N4985
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 177 OF 2005

THE STATE

V

SIMON LEVIN

Buka: Cannings J
2007: 12-14 September, 24 October

CRIMINAL LAW – murder, Criminal Code, Section 300(1)(a) – trial – circumstantial evidence – whether the deceased died of injuries inflicted by the accused – whether the accused intended to do grievous bodily harm to the deceased.

A man was charged with the murder of his daughter under Section 300(1)(a) of the Criminal Code. The State relied on the oral testimony of a family friend who overheard the accused assaulting his daughter; that friend's father, who came to the scene shortly afterwards; a relative who observed facial injuries on the deceased's body; and the doctor who performed a post-mortem. Six exhibits were admitted into evidence including the accused's record of interview, in which he admitted assaulting the deceased but claimed that she overdosed herself with medicine, and the post-mortem report, which concluded that the probable cause of death was bleeding into the brain caused by being bashed or hit by a blunt instrument. At the trial the accused remained silent and adduced no evidence.

Held:

(1)	There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(2)	All State witnesses gave credible evidence that pointed to the conclusion that the injuries the accused inflicted on the deceased were the cause of her death (therefore he killed her); and that he intended to cause her grievous bodily harm.

(3)	The court applied the test regarding cases substantially dependent on circumstantial evidence: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence?

(4)	Here, there was no evidence to support the claim that the deceased took her own life. The proven facts led reasonably to only one conclusion: that the accused killed the deceased and that he intended to do her grievous bodily harm. The accused was accordingly convicted of murder.

Cases cited

The following case is cited in the judgment:

Devlyn David v The State, SCRA No 74 of 2003, 22.11.06

TRIAL

This was the trial of an accused charged with murder.

Counsel

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

24 October, 2007 

1. CANNINGS J: Simon Levin, the accused, is aged in his mid-50s. He lives at Karola village, Kulu Island, Buka. Around 3.00 pm on Thursday 13 January 2005 he assaulted his 18-year-old daughter, Eileen Levin, in the family home. He was angry with her. A short time after the assault, Eileen died. She was buried on Saturday 15 January. Her father told people that she had overdosed on tablets after he had fought with her. But one of her cousin-brothers became suspicious on seeing swelling on her face and reported the matter to the police. Eileen's body was exhumed and a post-mortem was performed. It concluded that the probable cause of her death was bleeding into the brain caused by being bashed or a blunt instrument. Simon Levin now stands charged with his daughter's murder. He has been indicted under Section 300(1)(a) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …

if the offender intended to do grievous bodily harm to the person killed or to some other person.

2. The accused does not rely on any specific defences such as provocation, accident or self-defence so the result of this trial turns on whether the State has proven the two elements of the offence:

1	that the accused killed his daughter; and

2	that he intended to do her grievous bodily harm.

3. Four witnesses gave evidence for the State:

•	a family friend, Matari Somol, who overheard Simon assaulting Eileen;
•	Matari's father, Sakirius, who came to the scene shortly afterwards;
•	a cousin-brother, Donald Potu, who observed facial injuries on Eileen's body; and
•	Dr Barnabus Matanu, who performed the post-mortem.

4. Six exhibits were tendered into evidence including Simon's record of interview and the post-mortem report.

5. The accused remained silent and adduced no evidence. The key issue is whether the circumstantial evidence adduced to the court showed that the deceased died due to the injuries inflicted by the accused and whether he intended to cause her grievous bodily harm.

