swollen. She was dressed in a long skirt. Mr. Kaiwi directed her to clean their bedroom. She entered their room and noticed a bush knife, a chain, a screwdriver, pliers, a kitchen knife, and a belt on the couch. She took the tools and stored them in a cupboard. She gathered their clothes from the floor. The clothes were stained with blood. She removed them and placed them in a bag. Mr. Kaiwi instructed her to burn the clothing. She burned them.
23. They all remained outside until 2 or 3 p.m. Mr. Kaiwi and Ms. Kennedy entered the house. Mr. Kaiwi prepared dinner for the boys who were working on the boat. Ms. Kennedy was sitting in the living room. She didn't say anything to Ms. Kennedy. Mr. Kaiwi does not allow them to converse with each other or sit together. This was because on other occasions when he assaulted Ms. Kennedy, she would take Ms. Kennedy and flee.
24. Ms. Kennedy did not eat anything. She only drank soup. After dinner, Mr. Kaiwi and Ms. Kennedy returned to the room. Mr. Kaiwi entered the room carrying the pliers and screwdriver. She heard noises. She heard a loud bang. She heard Ms. Kennedy screaming and yelling. She listened through the wall. The noise went on for about an hour. From the noise, she concluded that Mr. Kaiwi was assaulting Ms. Kennedy. Mr. Kaiwi and Ms. Kennedy remained in the room until the following day.
25. On 20 June 2020, Ms. Kennedy came out of the room. She wanted to carry her baby. She carried the child with one hand. The other hand was broken. Her face was swollen, and the black eyes were still visible. They didn't speak to each other because Mr. Kaiwi was close by. After carrying the baby, Ms. Kennedy instructed her to fetch her medicine. Nothing else happened that day.
26. On 21 June 2020, around 10 or 11 a.m., Mr. Kaiwi directed her to go get a golf club. He held the baby while she went in search of the golf club. She was unable to locate one. He instructed her to find a long stick. She found a mop stick and handed it to him. He handed Ms. Kennedy the mop stick and urged her to support herself. Ms. Kennedy was having trouble supporting herself. Her leg had been injured. The injury was relatively new. She did not have the injury on 20 June.
27. Other people were present on that day. The boys working on the boat were present. When Mr. Kaiwi assaults Ms. Kennedy, the boys don't step in to stop him. When they attempt to step in, he assaults them.
28. Mr. Kaiwi instructed her to clean the room. There was water on the floor. She saw pliers and a screwdriver. The blue masking tape was also present. Other than the same things she saw on the previous day, she saw new chains and locks. The chain was tied to a rope. It was like a dog chain. She cleaned up and removed the objects, which she stored in a cupboard.
29. At around 4 p.m., Mr. Kaiwi took Ms. Kennedy by her hand and led her into the house. He instructed them to remain outside. Mr. Kaiwi began assaulting Ms. Kennedy. She heard banging and Ms. Kennedy screaming. The boys played the music loudly to drown out the noise so that no one else could hear it. She was able to hear because she was standing outside their window. The sounds went on for about an hour. They then came out of the house. They held hands. Ms. Kennedy had her head low. They all stayed outside and then went to bed.
30. On 22 June 2022, Mr. Kaiwi and Ms. Kennedy got into the car and drove away. They returned with Elizabeth, a doctor. They entered
the house. She walked away. She saw Elizabeth putting Ms. Kennedy on a drip. Elizabeth told Ms. Kennedy that she needed to drink
more water. She observed from an open window. Elizabeth threw away the items she had used to treat Ms. Kennedy. They then stepped
outside. Mr. Kaiwi, Ms. Kennedy, and Elizabeth sat together. Elizabeth requested that she be dropped off. Mr. Kaiwi instructed the
boys to take her to the bus stop.
31. Between 6 p.m. and 7 p.m., Mr. Kaiwi started assaulting Ms. Kennedy again. They were alone in their room. She heard him hitting
her. The boys turned up the music. Ms. Kennedy was screaming. Ms. Kennedy was making sounds that frightened her. During the night,
Mr. Kaiwi approached her three times. He asked her how many times she and Ms. Kennedy had met up with Shaun Nicholas. She informed
him that it had been three times. He went back into the room with Ms. Kennedy. He returned and asked how they met. She informed him.
He went into the room, and there was noise, and then no more noise. He told her to boil water. She left the bucket and went back
to the room. Mr. Kaiwi held Ms. Kennedy’s hand and took her to the bathroom to wash. She observed from under the door.
32. Despite her fear of Mr. Kaiwi, she was unable to leave because there was no one to care for the children.
33. On the morning of 23 June 2020, she left the house. She heard that night that Ms. Kennedy had died.
34. Mr. Kaiwi usually assaults Ms. Kennedy. He takes her into the room and assaults her.
35. Exhibit S1 was tendered through Rachael Ipang. It is a rough sketch of the house, indicating the location of the rooms.
36. On cross-examination: She stated that Ms. Kennedy did not drink excessively. She only drank alcohol when Mr. Kaiwi gave it to her. When questioned if she saw Ms. Kennedy taking drugs at the East Boroko house, she stated that she did not. Ms. Kennedy never smoked. She just chewed betel nuts. She agreed that Mr. Kaiwi had struck Ms. Kennedy on the head with the Red Label bottle on March 18.
37. When asked if she had lied in her police statement regarding observing blood on the instruments, she stated that she did see blood on them and put them in the cupboard. She confirmed that she did not observe Mr. Kaiwi assault Ms. Kennedy with the tools and knife. She observed that those implements were in the room when she went to clean it. When questioned about the drug she gave Ms. Kennedy, she said she forgot the name, but it was for Ms. Kennedy’s broken arm. It was medicine for her bones to join. She was unaware of any medical conditions experienced by Ms. Kennedy. She was unaware that Ms. Kennedy suffered from gastritis or was taking medicine for it.
38. DR. SETH FOSE. He has been a medical practitioner for 23 years. He has specialized in pathology for 13 years. He has a bachelor's degree in medicine and surgery and a master’s degree in medicine specializing in pathology. He also has a degree in law and postgraduate qualifications from the LTI. He was employed by the National Department of Health as a pathologist and resigned in 2019. He is now in private practice.
