N4656

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO 1368 OF 2010

STATE

V

THOMAS ABAUA (No.1)
Accused

Waigani: Ipang AJ
2012: 12, 13, 17 & 26 April

CRIMINAL LAW-Criminal Code s.300(1)(a) murder-prior to his death-deceased admitted to the hospital and was later discharged-gave his statement to the police investigators for the alleged attempted murder however died few days later. Deceased statement tendered to court with consent from the defence counsel.

CRIMINAL LAW-Criminal Code Act-s.269 Defence of Self Defence-force used by accused was excessive; unreasonable, unjustified and therefore unlawful. Killing of the deceased was therefore unlawful.

Cases Cited
Papua New Guinea Cases

R v Hor Mui (Administrative Report) (1946) No. 25
Fred Bukoya v The State (2007) SC 887
State v Siwing, CR 933 & 934 of 2006
State v Toude (No.2) N2298 (16 October, 2001)

Overseas cases

R v Henriques (1991) 93 Cr App R 237 

Counsel

Mrs.L. Kuvi, for the State
Ms. R.Endemango & Mr.A. Ninkama, for the Accused

26 April, 2012

1. IPANG AJ: The accused pleaded not guilty to one count of murder under s.300 (1) (a) of the Criminal Code Act. A trial was conducted, concluded and this is the decision on verdict. 

Brief facts

2. This is the alleged brief facts. State alleged that between the 10th and 11th of July, 2009 between the hours of 11.00pm and 1.00am at Nine mile settlement, the deceased went to the accused house to confront him about the insulting words that the accused used against his wife, who was the accused niece. The accused upon seeing the deceased entered his yard, armed himself with an iron pipe and hit the deceased on his head. The deceased collapsed and was rushed to the Port Moresby General Hospital. He was admitted, treated for his injuries and was later discharged. 

3. On the 20th December, 2009, the deceased collapsed and was rushed to the Port Moresby General Hospital but he was pronounced dead upon arrival. The medical report states that the cause of the death is a brain infection as a result of brain abscess and fractured bone on his head.

4. State alleged that when the accused speared the deceased on the left side of his head, he intended to cause grevious bodily harm and that it was the actions of the accused that caused the death of the deceased.

The charges

5. The s.300 (1) (a) of the Criminal Code Act is worded in the following terms;

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

(a)	if the offender intended to do grevious bodily harm to the person killed or to some other person; 

Elements of the offence of murder

6. The following are the elements of the offence of murder which the State bears the ultimate burden to prove each of the elements beyond reasonable doubt.

. A person

. kills

. another person

. intention to cause grevious bodily harm

Legal Issues

7. The issues to be determined in this matter are; 

. Whether there was intention to cause grevious bodily harm on the
 deceased by the accused?

. Whether the defence of self defence has been made out?

 . Whether State has negative self-defence?

State case

8. The only two State witnesses called are; Dr. Jacob Morewaya and Georgina Gideon.

9. Apart from these two witnesses, State tendered the following documentary evidence by consent from the defence counsel. These are; Record of Interview dated 19th February, 2010 in Pidgin-marked as Exhibit A, the Record of Interview dated 19th February, 2010 marked as Exhibit B and the statement of Lawrence Torres in English dated 22nd February, 2010 marked as Exhibit C. These following lots of documents were tendered as evidence through witnesses. Post Mortem Report by Dr. Jacob Morewaya dated 29th December, 2009 marked as Exhibit D, Medical Certificate of Death dated 22nd of December, 2009 certified by Dr. Morewaya marked as Exhibit E, Statement of Georgina Gideon in English dated 14th April, 2010 marked as Exhibit F, Proof of Service sworn on the 22nd of April, 2010 marked as Exhibit G, Statement of James Maniapi in English dated 7th November, 2009 marked as Exhibit H and the Defence pre-trial statement marked as Exhibit I. 

Evidence given by Dr. Jacob Morewaya

10. This State witness is a Lecturer in Medicine (Pathology) with the Medical Faculty of the University of Papua New Guinea, Taurama Campus. He specializes in Pathology and he is registered medical practioner with PNG Medical Board under the Medical Registration Act, Chapter No. 398.

11. Attempts have been made to get Court Reporting Service to produce transcript of proceeding. It is difficult to obtain transcript of proceeding specifically in relation to the evidence given by Dr. Morewaya. However, this is the extract version of questions asked and answers given during Examination In Chief and Cross Examination should be of some assistance to understand the complexity of the matter.

