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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO 39 OF 2018
SERAH JAMES
Appellant
V
THE STATE
Respondent
Waigani: Cannings J, Kariko J, Berrigan J
2020: 24th February, 24th April
CRIMINAL LAW – appeal against conviction for wilful murder, Criminal Code, s 299(1) –defence of accident, Criminal Code, s 24(1)(b) – intention to kill as an element of wilful murder – alternative verdicts, Criminal Code, s 539.
This was an appeal against conviction for wilful murder. The trial judge accepted the State’s case that the appellant stabbed and killed the deceased using a kitchen knife by deliberately stabbing her in the chest, intending to kill her. At the trial (and at the appeal) the appellant conceded that she had killed the deceased but raised the defence of accident. Though there was no direct evidence of how the appellant stabbed the deceased, the trial judge rejected the defence of accident and, as to the element of intention to kill, took into account that the appellant’s explanation was not credible, she was an unconvincing witness, the medical evidence was consistent with deliberate intent, the appellant’s oral testimony was inconsistent with her explanation in her police interview, and there was a motive provided by the appellant being angry at the presence of the deceased. It was argued at the appeal that the trial judge erred in law by (1) rejecting the defence of accident; and (2) being satisfied, despite an absence of evidence, of an intention to kill.
Held:
(1) The defence of accident is provided by s 24(1)(b) of the Criminal Code: an accused is not criminally responsible for an event that occurs by accident. It is a complete defence that operates in the same way as other excusatory defences such as self-defence, in that once the accused puts evidence that the ‘event’ (here, the killing of the deceased) has ‘occurred by accident’, the onus rests on the prosecution to disprove that explanation. Here the accused gave evidence of an accident, which explanation, the trial judge properly found, had been disproven by the State as the nature of the injury sustained by the deceased and the force required to inflict it were inconsistent with the stabbing being an accident. The accident ground of appeal was rejected.
(2) Intention to cause death is an element of the offence of wilful murder under s 299(1) of the Criminal Code. Proof of intention to cause death requires assessment of the state of mind of the accused at the time she acted. Here there was no evidence as to expression of any intention on the part of the appellant to kill the deceased and limited evidence of animosity between them, and the nature of the injury (one stab wound only) and the appellant’s conduct afterwards (being shocked and confused) were inconsistent with an intention to kill. The absence of intention to kill ground of appeal was upheld.
(3) The wilful murder conviction was unsafe and unsatisfactory and entailed a substantial miscarriage of justice, therefore it was set aside.
(4) On an appeal against conviction for wilful murder, if the Supreme Court allows the appeal and sets aside the verdict (as in this case), it may by virtue of ss 23, 27 and 28 of the Supreme Court Act: (a) enter a verdict of not guilty; or (b) substitute for the verdict set aside a verdict of guilty of any other offence of which the appellant could have been convicted at trial (and may then pass a substitute sentence); or (c) order a new trial.
(5) A substitute verdict of guilty of murder was entered against the appellant and the original sentence of 15 years was substituted by a sentence of 12 years imprisonment.
Cases Cited
The following cases are cited in the judgment:
John Beng v The State [1977] PNGLR 115
The State v Jenny Dei (2011) N4231
The State v Mas Judah Binas (2007) N3118
The State v Raphael Kuanande [1994] PNGLR 512
APPEAL
This was an appeal against conviction for wilful murder.
Counsel
E Sasingian, for the Appellant
S Osembo & D Kuvi, for the Respondent
24th April, 2020
1. BY THE COURT: Serah James was convicted by the National Court of one count of wilful murder under s 299(1) of the Criminal Code and sentenced to 15 years imprisonment. She appeals against her conviction.
2. The trial judge accepted the State’s case that the appellant stabbed and killed the deceased, Veronica Kila, using a kitchen knife by deliberately stabbing her in the chest, intending to kill her. The appellant and the deceased shared, with another woman, the same husband (the man had three wives). The deceased had on 4 June 2016 arrived between 7.00 and 8.00 pm at a house at Erima Wildlife, National Capital District, having come with her baby from Mt Hagen the previous day, to meet the appellant and other members of the extended family.
3. At the trial (and at the appeal) the appellant conceded that she had killed the deceased by stabbing her. However, she raised
the defence of accident. She gave evidence that when she approached the deceased to greet her, just as the deceased had come up the
stairs, the deceased had raised her hands as if she was going to hit her (the appellant). This shocked the appellant and when she
raised her hands to block the deceased, a kitchen knife that she was holding (as she was preparing food for the occasion) accidentally
penetrated the deceased’s chest.
