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State v Hiwi (No 1) [2004] PGNC 252; N2505 (5 February 2004)

N2505
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1487 OF 2002

THE STATE

-V-

JACOB TUGUBE HIWI

MADANG : SAWONG J

2003 : 16, 17 & 18 DECEMBER
2004 : 05th FEBRUARY

CRIMINAL LAW - Murder - Accused kicking deceased several times with boots in abdominal area

CRIMINAL LAW - Murder - Intent to cause grievous bodily harm - s. 300(1)(a) Criminal Code Act, Ch. 262.

FACTS:

The accused and the deceased were part of a group of men gambling for money. As part of the gambling the two had a side bet. During the course of the gambling they had an argument as to who had won the said side bet. They fought and the accused assaulted the deceased who fell on the ground, whereupon the accused proceeded to kick him. The deceased suffered serious injuries including a rupture of a normal spleen.

Counsel:

MR. M. RUARRI, for the State

MS. A. TURI, for the Accused

05th February, 2004

SAWONG J: The accused stands trial on a charge of murder. He has been indicted under s. 300 (1) (a) of the Criminal Code Act, Ch. 262.

The allegations were that in the course of gambling the accused and the deceased had an argument. In the course of the argument the accused assaulted the deceased and the deceased fell to the ground. As he lay on the ground the accused kicked him several times in the various parts of his body and caused him injuries which eventually led to his death. The State alleged that at the time of kicking the deceased, the accused intended to cause grievous bodily harm to the deceased.

The State’s evidence consisted of the sworn oral evidence of Kuruba Kibuli, Kamutai Kabia and Gabriel Waso. In addition the Post Mortem report was also tendered and accepted into evidence by consent. Further piece of evidence for the State consisted of a pair of black boots alleged to have been worn by you, which the State alleged to have been used to kick the deceased.

The accused gave sworn evidence. In addition he called Tom Rola who also gave sworn oral evidence.

I don’t intend to set out in any great length all the evidence but I intend to summarise the relevant parts of each of the witnesses’ evidence. I deal firstly with the State’s witnesses. The first witness for the State was Kuruba Kibuli. She was an eyewitness. She gave her evidence in pidgin.

She said that on that evening, she was sitting about a meter away from where the accused, the deceased and other men were gambling. At that time she was selling betel-nuts and cigarettes. She said there were a lot of people crowding around in the vicinity. The gambling was at the back of house No. 20 at village No. 1 at Ramu Sugar. She said there was a security light at the back of the house, which was a florescent tube under which the people gathered and were gambling and other activities.

She gave detailed evidence of how the incident started. She said that both the accused and the deceased were playing card for money and in the course of the game they had an argument. In the course of the argument, she saw the accused pull the decease by the collar of his shirt, forcing the deceased to fall to the ground. When he was on the ground the accused then kicked him twice on the left side of the body. She said that at the time the accused wore black boots with which he kicked the deceased. She said the accused kicked the deceased very hard.

Ms Turi suggested to her that the accused was suffering from TB and was therefore weak and couldn’t have assaulted the deceased in the manner described by the witness. The witness said that she did not know if the accused indeed suffered from TB, but he witness maintained her evidence that she saw the accused kicked the deceased twice on the left side of his body. Despite, Ms Turi attempts to discredit her and destroy her evidence in cross-examination, the witness insisted that she was sitting close by and saw clearly what had happened that she was not lying. In my view this witness gave evidence confidently and consistently. Her demeanour was good.

The next piece of evidence came from Kamutai Kabia. His evidence is similar to the evidence of the first witness. He too was an eyewitness. He too was standing in close proximity of the accused and deceased when they fought. He too said he saw clearly how the accused assaulted the deceased. According to this witness, the deceased and the accused argued over some money, and in the course of the argument the accused grabbed hold of the deceased by the collar of his shirt and punched him on the face and he fell down. As he was lying on the ground, the accused then kicked him on the face, once on the side and once in the stomach area. He said, that there he felt sorry for the deceased and tried to stop them from fighting. He said he saw blood coming from the face of the deceased and the deceased was struggling and walked in a staggered manner and holding onto his stomach area as he left the scene.

He confirmed that he saw the first witness at the scene and that she was sitting and selling her things about a metre away from where the accused and deceased were gambling. He also said that he saw the accused hit the deceased on the left side of his stomach area. He said that he did not see anyone else assaulting the deceased. In cross-examination, he did not deviate from his evidence. In fact his evidence was not destroyed at all and it remained intact.

The final witness for the State was Gabriel Waso. His evidence in general is also similar to the evidence of the first two witnesses. He too is an eyewitness. His version of the crucial parts is that he was asleep in a small wall-less hut not far from where the gambling was taking place. As he was sleeping, he could hear noises of people arguing, so he got up and stood and saw the accused punch the deceased on the face, and as he lay on the ground, the accused kicked him twice on the left side of his body with safety boots. He said that although there were people moving around, he was still able to see clearly how the accused assaulted the deceased. He described the kick as hard. He then gave evidence of Kamutai and others trying to stop the decease and accused from fighting. He said as a result of the assaults, he saw that the deceased was bleeding from the nose and he was staggering around.