1.	What is brain infection and what causes it?

A brain infection is caused when germs are able to come in to brain and cause disease in a sterile site, i.e, one where there are no germs. The germs enter through the surrounding tissue or gain access by some mechanism including blood.
 
2.	How are germs able to reach the brain?

The report summary says spear wound to the head, I would think spear wound introduced it directly to the brain.

3.	Explain 1(b) on page 2 of the Report which states left temporal/parietal brain abscess?

Abscess is a collection of death cells or germs in a particular area in this case on the left side of the head just above the ear.

4.	Explain 1(c) on page 2 of the Report which states fractured left temporal & discharging left temporal/parietal brain sinus?

The bone is broken and sinus is a hole and fluid is coming out of it 

5.	Explain your summary of page 2?

. Left temporal area discharging sinus, 1.0 cm in front of the mid part of the external ear and a 2.0 x 3.0 cm scar tissue. The sinus is inferior part of the scar tissue.

As explained earlier

. Scarring of the scalp associated with the snus.

 Healing occurring where shattered hole is.

. Fractured and fibrosis of the left temporal bone
 Bone broken

. Brain abscess, yellowish grey necrotic brain of the temporal lobe
 with adhesion to inner part of the skull 

 Healing process where skull was struck when referring to adhesions to inner part of the skull

. Swollen brain

 As stated brain swollen

. Right pleural adhesions with purulent surface
 Lung infection
 
 Lung infection

6.	What would cause such injury?

Two causes the injury itself and the complications to the injury. In the first instance it would be scarring which causes damage to the skin and also the fractured skull where a force was applied. In the second instance, the injury was complicated by germs in the brain cause discharging from the sinus creating the sequence of events.

7.	What would cause a human skull to break?

A force would cause it. A force that comes into contact with the brain. A brick comes and hits my head or a hit the brick for example.

8.	What type of force?

Enough force

9.	How strong is the human skull?

All bones are strong

10.	 Is the history consistent with the injury?

There are different pointed sizes. The wound is 2x3 cm hence it is more like a pointed object but not a spear. More like an iron rod was used.

11.	 Would a fall on a surface such as cement cause such a wound?

If the cement is rough. If the cement is smooth then it would be just a bump. 

Cross Examination

1.	Is it true that you did the Post Mortem on the deceased?

That's correct

2.	The deceased was admitted to the hospital, yes?

That's what I noted in the report summary

3.	How long does it take for a fractured skull to heal?

Up to six weeks

4.	In your opinion how serious is a fractured skull?

Very serious as with any fracture any where more particularly the skull because it encloses the brain a delicate tissue. Level of seriousness depends on the type of fracture. Simple fracture the skin overlaying the bone will be intact which is less serious than where there is open skin exposing the brain to the environment.

5.	The type of fracture did the deceased have?

In my opinion, where there was the communication between the skin and the inside along with healing scar. It was a compound fracture.

6.	Does it require a patient to be hospitalized?

Deceased was hospitalized

7.	How long?

Don't know the detail

8.	Where did the deceased die?

According to the Medical Certificate of Death and the Post Mortem Report at McGregor Police Barracks

9.	The deceased was already dead when you performed autopsy?

Yes

10.	 Was the wound healing?

Some healing however the discharge from the sinus was there.

11.	 I put to you that the deceased wound was already healed?

No, it was healing. Not completely. The sinus would not be there if it was healed.

12.	 I put to you that there was a fracture but no penetration?

There is a fracture whether or not the object penetrated the wound I cannot say. 

13.	 I put to you that there was no penetration but just fracture?

Don't know what you mean. There was a laceration which caused scarring and it was healing. There was a fracture whether object introduced germs to brain I cannot say.

14.	 There was an object that hit?

Yes

15.	 I put to you that the infection can be caused easily be person not concerned about hygiene?

There are two ways in which an infection can occur from outside or through the blood.

16.	 In your experience once a person is discharged from hospital his condition is not serious?

Not correct. Some conditions reoccur or worsen after they go home and become more serious requiring them to come back.

17.	 You said that some infections come from blood and some from outside. In this case what was the type of infection internal or external?

Brain abscess. Germs already there cause brain damage. My knowledge is of wound to skull thus more probably that's the site that the germs entered the brain.

18.	 Bullet point 6 of gross summary said infection of the lungs?

Pus in the lungs. Not sure of status of patient's secretions. From that way it would be internal.

19.	 I put to you that when deceased was discharged the germs already there?

Abscess formed. Germs already there. They formed and formed and localization occurred, that is, collection. It was there over time and formed abscess.

