N4984
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 870 OF 2007

THE STATE

V

CHARLICE LAMETE

Buka: Cannings J
2007: 7, 11, 12, 13, 15 September, 24 October

CRIMINAL LAW – trial – manslaughter – criminal negligence – whether death of new-born child caused by negligent administration of medicine prior to birth – whether child's mother killed the child – Criminal Code, Section 302 (manslaughter); Section 291 (definition of killing); Section 292 (death by acts done at childbirth).

The accused was charged with the manslaughter of her new born child, due to allowing another woman to negligently administer a drug through her vagina when pregnant. The baby was born the day after administration of the drug and died soon after birth.

Held:

(1)	The offence of manslaughter has three elements: (a) the accused killed the deceased; (b) the killing was unlawful; (c) the circumstances did not constitute wilful murder, murder or infanticide.

(2)	As to element (a): the question to ask, by virtue of the definition of "killing" in Criminal Code, Section 291, is whether the accused caused the death of her baby directly or indirectly by any means. A person is deemed to have killed a child if the child dies in consequence of acts or omissions done before its birth: Criminal Code, Section 290. Here, the consequence of administration of the drug was that the child died. Therefore the accused indirectly killed her child.

(3)	As to element (b), the killing was not authorised, justified or excused by law as the accused acted negligently by allowing the medicine to be administered, being reckless as to its consequences, and by not ensuring that she gave birth to the child in a secure environment. As to element (c), the accused was not charged with wilful murder, murder or infanticide.

(4)	The State proved the three elements beyond reasonable doubt. A guilty verdict followed.

Cases cited

The following cases are cited in the judgment:

Java Johnson Beraro v The State [1988-89] PNGLR 562
John Wanamba v The State (1998) SC551
The State v Charlice Lamete CR No 870 of 2007, 11.09.07

TRIAL

This was the trial of an accused charged with manslaughter.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

24 October, 2007

1. CANNINGS J: Charlice Lamete, the accused, is a 19-year-old woman. In the early morning of Sunday 1 April 2007 she was seven months pregnant and gave birth, near a river, at Arawa. She was alone. The baby was born alive but died soon after birth. Its gender is unclear from the evidence but that is not relevant to this case. On the afternoon before she gave birth, Charlice allowed another woman to insert some medicine into her vagina: six Cytotec tablets. Also known as Misoprostol, this is a drug used to, amongst other things, induce labour. Charlice Lamete now stands charged with the manslaughter of her baby. The State's case is that by allowing the tablets to be administered, she caused herself to give birth prematurely, and, combined with her failure to ensure that she gave birth in a secure environment, her actions caused the death of the baby. The State does not allege that she intended to kill her baby; rather that she negligently killed it. Her defence is that it was not the tablets that caused the baby to die but even if it was, she was an inexperienced person in a vulnerable position and she should not be found criminally liable for what happened. The State's case, presented by State prosecutor Rangan, was based on seven exhibits, including an extensive record of interview in which the accused explained how, when, why and by whom the tablets were administered. No witnesses gave oral evidence for the State. The defence counsel, Mr Kaluwin, made a no-case submission after the State closed its case, which I refused (The State v Charlice Lamete CR No 870 of 2007, 11.09.07). The accused then gave sworn evidence; as did a doctor based at Buka Hospital who gave evidence about the drug administered to the accused and the nature and risks of different methods of childbirth.

EVIDENCE FOR THE STATE

2. Seven exhibits were admitted into evidence.

Exhibit A – a statement by a friend of the accused, LJ, who says that the accused was staying at her place which is near a river the night before she gave birth. LJ says that when she arrived at the place where the accused gave birth, the baby was already dead.

Exhibit B – a statement by another friend of the accused, MJ, who says that she arrived on the scene shortly after the accused gave birth and saw the baby pull its last breath.

Exhibit C – a statement by another friend of the accused, RB, who says the day after the baby was born she and her husband went to the river where they saw that some young boys had dug up the body. RB says that she felt sorry for the baby so she took the body back to her house and made a short funeral and re-buried the body near her house. The next day the Arawa police came and dug up the body and took it away for their investigations.

