Regina v Tara [2005] SBHC 156; HCSI-CRC 353 of 2004 (16 September 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 353-04

REGINA

V.

ENOCH TARA

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 8th - 15th, 18th, 22nd August 2005
Date of Judgment: 16th September 2005

P.Little and Ricky Iomea for the Crown
M. Anders for the Defendant

Palmer CJ. The alleged murderer, Enoch Tara (hereinafter referred to as "the Defendant") is the father of the victim, Jacinta Lusi Nago (hereinafter referred to as "the Deceased"), his child of only 7 months at the time of her death. Prosecution alleges the Deceased was struck with the blunt edge of a bush-knife which the Defendant was carrying with him at that time on the back of her head which caused a fracture to her skull and subsequent damage to the brain causing internal bleeding and subsequent death later on the same day, Saturday 9th March 2002. The incident occurred in the morning, she died in the evening around 8.00 o’clock. The Doctor’s Post-Mortem Report[1] ("the Report") disclosed a "...transverse oriented linear 9 mm fracture through the left lateral edge of the occipital bone", which "...indicates that blunt force trauma has been applied to this area."

The Defendant denies hitting the child with his knife; initially raising the possible defence of an accident, in his statement dated 16th March 2004 made to Police (Exhibit 9) and during examination in chief, but in cross examination and re-examination completely denying the allegations. He says the allegations were concocted by his wife, Jocelyn Annie Asali ("Jocelyn"), manipulations of the truth, born of deceit and had no truth in them.

The Issues for determination

The crucial issues for determination pertain to the question whether the Defendant had a knife in his hand when he took the Deceased from Jocelyn or whether he put the knife down first before taking the baby, and whether he struck the Deceased with the knife he had in his hand? An important issue also which arises, on the undisputed findings in the Report of Doctor Malcolm Dodd ("the Doctor")[2] of what he described as a single fresh fracture towards the left side of the skull of the Deceased, pertains to the likely cause of that fracture and his expert opinion that it was most likely the cause of death of the Deceased.

Agreed facts

It is not in dispute that the child had not been well at the time of the alleged incident and was being carried by Jocelyn when the Defendant climbed into the house. It is not disputed that when the Defendant climbed into the house, he was carrying his bush knife with him. It is also not in dispute that Sabella Nae ("Sabella") an aunty of Jocelyn was also present in the house at that time. These are the two crucial witnesses to the alleged actus reus.

It is not in dispute that by the time the child was taken over to Lelegia Aid Post ("Lelegia") and subsequently to Konide Clinic ("Konide"), her condition had deteriorated for the worse. Sabella described her condition as eyes turning white, pupils constricted and the baby struggling. Another witness, Ida Nele ("Nele") told the court that the baby’s eyes were turning around and her body shaking and eventually deteriorating to the point where she observed only the hands opening and closing, the pupils withdrawn with only the whitish part of the eyes visible and the baby weak. Witness Florence Dedei ("Florence") nurse aid at Lelegia, told the court that when she saw the child she was stiff with the pupils absent or couldn’t be seen and the child unable to cry. The nurse at Konide, Wendy Kikolo ("Wendy") also made similar observations. She described the baby’s condition as in a "fitting state"; body stiff not moving, with her eyes rolled up.

The child died at about 8.00 pm in the evening not long after her return from Konide and was buried on Sunday 10th March, the following day.

Much of Dr. Dodds observations of the skeletal remains of the Deceased were not in dispute. His conclusions however were the subject of strenuous cross examination by Mr. Anders Counsel for the Defendant in an effort to dislodge any suggestions that the child died from the fracture identified at the left lateral edge of the occipital bone.

Facts in dispute

The essential fact in dispute relates to the question whether the Defendant had a knife in his hand when he took the baby and whether he struck the baby with the blunt edge of the knife to the back part of her head or not. The defence is that he did not hold the knife when he carried the baby but that if I do not accept that proposition then it was accidental.

Findings on the disputed facts

Was the Defendant holding a knife when he took the Deceased from Jocelyn? The only witnesses from prosecution side directly on this point were Jocelyn and Sabella apart from the Defendant himself. Both stated that the Defendant carried a bush knife when he went up into the house. I quote from Jocelyn’s evidence:

"Tell us what happened?

He came with a knife.

He came only two steps on the ladder.

Describe the knife?

He came holding the knife with his right hand. It is a long knife. It is a big knife the size for ladies. (about half a metre).

It is a bush knife.

Have a look at this knife?

This is the knife.

Look at the handle.

