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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 597 OF 2005
THE STATE
V
JOHN BUKU KAILOMO
Kimbe: Cannings J
2007: 9-11, 17 May
CRIMINAL LAW – Section 302, manslaughter – circumstantial evidence – whether evidence of previous assaults by the accused on the deceased is admissible – similar fact evidence – whether voluntary admissions made by the accused shortly after the incident are admissible.
A man was indicted for the unlawful killing of his wife allegedly committed in their village. It was the State's case that the accused punched the deceased in the stomach in the course of a domestic argument, causing her to die from a ruptured spleen. There was no eyewitness evidence and the case turned on circumstantial evidence. The accused denied assaulting his wife and brought evidence to support his defence: that she had fallen from a tree while working in the garden earlier in the day, and that was the likely cause of her death.
Held:
(1) As this was a case dependent on circumstantial evidence the question to ask was: do the proven facts lead reasonably to only one conclusion: that the accused killed his wife, without justification?
(2) Evidence of facts similar to a disputed fact are not admissible to prove the occurrence of the disputed fact. However, if there is a close connexion or nexus between evidence of the previous facts and the evidence on which the accused is charged, the evidence is admissible.
(3) Evidence of voluntary confessions made shortly after an incident is admissible. Such evidence does not by itself prove guilt. It is, however, part of the matrix of circumstantial evidence on which a conviction might be based.
(4) In the circumstances, the proven facts led reasonably to only one conclusion: that the accused killed his wife. The medical evidence supported the conclusion that the deceased was assaulted. The proposition that she fell from a tree was not credible. The only person in a position to assault her was the accused. There was evidence of previous assaults. The accused made voluntary confessions shortly afterwards.
Cases cited
The following cases are cited in the judgment:
Papua New Guinea Cases
Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498
The State v Daniel [1988-89] PNGLR 580
Overseas Cases
DPP v Boardman [1975] AC 421
Makin v Attorney-General of New South Wales [1894] AC 57
R v Ball [1910] UKLawRpAC 59; [1911] AC 47
TRIAL
This was the trial of an accused charged with manslaughter.
Counsel
F Popeu, for the State
O Oiveka, for the accused
17 May, 2007
1. CANNINGS J: John Buku Kailomo, the accused, is charged with the manslaughter of his wife, Alphonsa Galewi. The State alleges that he punched her during the course of a domestic argument, rupturing her spleen, and that she died shortly afterwards as a result of that injury. At the time of her death Alphonsa was aged 23. John was 27. They had been married for three or four years and had one child, a boy. They were living at Banaule village, near Hoskins, West New Britain. They were brought up there. For the first couple of years of their marriage they lived with Alphonsa's parents. In 2004 they moved into their own house. Alphonsa died on the evening of Wednesday 2 February 2005. Between 6.00 and 8.00 pm she was unwell and taken to the nearby Valoka health centre, where she was pronounced dead on arrival.
2. The State's case, presented by prosecutor Mr Popeu, rests on circumstantial evidence. There was no eyewitness evidence. There is evidence that John was at his house when Alphonsa was taken away to the clinic and that he later told two different people that he had fought with Alphonsa. The State's case relies on a post-mortem report that shows that she died of a ruptured spleen. The doctor who prepared the report gave evidence. Alphonsa's mother gave evidence that John had assaulted Alphonsa on previous occasions.
3. John denies assaulting Alphonsa. He says that he never assaulted her in all the time they were married. He gave sworn evidence that Alphonsa had gone to their cocoa garden earlier in the day, when he was in town. When he saw her back at the house shortly before she was taken to the health centre she told him that she had fallen from a tree in the garden. A local parish priest gave evidence that he had seen Alphonsa shortly before her death and given her some medicine after she complained of feeling unwell. Defence counsel, Mr Oiveka, submitted that the most likely cause of death was that Alphonsa fell from a tree, ruptured her spleen and that the full extent of her injury only became clear when she was taken to the health centre.