4. Though there was no direct evidence of how the appellant stabbed the deceased, the trial judge rejected the defence of accident.
As to the element of the offence of wilful murder of intention to kill, his Honour found that “the motive, together with the
nature of the injury and the weapon used clearly shows an intention to kill. I find the accused guilty as charged.”
GROUNDS OF APPEAL
5. There were numerous grounds of appeal, which can be reduced to two principal arguments, that the trial judge erred in law by:
(1) rejecting the defence of accident; and
(2) being satisfied, despite an absence of evidence, of an intention to kill.
APPROACH TO APPEALS AGAINST CONVICTION
6. To succeed on an appeal against conviction an appellant must establish that:
7. In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from ss 23(1) and 23(2) of the Supreme Court Act, which state:
(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
8. In this case the grounds of appeal are essentially arguments that the verdict is unsafe and unsatisfactory. They fall under s 23(1)(a) of the Supreme Court Act.
GROUND (1): ERROR OF LAW BY REJECTING THE DEFENCE OF ACCIDENT
9. Mr Sasingian for the appellant submitted that the defence of accident was raised at the trial and the appellant gave evidence in support of it. Though there were six State witnesses, and four of them were present and in the immediate vicinity of the incident in which the deceased died, none gave an eyewitness account of what happened. Those who were present only heard the incident and saw its aftermath. None gave evidence contradicting the appellant’s evidence. The State did not effectively exclude the defence therefore it should apply as a complete defence and the Supreme Court should enter a verdict of not guilty.
10. We agree that the defence of accident was raised at the trial and the appellant gave evidence in support of it. Therefore it had to be considered by the trial judge.
11. The defence of accident is provided by s 24(1)(b) of the Criminal Code, which states:
Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for ... an event that occurs by accident.
12. We agree that it is a complete defence that operates in the same way as other excusatory defences such as self-defence. Once the accused puts evidence that the ‘event’ (here, the killing of the deceased) has ‘occurred by accident’, the onus rests on the prosecution to disprove that explanation (The State v Mas Judah Binas (2007) N3118, The State v Jenny Dei (2011) N4231).
13. Here the accused gave evidence of an accident. The onus was therefore on the prosecution to disprove it. We agree that none of the four State witnesses who were at the scene of the incident gave evidence of seeing what actually happened when the appellant stabbed the deceased. All gave evidence of being shocked as there was no indication beforehand of any trouble; and it had been, until the stabbing occurred, anticipated to be a happy occasion. None of the evidence of the State witnesses directly contradicted the appellant’s evidence.
14. It was nonetheless open to the trial judge to find that the State had disproven the defence of accident by considering the totality of the evidence, in particular the medical evidence constituted by the autopsy report and the oral testimony of the author of that report, Dr Seth Fose. The autopsy report revealed the following injuries were sustained by the deceased:
External injuries:
Stab wound:
Chest: A penetrating stab wound measuring 2.5 cm x 1.0 cm placed vertically at the right side of chest wall at the front at level of 2nd rib space. It was situated 146.0 cm from right heel and 6.0 cm from midline.
Stab wound track: The sharp knife entered from right side of the chest wall to penetrate the chest cavity and stab the upper lobe of right lung. The direction is downward into chest cavity in an acute manner towards the midline of the chest. ...
Internal injuries:
Chest wall: There was a penetrating stab wound measuring 2.5 cm x 1.0 cm at front of chest wall on the right side at level of right 2nd rib space. The intercostal (rib space) muscle was incised.
Right lung: There was a stab wound measuring 2.3 cm x 1.0 cm at inner side of upper lobe of right lung. The right and left lungs were collapsed.
Right chest cavity: There was 100.0 mls of blood and clots within the right chest cavity.
15. The injuries and cause of death were summarised as follows:
There was a penetrating stab wound at the right side of chest wall at the front at level of 2nd rib space. It was situated 146.0 cm from right heel and 6.0 cm from midline. The body was pale. The rest of the external examination showed no significant findings apart from decomposition changes.
The internal examination showed a stab wound at right 2nd rib space. The intercostal muscle and neurovascular bundle was cut. There was a stab wound at upper lobe of right lung. The right and left lungs were collapsed. There was 100.0 mls of blood in the right pleural cavity. The left pleural cavity was unremarkable. The lungs appeared pale. The rest of the systems showed no other significant findings.
The stab wound track revealed the sharp knife entered from right side of the chest wall to penetrate the chest cavity and stab the upper lobe of right lung. The direction is downwards into chest cavity in an acute manner towards the midline of the chest.