One side is missing.

How was the handle on that day?

It was still complete.

Sabella’s evidence on this point is as follows:

"When you were sitting there where was Jacinta?

She was carrying Jacinta on her backside, Jocelyn’s backside.

What happened?

Enoch came in. He came in and asked us "wanem nao you falla cookim"?

He was talking to us angrily. He was already in the house. He swung the knife backwards. It was a bush knife we use in the garden.

How long is it?

About half a metre. Arms were raised in the air.

He used his right hand. He was walking towards us.

How far was he from the cushion chair?

He was about two or three steps from us."

In cross examination Jocelyn maintained her view of what happened. Sabella also maintained her view that she did not see what happened after the Defendant came in with his knife until some time had lapsed before she opened her eyes again.

The Defendant does not deny/dispute that he had a knife when he came into the house. During his examination in chief, he actually admitted holding the knife when he took the baby confirming what Jocelyn and Sabella say. I quote:

"My wife was holding our child. I went inside the house because I wanted to carry my child before I went to work.

My wife stopped this. Then I said let me carry her first before I go to work. She stopped this. She said go and make her food and bring this. So I said no you go and make food for the baby and I took baby from her.

Was this during the argument?

Yes.

Did you have anything in your hand?

Yes I had my knife in my hand. I took baby from my wife. I did not have any intention to hurt my child because she was sick and I loved my baby. I was worried about my baby because she was sick. I wanted to carry my baby."

In his cross examination and re-examination he again confirmed taking a knife with him into the house, but this time denying that he held the knife in his hand when he took the baby from Jocelyn. In so far as the issue of entering the house with a knife in his hand is concerned, I am more than satisfied Defendant had a knife with him.

The crucial contentious issue in this case however did not become clear until cross-examination of the Defendant when he expressly denied holding the knife when he took the baby from Jocelyn. This appears to be a sudden diversion from the initial line of defence because the cross-examination conducted on his part of prosecution witnesses had been pitched on the basis that the Defendant had no intention in harming his baby and that because they struggled when he took the child, it was possible the knife or its handle may have hit the head of the child. This line of defence however became immaterial when he gave evidence and completely denied holding his knife when he took the Deceased. Jocelyn on the other hand maintained her evidence that whilst they may have struggled for the baby when the Defendant took her, he raised his knife in the air and brought it down to strike the Deceased with it.

During strenuous cross-examination by Mr. Little, the Defendant denied holding the knife in his hands when he took the baby from the mother. He told the court that he put the knife first on the wall of the house before carrying the baby. When confronted with his statement made under caution to Police on 16th March 2004 (Exhibit 9), in particular his answer to Question 20, in which he had expressly admitted to Police holding the knife in his left hand, he responded by saying that he must have forgotten and was not sure at that time of what happened but that he was now sure he did not have the knife in his hand. When pressed about the issue in cross-examination he reiterated that he did not have the knife in his hand.

In re-examination by his Counsel he made it absolutely clear that he did not have the knife in his hand when he carried the baby.

Did he hold the knife in his hands when he took and carried the baby? Who is telling the truth in this case; who should be relied on?

Jocelyn’s evidence

The defence submits that Jocelyn’s evidence should not be relied on as she is a dishonest witness and had reason to lie and implicate the Defendant. That from the beginning she did not want him and wanted to get rid of him. Defence point out the delay of two years it took for this case to be reported to police and only in the context of a recent assault and after it seems the parties have separated. The second ground raised, that of the continuing relationship with the Defendant is tied to the first ground. Defence says the actions of Jocelyn simply do not support any suggestions that the Defendant killed the Deceased. If he did so, why didn’t Jocelyn report the matter any earlier? Why didn’t she mention this to any of the nurses or any close friend or confidant. This was a significant event, resulting in the death of their child. In the least, one would have expected her to have mentioned this to the nurses or others.

Whilst the delay and behaviour of Jocelyn may be described as unusual, strange or unexpected, it is not exceptional. It must be borne in mind always that the family unit is one of the closest relationships there is, a fortiori, between husband and wife. It can also be one of the most complicated relationships there is and we must be careful in not laying blame criticism or becoming judgmental too easily on why this was not done or was done in this case. The background circumstances of their relationship in this case would have made things even more difficult for the parties to get along, especially where one of the parties was not interested in getting married but was compelled to do so. This came out clearly in the evidence, that Jocelyn was not interested in getting married to the Defendant but that it was arranged and imposed upon her. This would explain the problems and arguments they encountered in their marriage from the start.