Despite attempts to destroy his evidence in cross-examination, his evidence remained intact.

The next piece of evidence for the State is the Post Mortem Report. This was tendered and accepted into evidence by consent. The post mortem was conducted by Dr Solomon Viyufa. The doctor in his report said that upon his external examination of the body he found "left shoulder bruises" on the chest and the back he found "left blistering lesions". Upon internal examination he found in the skull vault "parietal scalp haematoma" i.e. a large bruise or collection of blood outside the skull. There was no fracture of the skull. He also found that the spleen had a tear at the hilar region. The doctor concluded that death resulted from the findings referred to above were conclusive of physical assault and/or blunt abdominal trauma. He further stated that there was no immediate imminent cause of death.

The final piece of evidence was the tending and accepting into evidence a pair black boots worn by the accused on the night, which he is alleged to have used to kick the deceased with as the deceased lay on the ground.

The defence evidence consisted of the sworn evidence of the accused, Tom Rola and some pieces of evidence of parts prior inconsistent statements of several state witnesses. I also propose to summarise the evidence.

In your evidence you confirmed that you, the deceased and several other men were in a group gambling at the back of house 20 at village No. 1 on 5th June, 2002. He also confirmed that in the course of the gambling, the two of them argued and they both assaulted each other. According to you, the deceased assaulted him first and he fell down and lay unconscious, but he woke up and took a piece of wood and assaulted the deceased’s father-in-law. You said you didn’t kick the deceased, although you did admit that you had assaulted the deceased on the facial area. After that deceased left the scene. He said that by then the deceased had already left the scene. He then also left the scene with his wife and went home and slept. The next morning you heard about the death of the deceased.

In cross-examination he told the court that he did not kick the deceased at anytime at all during the fight. He also confirmed that no one else assaulted the deceased that night and that he did not see any blood on the deceased’s nose or mouth area. You maintained your evidence that you didn’t kick the deceased as maintained by the State’s witnesses.

The next witness was Tom Rola. His evidence in summary was that he stood close to where the accused and the deceased and others were gambling. He was an eyewitness. According to him, he saw the accused and deceased argue and saw the accused throwing the first punch at the accused and assaulting him on the mouth. As a result the deceased had blood coming out of his mouth area. They then struggle and they both fell down, but he said he then pulled them apart and he tried to stop the fight.

In cross-examination he confirmed that the accused first punched the deceased. He said that the accused slapped him first when the deceased was sitting down and when the deceased stood up the accused assaulted him again. According to this witness the deceased did not fall down to the ground when he was assaulted by the accused, because he (the witness) stopped him from falling to the ground. However he said he and the deceased did fall down to the ground when they were pulling a rubber hose. He maintained his evidence that the accused didn’t kick the deceased when the deceased, was lying on the ground.

Both counsels submit that there are two principle issues to be determined in this case. First, whether or not the accused caused the deceased’s death. Secondly, whether there was intent to cause grievous bodily harm.

Counsel for the accused, Ms Turi submitted that on all the evidence there. There was evidence that you had indeed assaulted the deceased, but there was insufficient evidence to prove that there was any intent on the part of the accused to cause grievous bodily harm. Consequently, she submitted that he should be acquitted on the charge of murder. She submitted that the injuries caused to deceased didn’t show any intention to cause him any grievous bodily harm. In the alternative she submitted that he could be convicted on the alternative count of manslaughter pursuant to s. 539 (2) of the Criminal Code Act, Ch. 262.

Mr Ruarri, counsel for the State submitted that there was strong and credible evidence to convict the accused for murder. He submitted that there was strong credible evidence that you had caused his death and that there was evidence to show when you assaulted him you intended to cause him grievous bodily injury. Consequently you should be convicted for murder. However, he submits that if there is insufficient evidence to prove intention to grievous bodily harm then, on all the evidence it was open to court to convict the accused on the alternative charge of manslaughter pursuant to s. 539 (2) of the Code.

Mr Ruarri submitted that there was no doubt that the accused had in-fact assaulted the deceased. The evidence from the State witnesses, the accused and his witnesses agree on this aspect. He further submitted that the State witnesses who were eye witness were observing from very close proximity under sufficient lighting saw the accused kicking the deceased several times in the left side of the stomach or abdominal area. He submitted that the State’s witnesses were consistent on this aspect, although they do vary in their testimonies in regard to the number of kicks that you delivered. He submitted that the variance was because the witnesses observed the kicking at various stages and because there were a lot of people standing around. He submitted that the court should accept the evidence of the State witnesses because they were consistent and truthful.

He submitted that the accused’s evidence should not be accepted, because he was not telling the truth. He was lying because he was facing a serious charge. He further submitted that the accused’s evidence was unreliable because the accused evidence contradicted his own witness’s evidence in two important aspects.

First the accused in his evidence said that the deceased was the first to assault him. But Tom Rola said that it was the accused who first assaulted the deceased. His evidence is consistent with the State’s witnesses’ evidence on that aspect.