39. On 26 June 2020 he conducted the autopsy on Ms. Kennedy. His autopsy report was admitted without objection as Exhibit S2. He also took autopsy photographs. The defence had objections to the photographs. They were admitted on the basis that they were relevant to the issue. The bundle of 13 photographs was marked as Exhibit S3.
40. Based on the external and internal findings, it was his opinion that the cause of death was a head injury and bruised internal organs due to direct blunt force trauma to the head and body due to a blunt object or instrument.
41. He conducted an internal examination of the body to determine whether there were other factors that may have caused her death, such as a drug overdose. In Ms. Kennedy’s case, her stomach was empty.
42. The internal organ sustains bruises when a blunt object is applied with excessive force to the body. It can be a kick, a hard knock by a timber or any other weapon.
43. The force is categorized as mild, moderate, severe, or excessive. In Ms. Kennedy’s case, the amount of force applied would have been between moderate and excessive.
44. Laceration means the tearing of the skin. For the scalp to tear apart, there would have been blunt force. The force would have been moderate to excessive.
45. There were multiple bruises and abrasions on the body. They were of varying colours. The different colours indicate that the bruises occurred at different points or periods in time.
46. The colours of the bruises indicate the age of the healing process. Brown means that the wound has healed, and it could be a day or two days old; bright red or purple indicates a fresh injury within an hour to 24 hours. The bruises were sustained between 1 and 3 days.
47. The deceased had distinct abrasive marks all over her body, other than the general abrasive marks.
48. The deceased had a distinct mark near her belly button. It was square or rectangular in shape. It was most likely caused by a belt buckle or chain.
49. Both the deceased's feet had diffused bruising. Diffused bruising means her entire foot was covered in bruising.
50. The distribution of the bruising on the body can be described as mild, moderate, or severe. In the deceased's case, the bruising was moderate. Some of her body was spared.
51. The abrasion and bruises were caused between 24 hours and 3 days before death. After a week, they would have shown signs of recovery.
52. The deceased's injuries would not have been life-threatening if she had been taken to the hospital immediately.
53. On cross- examination: when it was suggested to him that there was no fresh head injury, he responded that photograph JK192201/20 (Exhibit 3) shows that there is dark red coloration which is indicative of fresh bleeding. The injury was within 24 hours. He stated that the injury was to the scalp. There was no bleeding in the skull but there was general swelling due to the impact on the scalp. He disagreed that cause of death would from another cause. Other than the old injuries, there was no new injuries to the exterior of the head.
54. On questions from the Court: He explained that bruising does not occur after death. Bruising occurs antemortem, meaning a person sustains the injuries while alive. He explained that brain swelling occurs when someone is knocked hard on the head, as in the present case. He identified several bruises on the head and scalp. A person may not necessarily have internal bleeding but may have swelling of the brain. Swelling is evidence of an initial injury to the brain tissue. Depending on different variables, a person can have bruising to the scalp and swelling in the brain. In the present case, it was multiple. It can be seen on the scalp; there are different patches of bruising. It was widespread. The conclusion is that the head was knocked in more than one place.
55. GERALD SAIGUYAU. The statement was tendered by consent and exhibited as “S4”. He is a police photographer. He took photographs of the crime scene and the autopsy.
56. PETER SAWABARRI. He is a handyman. He has his own company. He was employed by SBS Electrical for 10 years and Nambawan Supa for another 10 years. On 24 June 2020, the landlord instructed him to assist the police to enter Section 71, Allotment 6, Pipigari Street. He had to cut the locks. He observed interior damage to the house, which, from his experience, was not from regular wear and tear. He observed that the walls of the main bedroom were broken.
57. On cross-examination: He agreed that he does not know who broke or tampered with the walls.
58. DETECTIVE SENIOR CONTABLE YAKU GWAMPOM. He is the arresting officer. He has been a police officer for 32 years. He is attached to the Criminal Investigation Division, Homicide Squad. He obtained witness statements and conducted the interview. The Record of Interview was tendered through him and marked "S5". The witnesses close to the accused were not cooperative, and he could not locate them. Isaac Ropa was given a summons but did not turn up to court.
59. On cross-examination. He agreed that his statement of what transpired was based on information provided to him by witnesses.
Defence Case
60. The Defence called the accused and three witnesses. The report by Dr. Philip Golpak was tendered as Exhibit D1.
61. BHOSIP KAIWI. He says that Ms. Kennedy was his wife.
62. On 18 June, he was working on a boat. He had purchased the boat from the water police and was repairing it. They were searching for parts.
63. He doesn't recall much about June 18th. He recalls that between 6 and 7 p.m., she was bothering him about Louisa, whom he referred to as his other "Mrs." She was one of his other girlfriends when he and Ms. Kennedy were having troubles. Ms. Kennedy was staying at Taurama or Meri Safe House. He was by himself when he met Louisa. Ms. Kennedy must have read messages from Louisa to him. Louisa was no longer with them at that point in time. He stated that he must have elbowed her in the vehicle. She developed a black eye. He must have punched her as well because her nose bled. Aside from shopping, the day was uneventful.
64. On 19 June, he bought a motor from someone in Milne Bay. He went to the bank in the morning and deposited money into the seller's account. The motor was sent over on PNG Air. He and Ms. Kennedy went to the cargo area and waited for the motor to arrive. This was between 11 a.m. and 1p.m. He sent Ms. Kennedy to pay for the clearance fee with card. They could not collect the motor because it weighed about 238kg.
65. On 20 June, he went with some of the boys and collected the motor.
66. He resides with Jenelyn, Umin, Ali, Issac and one of his cousins. There are other boys who frequent the residence and sleep over. Present also at the residence were the boys who work on the boat.
67. They were always outside, and she was always outside spray painting and helping with the boat.
68. He admitted to assaulting her on several occasions prior to the alleged dates. Toward the end of April, when they were drinking. They drank on most nights. He always purchased alcohol and stores it in the house. They were playing video games on PlayStation. He must have said something to her while drunk. He must have requested her to cook before leaving. When he returned, she was still playing the game. He flung the red label bottle at her. She must have ducked, and the bottle struck her on the head.