I do not think it should be regarded as exceptional or so unusual that this case was not reported until a delay of two years had elapsed and even after another child had been born to that relationship. The truth has a way of coming out and will always come out even if it takes years. It is not unusual to hear of crimes covered up by people eventually come to surface many years later and charges raised. Each case must be considered on its own facts and be tested on the evidence presented to any court. I do not consider the delay factor and the continuing relationship after the event to be significant so as to tarnish the credibility of Jocelyn’s evidence.

Defence also attacks the credibility of Jocelyn by referring to two earlier statements she made to police which they say contained inconsistencies. In her first statement to police taken on 7th March 2004 (Exhibit 5), she describes how the Defendant took the child and struck the child on the bottom part of the neck. I quote:

"...he bow down and grab our daughter from his right hand supported by his left hand and lift up above me, then he hold out the baby by his left hand facing her backside and the knife from his right hand, turning the back edge of the knife not sharpening and cut behind from the bottom neck of the baby."

In her second statement, dated 8th April 2004, again reiterated that the Defendant approached her and the baby in an aggressive manner and lifted the knife to strike at them. She did not actually describe the Defendant bringing the knife down on the Deceased. It was only towards the last page (page 12) of her second statement that she reiterated and indicated that the blunt side of the knife struck the back neck of the child.

In her evidence on oath before this court, she basically repeated how the incident occurred and has been virtually consistent with the version given in her first statement. I quote:

"When he came to the room what happened?

When he came in we struggled for the baby.

What did he do and what did you do?

He came and swung the knife backwards and said give me the baby and he said I will kill you if you do not give me the baby.

Then I gave him the baby. He just pulled the baby out of my hands. He held the baby with his left hands. He took the baby faced it backwards and whipped the baby. I saw him whipping with the knife.

The front side or flat side?

The blunt side of the knife.

What did you do?

I did not say any word I just remained quiet. I just called for mother Nae to come.

Did you see the knife hitting the baby?

When I saw him swinging the baby I just bent down because I was frightened. I just screamed and bent down. I was then quiet after that.

Did you look up again?

Then he gave the baby back to me. The baby was already stiff, only the white part of her eyes can be seen, the black part cannot be seen and only the right hand and right leg were shaking.

Did he say anything?

Yes. He said here’s your baby still alive."

It has sought to be submitted in court before me that what was described in evidence was different from what was stated in her first statement. Unfortunately I do not find that to be the case. The evidence merely sought to describe in detail and demonstrated what she stated in her first statement took place. That when he held the baby with his left hand he made her to face downwards before striking her with the knife in his right hand on the back part of her neck. I find nothing impossible about that demonstration. To the contrary, I find this to be entirely consistent with the description in her first statement and consistent throughout her sworn evidence in court. I find her evidence on this crucial issue to be consistent. As to her description in her second statement, last page, it is important to note that her description of the knife landing on the Deceased’s neck as not that hard, must be viewed in the context of the downward action or motion as opposed to the upward motion or raising of the knife. I find nothing demonstrably inconsistent with her observations as to what happened.

In her evidence on oath she maintained her view that she looked down at the crucial moment and so did not see the actual impact taking place. She was very clear however about her observations as to what happened immediately before and after the fatal impact and where the knife she alleged landed or struck. Her crucial evidence on this crucial bit has never been dislodged or discredited.

If there were inconsistencies in her pre-trial statements, these are confined to peripheral issues either what happened before the incident or after. I am not satisfied those inconsistencies/variations can be expanded/extended, regarded as so significant so as to amount to manipulations of the truth and born of deceit. During cross examination for instance she admitted as not being true what she told the Police in her first statement that the child had died after being struck at the back of the neck area and that the Defendant ran away on the next day. It is important to bear in mind that it is a matter for me as the trial Judge to determine on the evidence before me what weight should be attached to that pre-trial statement, whether it is sufficient to dislodge any credibility this court should attach to all of the evidence of the Defendant, part of it or none of it. In her explanations before this court, Jocelyn explains she was quite angry with the Defendant when she gave her statement to the Police that day. Having heard and observed her in court it is still within the discretion of a trial Judge trying such case to decide whether such explanation is sufficient or whether through that admission she had tarnished her credibility to the extent that she should not be believed at all. I do not accept the submission that I should discount all of her evidence on the crucial matters. It is a matter for me to carefully consider all the evidence in their totality and context and decide whether to believe her on the crucial matters or not. Having had the opportunity of observing her giving evidence in court, I am simply not satisfied and do not accept the submission that her credibility had been tarnished to the extent she should not be believed about the crucial events of that day.

