|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1638 OF 2006
THE STATE
V
PAUL SEMELKIT
Kimbe: Cannings J
2008: 3, 4, 23 April
24 July
VERDICT
CRIMINAL LAW – trial – murder – Criminal Code, Section 300(1)(a) – death allegedly resulting from assault during domestic dispute – circumstantial evidence – deceased died of ruptured spleen and pancreas.
The accused was charged with the murder of his de facto wife. The State alleged that he assaulted her during a domestic dispute. No one witnessed an assault but one State witness gave evidence of hearing an assault. Two days later the deceased died, the cause of her death being a ruptured spleen and pancreas. The accused denied assaulting the deceased. His defence included a claim that the deceased had been poisoned.
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) The key State witness gave credible evidence that pointed to the conclusion that the accused injured the deceased in a domestic assault and that the injuries he 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 other evidence was consistent with the State’s case and there were no major gaps or inconsistencies in the State’s case.
(4) 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?
(5) Here, there was no credible evidence to support the claim that the deceased was poisoned. 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.
(6) The accused was accordingly convicted of murder.
Cases cited
The following cases are cited in the judgment:
Devlyn David v The State, SCRA No 74 of 2003, 22.11.06
Paulus Pawa v The State [1981] PNGLR 498
Abbreviations
The following abbreviations appear in the judgment:
cm – centimetres
Const – Constable
CR – criminal case
Det – Detective
HEO – health extension officer
J – Justice
K – Kina
kg – kilograms
N – National Court judgment
No – number
OIC – officer in charge
PNGLR – Papua New Guinea Law Reports
Sgt – Sergeant
Snr – Senior
v – versus
WNB – West New Britain
Glossary
People
Bruno Poneiu – community health worker at Melenglo
Dr Patrick Kiromat – State witness No 2
Dr Topaleku – doctor who conducted post-mortem
Jacinta Matai – the accused’s first wife
Judith Paul – defence witness No 2; the accused’s daughter
Michael Kea – community health worker at Melenglo
Nelson Tongai – the accused’s uncle
Noah – Singepe Kambanga’s son
Pascalis – accused’s son
Paul Semelkit – the accused
Regina Uruang – the deceased
Rhema Luckie, Snr Const – corroborator of police interview
Singepe Kambanga – State witness No 1
Thomas Ombul, Det Sgt – investigating police officer
Places
Kandrian – district centre, south coast WNB
Kimbe – provincial capital, WNB
Melenglo – village in Kandrian district
Gasmata – an area on the south coast of WNB
TRIAL
This was the trial of an accused charged with murder.
Counsel
T Ai, for the State
T Gene, for the accused
24 July, 2008
1. CANNINGS J: Paul Semelkit, the accused, is a 40-year-old Gasmata man, a health worker by profession, who is charged with the murder of his de facto wife, Regina Uruang. The State alleges that the accused assaulted the deceased during a domestic dispute at their home at Melenglo in the Kandrian district of West New Britain in October 2005. The accused was the OIC of the Melenglo health centre and the deceased was also a health worker there.
2. The State alleges that the assault was on the evening of Saturday 15 October. It is agreed that the deceased died two days later on Monday 17 October after being taken to Kandrian for treatment. A post-mortem conducted at Kimbe on 26 October concluded that the cause of her death was a ruptured spleen and pancreas.
3. The State’s case is circumstantial and heavily dependent on the evidence of one witness, the deceased’s cousin, who said that she heard an assault taking place. The accused denied assaulting the deceased. His defence includes a claim that the deceased was poisoned, accidentally, by the key State witness, who prepared poisoned food intended for him, but which was eaten by the deceased.
THE OFFENCE
4. Section 300(1)(a) of the Criminal Code 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.
5. The prosecution has the onus of proving beyond reasonable doubt that:
6. They are the two elements of the offence. If the court is not satisfied that the second element is proven, but that the killing was unlawful, an alternative verdict of manslaughter can be entered under Section 539.
EVIDENCE FOR THE STATE
7. The State’s case was based on the following evidence:
THE STATE’S SEVEN EXHIBITS
8. Exhibit A is Paul Semelkit’s record of interview conducted on 11 July 2006 by Det Sgt Thomas Ombul. The accused said that his first wife’s name is Jacinta Maiti. He is the OIC at the Melenglo Sub-health Centre where he has been stationed since 2005.
9. Before she was working at Melenglo, the deceased, Regina, had been working at Aslei sub-health centre. Regina had had problems with her former husband, Jack, who had raped Singepe. Regina fell in love with him (the accused) so she transferred to Melenglo and they were living together there at the time of her death.