69. Ms. Kennedy started experiencing chest pain and shortness of breath in late 2019 because of their excessive alcohol consumption. He used to consume a lot of alcohol. While she was at the safe house, they would rush her to the hospital because of shortness of breath. He would be called to go over and settle her bills. He also took her to Karua, Paradise, and Ela Medical.
70. On cross-examination: Ms. Kennedy left for the Safe House around October of 2019. He did not hurt her in any way. He said something while he was drunk. When he woke up, she and the children were gone.
71. In June 2020, Rachael Ipang did not live with them on a regular basis. She would leave and return. She spent most of her time at the barracks. When Rachael Ipang was not there, Umin helped care for the children. He agrees that Rachael took care of the children on the days before the 23rd. However, she was not always there during the day. On June 23, she was not there.
72. He threw a Red Label bottle at Ms. Kennedy in April. At the time, he was mad at her because his son went crying to him and she was playing with Rachel.
73. He can remember assaulting her in May 2020.
74. There were blood stains on the bed sheets. This happened after he broke her left forearm in May.
75. He says he asked Ms. Kennedy about Shaun Nickolas. It was around the first week of June, on a Monday. It was the first of June. He took off the belt that he was wearing and hit her with it. He remembers that he stopped because he had hit her with the belt buckle, which must have made a hole in her leg. And then she started to bleed, so he stopped.
76. On June 18, he hit her in the eye or face with his elbow. He elbowed her about twice, and the next day he saw that her eye was black. He elbowed her because she saw Louisa's message on his phone and was bothering him.
77. He says that he wasn't always in the house. He was looking for fiberglass everywhere because there wasn't any in stock. He agrees that Ms. Kennedy was always with him, and that Rachael Ipang was caring for the children.
78. They always took some of the boys with them when they went out. The boys went to and from the house whenever they wanted. The boys worked on the boat from June 18 to June 23.
79. Ms. Kennedy would leave the house to spray paint the boat and jet ski.
80. He insists that he did not break her leg on June 21. She usually comes out and sits with the kids and plays with them and their puppies.
81. On June 22, 2020, between 11 a.m. and 12 p.m., he got in his car and went to Leon Hardware. He agrees that they had gone to see Elizabeth. Elizabeth was not on duty. They went because Ms. Kennedy was having trouble breathing, or she had asthma. She had something like a puffer. He agrees that Ms. Kennedy wasn't feeling well. He agreed with the State's position that because Ms. Kennedy was not feeling well, he had gone to take Elizabeth over to assist her.
82. He disagreed with the preposition that he assaulted Ms. Kennedy after the departure of Elizabeth. Instead, he stated that he was with Ms. Kennedy and the children in the evening. His son was in the room with him. He says he did not assault Ms. Kennedy that night.
83. They had played cards with Elizabeth. Isaac went to get food and then came back. Around 7 or 8 p.m., Isaac went and dropped off Elisabeth. He was playing cards with Ms. Kennedy. They had their son with them.
84. He did not assault her on June 22 because she was sick.
85. On June 23, 2020, he and three other men took Ms. Kennedy to the hospital because she wasn't breathing. When the doctors checked
on her, she was not responsive.
86. On June 23, 2020, he left the residence at Pipigari Street. Everyone left the house. They locked the gate and left. He did not inform the landlord because he was not in the right state of mind.
87. He denied that he would, on occasion, assault Ms. Kennedy.
88. He denied that he had repeatedly assaulted Ms. Kennedy between June 19 and June 22, saying instead that the bruises were from earlier in the month.
89. He denied having the intention to cause her grievous bodily harm.
90. He said that she takes medicine for gastritis but does not recall Rachael giving her medicine. That she had a medical condition before she died.
91. UMIN KUPUL. He is Mr. Kaiwi’s cousin. Their fathers are brothers. He stays at the Pipigari residence during the week when he is on his break. He was not present in the house between 18-23 June 2020.
92. He has on occasion observed Mr. Kaiwi assaulting Ms. Kennedy. Mr. Kaiwi assaults Ms. Kennedy when he is drunk. Mr. Kaiwi usually takes out a belt and assaults Ms. Kennedy. He usually punches her.
93. On cross-examination: He stated that he was in court to give an account of what he witnessed.
94. ISSAC ROPA. He resided with the couple. they were working on the boat between 18 and 23 June 2020.
95. Mr. Kaiwi and Ms. Kennedy assisted them with the boat. There were about ten people working on the boat. The couple stayed
in the house and cooked their meals, as well as going out looking for parts for the boat.
In his observations between June 18 and June 23, he stated that he did not witness any fights or arguments between Mr. Kaiwi and Ms.
Kennedy other than one time inside the vehicle.
96. As to whether he observed Mr. Kaiwi assaulting Ms. Kennedy, he stated that he had witnessed him assaulting her when she quarrelled
with Louisa. The two women quarrelled on several occasions. They would have their disagreements and report back to Mr. Kaiwi. He
assaulted Ms. Kennedy and Louisa. This was usually while he was under the influence of alcohol. He had seen Mr. Kaiwi throw a Red
Label bottle at Ms. Kennedy on another occasion.
Between 18 and 23 June, Ms. Kennedy would sit and converse with them. He did not observe anything wrong with her body.
97. On cross examination, He agreed that he had given a statement to the police. He agreed that they had gone out to dinner on 17 June. On the way back, they stopped, and he was sent to purchase betel nuts. He left, and when he returned, Ms. Kennedy had her hand on her nose and there was blood. On 20 June, she was in the house cooking and would sometimes come out. He was with Mr. Kaiwi. When Mr. Kaiwi went out, Ms. Kennedy would be with him. The boat was away from the main house. He agrees that she was not feeling well on 22 June. He cannot recall if she had bruises. On 23 June 2020, Mr. Kaiwi ran out and said Ms. Kennedy was not breathing. Mr. Kaiwi, along with him and some others, took Ms. Kennedy to the hospital.
98. In relation to the summons, he stated that the arresting officer contacted him twice and after that he did not contact him anymore. He is not giving evidence in support of Mr. Kaiwi, only his statement.
99. ELIZABETH ENDOSE. She has a nursing degree. She specializes in Critical Care and Emergency. She also specializes in Family Planning. She was previously employed with Karua Medical Centre.