Exhibit D – a statement by the police officer, Constable Sheena Cook, who interviewed the accused. She says that the accused admitted to committing the offence.

Exhibit E – a statement by the police officer, Probationary Constable Genevieve Kepino, who corroborated the accused's interview. She says that during the interview the accused freely admitted committing infanticide.

Exhibit F – the record of interview, which was conducted nine days after the accused gave birth. The accused says she is 19 years old of mixed Bougainville (Siwai) and Solomon Islands (Malaita) parentage, educated at Arawa Primary to Grade 7, single with no children and unemployed. It was true that she was seven months pregnant and used medicine to force her child out when it was not yet its right time. She paid K200.00 for the medicine and got six doses and allowed the woman from whom she purchased them to insert them in her vagina at 4.00 pm on Saturday 31 March 2007. She did not know the name of the medicine or how it worked. She started to feel labour pains soon after the medicine was inserted. She was by herself when she gave birth, standing, at the trunk of a big tree near the Bivo River at Section 10, Arawa, at 6.00 am on Sunday 1 April 2007. The baby was alive when born but did not cry and did not live for very long. When the baby died she buried it. Asked why she 'got rid of' her baby, the accused replied:

My aunties used to say all sorts of negative things about me, like, if I gave birth I would look after the child on my own and I wasn't capable of that, that's why I did it.

Exhibit G – photos of the baby's body and the gravesite.

Exhibit H – statement by Charles Tawora, HEO, Arawa Health Centre – states that he examined the 'dead foetus' belonging to a young mother who was alleged to have aborted her full term pregnancy with the aid of tablets, believed to be Misoprostol, inserted in her vagina. He reports that the cord and placenta were still attached, there were mild facial bruises especially near the cheekbone and a swollen neck, indicating force was used on it. He concluded that there was high suspicion that the baby was strangled. (Note, however, that the State has not alleged that the accused strangled her baby.)

EVIDENCE FOR THE DEFENCE

3. Two witnesses gave evidence and no exhibits were tendered. The accused, Charlice Lamete, said in examination-in-chief she was at school doing grade 7 until she got pregnant last year. She did not know that she was pregnant until she went to the hospital one week before giving birth. She said that she was still having her periods even though she was pregnant. When she discovered she was pregnant she told her aunty Ruama that she was going to commit suicide. Her aunty told her not to do that, she would give her some medicine to get rid of the baby. But she did not know the medicine was supposed to kill the baby. By "getting rid of the baby" she meant that the medicine would assist her in giving birth. She came to Buka to tell her father but he tried to kill her so she had to go back to Arawa. Her aunties also got cross with her. They told her she should go back to her mother's place in the Solomon Islands. She should not live with them anymore. Her aunty Ruama inserted the medicine. She gave birth the next day. She felt pains coming on soon after taking the medicine. She gave birth down by the river and was standing up at the time. When the baby was born it was breathing. She did not kill it. She did not strangle it or beat it in any way. She does not know the name of the medicine that was inserted in her. She did not know that it would cause the baby to die. If she had known that it could kill the baby she would not have taken it.

4. In cross-examination the accused said that she did not want the baby to die. Even when she was pregnant she still had her periods. Asked by the prosecutor whether she noticed her tummy getting big she replied that it was only at the start of this year that she noticed things but she thought she was just getting fat. She went to the hospital in March when she was feeling sick. Her mind was not steady when her aunty told her about the medicine she could take. There were a lot of arguments between herself and her stepmother. She was having a lot of problems at that time. When she got the labour pains she did not go to the hospital as her aunty had told her not to go there. She was not thinking properly and that is why she listened to what her aunty said. She did not want to get help from the neighbours. Asked whether it was true that she did not care whether the baby lived or died the accused replied that she thought her aunty would come to the river to assist her in the birth. She gave birth while standing up but did not realize that the baby would probably hit the ground and die. It was the first time she had given birth. When the prosecutor put to her that she wanted the baby to die as her father wanted to kill her and other family members were cross with her, she repeated that she did not want it to die. She acted on the advice of her aunty who told her that if she took the medicine, being seven months pregnant, the baby would be fine. Asked again why she had not gone to the hospital, she said that she did not know that she was experiencing labour pains. She agrees that she should have gone to the hospital and that the baby died as a result of her failure to go to the hospital. But she was not thinking properly at the time.