To appreciate the level of consistency in her evidence it is important to contrast this with the evidence of the Defendant. For instance, Jocelyn told the court that there was a struggle for the baby before the Defendant took her. In his evidence in chief, the Defendant said nothing about any struggle though he did say that when he asked to carry the baby she did not want to give the child to him. In cross examination however, he conceded that Jocelyn held onto the baby strongly when he took her. This is consistent with what Jocelyn alleges took place, that there was a struggle after which the Defendant grabbed the baby from the mother and hit her with the knife at her back part of her neck.

Jocelyn also told the court that when the Defendant came into the house, he appeared angry. Sabella also said this in her evidence.

Also what Jocelyn and Sabella told the court about Sabella calling for Nelle when she opened her eyes and noticed that the baby’s condition had changed abruptly had been confirmed by the Defendant in cross examination, that he heard Sabella call for Nelle.

Under strenuous cross examination, she maintained her version of what happened and has not been shaken as to the crucial matters regarding the acteus reus of the offence.

Sabella’s evidence

This witness is the Aunty of Jocelyn and was present at the time the incident happened though she told the court that at the crucial time of the alleged incident she had her eyes closed as she was frightened about what she had seen and perceived was going to take place at that moment. In examination in chief she told the court she saw the Defendant climbing into the house, at that time Jocelyn was carrying the baby on her backside. She saw the Defendant holding the knife with his arm raised as he approached Jocelyn. She described the distance as of about 2-3 steps (roughly about 2 metres distance) between them. She then closed her eyes. When asked why, she told the court she was frightened.

She told the court that when he came in, he asked them what they had cooked ("wanem nao iu falla cookim?"). This is entirely consistent with what Jocelyn had also stated in her evidence. Both said he said this in an angry tone or manner. The Defendant in cross examination also admitted that he said something about cooking when he entered the house, though in examination in chief he had not said this, other than to tell Jocelyn to feed the baby instead of him.

In cross examination when asked if there was a struggle for the baby she simply stated the obvious that she did not know because her eyes were closed. When asked if the Defendant had the knife in his hand when he took the child from Jocelyn, she again pointed out that her eyes were closed at that time.

It is important to keep in mind that any value to be attached to her evidence must necessarily be confined to the events immediately before she closed her eyes and after she opened her eyes.

In her evidence in chief she told the court that when she opened her eyes, Jocelyn was crying sitting on the cushion chair with the baby. The Defendant had left the house. In cross examination however when it was put to her that she had told police earlier that the Defendant was sitting with Jocelyn and had put his knife down, she agreed.

As to the baby’s condition she confirmed that she had undergone an abrupt change for the worse from which she never recovered. I quote:

"...the baby was collapsed only her eyes looked up but could hardly see the black part of the eyes. ...the eyes were not normal. ...I saw her eyes turn white ...."

She described the baby as struggling with only her hands moving. She pointed out that prior to that, although the baby was not in very good health, she was fine. This much, her evidence is consistent with that of Jocelyn. Although both conceded the baby was sick the sudden change was attributed to the actions of the Defendant.

It has sought to be suggested that there was an inconsistency regarding Sabella’s description as to how the baby was being carried at the time the Defendant arrived. She told police[3] the child was carried at the back of Jocelyn when the Defendant arrived. She maintained this in her evidence in court. It is important however to appreciate as well that in the same statement, she did say that when she opened her eyes, the baby was being carried in front by Jocelyn. I do not find this difference to be significant so as to discredit Sabella’s entire observations/evidence. It is possible she may have been mistaken. It is important to note that it is not disputed by the Defendant that at a certain point of time he carried the baby in his arms. His defence or evidence in essence is that when he did so he had put the knife down before carrying the baby. Even if what Sabella says is true, that the baby was carried on the backside of Jocelyn, it would simply mean that at some point in time the baby was taken/carried by the Defendant. According to Jocelyn’s evidence on the point, the crucial alleged act occurred after the Defendant had taken the baby from her. I am not satisfied as well accordingly that what Sabella says has been completely discredited. To the contrary I find her to be a truthful honest and frank witness as to the events that fateful day and in no way has it ever been suggested or indicated that she had sought to colour her evidence to suit or assist Jocelyn by virtue of the fact that she is her niece. I am satisfied she has come to this court with the sole aim of speaking the truth as to what she observed that day. I find no animosity in her evidence, in her demeanour attitude or behaviour in court. She is now quite old and frail and had to be assisted to and led out of court with difficulty but her mind and recollection of the events remained focused.