10. There were two other staff in addition to himself and Regina working at the Health Centre: Michael Kea and Bruno Poneiu. There were four other people living in the house besides himself and Regina: his uncle, Nelson Tongai; his daughter, Judith Paul; his son, Pascalis, and Regina’s cousin, Singepe. Singepe had only been staying with them for two weeks before Regina died.
11. Asked what he thought was the cause of Regina’s death he replied that he believed that Singepe had tried to poison him on the night of Friday 14 October. Singepe prepared the evening meal and the plate of food that she intended to give to him was eaten instead by Regina.
12. He said that on the evening of Saturday 15 October he was at the clinic treating patients and on his return to the house Singepe had confronted him as to why he had refused to eat the plate of food she prepared for him the previous evening. This made him suspect that Singepe had poisoned the food and that it was meant for him, not for Regina.
13. He said that Regina was in a bad way before she was taken to Kandrian. There was blood pouring out from her nose and mouth.
14. Exhibit B is a witness statement by the police investigating officer, Det Sgt Thomas Ombul. He explains the difficulties he had in investigating the case due to shortage of funds. This caused a delay in him being able to travel to Kandrian.
15. Exhibit C is a witness statement by the corroborator of the police interview, Snr Const Rhema Luckie. She confirmed that during the police interview the accused denied murdering Regina Uruang and accused Singepe Kambanga of preparing poisoned food intended for him, not the deceased.
16. Exhibit D is a sketch of the crime scene, showing that the Melenglo health centre is surrounded by three staff houses, one occupied by the accused and the deceased, and the others by community health workers, Michael Kea and Bruno Poneiu. Each of the four buildings is 30 to 40 metres apart. The house occupied by the accused and the deceased is a two-bedroom dwelling.
17. Exhibit E is a post-mortem report prepared by Dr Topaleku of Kimbe General Hospital. The post-mortem was conducted nine days after death. Significant, abnormal findings were:
There was blood in the peritoneum. There was also a tear on the spleen (7 cm long). The pancreas was ruptured at the head, body and tail. There was also bruising on the epigastric region of the abdomen.
18. Exhibit F is an affidavit of Dr Topaleku confirming that he conducted the post-mortem on 26 October 2005.
19. Exhibit G is a medical certificate of death by Dr Topaleku. The condition directly leading to death is recorded as "pancreatic injury", the antecedent cause of which is "splenic injury (ruptured)".
STATE WITNESS NO 1: SINGEPE KAMBANGA
20. She is a 34-year old Morobe woman, a cousin of the deceased. She described Regina as a "good woman". Singepe said that she and Paul did not get on well together. She was living with Paul and Regina at Melenglo for a week or two before Regina’s death. She noticed that if Regina wanted to visit her family Paul would get jealous and stop her from going to see her family.
21. On the night of Saturday 15 October she was with two of the accused’s children and one of his uncles. They heard noises coming from the house between 8 and 9 pm. She heard a banging noise, a struggle going on and someone trying to breathe. She was standing on the veranda of the house and the noise was coming from inside Paul and Regina’s bedroom. She was listening to the radio at the time. She ran into the house but the room was locked. She ran outside and tried to look inside but it was difficult to see what was going on. She was concerned that Paul was hitting Regina. There was no one in the room other than Paul and Regina. Paul sang out and said that Regina was OK but she did not believe him.
22. The other health workers came out to see what was going on but when Paul said that everything was OK they went away. She stood outside the house for some time but then went in and went to sleep.
23. The next day she saw Paul come outside with a pillow stained with blood. He threw the pillow down and went over to one of his workmate’s houses. This was on Sunday the 16th, in the morning. Regina did not come out of the house.
24. She went into the room and saw Regina lying face down. There was blood coming from her nose and mouth. There was blood on the right side of her face and her breast. She called her name but Regina did not respond. She ran over to one of Paul’s workmate’s houses but Paul had already asked his colleagues for help. They came over and gave Regina an injection and put her on a drip. They treated her in the living room of the house. Paul told them to move Regina from the bedroom and they did that by lifting her with the mattress. After she was treated Paul sent word for a boat to come so Regina could be taken to Kandrian.
25. The boat did not arrive until 4 am on Monday 17 October. She was taken to Kandrian health centre. The doctors and nurses rushed her inside and ran some tests. They also put a drip on her but she did not respond. She passed away at 12 noon on that day.
26. She is not aware of any physical or health problems that Regina had before the night of Saturday 15 October.
27. In cross-examination Singepe Kambanga said that she was very upset when her cousin died. She was angry with the accused and she is still angry with him. She wants to see him imprisoned.