THE KEY ISSUE
4. Manslaughter is an offence under Section 302 of the Criminal Code so the things the State has to prove beyond reasonable doubt are that John killed Alphonsa and that he did so unlawfully, ie without any proper justification or excuse. As John has made an outright denial of assaulting Alphonsa there are no issues such as self-defence or provocation that have to be explored to work out whether what he did was lawful. The issue is simply whether he killed her. There is a definition of killing in Section 291 of the Criminal Code. Any person who "causes the death of another, directly or indirectly, by any means" is deemed to have killed the other person. There is another provision of the Criminal Code, Section 293, that is relevant. A person who "hastens the death of another person" who is already suffering from a disease, disorder or injury, is deemed to have killed the other person. If it is true that John assaulted Alphonsa and ruptured her spleen he will be deemed to have killed her even if she was suffering from some pre-existing condition such as a stomach ailment. It has been agreed that Alphonsa died due to a ruptured spleen but the cause of that injury is not agreed. John denies that he caused that injury and has offered an alternative explanation for it: that she fell from a tree. He does not have to prove that that was the case. It is up to the State to prove its case beyond reasonable doubt. Because the case is built on circumstantial evidence, the key issue is:
(Paulus Pawa v The State [1981] PNGLR 498; Devlyn David v The State (2006) SC881.)
EVIDENCE FOR THE STATE
5. The State's case was primarily based on the following evidence:
ELIAS LAVU – THE UNCLE
6. He is a police officer, detective first constable, based at Buluma, between Hoskins and Kimbe. He was at Banaule around 6.00 pm. He had gone to see Alphonsa's mother, Helen Mutoko, who is his sister. On the way he met Alphonsa carrying a bucket of water. She looked healthy. They greeted each other. He went to his sister's house but she was not there. She had taken her elder daughter to Valoka to give birth. Around 8.00 pm, while still at his sister's house, news went around that Alphonsa had died and her husband had bashed her up. He went to John and Alphonsa's house. People were crying. Alphonsa's body had been returned. He got a vehicle, went to Buluma police station between 8.30 and 9.00 pm and reported the matter. Later four police officers came to the village. He showed them where John was. John was still in the house, kept there for safety reasons. The other police took John away to Kimbe for his protection. Elias Lavu was not cross-examined.
MARY LAVU – THE NURSE
7. She is from Banaule. She works there as a medical nurse and has been employed by the Catholic Health Service for 23 years. She has been in charge of Banaule clinic for eight years. Early in the evening of 2 February 2005 she was at her house when a young man, Sam, age 17 or 18, came to her. Sam said 'Bubu, Alphonsa is sick. Her husband assaulted her and she is not responding'. That was about 6.30 pm. She went to John and Alphonsa's house and called out to Alphonsa. She shook Alphonsa, who was unconscious. She had no heart beat. John was there. She asked John what had happened and he said he had hit her. Alphonsa's mother was not at the village at the time. She had taken one of Alphonsa's sisters who had given birth in the village (she, Mary had delivered the baby) to Valoka Health Centre. She sent some other people to get a vehicle to take Alphonsa to the hospital. The vehicle arrived and they took her to Valoka. They put Alphonsa in the emergency ward. The staff on duty were called to check on her. There was no response. The time of death was 8.00 pm. She covered up Alphonsa and took her back to the village. They took her to John and Alphonsa's house. Alphonsa's relatives heard the news that she had already died. They were very angry and shouting. They came to the house and threw stones and other objects at it. They were making loud noises. She grabbed John's hand and ran away with him to her house at the clinic. She left John there until the noise had quietened down. Alphonsa's relatives got her body and took her down to her parents' house.
8. In cross-examination she said that she is related to Alphonsa as she, Mary, is married to Alphonsa's uncle. She does not know whether Sam witnessed the assault. It was put to her in cross-examination that John never said he had assaulted Alphonsa. She replied that she did ask him what happened and he said "I hit her". John did not tell her that Alphonsa had gone to the cocoa block. Asked if there were any bruises or scratches on Alphonsa to show that there had been a fight, she said she was not looking for those things. She was just holding her cheek and chest and checking for a heartbeat. She made no other observations. Asked if she thought it possible that Alphonsa had taken a fall and was injured, Mary replied no. She did not witness John and Alphonsa fight. Her house is 200 metres from John and Alphonsa's house.