Observations of the baby’s condition before the alleged incident on Saturday?

It is important to bear in mind that at no time did Sabella and Nele deny that the child was not well on that day. They all conceded that the child had been taken to Talise for some custom medicine treatment where the baby would be wrapped in some leaves according to their traditional beliefs which they believed would assist in making the child’s neck to be strong. Nele told the court that some old women had wrapped the baby in some leaves in the morning of that fateful day. She told the court that although the child had not been well she was ok. She described her facial expressions as "small", meaning slow. In re-examination she confirmed that she saw the baby in the earlier part of the day and described her condition as ok and that she would smile if you make signs to (play with) her.

The mother of the child Jocelyn confirmed that they had gone to Talise for custom medicine to treat the neck of the Deceased as it was paralysed. In cross examination she confirmed that the child suffered from a fever which she attributed to her neck being not good (paralysed). She further told the court that on Friday she had been to the clinic as the child had collapsed during the night and that the baby had been seriously ill.

Sabela confirmed in her evidence that the child had been taken to Talise for some custom medicine as she had been sick and to be treated for her hands and neck to relieve her paralysis.

Another witness Uniece Rosa also confirmed the baby’s condition prior to the incident on Saturday that the child had not been well and had been taken to a clinic on a Thursday or Friday for treatment for stiffness. This was confirmed by her husband, Edmond Kataga who also told the court that the baby had been taken to Talise for custom medicine. He told the court that the baby couldn’t stop crying and had a fever.

I am satisfied it is not disputed that the child was sick at the time of the alleged incident. However, the crucial evidence from prosecution witnesses is that the child was not critically ill to the point of death or paralysis. Nele described the child as responsive. This is confirmed by Sabella and Jocelyn, that the child was o.k. before the alleged act.

Condition of the baby after the alleged act.

It is not in dispute that at some critical point in time, the condition of the baby changed abruptly. The crucial witness on the sudden change of the physical conditions of the baby came from the mother of the child and Sabella. Jocelyn told the court that when she looked up again the baby was already stiff, with only the white part of her eyes to be seen. He returned the baby to her and said words to the effect, "here’s your baby still alive". She also noticed that only her right hand and leg were shaking. The Defendant then walked out.

Jocelyn’s observations were confirmed in exactly the same terms by Sabella when she opened her eyes again. She described the baby as having collapsed, her eyes turning white, pupils constricted and the baby struggling.

What is crucial about their observations and which defence have not dislodged or raised any reasonable doubts in my mind pertains to their firm allegation and view as to the cause of the abrupt change to the condition of the Deceased. They have pointed to no other cause other than the Defendant’s action in striking the Deceased with the blunt edge of the knife he was holding.

Nele was the next person who arrived at the scene of the house after the incident after being called by her mother. She confirms that on arrival the baby’s eyes were turning around and her body shaking. She told the court that the baby’s condition deteriorated to the point where she observed only the hands opening and closing with the pupils withdrawn and only the whitish part of the eyes visible and the baby weak.

The observations of the nurse aid at Lelegia, Florence Dedei ("Florence") were consistent with what Jocelyn, Sabella and Nele had said, that when she saw the child she was stiff with the pupils absent or hardly seen and the child unable to cry. She told the court that she was under the impression that the child was affected by malaria as the mother simply told her that the child was sick. Under cross examination she told the court that whilst she examined the baby she did not examine the baby’s head as it was covered with a piece of clothe and she was unconscious and facing upwards throughout. She did not notice any swelling on her head.

The nurse Wendy Kikolo ("Wendy") at Konide Clinic, also made similar observations. She described the baby’s condition when brought to the clinic as in a "fitting state"; body stiff not moving, with her eyes rolled up. She also examined the baby but did not notice any injuries on her head. She did notice stiffness on the neck of the baby. When asked in cross examination if she asked what may have caused this, she told the court that the mother told her that the child was not sick but started having stiffness of neck when they started to argue. During cross examination it was sought to be suggested to her that in her statement to Police of 7th April 2004 (Exhibit 1), she had stated that the child seemed alright. When asked to explain what she meant, she told the court it referred to the child’s temperature, heart beat and respiratory system. The child’s fitting state however showed no change from the outset. She also told the court that the parents of the child continued to argue throughout the time they were with her.