100. She referred to Mr. Kaiwi as BK. She first met him in 2018 or 2019, when his family came to the clinic. His wife was one of the patients. He would go to the clinic with his wife and children and settle the bills. Ms. Kennedy told her that Mr. Kaiwi was her spouse. She went to the maternity clinic.
101. Her day off was 22 June 2020. She went in to report that her phone had been stolen and to check the roster. She was walking out when Mr. Kaiwi and Ms. Kennedy called her to their vehicle. Mr. Kaiwi informed her that Ms. Kennedy was not well and that they wanted to see her. She informed them that it was her day off. She invited them into the clinic to be evaluated. They didn't enter the clinic. They said she was already assessed and prescribed Mylanta for gastritis. Instead, she joined them in the vehicle. Boys called from the hardware store, so they headed there. They got a pregnancy test as well as a nebulizer mask.
102. She did not administer any medication to her.
103. Ms. Kennedy appeared frail and weak. Her husband supported her. She noticed bruises. Ms. Kennedy would not eat. She learned of Ms. Kennedy's death when homicide detectives arrived at the clinic the next day.
104. She did not administer any treatment at the couple’s house.
105. Ms. Kennedy’s primary complaints at the clinic were for gastritis and domestic violence. She was taking Mylanta.
106. On cross examination: She agreed that Ms. Kennedy had been treated for domestic violence injuries. She did not disclose that her husband was assaulting her.
107. On 22 June, she observed that Ms. Kennedy had two black eyes. She observed bruising on Ms. Kennedy’s back because she wore a see-through blouse. She did not say anything because it was their personal matter.
108. She is aware that Ms. Kennedy is a victim of domestic violence. She may have said in her statement that the situation had gotten worse with the birth of the second child. At one point, she presented with a broken arm. She had a wound on her head from an incident involving Mr. Kaiwi hitting her with a Jonny Walker bottle.
109. She says that she did not give evidence for the State because she was having problems with employment. She was present not to give evidence on behalf of the accused but in relation to what she witnessed.
110. DR PHILIP GOLPAK. He has a bachelor’s in medicine and surgery and a master’s degree in medicine specializing in pathology. He has been practicing for 22 years and conducted over 3500 autopsies. He is presently employed with the Port Moresby General Hospital as the Deputy Director Medical Services and is a Forensic Pathologist.
111. He was asked to give a second opinion on the cause of death. It is his opinion that the cause of death is undetermined. That is, it is unlikely that the cause of death is from a head injury and bruised kidney and liver. There is lack of evidence on the autopsy report that there was significant head injury that may cause death. Also, the lack of drug analysis which may be an informative tool to correlate and may establish cause of death was absent. Brain swelling signifies a systemic pathological process. Bruising of kidney and liver usually are not associated with death and can be due to trauma or thrombocytopenia (low platelet which cause bleeding easily). Also, the bruised organs may signify pathological process in the organs which contribute to death.
112. It is likely that she died from consuming toxic levels of alcohol and died from alcohol poisoning. It is likely that she took a combination of substances and alcohol. Xanax was taken by Mr. Kaiwi for depression. When taken with alcohol, it can slow breathing or may arrest breathing leading to death. Its significance is unclear in Ms. Kennedy’s case.
113. The explanation for the generalized bruising is Thrombocytopenia. Substance abuse can cause it.
114. Brain swelling is also known as brain edema. There are several causes. Blunt force trauma is one of them. Many people have brain swelling but they do not die. If there is no evidence of head injury or blunt force trauma, then there are other causes.
115. On cross- examination. He agreed that he did not physically examine Ms. Kennedy. He was asked by the defence team to give a second opinion. He says that the bruising is a result of bleeding under the skin. There is no specific shape. Abrasions, or abrasive marks, are caused by trauma. His views are an alternative view. The cause may be pathological processes, substances that have been taken, or a poor immune system. A rectangular shape is caused by a slight tap on the skin by an object, which causes bleeding under the skin. Trauma is not ruled out. Photograph JK172201/20 of exhibit "S3" shows imprint abrasions. They are several days old. An imprint abrasion occurs when something is used to cause it. The abrasion was before death. Brown indicates healing. The bruise was healing. Healing occurs when the person is alive, not dead. The red colour is the blood under the skin, which indicates trauma.
116. He conceded that it was highly likely that the deceased suffered some form of trauma. He agreed that it would be difficult for him to rule out trauma because he did not conduct the examination.
117. Questions from the Court: He agrees that alcohol was not mentioned in the report by Dr. Fose. He had obtained it from the information supplied to him by the first defence team.
118. He explained that in cases of brain swelling, the swelling would subside on its own or would continue to swell until it cones into the base of the skull. He did not see it in the report, but in any event, it is only detectable by CT scan or MRI.
119. The history of domestic violence was contained in the police summary and the statement by Elisabeth Endorse. The statements did not specify the type of domestic violence.
120. The bleeding from the kidney calyxes is blood in the urine. It will usually resolves itself, unless there is a specific pathology, in which case it will require treatment. Pathology is the disease process, including an infection.
ASSESSMENT OF EVIDENCE
121. I have considered all the prosecution and defence evidence. Where I have not mentioned something in this decision, it does not mean that I have not considered it or not given it the appropriate weight.
122. There is no principle in law that says I must accept or reject all of a witness's evidence. Instead, I may give varying weights to various parts of the witness evidence and decide to believe none of it, some of it, or all of it.[2]
123. I consider Rachael Ipang to be a truthful witness. Her observations were not challenged during cross-examination, and her evidence was consistent with the general evidence.
124. Drs. Fose and Golpak's explanation of bruising and its correlation to when it was caused, also gives credibility to Rachael Ipang’s evidence.
125. Both pathologists’ evidence on the nature and cause of abrasive imprints further lends credibility to her evidence.
126. When it was pointed out to her that she did not see Mr. Kaiwi use the implements to assault Ms. Kennedy, she agreed and explained that her conclusion was based on her observations of the objects in the room each time she cleaned it. An explanation that demonstrates that she was not seeking to exaggerate her evidence but was simply forming layperson’s conclusion of matters observed[3].