28. She explained further about the problems she and Paul had getting on together. Paul would forbid her from talking to Regina. It was only when Paul was not around, that she and Regina were able to talk freely.
29. Asked about the evening of 15 October, Singepe confirmed that she heard a noise and screams, then somebody struggling to breathe as if she was about to die. Singepe hit her own chest in the witness box hard with her fist to demonstrate the sort of noise that she said she heard. She also made noises in to indicate the sort of sounds that she said that she heard. She said it was clear in her mind that Regina was shouting and struggling to breathe. The problems with her breathing lasted all through the night.
30. Asked how they put Regina onto the boat, Singepe replied that everyone was helping to carry her on the mattress. She was still breathing at that stage.
31. Singepe was asked a series of questions about the evening meal that she prepared for the family on the night of Friday 14 October. She cooked for herself and Paul and Regina plus the two children and Paul’s uncle.
32. The defence counsel, Mr Gene, put the following matters to Singepe:
33. She denied all of those allegations.
34. On the night of the 15th when Paul came outside and told everybody that things were OK, he looked scared.
35. On the morning of the 16th she (Singepe) went into the bedroom and saw Regina lying face down. She saw blood on her right forehead which looked like a bruise as if someone had hit her and blood had formed under the skin. She also had blood on her right breast. It seemed as if blood had formed under the skin there too. She saw that when she turned Regina around.
36. Asked why, if she was so suspicious about Paul not telling the truth, she had not done something earlier to find out what happened to Regina, Singepe replied that Paul had locked the door to the room and therefore she could not go inside.
STATE WITNESS NO 2: DR PATRICK KIROMAT
37. He is the acting Director of Medical Services at Kimbe General Hospital. He was called as a State witness because the doctor who conducted the post-mortem, Dr Topaleku, was not available. Dr Kiromat was shown the post-mortem report (exhibit E) and asked questions about it. He explained that the spleen is a very vascular organ, located on the left side of the stomach. Its rupturing is consistent with a direct hit of significant force with a blunt object.
38. Asked about the possibility that the deceased’s injuries were caused by poison, Dr Kiromat replied that this would depend on the nature of the poison, but usually the liver and kidneys would be affected. In the present case there was no record of liver or kidney damage.
39. In cross-examination Dr Kiromat said that if the spleen is to tear there has to have been some force applied externally and often there would be external injury such as bruises on the skin. The spleen is much easier to rupture then the pancreas as the spleen is a bigger organ and closer to the skin. A pancreas rupture will usually be caused by a fairly forceful blow. The purpose of the pancreas is to produce insulin, a type of protein.
40. The peritoneum is the sack or membrane lining the abdominal organs. The pancreas has three different parts: the head, the body and the tail and is not a big organ.
41. Depending on the nature of the poison it is possible for it to cause the pancreas to rupture.
42. The end of Dr Kiromat’s evidence marked the close of the State’s case.
THE DEFENCE CASE
43. There were two defence witnesses: the accused, who gave sworn evidence, and his daughter. No exhibits were tendered.
DEFENCE WITNESS NO 1: THE ACCUSED
44. He has been a community health worker since 1988.
45. On Friday 14 October he and Regina came home from work. Singepe prepared the food for the household members and left two plates for himself and Regina. He went to pick up the first plate but Singepe told him that it was not for him, it was for Regina. He replied that all the food was the same and he got the plate and went inside. He left the other plate there. Regina was not there at that moment, she had gone inside to change and when she came out she got the remaining plate. She ate the food.
46. The next day, Saturday 15 October, Regina was on duty by herself. She came home late in the afternoon and that is when she complained of having a stomach ache. She went up to the house and went to sleep while the rest of the household was at the kitchen house. She slept throughout the evening.
47. He went to the clinic to check on some patients and when he was on his way back to the house he met Singepe on the steps of the house. She said the same thing she had said the day before: ‘I told you not to eat that food. It was for her’.
48. He did not feel good about what Singepe said to him so he left the house and went back to the clinic. When he went back to the house he heard Regina crying. Then he saw blood stains on her pillow. When he saw that, he opened the door and called out to his workmates to come and check on her. Michael Kea and his family came. He asked them to stay with Regina while he went to the clinic to get an intravenous drip and an injection to treat her with. He treated her but nothing happened and then he went searching for a boat to take her to Kandrian but the weather was bad and they could not travel immediately. It was not until early on the morning of 17 October that they were able to get Regina to Kandrian. She was treated but passed away at 12 midday.