Secondly, the accused said he didn't see any blood on the deceased’s facial/mouth area. However, Tom Rola and the State witnesses gave a different version. They said that they saw blood coming from the deceased’s mouth area immediately after the accused assaulted him.

He therefore submitted, your evidence couldn’t be accepted because your own witness gave different evidence from you on these two aspects.

He submitted that given the evidence, there was overwhelming evidence that the deceased died as a direct result of the attack on him by the accused. There was no dispute of the accused assaulting the deceased that night. No one else assaulted the deceased that night. And there was no evidence suggesting that the deceased might have died from falling on some object. Further the post mortem report confirmed, the evidence of State witnesses evidence.

He further submitted that when the accused assaulted and kicked the deceased, he intended to cause him grievous bodily harm. This is the proper conclusion on this aspect because of a number of factors.

First is that, when the accused kicked the deceased in the abdominal area, he was wearing heavy safety boots which he used repeatedly. The kicks were landed on the left side of the abdominal/stomach area.

Thirdly, the force applied was very hard as the accused was angry. Fourthly, the accused could have continued attacking him, had it not been for Tom Rola and Kamuti. Fifthly, even after the deceased had left the scene, the accused and other followed him to his house to further fight with him. Moreover, the medical report shows that blunt object was used or applied to the body. The spleen which was ruptured was not enlarged. Mr Ruarri submitted that all the above factors indicate that when the accused attacked and kicked the deceased, he intended to cause grievous bodily harm to the deceased.

I now turn to address the two issues which I have posed earlier. In my view the two issues are interrelated and I therefore propose to deal with them together. But before I attempt to resolve those issues, it is quite clear to my mind that there are certain facts from all the evidence that are not in dispute. I find the following facts are not in dispute.

On the night of 15 of June 2 002, between 10pm and 12 midnight, the accused, the deceased and several other men were in a group gambling. They were gambling at the back of house No. 20 at village No. 1 at Ramu Sugar. There was sufficient light coming from a fluorescent tube at the back of the said house. In the course of the gambling, the accused and the deceased had an argument over a side bet. In the course of the argument, the accused hit the deceased around the mouth/face area. There is also no dispute that the deceased was found dead the next morning. There is also no dispute that no one else fought with or assaulted the deceased that night.

The question then is who caused the deceased’s death.

Several State witnesses gave evidence said that the accused not only assaulted the deceased on the facial area but also kicked him several times on the left abdominal area as he lay on the ground with black safety boots.

The State’s three eyewitnesses, who gave that evidence, were observing from a very close proximity under clear lighting. They saw the accused kick the deceased on the left abdominal area several times. The first and third witness said that they saw the accused kicked the deceased twice on left stomach/abdominal area. The second witness saw the accused kick him once on the left side of the abdominal area. The medical report showed that there were bruises on the left shoulder on the chest area and left blistering lesions on the back area. The spleen which is, located in left abdominal area was torn. The medical report does not say that the spleen was enlarged. I conclude that it was normal. The doctor concluded that death arose from the various injuries he found on the body of the deceased. He found or concluded that the injuries were from physical assaults by someone who used a blunt object to inflict injuries in the abdominal and facial area. In my view all the evidence points to you. I have no reason not to accept or reject the evidence of State witnesses.

I accept the evidence of the State witnesses. They saw you. They know you. You are not a stranger and they were observing from very close proximity under clear lights. They were consistent in their evidence on the crucial parts of their evidence that they saw the accused not only assaulting him but also kicking him repeatedly with a heavy boot. The medical report confirms their evidence. I find that these were credible witnesses.

I do not believe accused’s version that he did not kick the deceased at all. I think he was lying to distance himself. His evidence cannot be accepted because his own witness contradicted him on several important aspects, which I have referred to earlier.

In my view, there is overwhelming evidence against the accused. He was the only one seen assaulting and kicking the deceased that night. No one else assaulted the deceased that night. There was no evidence to suggest that the deceased might have died from injuries sustained from falling on an object.

The injuries according to the medical report were evidence by bruises to the left shoulder, posterior blistering lesions, a large bruising on the outside of skull area, and the spleen was torn. The doctor concluded that the injuries resulted from physical assault and/or blunt abdominal trauma or bodily injury. The doctor concluded that death arose from a combination of those injuries. I infer from all these findings that impact was forceful. This was from the kicks applied by the accused with his boots with which he kicked the deceased several times on the left abdominal area as he lay on the ground. Such findings are in my view open on all the evidence before me. I conclude from the locations and nature of the injuries on the various parts of the body of the deceased that when the accused inflicted them, he intended to cause grievous bodily harm to the deceased.

For those reasons, I am satisfied that the State has proved beyond any shadow of doubt, the guilt of the accused. Accordingly, I find the accused guilty of murder and I convict him.
___________________________________________________________________
LAWYER FOR THE STATE : PUBLIC PROSECUTOR
LAWYER FOR THE ACCUSED : PUBLIC SOLICITOR