127. I will deal with the issue of prior inconsistent statements separately but only say here that there was no prior inconsistent statement tendered by the Defence to discredit this witness.
128. I consider Detective Yaku Gwapom and Peter Swabari to be witnesses of truth. The evidence of their observations was straightforward and uncontradicted.
129. I find Isacc Ropa to not be entirely reliable. His evidence, while consistent with the State on some parts and inconsistent with the accused on the history of abuse, was general and avoided observations of the deceased's appearance. Logically, he would have observed the injuries because almost her entire body was injured. I do not make any adverse findings against the State for not calling him. It was explained by the arresting officer that a summons had been issued. A summons that the witnesses acknowledged that he received. I attach very little weight to his observations of 18 to 23 June 2020 because he was being clearly evasive.
130. I am impressed by Umin Kupul. I find him honest and reliable. While he is Mr. Kaiwi’s first cousin and brother in Papua New Guinean context, he did not seek to exaggerate his evidence or attempt to hide details of his observations of the couple’s relationship. Details that his own brother, Mr. Kaiwi, was not forthcoming on. His evidence was also consistent with the general evidence of the State.
131. Elizabeth Endorse did not impress me. She was evasive and confrontational with the prosecutor when it wasn't necessary. While her evidence of Ms. Kennedy's complaints at the clinic and her observations of Ms. Kenney on 22 June 2020 are consistent with the general evidence, her evidence on the extent of her involvement on 22 June is inconsistent with both the State and Defence evidence. The concession is that she administered some form of medical treatment to Ms. Kennedy at the house. I find her reason to be untruthful about not attending to Ms. Kennedy lies in her failure to adhere to the rules of conduct and the duties of her profession. A failure that would cost her any future employment if it is found that she treated a severely beaten woman outside of a medical facility and failed to report it to police.
132. Having heard and observed Mr. Kaiwi, I am unable to accept him as a witness of truth. This is a combination of his demeanour and the content of his evidence. His accounts of assaulting Ms. Kennedy varied from never assaulting her to saying that he had on occasion assaulted her. He did not challenge Rachael Ipang’s observations, and his evidence was inconsistent with that of his own witnesses. He did not give any evidence to support his case theory that Ms. Kennedy abused alcohol in combination with drugs. He gave no evidence of suffering from depression or being prescribed Xanax, and he offered no evidence that Ms. Kennedy had access to the drug. I am reminded that the accused is not required to give an explanation, and the burden rests on the State alone. I only consider the lack of factual support for his case theory as matters that go to his credibility and the weight to be applied to his evidence. A specific matter of significance that diminishes his credibility and results in very little weight being given to his evidence is his response to the cause of the bruises.
“Ms. Rolakona: And so, between the 19th to the 22nd you had continuously assaulted Jenelyn Kennedy causing multiple bruises all over her body.
Mr. Kaiwi: No. The bruises were from 01st of Jan, ah June. Early June.”
133. His account not only contradicts his pathologist's opinion that the bruises occurred naturally because of illness, but it also contradicts the medical evidence that bruising appears within 24 hours to several days before death.
134. His evidence on the nature of his relationship with Louisa also shows that he is not a truthful witness. He indicated that Louisa moved in when Ms. Kennedy was at the Safe House, but questions put in cross-examination to Rachael Ipang and Isacc Ropa's evidence demonstrate that he was living with both women at one point. And, according to his own witness, Isacc Ropa, he assaulted both women when they quarrelled. A fact that he did not mention.
135. I turn now to the assessment of competing medical evidence.
Conflicting Medical Evidence
136. Having heard and observed Dr. Fose and Dr. Golpak, I find that they are both witnesses of truth. There is no challenge to
either doctor's qualifications or experience.
137. For the most part, they agreed about the coloration of bruises and the correlation between the colours and the age of the
bruise. They agreed that bruising and recovery occur when a person is alive. They agreed that abrasive imprints were caused by the
application of an implement to the body and that force was required to cause the imprints.
138. Dr. Golpak stated that he was presenting an alternate theory based on materials provided by the defence team.
139. At the outset, Dr. Golpak’s alternate theory is rejected because it was never available to the State in any form and was never put to State witnesses. Even defence witnesses, including Mr. Kaiwi, did not give evidence in support of the alternate theory. There was no other version of the defence case theory until Dr. Golpak, who was the last witness for the defence, gave evidence. This is a clear and blatant breach of the principles of fairness enunciated in Brown v Dunn (1893) 6 R 67 (HL) and elaborated in Kitawal v. State [2007] PGSC 44; SC927.
140. Ms. Roalakona and Mr. Sumbuk did not assist the court with relevant principles and authorities on the assessment of conflicting expert evidence.
141. While the use of expert evidence is common in this jurisdiction, there is very little that addresses the issue of conflicting medical evidence. I look to the common law for assistance on the issue.
142. Expert evidence is the exception to the hearsay rule. It is opinion evidence that assists a factfinder to draw inferences in areas where the expert has relevant knowledge or experience beyond that of a layperson: R. v. Lavallee, [1990] 1 S.C.R. 852 (Supreme Court (Federal) of Canada[4].
143. The Court in R. v. Lavallee examined R. v. Abbey, [1982] 2 S.C.R. 24 and concluded:
“With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.).
An expert witness, like any other witness, may testify as to the veracity of facts of which he has first-hand experience, but this is not the main purpose of his or her testimony. An expert is there to give an opinion. And the opinion more often than not will be based on second-hand evidence........” [Emphasis mine].
144. R. v. Abbey [1982] illustrates the common law position that expert testimony is admissible and that the expert is allowed to rely on materials that are regarded as secondary evidence in his or her testimony. The Court, however, highlighted the exception, which is a point that is frequently neglected. That is, the information or materials relied on by the expert to form the conclusion are not admitted based on their truth. It is admitted only on the basis that it was material or information given to the expert. Other evidence is required to prove the accuracy or truth of the information or material. The Court held:
"The evidence of a physician stating what a patient told him about his symptoms is not evidence as to the existence of the symptoms. To accept it as such would be to infringe the rule against hearsay." .............While it is not questioned that medical experts are entitled to take into consideration all possible information in forming their opinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properly admissible evidence, the factual basis on which such opinions are based. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.” [Emphasis mine] [In judgement citations removed]
145. Sopinka J. in R. v. Lavallee [1990] held that a practical distinction exists between evidence obtained and acted upon by an expert within the scope of his or her expertise, such as in consultation with colleagues, and evidence obtained from a party to litigation touching on a matter directly in issue. He held:
“Where the information upon which an expert forms his or her opinion comes from a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will have a direct effect on the weight to be given to the opinion. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight.”