HELEN MUTOKO – THE MOTHER
9. She is from Banaule and has lived there all her life. On the evening of 2 February 2005 she was at Valoka Health Centre. She had taken Alphonsa's elder sister to the maternity ward. She was not there long when a nurse came and kicked the door and told her that Alphonsa was dead. She asked the nurse what happened and she said that Alphonsa's husband had hit her and she had died. John used to assault Alphonsa in front of her when they were living with her and her husband. John hit Alphonsa about four times. She was there and she saw it. When she last saw Alphonsa, she looked happy. The person who told her that John had hit Alphonsa was the nurse from the village who had brought the body to the health centre.
10. Cross-examined about her allegation that John had assaulted Alphonsa on previous occasions she said that she did not bring any complaints to the Village Court or the District Court about John's behaviour. It was a breach of custom for John to assault his wife in front of her mother. He should have paid compensation. But he did not pay. It was not up to them to demand compensation. It was up to John to see what he had done and correct himself.
SERGEANT SAMUEL NUSALEM – POLICE ESCORT
11. He is stationed at Buluma and has been a police officer for 20 years. He received the report of the incident on the evening of 2 February 2005. The Buluma police vehicle was in Kimbe at the time and they had to wait 30 to 45 minutes for it to return. When it arrived he and his boss and two other officers went to Banaule. They picked up the suspect, John Buku Kailomo, and drove to Kimbe police station. On the way, his boss, who was driving, asked John what had actually happened. John replied that he had an argument with his wife. She insulted him, then he assaulted her by hitting her gently on the side. He demonstrated how he hit his wife, with his elbow. Another of the police officers started to ask him more questions but then John kept silent.
12. In cross-examination he said nobody cautioned John before asking him questions about what happened. None of the conservation was put down in writing.
DR SYLVESTER TATI – EXAMINING DOCTOR
13. He prepared the post-mortem report. The cause of death was hypovolaemic shock, ie a severe and rapid decreased volume of blood circulating in the body. Significant, abnormal findings were:
Bruising of the left costal margin with haemoperitoneum and a shattered spleen with severed splenic vessels at the hilum region.
14. The costal margin is the lower part of the rib cage. Haemoperitoneum is the presence of blood in the abdominal cavity. The spleen is an organ at the left of the stomach, involved in maintaining the proper condition of the blood. The hilum is the region where the blood vessels enter the spleen. Other observations were that the condition of the deceased's clothes was clean, not blood stained. Her body was rigid, well nourished. The only external injury was bruising over the left sub-costal margin. Her height was 160 cm and her weight 50 kg. The medical certificate of death summarised the cause of death as hypovolaemic shock due to a ruptured, shattered spleen. In his oral evidence Dr Tati stated that Alphonsa had suffered a massive loss of blood, about four litres, after her spleen had ruptured, which went into her abdominal cavity. The severity of the injury to the spleen indicated that she suffered a very aggressive, severe force. Given the nature and extent of the injury, particularly severing of the blood vessels, a person could survive maybe for five hours or maybe only 30 minutes. He did not think that it would be possible for a person to walk around for four or five hours carrying a bucket of water after suffering that sort of injury. She would have been a very sick lady, unable to carry a bucket of water.
15. In cross-examination Dr Tati said that lying down would not make much difference to that sort of injury. Alphonsa had a normal size spleen. If she had fallen from a tree she might suffer a spleen injury if she had an enlarged spleen. But hers was very normal. She would have suffered other injuries eg a fractured leg. But there were none. The only other significant thing he observed was bruising on the left-hand side of the body, where the spleen is.
THE DEFENCE CASE
16. The defence of outright denial was based on the following:
THE ACCUSED'S SWORN EVIDENCE
17. On the morning of his wife's death he went to Kimbe to withdraw money from the ATM and buy food and things for the family. He went back to the village in the afternoon, about 5.30 pm. He saw the time in the bus, which had a clock. On his arrival Alphonsa told him that she was feeling pain on the side. He asked her what had happened to make her stomach ache. She said she had climbed a cocoa tree and fallen and hit her side. She told him to find a vehicle quickly. He took her to the hospital at Valoka about 6.00 pm. Then she died. He denied assaulting her. Not only did Alphonsa tell him that she had hurt herself at the cocoa plantation, other people told him the same story. Their cocoa block is about 900 metres from their house. When he came back from town the only other person there was Fr Donius.