In contrast, the Defendant’s account of what he did and what happened to be unconvincing. In chief, he told the court that after he had taken the baby from the mother he went outside the house but noticed the child was very sick and so returned the child to Jocelyn. He then went outside and sat in the kitchen thinking about his child and how sick she was. Not long after that, he heard his wife crying and when he checked, noticed that the child’s eyes had turned and were white and her body shaking. They then sought transport to rush the child to the clinic. When asked what he thought was the cause, he told the court he suspected malaria.

Under cross examination he maintained his version that the child’s condition changed when he was sitting in the kitchen outside after he had returned the baby to the mother. I find his version to be unconvincing and unbelievable.

Cause of death?

The defence in this case is that the child died from illness, possibly pneumonia and or malaria. The child was indeed treated by Florence and Wendy on that basis, that she had contracted severe pneumonia and or malaria. They were not told of any injuries on the back part of the neck/head of the child or what Jocelyn alleges the Defendant did. The symptoms displayed by the child they say were not dissimilar to someone who had contracted severe malaria or pneumonia it seems and so were never alerted to the possibility of any damage to the internal part of the brain through the use of blunt force trauma.

The incident with the knife was alleged to have occurred in the morning of Saturday 9th March 2002; the child died towards the early evening of the same day.

Post Mortem Report – Dr. Malcolm John Dodd.

Dr. Malcolm Dodds, a forensic pathologist ("the Doctor") performed an autopsy on the body of the child on 8th May 2004, two years after the alleged murder was committed. His report showed what he described as a "transverse oriented linear 9 mm fracture through the left lateral edge of the occipital bone", on the "unfused cranial plates" of the Deceased’s skull. The location of the fracture towards the back part of the left ear is significant because it is consistent with the location of where Jocelyn told the court the Defendant struck the Deceased with his knife.

In his explanations to the court regarding the strength of the skull of an infant, the Doctor stated:

"...The skull plate at the back of the head, the occipital bone is actually one of the stronger bones of a skull at that age compared to the bones on the side of the head which are very very thin indeed and in fact more pliable...."

When asked to comment about the degree of force required to cause such fracture, the Doctor told the court as follows:

"It is very difficult to quantify degrees of force in cases like this but the limited studies that have been done on models and also on infant cadavers would suggest that a certain degree of force is required, it’s usually not minimal or moderate, it’s more severe. You may see fractures from a drop from a height of say two metres or onto an irregular pointed object. But it requires, at this age, more force than you would expect a fracture a baby’s skull."

The learned Doctor pointed out that the fracture would have been in keeping with the scenario put to him regarding the blunt edge of a bush-knife being the murder weapon. Under cross examination when asked about the possibility of swelling, he pointed out that where a blow was made to the back of the head, where large muscles attach, any swelling and bleeding can be absorbed into the muscle rather than any outward bulging, so that it may not be immediately obvious after the injury or sometime later. As to the time frame for such an injury to eventually cause death, he pointed out this can take several hours to possibly a couple of days. As to the impact of say another illness, such as malaria, the learned Doctor pointed out as follows:

"But for the sake of argument, if a child is severely unwell from another cause, and you’ve suggested malaria, it’s possible that there may be muscle spasm as a result of that, possibly around the neck muscles which, at this age, are very strong in a young baby. That may cause the skull to be – and the neck to become more of a rigid system and less pliable and less likely to bend with applied force."

On the question whether the fracture occurred after death in the sense of having been caused by an artifact after death such as being broken up by tree roots or the action of insects or beetle’s feeding on the body, he told the court he could exclude that. As to the question whether the fracture occurred after death such as if the baby was dropped, he conceded he couldn’t exclude that. No evidence however has ever been produced to suggest that the child was dropped or any impact caused to the back part of her neck.

As to the question whether the injury may have been sustained in life and healed, the learned Doctor also discounted this on the basis that if the injury had been sustained during birth it would have long healed. There was however no evidence of that; the fracture described as a single fresh fracture. It was also suggested to the Doctor if the fracture may have been connected to the Leptomaningle cyst when the brain is yet to complete its growth but this was also ruled out as an exceedingly rare condition and the fracture would be different with "...perhaps a defect of the bone at the origin of the fracture site rather than a very, very short abrupt crack in a very hard piece of bone." It was also suggested if the action of weeds and insects after death in a confined space could have caused the fracture, but the Doctor again ruled this out conclusively, pointing out that this was an extremely short and very well defined fracture and through a considerable thickness of bones.

When it was suggested to the Doctor that there may have been more grammatic fractures than what is identified, the learned Doctor agreed it was a relatively small fracture but pointed out that unfortunately for this child it was a fracture which occurred over a very critical part of the skull overlying a very vital part of the brain where minor injury could lead to death.

