N2722

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 134 of 2003

THE STATE

vs

NIGEL BARNABAS

Lae	 : Manuhu, AJ
2004 : October 6, 7 & 21

RULING

Criminal law – Particular offence – Wilful murder – Intention to cause death – Intention to cause grievous bodily harm – Participation in group assault – Nexus between assault and death.

No case cited in the judgment.

Counsel:
R. Gankarch, for the State.
R. Inua, for the Accused.

21st October 2004.

MANUHU, AJ: This is a ruling on a no case to answer submission. There is no need to state the relevant principles as there is no controversy about them. The accused is indicted on one count of wilful murder. It is alleged that on 10th November, 2000, at Lae, the accused wilfully murdered one Dera Ravu, a national male person.

The prosecution alleges that between 7.00 pm and 8.00 pm on 10th November 2000, the accused was at Bumbu Compound with four to five others drinking beer. When the deceased walked passed them, they confronted him, dragged him to Gagola Trading and assaulted him with hands, bottles and legs. The deceased sustained injuries to his head which he died from. The State says that by assaulting the deceased in the manner described, they and the accused intended to cause his death.

Whether the accused is involved in the assault is an issue that concerns the accused. However, before I come to that, from the statement of facts, which was supported by evidence, no reasonable tribunal could find either that the assailants intended to cause the death of the deceased or intended to cause grievous bodily harm. Wilful murder involves the will to put an end to another person’s life, and the attack is usually premeditated. The evidence so far does not demonstrate that death was the desired outcome of the group assault. Intention to cause grievous bodily harm is usually demonstrated by the type of weapon used and the nature of injury sustained. Fisting, bottle throwing and kicking have rarely (if not never) been used to demonstrate intention to cause grievous bodily harm. In other words, if the deceased had not died, the accused would not be charged for attempted murder or grievous bodily harm. He would be charged for common assault.

There is, therefore, no evidence to support the element of the will to kill or the will to cause grievous bodily harm. Consequently, the accused cannot be lawfully convicted of wilful murder or murder. At this stage, the accused could only be lawfully convicted of manslaughter.

However, it has to be shown also at this stage that death was the direct result of the assault on the deceased. If it cannot be demonstrated that death was caused by the assault, the accused cannot be lawfully convicted for manslaughter.

Relevantly, the uncontested evidence shows that the assault took place on 10th November, 2000. According to the Medical Certificate of Death, the deceased died at 2.00 pm on 20th November, 2000, 10 days after the assault. According to Susan Biong, the deceased got admitted and received treatment on 12th November, 2000, two days after the assault. It would seem that the deceased died at 1.00 am on 15th November, 2000. Thus, there is inconsistency as to when the deceased actually died. Given this inconsistency, connecting the death to the assault is seriously undermined. Notice also that the deceased did not promptly seek appropriate treatment. Consequently, no reasonable tribunal could connect the assault with the death of the deceased. This means that the accused cannot lawfully be convicted for manslaughter.

However, even if the assaults caused the death of the deceased, it must be shown also at this stage that the accused participated in the assault. In his record of interview, the accused said he stopped the fight. It has to be remembered that the fight took place at 7.00 pm which was already dark. It has to be remembered also that the accused was earlier with other assailants drinking beer so that it is tempting to accuse the accused only because he was in the group. So, as to whether the accused assaulted the deceased, Meraro Kelly said she saw the accused slapped the deceased while Allasie Allan said the accused kicked the deceased. In view of the accused person’s explanation, it is crucial for Meraro’s and Allan’s appropriate evidence to be consistent. As it is, I do not know whether to accept Allan’s evidence or Meraro’s evidence. In the circumstances, I am also of the view that no reasonable tribunal could find that the accused assaulted the deceased.

Even if the accused is called upon to give evidence, from the record of interview and cross-examination of prosecution’s witnesses, he is going to say that he stopped the fight. And if Meraro and Allan cannot agree on what the accused actually did, the prosecution’s case is not going to improve by calling upon the accused to answer, however bad his evidence may be. In other words, the prosecution’s case has self-destroyed itself by Meraro saying one thing and Allan saying the other. In the circumstances, it is pointless to require the accused to give evidence on whether or not he participated in the assault.

I am ultimately satisfied that the accused is completely severed from criminal responsibility. That is, the accused has no case to answer on wilful murder, murder, manslaughter or common assault, and I acquit him. He is discharged from the indictment forthwith.

Accused acquitted.
____________________________________________________________

Lawyer for the State			:	Public Prosecutor
Lawyer for the Accused		:	Paraka Lawyers