5. In re-examination she repeated that she did not realize that she was pregnant. The person who gave her the medicine did not say that it would kill the baby. She would not have taken the medicine if she had known that the baby would die.

6. The second witness was Dr Barnabus Matanu who is based at Buka General Hospital. He has been a medical practitioner for 26 years. In examination-in-chief he said that it is possible for a woman to believe she is having periods while being pregnant. Bleeding caused by pregnancy can be mistaken for menstruation. As to the drug Cytotec, Dr Matanu said that it is also known as Misoprostol and is used for two purposes. One is to alleviate stomach ulcers. The other is to induce labour; in a labour ward if the woman is overdue it can be used to facilitate birth. If it is used for the first purpose it is taken through the mouth. If it is used for second purpose it is inserted in the vagina and will facilitate contractions. Asked about childbirth, Dr Matanu said that the normal manner is for the woman to be face up with legs on stirrups and if there are complications a caesarean section can be performed. It is possible for a woman to give birth standing up but this is not encouraged; likewise with squatting, it is not encouraged.

7. In cross-examination Dr Matanu explained that a monthly period is only experienced by women who are not pregnant. There may be bleeding during pregnancy caused by the woman interfering with her vagina or abnormal formation of the fetus. At six or seven months gestation there can be natural bleeding. Bleeding can also be brought on by psychological stress or a sexual transmitted disease such as gonorrhoea. When a woman gives birth standing up, the baby is very vulnerable. If it falls it can be hurt.

THE OFFENCE OF MANSLAUGHTER

8. The accused is charged with manslaughter under Section 302 of the Criminal Code, which states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

9. This offence has three elements:

1	kill another person;
2	unlawfully;
3	under such circumstances as not to constitute wilful murder, murder or infanticide.

First element: killing another person

10. There is a definition of killing in Section 291:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

11. It is possible for a child to be killed by virtue of acts or omissions of other persons prior to its birth. This is made clear by Section 292, which states:

When a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do the act shall be deemed to have killed the child.

12. The baby in the present case was a person, a human being, capable of being killed. This is made clear by Section 290, which states:

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether or not—

(a) it has breathed; or

(b) it has an independent circulation; or

(c) the navel-string is severed.

Second element: killing must be unlawful

13. Section 289 explains what must be proven:

It is unlawful to kill a person unless the killing is authorized or justified or excused by law.

14. Sections 286 (duty of persons doing dangerous acts) and 287 (duty of persons in charge of dangerous things) are also relevant to the unlawfulness element. Section 286 states:

It is the duty of every person who, except in a case of necessity, undertakes—

(a) to administer surgical or medical treatment to any other person; or

(b) to do any other lawful act that is or may be dangerous to human life or health,

to have reasonable skill and to use reasonable care in doing the act, and he shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to observe or perform that duty.

15. Section 287 states:

(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

16. Those provisions show that a person who, for example, negligently administers or allows another person to administer drugs can be guilty of manslaughter if their negligent act or omission (which would be regarded as unlawful, thus satisfying the second element) causes the death of another person (constituting the first element, to kill).

Third element of manslaughter: no intention to kill etc

17. All that is necessary to prove here is that the circumstances in which the deceased was killed were not such as to amount to any of the other three homicide offences: wilful murder (where there must be an intention to kill); murder (which is committed where, for example, the killer intended to do grievous bodily harm to the victim or some other person); and infanticide (where a woman by wilful act or omission causes the death of her child under the age of 12 months).