146. In R. v. Turner [1975] QB 834 at 840 Lawton LJ said:
"Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination."
147. The Court in Makita (Australia) Pty Limited v. Sprowles (2001) 52 NSWR 705 took the same position when it held that an expert’s evidence is undermined when the facts or assumptions underlying the opinion are not proved.
148. In this regard, parties who call pathologists or any expert as witnesses must keep in mind that the facts on which pathologists and experts base their opinions must be proven by admissible evidence. The nature and quality of that evidence will determine the weight applied to the expert’s opinion.
149. As such, I give myself the following directions:
150. Dr. Fose’s findings were based on his own examination of Ms. Kennedy’s body. This is direct evidence. I place more weight on his evidence in that regard. The concession by Dr. Golpak of the nature of the bruising and the cause of the distinct abrasions further adds weight to Dr. Fose’s evidence.
151. Dr. Golpak’s report has two parts. The first part is a critique of the findings, and the second part presents the alternate theory. There is no inconsistency when comparing Dr. Golpak’s critique and the evidence of Dr. Fose. According to Dr. Golpak, brain swelling, and injured organs cannot cause death. The State without the benefit of the defence theory, had asked Dr. Fose whether the injuries were life-threatening. His response was that they were not but would become life-threatening when left untreated.
152. Turning now to Dr. Golpak's alternate theory, a theory generated based on information supplied to him by defence. It becomes necessary to examine the theory closely.
153. The opinion was based on the accused account and purported observations by him of the deceased's health. This involved Dr. Golpak making his own unsupported findings of fact and his own interpretation of them. Examination of his report marked "D1", reveals that his theory is based on a combination of speculation, inference, and second-hand information. There is no evidence before the court that supports the theory that Ms. Kennedy drank in excess and abused alcohol in combination with drugs, including Xanax. And that she bruised easily because of thrombocytopenia. It was not suggested to Dr. Fose to give him an opportunity to defend his findings and for him to respond to the alternate theory. Even, Mr. Kaiwi did not support the facts on which Dr. Golpak based his report.
154. There is clearly no foundation for Dr. Golpak’s alternate theory.
155. On a final matter, in Holtman v. Sampson [1985] 2 Qd R 472 at 474. D M Campbell, Macrossan and Thomas JJ said:
“... it is a primary tribunal’s duty to find ultimate facts, and, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness, but to examine the substance of the opinion expressed. But that is not to say that a tribunal may not accept the opinion of an expert witness. In cases where the experts differ, the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.”
156. The materials that were given to Dr. Golpak that he chose to ignore were a history of violence and that Ms. Kennedy was subjected to acts of violence by Mr. Kaiwi. Dr. Golpak had the benefit of the statement of Elisabeth Endorse in combination with the report by Dr. Fose. Ms. Endorse's evidence is that Ms. Kennedy’s primary complaints at the clinic were domestic violence-related and not substance or alcohol abuse. Dr. Fose's report shows that the bruises were not isolated but were present with lacerations and abrasions. Both of which are caused by the application of force. There is also evidence of a fractured forearm. In applying common sense and logic, the only logical explanation is that the bruises were caused by acts of assault as opposed to an illness.
157. From the foregoing, Dr. Golpak's report is rejected because:
Prior Inconsistent Statement
158. Mr. Sumbuk's submission that Rachael Ipang’s statements were tendered as evidence of prior inconsistent statements is incorrect. There were no such statements tendered to discredit Rachael Ipang.
159. Mr. Ellison, who first represented Mr. Kaiwi, did not appreciate the legal principles governing the use of prior inconsistent statements.
160. The purpose of a prior inconsistent statement is to discredit a witness. The statutory basis is found under Section 23 of the Evidence Act. It states:
“(1) A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him, but if it is intended to contradict the witness by the writing his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.
[Emphasis mine].
161. The procedure to establish a prior inconsistent statement and the subsequent tendering of the statement is not prescribed by statute but is derived from common law.
162. Analogous provisions of Section 23 of the Evidence Act were the subject of appeal in the Supreme Court of Queensland (Court of Appeal) case of R v. Collins [2017] QCA 113. There, the Court applied Nicholls v. R. [2005] HCA 1; 219 CLR 196; 213 ALR 1; 79 ALJR 468, which found that the legislation was "essentially declaratory of the common law"[5].
163. The following steps were identified as requisite foundations for the tendering of a prior inconsistent statement:
164. In applying the principles to the present case, Mr. Ellison was on occasion directed to identify the relevant part of the witness's written statement, which he did not do. He then attempted to show the witness her statements without laying the proper foundation. He was again directed to lay the proper foundation but failed to do so. On questions directed about Shaun Nickolas, the witness admitted her statements. No serious inconsistency relevant to the issue can be identified from those admissions.
165. In relation to the bloodstained implements, Ms. Ipang in her evidence stated that she found the implements in the room. She did not say that she saw blood on them. It was put to her in cross-examination that she had stated in her police statement that there was blood on the items. She agreed that that was what she said in her statement to the police. The cross-examination did not discredit the witness but instead allowed her to elaborate on her earlier statement. I therefore accept that there was blood on the implements on the occasions when Rachael Ipang cleaned the room. Her evidence is supported by medical evidence.
Relationship Evidence
166. As discussed in my ruling in State v. Kaiwi (No. 2) (2022) N10089:
“Relationship evidence is a category of circumstantial evidence that is admissible where it goes towards establishing the nature of the relationship between the accused and the deceased and provides context to the offending behaviour. It is evidence which enables the Court to draw the relevant inferences when determining the facts in issue: see also State v Namaliu [2019] PGNC 261; N8080 (26 September 2019).”