49. He has six children from his first wife and two of them, Judith and Pascalis, were living with him and Regina at the time.
50. In cross-examination the accused said that he was with Regina on Friday 14 October. She was healthy on that day. He confirmed that it was on that evening that Singepe told him not to take a particular plate of food. That is why he suspects that Singepe was trying to poison him. Asked why she would want to do that, he replied that Regina’s former husband had raped Singepe. Regina had run away and come to stay with him (Paul) at Melenglo.
51. However, he did not warn Regina before she took her plate of food. Nor did he confront Singepe with his suspicions about what she intended to do.
52. When they brought Regina to Kandrian Singepe put gloves on and told everyone who had contact with Regina’s blood to wash their hands before having food. He did not ask Singepe about the food that Regina had eaten as he was very upset. It was the first time in his life to see a sickness like this, where someone had bled for no apparent reason.
53. He denied calling out to his workmates on Saturday night that Regina was OK. He did call out but that was to seek their assistance when he saw blood coming from Regina’s mouth and nose. He denied assaulting her. He said Singepe never came to the bedroom door on the night of 15 October. The door was not locked and Singepe is lying.
DEFENCE WITNESS NO 2: JUDITH PAUL
54. She is the accused’s daughter, age 14 years. Her mother is Jacinta. She understood that she was in Court to give evidence about the death of her father’s second wife, Regina.
55. She was at Melenglo at the family home on the night of Friday 14 October. Her father and Regina had been at their work place and before they came home she was in the house with her younger brother, Pascalis. Her cousin, Singepe, who was living with them at the time, prepared the evening meal.
56. On Saturday 15 October her father and Regina were both at work. They finished in the afternoon and were both at the house on Saturday night. Singepe was also there. Regina was in the house, in the kitchen.
57. Asked further about Saturday night, Judith said: "before God and before you, my father did not hit my stepmother".
58. In cross-examination, Judith denied that she was sitting with Singepe listening to music on the radio around 8 or 9 pm on Saturday 15 October. She said that she heard no noises or banging coming from her father and stepmother’s bedroom. She denied knowledge of Singepe getting up and trying to go into the room and going around the side of the house to check if Regina was OK. She denied that neighbours came to assist. She denied that her father had said that Regina was OK. She denied that on Sunday morning her father had come out of the house with a blood stained pillow.
59. She did say, however, that she helped to carry Regina out of the bedroom on a mattress. She saw blood coming out of Regina’s mouth and nose but she saw no bruises on her body. Her father helped move Regina. She does not know what caused Regina to be in that condition. There were other people helping too. They were her father’s workmates.
60. The end of Judith Paul’s evidence marked the close of the defence case.
THE ISSUES IN DETAIL
61. The nature of the evidence and submissions of counsel give rise to these issues:
62. In light of the answers to those questions, I will address the two elements of the offence of murder set out at the beginning of this judgment:
63. I will then consider:
1 WAS THE EVIDENCE OF THE KEY STATE WITNESS CREDIBLE?
64. Mr Gene submitted that Singepe Kambanga was an unreliable witness as she is related to the deceased, her demeanour in the witness box was poor, she admitted that she was motivated by a desire to see the accused sent to prison and she was evasive in cross-examination. Further, some parts of her evidence were unbelievable, eg that she saw a bruise on Regina’s forehead and blood on her breast. Her description of the alleged incident on Saturday night was light on detail as she did not describe hearing the deceased scream or crying for help, pushing, struggling or banging of walls.
65. I reject all of those submissions. The witness’s relationship to the deceased does not make her unreliable. Nor does her expressed desire to see the accused imprisoned. The desire seemed genuine and that may well be a product of her desire to see that justice is done to the person she genuinely believes, based on her proximity to the incident, to be responsible for her cousin’s death.
66. What would make her an unreliable witness would be the sort of things Mr Gene criticised her for – poor demeanour and evasiveness – but I consider that those criticisms are without foundation. Her demeanour was satisfactory and she was not evasive. I do tend to agree that some parts of her story seemed, at first, a little difficult to believe. For example, having heard Regina in a distressed condition on Saturday night, it seems unusual that she (Singepe) would not take more active steps to check that Regina was, in fact, OK, before retiring for the night. However, according to her evidence, the accused had assured everybody that Regina was "OK" so Singepe may have thought that she was obliged to accept that assurance.
67. Overall, however, I thought Singepe’s evidence was sound. Her description of the noises she heard coming from the bedroom were vivid and consistent with the story that she told. She did, in fact, describe a struggle. Her description of the places on Regina’s body that she saw blood and bruises was not inconsistent with the post-mortem report. In any event, it is not in dispute (in light of the record of interview (exhibit A) and the accused’s and Judith Paul’s evidence) that when Regina was treated she had blood coming from her nose and mouth.