MATARI SOMOL'S EVIDENCE

6. He is a young man aged 20 from Harahan. He knew the deceased, Eileen, and he knows Eileen's father, Simon. Matari's father, Sakirius Somol, is the second State witness. In examination-in-chief Matari said that he was with his father on the day of the incident. They had paddled across from the island that they live on, Kulu 1, to the island where Eileen and her father lived, Kulu 2. It was about 3.00 pm. They went there to cut trees for a new canoe. They saw two of Simon Levin's boys upon arrival. Matari's father asked the boys where their father was and they said he had gone to the mainland to drop off their mother. Matari's father went into the bush to get the first tree and while he was doing that Simon Levin arrived back from the mainland. Simon called out for Eileen, asked Matari if he had seen her and Matari replied no. Simon continued looking for Eileen and was calling out for her. He went to the other side of the island. Meanwhile Matari, who had stayed near the family home, saw Eileen arriving. Matari told Eileen that her father was very angry with her and might hit her. Eileen went into the house. Then Simon arrived and also went into the house. Matari stayed outside. He was only about five metres away from the house. Matari heard Simon ask Eileen where she had been. She replied that she had been out looking for mangoes. Then Simon started assaulting her very badly inside the house. She started crying. She was crying out "Daddy, Daddy, that's enough". But Simon kept assaulting her and the wall of the house broke. Matari ran back to find his father and told him what was happening. His father came out from the bush and they ran back together to the Levin house. Eileen came out of the house. She had a laplap wrapped around her head stained with blood. She was bleeding from the mouth and the nose. Matari asked her if she was okay and she said yes. Eileen went down to the beach and washed her head with sea water. Then she came back and sat next to Matari. He and his father later paddled back to their island. He does not know whether Eileen was taken to the hospital. Nor is he sure when she actually died or when she was buried.

7. In cross-examination Matari said that Eileen could not talk properly due to the swelling on her face. She was walking slightly bent over and covering her head. She was not walking straight. When the wall of the house was damaged, he did not look in as he was afraid that Simon would assault him also. He heard the wall break when Simon was assaulting Eileen. Given the injuries on Eileen's face, he thought that Simon could have used something like a stick with which to hit her. The defence counsel, Mr Kaluwin, put to Matari that she was not very badly beaten up. Matari disagreed. She was very badly assaulted and she could not escape. He left her when she went to sleep.

SAKIRIUS SOMOL'S EVIDENCE

8. He is Matari's father, aged 48. He went with his son to Kulu to cut trees for a canoe. They arrived about 3.00 pm. He was inside the bush cutting trees when Matari called out and told him that Levin was assaulting his daughter. When he went to Levin's house he saw the daughter and helped her cover her head with a laplap. He held her on to her shoulder and told her not to worry too much about what happened and that he would see her father so the matter could be put to the court. He left her standing there and went and talked to her father. He told Simon that it was not good to treat his children like this. If they have any problem they should be put to the chiefs so they could help resolve the problem. He suggested to Levin that there should be a meeting the next day. Then he left him there and he and his son paddled back to their island. Sakirius did not get a good look at Eileen's injuries as her head was covered by a laplap. He asked Simon if he had assaulted his daughter and Simon did not say anything about that. He just said that it should go to court. Sakirius got the news about 11 o'clock in the morning that Eileen had died. She was buried about three days after the day of her death. In cross-examination Sakirius said that Levin's children call him their uncle. He was worried about Eileen as Matari had told him that Simon had assaulted her. When he saw Eileen she did not talk to him. He had run from the bush as he was concerned about her.

DONALD POTU'S EVIDENCE

9. He is a young man, a cousin-brother to Eileen. He was the person who reported the case to the police. He was not on the island when Eileen died. He only heard about her death when Simon came and told him about it. That was about 10.00 pm on 13 January 2005. He was in his house at Lontis and had gone to sleep. Simon asked him for his lamp as people were gathering at the haus krai. He asked Simon how Eileen had died and he said that she had drunk some medicine. Donald went to the haus krai, looked at Eileen's face and became concerned. He went back to his house and then came back the next morning to look at her face again. He asked Eileen's mother what had happened and she said that Eileen had taken some medicine. He took the bed sheets off Eileen's body and became suspicious. He asked her mother where she was when Simon was assaulting Eileen and found out that she was not there. He had a good look at Eileen's face and neck and observed swelling. He was surprised to see a lot of blood on Eileen's body but could not tell where it was coming from. Eileen was buried on Saturday and later he went to the Buka CID to report the matter. The police came to the village and dug up the body, the doctor examined it, then Simon was taken to the police station. In cross-examination Donald said that Eileen had a black eye on both sides. He was present when the body was exhumed. He did not talk to the doctor who was present at the time. The doctor only talked to the police investigator. He heard the police officer telling the doctor about the story of Eileen overdosing.