Alternative verdicts

18. In the present case the person alleged to have been killed is a child of which a woman has recently been delivered. If the elements of manslaughter are not proven, the court can enter an alternative verdict under Section 540 (homicide of child, alternative verdicts), which states:

On an indictment charging the wilful murder, murder or manslaughter of any person, if on the evidence it appears that the person alleged to have been killed was a child of which a woman had recently been delivered, the accused person may be convicted of—

(a) the offence of infanticide [Section 301]; or

(b) the offence of preventing the child from being born alive by an act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child [Section 312]; or

(c) the offence of endeavouring by a secret disposition of the dead body of the child to conceal the birth [Section 313].

THE ISSUES IN DETAIL

19. Given the three elements the State has to prove, the issues in this case are:

1	Did the accused kill her baby?
2	If she killed the baby, was it an unlawful killing?
3	Has the third element of manslaughter been proven?

20. In light of the answers to those questions, I will then ask:

4	Has the State proven its case beyond reasonable doubt?

1 DID THE ACCUSED KILL HER BABY?

21. The defence counsel, Mr Kaluwin, submitted that the accused did not kill the baby by allowing the drug Cytotec to be administered to her. She only took the drug to expedite delivery of the baby. She did not want to kill the baby. She did not understand that the drug might have an adverse affect on the baby. The taking of the drug was not the cause of its death. The baby was born alive. She did not snap the baby's neck or do anything else to kill it. The baby's death was by accident, not by design. The death was most likely caused by her giving birth unattended and standing up, which was a result of her being in a difficult personal situation and inexperienced in childbirth. I have carefully considered all those arguments, however, most avoid the issue of whether the conduct of the accused caused the death of her baby directly or indirectly. That is the critical issue arising from the definition of "killing" in Section 291 of the Criminal Code. The issue is not whether the accused intended to kill the baby or whether the killing was justified. It is a question of fact: did the accused, by allowing the drug to be administered through her vagina and/or by giving birth alone and standing up, cause the death of the baby?

22. There are several undisputed facts. The accused was seven months pregnant. She voluntarily allowed Cytotec to be administered through her vagina. That drug, also known as Misoprostol, is used to amongst other things induce labour. The accused felt labour pains soon after administration of the drug. She gave birth fourteen hours later in a public place, alone and unassisted. No evidence has been adduced to show that prior to administration of the drug, she had labour pains or bore any other symptoms of imminent child birth. There is no evidence to suggest that something happened after administration of the drug to induce labour. The only reasonable inference to draw is that administration of the drug caused the premature birth of the baby. Being born two months premature, the baby had a low chance of survival. The accused reduced the baby's chances of survival to a negligible level by giving birth alone and unassisted in a public place. I conclude that she indirectly caused the death of the baby and therefore she killed it.

2 WAS IT AN UNLAWFUL KILLING?

23. This is where the defence counsel's submission as to the accused's state of mind becomes relevant. The argument is that she had no intention of killing the baby. She only wanted to expedite its birth. She was in an extremely difficult personal situation and she should not be held criminally liable for the accidental death of the child. Mr Kaluwin pointed out that the accused is a first time mother. She is still a young girl. She was mistreated. It was the first time for her to be put in this position. There was an element of compulsion in her taking the drug. She was vulnerable. She was not acting voluntarily. He argued that this was not a case of negligence but a case of inexperience. She might have been walking to the hospital when she gave birth. She was not aware of the dangers of giving birth while standing up. She did not deliberately cause the death of the baby. The State does not dispute the difficult situation in which the accused found herself. She was threatened by her father, shunned by her aunts and encouraged by one of her aunts to get rid of the child. She felt suicidal. Mr Rangan argued that despite these difficulties, the accused owed a duty of care to her child, which she failed to perform. His argument was that she was criminally negligent, for the purposes of Section 287 of the Criminal Code, in a number of respects:

•	she allowed a drug to be administered to herself when she was seven months pregnant, knowing that she was pregnant and being reckless about the effects of taking the drug;
•	she failed to ensure that the baby was delivered carefully at the hospital;
•	she failed to seek medical advice.