18. In cross-examination he said that he went into town around 9.00 or 10.00 am. When Alphonsa told him that she felt pain, he saw the nurse in the village. Then he went to look for a vehicle. He paid for it. He told the nurse that his wife had fallen from a tree and then he went to look for the vehicle. He was emphatic that he told the nurse about it. He took his wife to the hospital at 6.00 pm. It was not 6.30 pm. After Alphonsa was taken to Valoka and declared dead there, he brought her back to Banaule. The police from Buluma picked him up from his house, not from the nurse's house. He denied saying anything to the police in the vehicle about how his wife died. All the police officers were drunk, he said. He told them that she was feeling pain, that is why he took her to the hospital, where she died. Asked about his cocoa trees, he said that they are hybrids. They are not very tall, only about two metres. Asked about his mother-in-law's movements on the night in question, he said she was at Valoka where she had taken his wife's elder sister. His mother-in-law was not in the same vehicle as him when he brought Alphonsa's body back to the village. He agreed that his wife's relatives were cross with him. They came to his house, collected his wife's body and took it to her mother's house. He agreed that he stayed at the nurse's house for a while as his wife's relatives were cross. When they settled down he went back to his own house. That is where the police got him.
FATHER DONIUS – ASSISTANT PARISH PRIEST
19. He has been based at Banaule for four years. On the morning of Alphonsa's death, he saw John and gave him money to buy items for his house. In the afternoon he went back to John and Alphonsa's place. He waited for a while until John arrived. They told stories then Alphonsa arrived. She returned from the garden about 2.30 pm. He had a watch. She asked for medication as she had a stomach ache. He gave her some medicine, which he mixed with water. Then she went to bed. He and John told stories until about 5.30 pm. John and his son dropped him at the station, then went back to the village. He did not see John and Alphonsa having any argument. For a while Alphonsa was sleeping under the house. Later she went upstairs to sleep.
20. In cross-examination, Fr Donius said that Alphonsa did not tell him why she was having a stomach ache. She went straight to sleep after he gave her the medicine. He agreed that there was a clinic and a nurse at Banaule and that he was not a doctor. He agreed that he did not go and see the nurse when Alphonsa complained of feeling sick. He agreed that he was not the right person to treat a sick person. He agreed that by 5.30 pm he had left.
ELTAH EDDIE – ALPHONSA'S FRIEND
21. On the day of her death Alphonsa asked her to go with her to harvest cocoa. Alphonsa was hooking cocoa and she was cutting it. Alphonsa then told her she was going to hook some betel nut. Then Alphonsa left her. She said she had a stomach ache and would go back to the house. Later Eltah's father came back from their oil palm block. He helped her with the cocoa before they went back to the village about 6.00 pm. Alphonsa did not tell her the cause of her stomach ache. Eltah Eddie was not cross-examined.
THE ISSUES IN DETAIL
22. The nature of the evidence and submissions of counsel give rise to these issues:
23. In light of the answers to those questions, I will need to address the key issue set out at the beginning of this judgment:
1 DID ALPHONSA HAVE A STOMACH ACHE?
24. I agree with Mr Oiveka that Father Donius's evidence suggests that Alphonsa did have a stomach ache of some sort. This is supported by Eltha's evidence and John's evidence. However, according to Father Donius and Eltha, Alphonsa did not tell them the cause of her pain. She did not say that she had fallen from a tree. When Father Donius gave her medicine she must not have had serious symptoms as he is not a medically qualified person and he did not send her to see the village nurse. I infer that she had a stomach ache but not a very serious one.