In my opinion the cause of death is acute blood loss and right haemothorax due to penetrating stab wound to the right chest due to sharp knife.
16. In oral testimony Dr Fose was asked in examination-in-chief to clarify his measurement of the stab wound, when he was asked a question by the trial judge, and another question by the prosecutor, Mr Pokiton.
HIS HONOUR: And when you say the wound measuring 2.5 cm and 1 cm?
DR FOSE: Yes your Honour, 2.5 cm basically is the length.
HIS HONOUR: Length.
DR FOSE: And 1 cm is the width.
HIS HONOUR: The length always comes ahead of the width?
DR FOSE: That is correct.
MR POKITON: Doctor, what force would be required to cause such a wound?
DR FOSE: Your Honour, the force – the amount of force required to penetrate a chest wall, I would refer to as moderate amount to a large amount of force because the chest wall is basically thin in fitness, close to roughly about including the skin and the rib cage, will say it is close to about 4 cm.
HIS HONOUR: That is the thickness?
DR FOSE: Yes your Honour, that is estimated because variation of people with different thickness in skin and fat.
17. In cross-examination the defence counsel, Mr Sasingian, also questioned Dr Fose on the measurements he referred to in his report.
MR SASINGIAN: Yes, okay, now according to your findings, only 2.5 cm was the depth of that injury. Is that correct?
HIS HONOUR: That is not true.
DR FOSE: Your Honour, I think I have mentioned, that was the length.
MR SASINGIAN: Length?
DR FOSE: Not the depth.
MR SASINGIAN: Depth. Length as in, I am a bit confused now – as in?
DR FOSE: Length in – your Honour, a stab wound is basically, that is the length from one end of the wound to the other, and width is the openness of the ---
MR SASINGIAN: Okay.
DR FOSE: We have not did depth, we have not measured the depth in these circumstances at that autopsy.
MR SASINGIAN: Yes, that was not entered, okay. Now just from your examination of the wound, you would agree with me that the entire knife did not penetrate fully into the body of the deceased?
DR FOSE: Your Honour, we have seen cases where the object or instrument, not necessarily have to – the full length of it has to penetrate to cause injury – internal injury.
MR SASINGIAN: Yes thank you Doctor. I appreciate that because of the lungs that are near that particular location, the chest. Therefore the length, it being 2.5 or 4 is still fatal. Is that what you are saying?
DR FOSE: The size of the wound on the measurement that I have mentioned, your Honour, it is the cut on the skin.
HIS HONOUR: Yes.
DR FOSE: The severity of a stab wound is basically not the cut on that skin. It is what has been injured, the underlying structure that has been injured in a stab wound.
MR SASINGIAN: Yes
DR FOSE: So you can have a stab wound 1.5 by 0.5. For example a modified screwdriver being used in this case, it will leave basically less than 1 cm width and 0.5 cm to 1.5 cm in length and 0.5 cm in width, but it is a screwdriver and it would have penetrated, so it is the underlying structure that determines how severe, I mean the outcome of the injury ---
MR SASINGIAN: Yes.
DR FOSE: --- whether it is fatal or not fatal in most cases.
MR SASINGIAN: When you say “underlying structure”, referring to the structure of the object or the structure of the wound?
DR FOSE: The structure that is beneath the stab wound, so in this case, the lung.
18. It is significant that Dr Fose gave no clear evidence that the injuries he observed were capable of occurring by accident.
19. We consider that the trial judge, in his reasons for finding the accused guilty, was entitled to make the following observation as to whether the injuries had occurred by accident or were the result of a deliberate act:
The [autopsy] report shows that on chest wall there was a penetrating wound measuring 2.5 cm by 1 cm. On the right lung was a stab wound measuring 2.3 cm and 1 cm at the inner side of the upper lobe of the right lung and the right lung was collapsed. There was 100 mls of blood clots within the right chest cavity. The injury as described shows that the stabbing involved adequate force for the knife to penetrate the chest wall downward and into the lung.
Application of force is a manifestation of intent to use the knife the way it was used to inflict the injury in question.
20. His Honour was entitled to find on the evidence that the defence of accident had been disproven by the State. Though his Honour could havestated his reasons for rejecting the accident defence in greater detail, his Honour adequately dealt with the issue. His Honour found, in effect, that the State had discharged the onus of disproving the appellant’s explanation that the death of the deceased was an accident.
21. His Honour did not err in law in deciding that the nature of the injuries sustained by the deceased and the force required to inflict them were inconsistent with the stabbing being an accident. The first ground of appeal is rejected.