DR MATANU'S EVIDENCE

10. Dr Barnabas Matanu is based at Buka General Hospital. He has been a medical practitioner for 26 years. He performed a post-mortem on Eileen Levin on 19 January 2005, six days after her death. Before examining the body he received information that she had taken tablets. Her mother gave him that information. However, he did not observe any evidence to support the conclusion that she had taken tablets. He concluded that death resulted from her being bashed or hit with a blunt object. In cross-examination Dr Matanu confirmed that he had examined the body about three days after it had been exhumed. He did not cut open the skull. There was still swelling on the face. He observed a breakage in the skull. The defence counsel, Mr Kaluwin, asked whether a punch from a fist would be able to break the mastoid bone. Dr Matanu replied that a hard punch would not normally break a bone in the skull. He does not think that she was punched to death but she received a severe blow to the head. When a person with a previously undisturbed skull receives an injury of this sort, the person can die within one to six hours from bleeding in the brain. Answering questions from the bench, Dr Matanu indicated that he did not consider it necessary to inquire intensively into whether the deceased had committed suicide in view of the clear cause of death identified in the post- mortem report.

THE EXHIBITS

A – statement by police investigator, First Constable Michael Kukubak, as to his attendance at the crime scene on 17 January 2005 and his interview of the accused on 1 February 2005.

B – record of interview – the accused said that it was true that he had fought with Eileen about 3.00 pm on 13 January 2005, to teach her not to be a bighead – the incident happened inside the house – her lips became swollen and her mouth and nose were bleeding because of the assault – he denied that Eileen was crying in agony and begging for mercy – he knows nothing about the crack on Eileen's skull – he agreed that one of the walls in the house was damaged during the fight – he agrees that Eileen died soon after he bashed her.

C – photographs of the crime scene, the family home on Kulu Island – the home is a small bush material dwelling with an iron roof, located just off the beach.

D – sketch of the crime scene.

E – a statement by police investigator, Constable Steven Kamou, who corroborated the interview of the accused.

F – post-mortem report in which Dr Matanu made the following findings:

1	General body decomposition was beginning to settle in.
2	Asymmetry swellings on the right face, right cheek, right ear, right mastoid and right temporal areas of the skull.
3	A 5 cm linear soft tissues bruise to the epidermis and dermis on the right cheek, right jaw, right ear and right mastoid area.
4	An estimated 20-30 ml of blood poured out of right external meatus (right ear).
5	Right mastoid portion of temporal bone was shattered or fractured.
6	Right mastoid process and styloid process were fractured.
7	Right mandible (jaw) was fractured and unstable from temporo-mandibular joint.
8	Right temporo–mandibular joint is dislocated and unstable – fractured.

NB: Examination to the genitalia was not performed due to obvious reasons: in that semen analysis would at this point in time be fruitless and that the body decomposition has settled in already.

The best opinion I can form at this point in time would be that the most probable cause of death was due to head injury resulting in intracranial haemorrhage (bleeding into the brain).

The abovementioned injuries would have been the result of being bashed up or blunt object landing on to the affected skull: the temporal bone, right mastoid and right ear.

THE ISSUES IN DETAIL

11. The nature of the evidence and submissions of counsel give rise to these issues:

1	Was the evidence of the State witnesses credible?
2	Is the other evidence consistent with the State's case?
3	Does the rule about acceptance of circumstantial evidence apply in this case?

12. In light of the answers to those questions, I will address the critical issues:

4	Did Simon Levin kill his daughter?
5	Did Simon Levin intend to do grievous bodily to his daughter?
6	Has the State proven its case beyond reasonable doubt?

1	WAS THE EVIDENCE OF THE STATE WITNESSES CREDIBLE?

13. The defence counsel did not impugn the credibility of any of the State witnesses. The implied concession that all witnesses were reliable was properly made as all appeared to be witnesses of truth. Matari Somol restricted his evidence to what he heard when the assault was taking place and what he observed of the deceased's condition when she came out of the house. Sakirius Somol explained how he became involved. He was concerned as his son came to him and raised the alarm that Simon Levin was assaulting his daughter badly. Donald Potu gave a credible account of why he was concerned about the nature and extent of the injuries on the deceased's body, why he became suspicious and why he reported the matter to the police. Dr Matanu was a very credible witness and explained why he drew the conclusion that the probable cause of death was the deceased being bashed or hit in the head with a blunt object.