167. Mr. Sumbuk concedes in submissions that the relationship was marred with violence. The evidence of Rachael Ipang, Issac Ropa, Umin Kupul and Elisabeth Endorse demonstrates that Ms. Kennedy was often assaulted by Mr. Kaiwi. He admits that he had assaulted her on several occasions.
168. He was especially infuriated over her relationship with the individual Shaun Nickolas.
169. I am satisfied that the relationship was marred with violence. And that Mr. Kaiwi in June 2020, developed an enmity towards Ms. Kennedy because of her relationship with the individual Shaun Nickolas.
Post Offence Conduct
170. I adopt and apply the statements on consciousness of guilt made by Berrigan, J., in State v. Epei [2019] PGNC 225; N7845, where she held:
“(12) It is well established in this jurisdiction that lies may in certain circumstances evidence a consciousness of guilt on the part of an accused person: Koroka v The State [1988-89] PNGLR 131. For similar reasons, other post-offence conduct by an accused may evidence a consciousness of guilt, for example fleeing the scene of a crime, hiding from police or concealing evidence: R v Melrose [1989] 1 Qd R 572 adopted and applied.In recognition that a person may leave the scene of a crime for a number of reasons other than guilt, for example panic, embarrassment or fear of accusation, before drawing an inference of guilt it is necessary to find that an accused departed a crime scene because of a consciousness of guilt in relation to the offence charged and not for any other reason: Edwards v R [1992] HCA 19; (1992) 173 CLR 653.
(13) In recognition that a person may leave the scene of a crime for a number of reasons other than guilt, for example panic, embarrassment or fear of accusation, before drawing an inference of guilt it is necessary to find that an accused departed a crime scene because of a consciousness of guilt in relation to the offence charged and not for any other reason: Edwards v R [1992] HCA 19; (1992) 173 CLR 653.
(14) In order to draw the inference it is not necessary to be satisfied beyond reasonable doubt of the accused’s guilt. Rather, if the inference is established it is another circumstance to be considered and weighed with all of the other evidence when determining whether or not the accused is guilty beyond reasonable doubt: R v Baden-Clay at [77].”[10]
171. Applying the above principles, I ask whether there is any other reasonable explanation for Mr. Kaiwi’s behaviour. It
is crucial to consider Mr. Kaiwi's own explanation while addressing this issue.
172. He says that he was not in the right state of mind when he left the house abruptly without giving notice to the landlord.
173. I find his explanation to be illogical and inconsistent with human experiences of a Papua New Guinean faced with the death of a loved one. In Papua New Guinea society, the deceased home would be the place for the ‘haus krai’ or wake. While the spouse will be traumatized, the immediate and extended family, even close friends, fellow employees, employer, and neighbors would immediately converge on the home to mourn the sudden loss and commence the mourning period. It is one thing for a man to leave his home alone and driving around aimlessly or go on a drinking binge following the death of his spouse. But here, Mr. Kawi after leaving his wife’s lifeless body at hospital, vacated his residence without notice to his landlord, taking his children, leaving no one behind, locking the house and gate behind him as he left. There is no other reasonable explanation for this abrupt departure from the house other than a consciousness of guilt.
FINDINGS OF FACT
174. There is no direct evidence of Mr. Kaiwi assaulting Ms. Kennedy from 18 June to 23 June 2020. The issue to be decided is whether the cumulative effect of several items of circumstantial evidence is reasonably capable of supporting the required inference or falls short of what is required.
175. There is no dispute that the relationship was marred with violence.
176. There is no dispute that Ms. Kennedy was brought to the hospital with multiple lacerations, abrasions, and bruises.
What caused the lacerations, abrasions and bruises?
177. According to Drs. Fose and Golpak, the application of force is the cause of the abrasions and lacerations. According to Dr. Fose's evidence, which I have accepted, and which logic supports, the bruises were also the result of force.
178. Additionally, the uncontested evidence of Dr. Fose is that force was applied to the head. There was evidence to demonstrate that she was knocked in the head multiple times.
179. I therefore accept and find that the injuries identified by Dr. Fose in his report were caused when force was applied to Ms. Kennedy's body.
How recent were the injuries?
180. Based on the medical consensus by Dr. Fose and Dr. Golpak on the nature of bruising, in combination with the photographs, I further find that the injuries were caused within 24 hours prior to death and several days prior to death.
181. Having made these findings on the abrasions, lacerations, and bruises, I also note that there is a stab wound measuring 2.5 cm by 1.0 cm on the front right leg between the knee and foot, as depicted in Photograph 48 of Exhibit S4 and Appendix 1 of Exhibit S2. The wound is red, and the surrounding skin is red or bright pink. Based on the medical evidence, I also conclude that the wound and the surrounding bruises were caused within 24 hours prior to the death.
182. My finding that the injuries were fresh or recent is further supported by the uncontested medical report by Dr. Fose, which describes the injuries as recent. There were no questions directed in cross-examination at Dr. Fose challenging how recent the injuries were. I therefore accept Dr. Fose’s findings that the external and internal injuries were fresh or recent. This included the multiple internal head injuries, which Dr. Fose concluded occurred within 24 hours.
183. What is left to resolve is who caused the injuries.
Who caused the injuries?
184. I am satisfied that Mr. Kaiwi caused the injuries for the following reasons:
185. The conclusion that he caused the injuries is further supported by:
Is the inference that the accused assaulted the deceased, thereby causing the injuries, the only rational inference?
186. The principle of circumstantial evidence is that not only must the inference be reasonable, but it must be the only reasonable inference. I am satisfied that the only logical conclusion regarding the cause of Ms. Kennedy's injuries is that Mr. Kaiwi assaulted her.
187. I need not be satisfied as to how each of the injuries were caused. What is sufficient and has been proven beyond a reasonable doubt is that the injuries were caused by the application of force, that they were fresh and recent injuries, and that the accused was the person who caused those injuries.
INTENTION
188. The State must prove that the accused intended to cause grievous bodily harm. Grievous bodily harm is 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[11].
189. While intention is a matter of the mind, there are circumstances surrounding the death that allow the court to draw inferences as to Mr. Kaiwi's intent or lack thereof. Injia, J. (as he was then), in State v. Raphael Kuanande [1994] PNGLR 512, explained how intention may be perceived. I adopt his explanation at page 514, where he states:
“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.”