24. Section 287 states:

(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

25. Mr Rangan submitted that the court should not accept the accused's evidence that she did not realise she was pregnant until a week before giving birth; that she had no intention of killing the baby; and that she did not know what the tablets were for.

26. As to those last points I am inclined to uphold the prosecutor's submission. Having observed the accused in the witness box, she appears to be an intelligent and alert young woman. It is difficult to believe that a person like her would not be aware that she was pregnant until almost seven months into her pregnancy. I also have difficulty believing her evidence that she did not intend to kill the baby. She told the two female police officers who interviewed her that she wanted to 'get rid of' the baby. She used the same words in her oral evidence. It was only when her defence counsel prompted her as to what she meant by those words, that she qualified them by saying that she only wanted to expedite the delivery of the child. The evidence suggests the contrary: that she wanted an abortion. It is also hard to believe that she did not know what the drug was for. She might not have known what its name was. But the evidence suggests that she knew its intended purpose: to cause her to give birth prematurely and cause the death of the child. The evidence is sufficient to make those findings on the balance of probabilities. However, the State has not proven those facts beyond reasonable doubt so the status of those findings is, simply, that they form part of the court's assessment of the evidence.

27. The key issue at this juncture is, as highlighted by Mr Rangan, whether the accused was criminally negligent under Section 287 of the Criminal Code, the leading case on which is the Supreme Court's decision in Java Johnson Beraro v The State [1988-89] PNGLR 562. The degree of negligence required is more than what is required to establish civil liability for negligence. The alleged negligence of the accused must go beyond a mere matter of compensation. It must show such disregard for the life and safety of others as to amount to a crime against the State, to be conduct deserving punishment.

28. The question whether an accused is criminally negligent must be decided by reference only to the situation prevailing when the accused performed the actions in issue and not by the reference to their consequences. The State has to prove gross negligence which will always depend on the circumstances of the particular case (John Wanamba v The State (1998) SC551). Applying those principles to the present case and having considered all the evidence about the difficult position in which the accused found herself I uphold the prosecutor's submission that her conduct in allowing a drug to be administered to her when she was seven months pregnant, not knowing or caring what the drug was called and what its likely consequences would be, was gross negligence. She exhibited careless disregard for the life of the baby that she was carrying.

29. I also uphold the prosecutor's submission that her original act of negligence (allowing the drug to be administered) was exacerbated by her failure to take herself to the hospital or at least seek assistance of some kind, having felt labour pains. In the words of Section 287(1) of the Criminal Code she was in control of a living thing (the baby) and the baby was of such a nature that, in the absence of care or precaution in its management, its life, safety and health may be endangered. The accused therefore had a duty to use reasonable care and take reasonable precautions to avoid that danger. She failed in all the circumstances to perform that duty, which is the duty any woman owes to her child both before and immediately after its birth. The accused was criminally negligent. She is deemed by Section 287(2) to have caused and is therefore criminally responsible for the consequences of her omission to perform that duty.

30. The defence counsel alluded to the defence of accident under Section 24 of the Criminal Code, which states that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the will or an event that occurs by accident. However, this defence is, according to Section 24, "subject to the express provisions of this Code relating to negligent acts and omissions". As the State has proven that the accused was criminally negligent, the defence in Section 24 does not operate. There are no other defences available to the accused. I conclude that the killing of the child was not authorised, justified or excused by the law. It was therefore an unlawful killing.

3 HAS THE THIRD ELEMENT OF MANSLAUGHTER BEEN PROVEN?

31. Yes. In this case this element it is a formality.

4 HAS THE STATE PROVEN ITS CASE BEYOND REASONABLE DOUBT?

32. Yes. I am satisfied that the State has proven the three elements of the offence of manslaughter beyond reasonable doubt. It is unnecessary to consider an alternative verdict.

VERDICT

33. The accused is guilty of manslaughter.

Verdict accordingly.
_________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the accused