2 WAS IT A FALL FROM A TREE THAT CAUSED THE RUPTURED SPLEEN?
25. No. It is ruled out as a possible cause of her injury by the medical evidence. Dr Tati said that if she had really fallen from a tree she would have exhibited other sorts of injuries such as fractured limbs. None was apparent when he conducted the post-mortem. It is also ruled out by the evidence of Father Donius and Eltha. Alphonsa said nothing to them about falling from a tree. Eltha was working with Alphonsa in the garden. Alphonsa left the garden first, complaining of her stomach ache. Surely if she had fallen from a tree she would have said so to Eltha. Surely Eltha would have seen or heard the fall, as they were working together in the garden. There was no evidence of that sort. The only evidence that she fell from a tree was from John who said Alphonsa told him she had fallen from a cocoa tree. He said other people told him the same story. But there was no other evidence to corroborate that. Mr Oiveka attempted to elevate this evidence to the status of a dying declaration, presumably under Section 20 of the Evidence Act. All that that means is that the statement is admissible. It is not conclusive proof that it was made. The proposition that she fell from a tree is not credible. John indicated the height of their trees, about two metres. A fall from that height would not cause a ruptured spleen. Besides that, I do not think that John was a credible witness. His demeanour in the witness box was not convincing.
3 SHOULD THE MOTHER'S EVIDENCE ABOUT PREVIOUS ASSAULTS BE DISREGARDED?
26. Mr Oiveka submitted it should be as it was highly prejudicial with little probative value. It is similar fact evidence and the general principle is that it is unfair to allow it to be admitted. He did not, however, point me to any authority to support the proposition that the evidence is necessarily inadmissible. The cross-examination of Alphonsa's mother revealed that no action was taken against John following the alleged assaults. No reports were made to the police. There was no court action. I agree with Mr Oiveka that the court must exercise considerable caution before basing a conviction on such evidence. John is not charged with any previous assaults. He is charged with the death of his wife on 2 February 2005. However, Mr Oieveka has not convinced me that this evidence is inadmissible or that it should carry little weight. No objection was taken to it until after Mr Popeu had extracted the basic allegation. The evidence is relevant.
27. Leading overseas cases on similar fact evidence are Makin v Attorney-General of New South Wales [1894] AC 57 and DPP v Boardman [1975] AC 421. These cases support the general rule of evidence that Mr Oiveka relies on. The rule was explained by Doherty AJ in The State v Daniel [1988-89] PNGLR 580. Evidence of facts similar to a disputed fact are not admissible to prove the occurrence of the disputed fact. However, there is an exception to the rule. It is not an absolute rule. If there is a close connexion or nexus between evidence of the previous facts and the evidence on which the accused is charged, the evidence is admissible. Here, I think a close nexus exists. The evidence is that John had assaulted Alphonsa on four previous occasions. It is not just evidence that John is a short-tempered or violent person, prone to fighting people. It is evidence that he had acted in a similar way to what he is charged with doing. It has high probative value, which outweighs its prejudicial effect. The accused had the opportunity to rebut it, and he did so by denying that he had ever assaulted Alphonsa. There is another general rule of evidence that says that evidence of the presence or absence of motive, means, opportunity, previous attempts, threats or a propensity on the part of an accused to do the act that he is charged with, is admissible, as tending to prove guilt. (R v Ball [1910] UKLawRpAC 59; [1911] AC 47; and see generally Phipson on Evidence 11th edition, Sweet & Maxwell © 1990).
28. I conclude that the mother's evidence of previous assaults should not be disregarded. It is admissible. As to what weight to attach to it, I consider that Helen Mutoko was a credible witness. The credibility of her evidence was not tarnished by cross-examination. The fact that nothing was reported to the police does not detract from its weight. She gave a reasonable explanation for the failure to report the matter. The reasonable inference to draw from the mother's evidence is that John had a violent disposition towards his wife.
4 SHOULD THE EVIDENCE ABOUT JOHN TELLING PEOPLE THAT HE ASSAULTED ALPHONSA BE DISREGARDED?
29. Mary Lavu's evidence was that John told her he had hit Alphonsa. Sergeant Nusalem's evidence was similar. John said words to that effect when he was asked what happened by one of the other police officers. John denies saying anything of the sort either to Mary or to the police officers who escorted him to Kimbe. I prefer the evidence of Mary and Sergeant Nusalem. Both were credible witnesses. John was not. I acknowledge that Mr Oiveka properly put to Sergeant Nusalem that nobody issued a caution to John in the police vehicle. His evidence is not of a formal confession but of a conversation he overheard. I reject John's evidence that the police officers were drunk. No other evidence supported that claim. I conclude that the statement was made voluntarily. Both of John's statements were made in his presence. The court heard directly from two different people what the accused said. He said a similar thing in the presence of two different witnesses. Their evidence is not hearsay. Considered alone, each piece of evidence might not be of a high probative value. However, no suggestion was made that these witnesses colluded with each other. The combined effect of the two pieces of evidence is to suggest that John confessed to what he had done. This evidence should not be disregarded. It does not by itself prove guilt. It is, however, part of the matrix of circumstantial evidence on which a conviction might be based. It is relevant and it tends to prove guilt.