2 DOES THE OTHER EVIDENCE SUPPORT THE STATE’S CASE?
68. Mr Gene submitted that the medical evidence does not correspond with the State’s case in that Dr Kiromat’s evidence left open the clear possibility that the deceased’s injuries were consistent with her being poisoned. It is true that Dr Kiromat did say it was possible that a ruptured spleen and pancreas could result from poisoning but that opinion was heavily qualified by his comment that usually the liver or kidneys would be affected too, ie the poison would spread throughout the body and the injuries would not be localised.
69. Dr Kiromat’s evidence, coupled with the post-mortem report, the affidavit and the medical certificate of death prepared by Dr Topaleku, are consistent with the ruptured spleen and pancreas being caused by significant force caused by a blunt object. It is widely accepted that such injuries can be caused by a strong punch or kick to the abdominal region; and such blows, in this case, are consistent with the sort of noises described by the key State witness. The post-mortem report does not say that the deceased had an enlarged spleen (making it vulnerable to rupture) and this is another reason to conclude that she must have suffered a forceful blow.
70. The medical evidence provides strong support for the State’s case.
3 ARE THERE GAPS IN THE EVIDENCE?
71. Mr Gene submitted that the State should have had other witnesses, such as the other community health workers at Melenglo, give evidence.
72. I agree that that was desirable but I do not think any adverse inference should be drawn from their absence. Det Sgt Ombul’s statement (exhibit B) makes it clear that he faced considerable resource difficulties investigating this case and that, I consider, adequately explains, the absence of other witnesses. In any event, the Court must act on the evidence presented to it and the result of the case will turn on the quality of the evidence. So I do not consider that there are significant gaps in the State’s case.
4 WERE THE DEFENCE WITNESSES CREDIBLE?
73. The accused was not a convincing witness. His demeanour was not strong. He gave the appearance of being someone in denial. The poisoning defence was not believable. If he genuinely believed that Singepe was up to no good and that he had eaten the wrong food, surely he would have raised the alarm and alerted Regina and treated her immediately. Instead he stayed silent. The motivation he imputed to Singepe for wanting to poison him (Regina’s previous husband had raped Singepe) made little sense and was also not believable.
74. The accused’s daughter was equally unconvincing. She at one stage repeated the same line her father had used in the witness box – "before God and before you" – which indicated that she had been coached on what to say. Her demeanour was poor and she gave the impression of being someone who was intent on saying what she had been told to say and/or what she thought she had to say to stop her father going to jail.
5 DOES THE CIRCUMSTANTIAL EVIDENCE POINT TO ONLY ONE CONCLUSION?
75. At this juncture I remind myself of the test that must be applied in cases reliant on circumstantial evidence:
76. 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.
77. The answer to the question posed is yes. The evidence points only to the conclusion that the deceased was assaulted. The only person who was in a position to assault her, at the time and place alleged, was the accused.
78. I reject the contention that the deceased was poisoned, accidentally. I also reject the alternative proposition put by Mr Gene, that she may have died of natural causes due to her being a community health worker. There is no evidence or suggestion that anyone else around Melenglo at that time suffering of similar symptoms as the deceased.
79. I now move to a consideration of the two elements of the offence.
6 DID THE ACCUSED KILL THE DECEASED?
80. 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.
81. The only reasonable conclusion to draw from the proven facts is that Regina Uruang died as a result of the injuries inflicted on her by her de facto husband, Paul Semelkit, when he assaulted her on the night of 15 October 2005. The accused caused the death of the deceased. He did so, directly, in that he assaulted her and the injuries he inflicted led to her death less than 48 hours after the assault.
82. I am satisfied beyond reasonable doubt that the accused killed the deceased.
7 DID THE ACCUSED INTEND TO DO GRIEVOUS BODILY HARM?
83. The evidence supports the conclusion that this was a very bad assault by a man upon a woman. Whenever any person assaults another person with such force as to rupture both the spleen and the pancreas, 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 am satisfied beyond reasonable doubt that the accused intended to do grievous bodily harm to the deceased.
8 WHAT IS THE APPROPRIATE VERDICT?
84. As I have concluded that there was an intention to do grievous bodily harm, the alternative verdict of manslaughter is not available. The State has proven both elements of murder under Section 300(1)(a) of the Criminal Code.
VERDICT
85. The accused is found guilty of murder, as charged.
Verdict accordingly.
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2008/109.html