GROUND (2): ERROR OF LAW BY FINDING THAT THERE WAS AN INTENTION TO KILL
22. It is argued that the trial judge erred in law in finding that the appellant intended to kill the deceased.
23. Intention to cause death is an element of the offence of wilful murder under s 299(1) of the Criminal Code. If this element is not proven beyond reasonable doubt the accused cannot be convicted of wilful murder.
24. The trial judge found that the element was proven in this case by concluding that “the motive, together with the nature of the injury and the weapon used clearly shows an intention to kill”. In drawing that conclusion his Honour took into account that:
25. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused’s state of mind is when they committed the act that constitutes or is an element of the offence:
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.
26. In a wilful murder case, proof of intention to kill therefore requires an assessment of the state of mind of the accused at the time the act of killing the deceased occurred. The accused’s state of mind can be assessed by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence.
27. Relevant considerations may include the nature of the weapon used, the location of the injury on the body of the victim, the number of injuries inflicted, the force used, evidence of any motive and the extent of planning, if any.
28. In either situation, it is necessary to examine the course of conduct of the accused:
29. In this case:
30. We consider that such an examination of the course of conduct of the appellant prior to, at the time of, and subsequent to, the act of killing the deceased would have created a reasonable doubt as to whether the appellant intended to kill the deceased.
31. We find, with respect, that the learned trial judge erred in law by insufficiently examining the appellant’s course of conduct and placing too much weight, in the absence of evidence, on the presumed motive for the appellant wanting to kill the deceased. We uphold the second ground of appeal.
CONSEQUENCES OF UPHOLDING A GROUND OF APPEAL
32. We consider, pursuant to s 23(1)(a) of the Supreme Court Act that the verdict of guilty of wilful murder is unsafe and unsatisfactory, and pursuant to s 23(2) of the Supreme Court Act, that a miscarriage of justice has occurred.
33. This means that the verdict of guilty of wilful murder must be quashed under s 23(3) of the Supreme Court Act. As to other consequences, the Court has various options available under ss 27 (powers of Supreme Court in special cases) and 28 (new trial) of the Supreme Court Act.
34. Section 27 states:
(1) If it appears to the Supreme Court that an appellant, though not properly convicted on some charge, or on some count or part of the charge, has been properly convicted on some other charge, or on some other count or part of the charge, the Court may—
(a) affirm the sentence passed on the appellant; or
(b) pass such sentence in substitution for it as it thinks proper and is warranted in law by the verdict on the charge or on the count or part of the charge, on which the Court considers that the appellant has been properly convicted.
(2) Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts that proved him guilty of that other offence, instead of allowing or dismissing the appeal the Court may—
(a) substitute for the verdict a verdict of guilty of the other offence; and
(b) pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity.
(3) If on appeal it appears to the Supreme Court that although the appellant committed the act or made the omission charged against him he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, so as not to be responsible for it according to law, the Court may—
(a) quash the judgement given at the trial; and
(b) order the appellant to be kept in strict custody in the same manner as if that fact had been found under Section 592 of the Criminal Code.
35. Section 28 states:
(1) If on an appeal against conviction, the Supreme Court thinks that—
(a) a miscarriage of justice has occurred; and
(b) having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,
the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.
(2) Where a new trial is ordered, the Supreme Court may make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail.
36. The options available in the present case are:
(a) enter a verdict of not guilty of any offence (s 23(3)); or
(b) substitute for the verdict set aside a verdict of guilty of any other offence of which the appellant could have been convicted at trial (s 27(2)(a)), then pass a substitute sentence if it is proper and warranted (s 27(2)(b)); or
(c) order a new trial (s 28(1)).
37. Here, the appellant could have been convicted on the indictment for wilful murder, by virtue of s 539 of the Criminal Code, of the alternative offence of murder, which requires proof of intention to cause grievous bodily harm.
38. We are satisfied that the evidence before the National Court as to the nature of the injuries inflicted by the appellant on the deceased and the circumstances of the incident were sufficient to prove beyond reasonable doubt an intention on the part of the appellant to cause grievous bodily harm to the deceased. Therefore it is appropriate to enter under s 27(2)(a) of the Supreme Court Act a substitute verdict of guilty of murder under s 300(1)(a) of the Criminal Code.
39. We consider that a lesser sentence is proper and warranted in law. Under s 27(2)(b) of the Supreme Court Act we will substitute the original sentence of 15 years with a sentence of 12 years imprisonment (less the pre-sentence period in custody).
ORDER
_________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent
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