2	IS THE OTHER EVIDENCE CONSISTENT WITH THE STATE'S CASE?

14. The State's case is that the deceased died due to the injuries inflicted on her by her father and that when he was assaulting her he intended to do her grievous bodily harm. The other evidence adduced by the State, particularly the post-mortem report, is consistent with the State's case. Dr Matanu refers to the suggestion that the deceased may have overdosed. However, he clearly puts the cause of death as a head injury resulting in intracranial haemorrhage (bleeding into the brain). The report concludes that the deceased died due to a very serious blow to the head, and this rules out the theory that she died of an overdose.

3	DOES THE RULE ABOUT ACCEPTANCE OF CIRCUMSTANTIAL EVIDENCE APPLY?

15. Yes. I agree with defence counsel's submission that this is a case in which the State is seeking a conviction based on circumstantial evidence. No one was an eyewitness to the assault. No person has given evidence as to what happened between the time of the assault and the time of the deceased's death. I therefore have to apply the rule about circumstantial evidence. As the Supreme Court recently pointed out in Devlyn David v The State, SCRA No 74 of 2003, 22.11.06, in a case substantially dependent on circumstantial evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

4	DID SIMON LEVIN KILL HIS DAUGHTER?

16. There is a definition of killing in Section 291 of the Criminal Code:

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.

17. The question therefore is: did Simon Levin cause the death of his daughter, directly or indirectly, by any means? There is evidence that he assaulted her badly enough to cause her face to be swollen and to bleed. The wall of the house was damaged during the assault. The State has not proven exactly what the time of death was but I infer from Donald Potu's evidence that she must have died within six hours after the assault. The fact that she was able to converse with Matari soon after the assault and tell him that she was okay, does not prevent a finding that her death was caused by the assault. As Dr Matanu explained in his evidence, a person who receives a blow to the head of the magnitude incurred by the deceased can die within one to six hours after taking the blow. Dr Matanu's evidence coupled with his post-mortem report, leads to the conclusion that Eileen died due to being bashed and having her head hit with a blunt object. Her injuries were extensive: her jaw and temporal bone (at the lower part of the skull) were broken. She suffered an intracranial haemorrhage (bleeding into the brain). It is a reasonable inference given the proven facts that the blunt object in this case was the wall of the house and that the accused was the person who caused Eileen to be propelled against it during the course of the assault. No suggestion was made that anyone else besides the accused assaulted her or that she received the injuries that caused her death in any way other than being assaulted by the accused. No evidence was brought by the defence to support the theory that she took an overdose of medicine (the defence counsel suggested it was quinine but the evidence as to what sort of medicine it was supposed to be, is vague). In any event, Dr Matanu's evidence rules out the overdose theory as a cause of death. I find that the deceased did not die due to a drug overdose. The only reasonable conclusion to draw from the proven facts is that she died as a result of the injuries inflicted on her by her father when he assaulted her. Simon Levin caused the death of his daughter. He did so, directly, in that he assaulted her and the injuries he inflicted led to her death a few hours after the assault. He killed her.

5	DID SIMON LEVIN INTEND TO DO GRIEVOUS BODILY HARM TO HIS DAUGHTER?

18. The defence counsel suggested that if the court found that the accused killed his daughter, he should not be convicted of murder as the evidence fell short of any intention on his part to do grievous bodily harm. Mr Kaluwin pointed out that the accused has never disputed that he smacked his daughter, to discipline her. But to say that he intended to do her grievous bodily harm is far fetched.

19. I do not accept that proposition. The evidence supports the conclusion that this was a very bad assault by a father on his daughter. Whenever any person assaults another person – particularly when a mature-aged man assaults a young woman – with such force as to cause her bleeding around the face, and where there is proof that the aggressor has punched the victim and propelled her against the wall of a house with such force as to break her jaw and skull, a reasonable inference to draw is that there was an intention to do grievous bodily harm. Indeed, that is the only reasonable inference to draw from the evidence in this case. I conclude that Simon Levin intended to do grievous bodily harm to his daughter.

6	HAS THE STATE PROVEN ITS CASE BEYOND REASONABLE DOUBT?

20. Yes. I am satisfied that the State has proven the two elements of the offence of murder beyond reasonable doubt.

VERDICT

21. The accused is guilty of murder.

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