When asked if it was still possible that death may have been caused by malaria after a couple of days, he did not discount that completely but pointed out he was impressed by the description of the neurological changes in the child. He told the court that the changes observed, fitting on one side of the body and the other side of the body being flaccid were more in keeping with an expanding lesion inside the skull such as an expanding blood clot or gross swelling of the brain as a result of blunt injury. His overall conclusive view was that the fracture was caused by a blunt force trauma which caused the demise of the child.

In re-examination, he further clarified the significance of the area around fracture site as follows:

"It’s a relatively small bone of the skull. It’s roughly triangular and it’s a fairly dense bone compared to the other bones of the skull at this particular age. If the injury had occurred around the front or the side of the skull it’s not uncommon the baby’s bones, of this age, to be quite flexible and sometimes act like a ping pong ball, they indent and then pop out again and you make it a small ring depression, a so called ponged fracture, but this part of the skull is relatively more resilient than other parts of the bone at this particular age and so I wouldn’t expect to see any deformation unless the force was exceedingly more forceful causing a crush and depression type fracture. What we have here is just a small literally uncomplicated crack in the bone."

Conclusions – cause of fracture? Cause of death?

The report of the Doctor and his expert evidence comprising observations and opinions as to the most probable cause of death in this child’s death must carry weight in the overall assessment of the cause of death and consequent link to the knife as the murder weapon and to the Defendant.

The learned Doctor’s evidence establishes a number of undisputable facts.

(i) That the fracture found on the Deceased’s skull could not have been caused by natural causes after death or in the decomposition process.

(ii) That it could not have been sustained during lifetime of the child, especially at birth as there was no healing process evident in the fracture. It was a single fresh fracture and more consistent with the conclusion that death occurred shortly thereafter; that is, the fracture caused the demise of the child.

(iii) That whilst it is possible it may have been sustained after death through a fall or application of other blunt edged instrument or object, there is simply no evidence of any such impact/fall or use of any other blunt instrument which may have caused such fracture after death.

(iv) That the most likely cause of the fracture was the application of blunt force trauma to that part of the skull.

(v) That the force needed to cause such fracture has been described as more severe and not minimal or moderate.

(vi) That in his expert opinion it was the cause of the demise of the child. That the child may have been ill with malaria would have enhanced the rigidity of the neck area making it more susceptible to the application of blunt force trauma and causing the fracture.

I have considered carefully the question whether Prosecution has discharged the onus on it to prove beyond any reasonable doubt that the fracture was caused by anything other than blunt force trauma and that it caused the demise of the child and must answer that question in the affirmative. I have considered the evidence of the defence and submissions/arguments of learned Counsel Mr. Anders on this point but cannot be satisfied that any reasonable doubt on the other hand has been raised in my mind that the fracture may have been caused by anything other than the use of blunt force trauma. The evidence of the learned Doctor regarding his observations is fairly clear and his conclusions or expert opinion based on those factual observations consistent throughout. When considered in the light of the scenario presented to him, his expert evidence and opinion is entirely consistent with the evidence of Jocelyn as to the location or area of where the blunt force trauma was applied, the type of weapon used and the consequent symptoms described or observed. This is not the case where each link of the chain of causation so weak, unclear or uncertain, so as to raise reasonable doubt in my mind as to the likely cause of death of the child. The 9 mm fracture, hardly wider than the width of a man’s little finger, speaks for itself and testifies of the force that would have been required to be applied to cause it to fracture. The only force alleged and evidence produced in this court as being the most likely cause has been none other than that alleged by prosecution, the use of the blunt edge side of the Defendant’s bush-knife. When the totality of the evidence is considered, it is clear in my mind so that I am sure that the cause of death was not malaria or pneumonia, yes the child was sickly, possibly malaria at that time, that is not in dispute, but the fatal act which turned the condition of the baby around suddenly, was the tragic blow with a bush knife, applied by the Defendant, witnessed by his wife, supported by Sabella and confirmed in the neurological history of what happened thereafter through the testimony of other witnesses whose evidence I have already adverted to in this judgment, and sealed (supported/confirmed) by the autopsy report, which established the existence of a single fresh fracture to the very same area of the head/neck area which Jocelyn had referred to/described in her evidence.