5 WAS ALPHONSA ASSAULTED?
30. Yes. The medical evidence clearly suggests that is what happened. She was a young woman, aged 23, the post-mortem shows she was of slight build, weighing just 50 kg and being 160 cm tall. She had a normal sized spleen. Prior to her death she was healthy. She did not fall from a tree. Given the type and extent of the injury she suffered – accompanied by some bruising around her abdomen – the only rational conclusion to draw is that she was assaulted. Mr Oiveka argued that there is no evidence that anyone in the village heard or saw a fight. I don't think that is significant given the nature of the injury. She might have taken just one, fatal blow. There may well have been no screaming before or after she was struck.
6 COULD IT HAVE BEEN SOMEONE ELSE?
31. No, I do not think so. Mr Oiveka did not point to anyone else. The defence case was based on the falling from a tree proposition, which I have rejected. Who else could have assaulted her but John? He was with her when Mary Lavu attended upon her. Mary was alerted to Alphonsa's plight by Sam who said that John had hit his wife. The evidence suggests that they were alone. As soon as Alphonsa's body was brought back from Valoka there was trouble. Alphonsa's relatives were angry with John. News spread that he had fought with her. The inference I draw from that is that someone saw them fighting. Alphonsa's mother's evidence of previous assaults lends weight to that conclusion.
7 ARE THERE GAPS IN THE EVIDENCE?
32. No, nothing significant. I acknowledge Mr Oiveka's repeated point that there is no eyewitness evidence. Nobody who gave evidence – besides John – saw or heard what happened. But there is sufficient evidence from which rational, common sense, inferences can be made of what must have happened.
8 IS THE ONLY RATIONAL INFERENCE, THAT JOHN ASSAULTED ALPHONSA?
33. At this juncture I remind myself of the test that must be applied in cases reliant on circumstantial evidence:
34. This test was laid down in the leading case on circumstantial evidence, Paulus Pawa v The State [1981] PNGLR 498. It was recently re-affirmed by the Supreme Court in Devlyn David v The State SCRA No 74 of 2003, 22.11.06. The answer to the question posed is yes. Alphonsa died of a ruptured spleen. The evidence points clearly to the conclusion that she was assaulted. The only person who was in a position to assault her, at the time and place alleged, was John. The medical evidence and the evidence of Mary Lavu, which puts John at the scene, at the time immediately before Mary attended to Alphonsa, make that the inevitable conclusion. The evidence that John had previously assaulted Alphonsa tends to support that conclusion. The evidence that he on two separate occasions, on the night of the death, told someone that he fought with Alphonsa, lends further support to that conclusion. The evidence that Alphonsa's relatives were cross with John is another piece of evidence that, though considered alone is not very weighty, adds to the weight of the circumstantial evidence. The only evidence that directly contradicts the circumstantial evidence accumulated by the State is John's evidence. An example of this contradiction is John's evidence that he was in town to withdraw money and arrived at the village at 5.30 pm on the day of the incident while Fr Donius' evidence is that he was with John and Alphonsa from 2.30 pm until 5.30 pm. As I said earlier he was not a convincing witness.
35. The credible evidence points only one way. John fought with Alphonsa. He punched her in the course of an argument. It was a severe blow by a man, of medium build, upon a slightly built woman. He ruptured her spleen, severely. She was a healthy person before that, probably suffering from some slight stomach ailment at the time. He killed her, directly. She died soon after taking the blow.
VERDICT
36. I said at the beginning of this judgment that the key issue was whether John Buku Kailomo killed his wife, Alphonsa Galewi. The answer I find, beyond reasonable doubt, is yes. He killed her at Banaule early in the evening of Wednesday 2 February 2005. He had no lawful justification or excuse. I find him guilty of manslaughter, as charged.
Verdict accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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