190. In addition to the accused's conduct, the nature, severity, and distribution of the deceased's injuries also assist in determining whether the accused possessed the required intent.
191. Another factor that also assists the court in determining intent is the force required to create the injuries.
192. The combined effect of all the circumstances leads me to the conclusion that Mr. Kaiwi intended to cause grievous bodily harm. The relationship was marred with violence. Mr. Kaiwi had inflicted serious injuries on Ms. Kennedy in the months leading up to her death; her death followed a series of assaults over an extended period; during the assault, her hand was fractured; and the assaults involved the use of implements.
193. The evidence by Dr. Fose demonstrates that almost all of Ms. Kennedy’s body was covered in lacerations, abrasions, and bruises. Both her feet had diffused bruising, meaning no area was spared. She had imprint abrasions, meaning she was struck with such force that the implement left a mark on her body.
194. I am satisfied that the nature, severity, and extent of the injuries suffered by Ms. Kennedy and the degree of force required to inflict them demonstrate that Mr. Kaiwi possessed the intention to cause Ms. Kennedy grievous bodily harm.
195. Finally, I find that seeking medical attention from Elisabeth Endorse did not change Mr. Kaiwi's mental state. The evidence demonstrates that the assaults resumed after Ms. Endorse left. The resumption of the assaults supports the conclusion that Mr. Kaiwi intended to cause grievous bodily harm to Ms. Kennedy. At the point when the assaults recommenced, she already had a broken hand, was visibly weak from several days of assault, and had just received some form of medical assistance. Common sense dictates that when a person assaults another person, fully versed in those circumstances, he has the required intention to cause grievous bodily harm. In applying the definition of grievous bodily harm to the given circumstance, I concluded that Mr. Kaiwi intended to cause grievous bodily harm.
CAUSATION
196. It was Doctor Fose’s evidence that the direct cause of death was a head injury and bruised internal organs, specifically the kidney and the liver. The underlying cause was direct blunt force trauma to the head and body from blunt objects or instruments, and other significant contributions include the history of domestic violence.
197. Given the circumstances, I ask whether the State is required to show which specific act caused the death. In answering this question, I adopt and apply R v. PL [2009] NSWCCA 256, where the Court unanimously held that "it is not necessary to establish a precise act causing death in order to establish either murder or manslaughter." The Court applied Royall v. The Queen [1991] HCA 27; (1990), 172 CLR 378, Attorney General’s Reference (No. 4 of 1980) [1981] 1 WLR 705, R v. McKinnon [1980] NZCA 22; [1980] 2 NZLR 31, and R v. Ryder [1995] 2 NZLR 271.The facts in R v PL [2009] NSWCCA 256 are similar.
198. Likewise, in R v. Moffatt [2000] NSWCCA 174, the court held that "it is incorrect to search for a precise cause of death. If the contribution of the accused is present, it is irrelevant that there is more than one possible cause of death.[12]
199. While the autopsy identified two causes of death, considering all the evidence, the only rational inference open is that Mr. Kaiwi had attacked Ms. Kennedy between 18 and 23 June 2020 and that this attack was the substantial cause of her death.[13]
200. The evidence that the injuries were not life-threatening but became life-threatening when there was no proper medical intervention
does not in any way break the causation. The circumstances of this case are that she was continuously assaulted over several days
and that Mr. Kaiwi assaulted her with an intent to cause grievous bodily harm. Mr. Kaiwi's actions, not any other factor, was the
cause of the failure to receive proper medical care. She would not have had those received if it were not for his actions; and she
was unable to receive proper and required medical treatment but for his actions. Legally and factually, he is responsible for her
death.
201. I am therefore satisfied beyond a reasonable doubt that Mr. Kaiwi caused Ms. Kennedy’s death within the meaning of
section 291 of the Criminal Code.
CONCLUSION
202. I am satisfied from the evidence that Mr. Kaiwi caused the death of Ms. Kennedy by assaulting her continuously between 18 June and 23 June 2020. That his acts of assault were unlawful. And when he assaulted her, he intended to cause her grievous bodily harm.
203. Mr. Kaiwi is guilty of the murder of Ms. Jenelyn Kennedy.
204. Verdict of Guilty returned.
Public Prosecutor, Lawyer for the State
Public Solicitor, Lawyer for the Accused
[1] 291. DEFINITION OF KILLING.
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.
[2] See Pari and Kaupa v. The State [1993] PNGLR 173 per Kapi DCJ and State v. Namaliu [2020] PGNC 75; N8284 at paragraph 51.
[3] See the leading Canadian case of Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819 on the admissibility of lay opinion evidence under the compendious statement of facts exception. That is facts that are too complicated to be narrated separately and distinctly.
[4] Per Dickson C.J. and Lamer, Wilson, L'Heureux-Dubé, Gonthier and McLachlin JJ
[5] Nicholls v. R. [2005] HCA 1; 219 CLR 196; 213 ALR 1; 79 ALJR 468 per McHugh J. at paragraph 85.
[6] R v. Collins [2017] QCA 113 at paragraphs 41–43, 48–52
[7] R v. Collins [2017] QCA 113 at paragraphs 49-52
[8] R v. Collins [2017] QCA 113 at paragraphs 39–40, 44–47
[9] R v. Collins [2017] QCA 113 at paragraphs 40
[10] See also discussions on Post offence conduct in Injia on Evidence in Papua New Guinea and the South Pacific at pp.242-243.
[11] Section 1(1) of the Criminal Code
[12] Applying Hayward (1908) 21 Cox CC 692, Murton (1862) 3F & F 492 [1862] EngR 175; (176 ER 221), Martyr (1962) Qd.R 398, Blaue (1975) 1 WLR 1441, Smithers (1977) 24 CCC (2d) 427, Mamote-Kulang [1964] HCA 21; (1964) 111 CLR 62, Butcher [1986] VicRp 4; (1986) VR 43, McKinnon [1980] NZCA 22; (1980) 2 NZLR 31, Pagett (1983) 76 CR App R 279
[13] See also Royall [1991] HCA 27; (1990) 172 CLR 378.
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