I have found the Defendant to be an unreliable and evasive witness. In his statement obtained under caution (Exhibit 9), he stated clearly that he was holding onto the knife when he carried the baby and provided explanation that if the knife had hit his baby, it was possibly the handle of the knife and accidental. In examination in chief, he said nothing of that, though he did admit to holding the knife when he took the baby and carried her. In cross examination however, he made a complete turn around and denied holding the knife when he took the baby from the mother; that he placed his knife on the wall of the house before handling the baby. When asked to explain in cross examination the inconsistency, he sought to explain that he was not sure and may have forgotten but that now giving evidence in court he was sure he did not hold the knife. In re-examination he maintained this version. I do not believe his explanations and account on this point.

I accept the evidence of prosecution witnesses on this point, especially that of Jocelyn having carefully considered issues raised as to her credibility and truthfulness. I am satisfied her evidence on the crucial facts of the alleged incident have stood the test of consistency and reliability and have been supported and consistent with the evidence of Sabella, the only other witness who was present at that crucial time. Though Sabella had her eyes closed for a certain period of time, her evidence as to what transpired immediately prior to and after she closed her eyes, has not been shaken or discredited in anyway during cross examination. It has not been shown otherwise or doubts raised as to why she closed her eyes at that crucial moment when she saw the Defendant climb up the steps to the thatched house[4]. She told the court that she had seen the Defendant approaching with a raised bush knife in his hand and had spoken angrily when he asked what they had cooked. She told the court he was about two-three steps away from Jocelyn and the baby when she closed her eyes out of fear. It follows it seems that if she had not anticipated anything frightening or bad to happen from the manner of approach of the Defendant, she would not have closed her eyes. The same thing can be said regarding Jocelyn when she looked down at the crucial moment before the knife struck the baby. Sabella’s reaction in shouting for Nele her daughter is consistent with what she observed on the sudden change that had come over the child during that period. I am satisfied their evidence can be relied on as to those crucial matters.

I am satisfied so that I am sure the child died from the single blunt force trauma applied to the back neck part of her head and that this came from the bush knife held by this Defendant.

Murder

The law on murder in this jurisdiction is clear. Sections 200 and 202 of the Penal Code provide the definitions of murder and the crucial ingredient of malice aforethought necessary to establish murder as follows:

"200. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.

202. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated—

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

One of the arguments raised before me at the closing submissions was whether manslaughter is open to this court for consideration. Prosecution says that is not possible in this case in view of the way the case for prosecution has been put and the way the defence has been put by the Defendant, that he was/could not be responsible for the fracture on the skull of the Deceased. It is not open to the Defendant to raise that manslaughter is possible on the ground that it is accidental as although that was initially raised in the caution statement made to Police, the Defendant categorically resiled from that when giving sworn evidence in court in cross examination and re-examination. I agree. Having made his bed he must lie on it.

Even if the Defendant’s actions may not have been caught under section 202(a) of the Penal Code as not having the intention to cause the death of or grievous bodily harm to his child, paragraph 202(b) makes it clear that knowledge of the act which caused death "will probably cause the death of, or grievous bodily harm " will suffice. Any adult who uses the blunt side of a bush knife and strike it at the back neck of a child cannot fail to realise that such action will probably cause the death of or grievous bodily harm to such child. The Defendant cannot have failed to realise, that striking the back part of his child with the blunt edge of his bush knife will probably cause the death of or grievous bodily harm to his child. In this case, the evidence has been conclusive, supported by the expert evidence of the learned Doctor, which I do not need to rehearse.

This is a tragic case and it has not been easy to reach this decision bearing in mind the background circumstances surrounding the unhappy marriage from the beginning, of this Defendant and his wife, Jocelyn and which resulted in the tragic death of the Deceased in a moment of anger not so much directed at the child as at Jocelyn. The child was caught in the middle of their unresolved marital problems and difficulties. Provocation has never been run or raised as a defence in this case and so that is not open to this court for consideration.

In passing mandatory sentence of life imprisonment, this may be a case suitable for consideration for pardon under section 45 of the Constitution at the appropriate time.

I find the Defendant, Enoch Tara guilty and convict him of the murder of Jacinta Lusi Nago on 9th March 2002 and sentence him to imprisonment for life.

The Court.

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^[1] Report dated 8^th May 2004 of Dr. Malcolm John Dodd MB BS (Melb); FRCPA; DMJ(Path);Assoc. Dip. MLT; MACLM; AAIMLT; FACBS; Grad. Cert. Health Prof. Ed. (Monash).
^[2] (ibid)
^[3] Statement dated 7^th April 2004 (“Exhibit 7”)
^[4] see photo no. 5 of Exhibit 2