20.	 Told the court that fracture resulted from contact?

Yes

21.	 Contact on skull?

Inferred. Correct yes

22.	 In your report there was some healing?

Correct

23.	 Any knowledge of medication?

No

24.	 Any history by relatives?

No

25.	 Exhibit C was made available by relatives of the deceased?

Yes

26.	 Apart from that what did the deceased wife tell you?

Don't remember the wife telling me anything. Information comes from police and goes to Coroner who orders me to perform autopsy.

27.	 You did not see who attack deceased?

No

28.	 You did not know how the deceased was attack?

No

29.	 The deceased died as a result of his own failure to observe treatment or medication?

Can not say. Don't know what medication he was on. Things I observed are in the Post Mortem.

Re-Examination

1.	It takes up to six weeks for a fractured skull to heal, correct?
Yes

2.	 Would I be correct to say that that depends on how well a person looks after themselves and if taking medication?

Yes

3.	Said that the germs were there from the beginning and formed overtime?

Yes
 
4.	A person could go on living a normal life while germs are forming?

Yes

12.	 Defence said they have not taken issue of the death. Defence submitted that the evidence of Dr. Morewaya confirmed the death of the deceased and the cause of the death. However, the evidence of Dr. Morewaya is crucial as it reveal the extent of injuries deceased sustained and whether less or considerable force was applied to sustain such injuries to the vital part of the deceased body, his head. In State v Siwing CR. 933 of 2006, Manuhu, J compared the two versions of facts from the prosecution and defence on how the assault was inflicted. His Honour ruled that the medical report was consistent with the prosecution's story. Comparing the present case, it is revealed that the medical evidence given by Dr. Morewaya is consistent with the State case on the injuries sustained by the deceased. Refer to the questions and answers in Examination In Chief especially; 4,8,9,10 and 11.

Georgina Gideon

13. She is the Senior Constable attached to the Criminal Investigation Division. She has been a police officer for 16 years. The witness was shown her statement. She said the co-accused to Thomas Abaua, Thomas Gelowa escaped from the police station. She said she obtained statement from deceased James Maniapi at the CID Office at the police station. She said the deceased statement is on the file. 

14. The file was served on the accused and the proof of service was filed. Accused was served on the 20th April, 2010 and proof of service filed on the 22nd of April, 2010. Deceased statement dated 7th of November, 2009 was tendered through witness Georgina and was marked as Exhibit G. This statement was tendered pursuant to s.102 of the District Courts Act. The conditions precedent set out in s.102 has been proven. I am mindful and have cautioned myself of the warning as stated in R v Henriques (1991) 93 Cr App R 237 and at p242 and as re-stated in Fred Bukoya v The State (2007) SC 887. The warning is that statement of deceased tendered by consent from the defence counsel has not been tested in cross examination and so due consideration be given when evaluating its reliability. 

15. Prior to his death, deceased gave this statement in which he stated that; 

"that very night I was shouting at him and tried to stop him using abusive languages to my wife. As I tried to enter his yard he was aware of my presence and decided to end my life. As I came right to his house on a cement floor, his family members including his son, Thomas Gevola were there. They all rushed to fight with me without solving this problem. I saw his son Thomas Gevola was in possession of a bush knife. 

Definitely, Thomas Abaua used an iron bar to put me off. He came out from my left side where it was dark and I cannot save myself. He pushed an iron bar through my left side of the head and I dropped unconscious when speared on the head with the iron bar. I was off when the suspect decided to cut himself, just to blame me for stabbing him. He thinks that I am dead. Just to excuse himself with his cut hands so that everybody won't blame him for the offence he committed that night. 

16. Defence had argued that the statement above and the subsequent paragraph which state; 

"Definitely, I can admit to this court that I was honestly holding on to a bottle of beer and did not posses any offensive weapon. The actual fact is that I was already down unconscious when speared on the head with an iron bar. I was off when the suspect decided to cut himself, just to blame me for stabbing him." 

17. Counsel submitted the two paragraphs as re-stated in bold above contained inconsistencies. Counsel submitted that the first paragraph would mean the deceased was still conscious when he was attacked by the accused and after been attacked he fell unconscious. Furthermore, the counsel submitted that the second paragraph would mean the deceased was lying on the ground when the accused hit him with the iron pipe. Defence submitted that the statement of deceased should not be relied on because it is tainted with inconsistencies and it is dubious. Fundamentally, defence argued that now weight be given to the deceased statement the deceased was confused as to the order of events and it is unsafe to rely on such statement. I do not find any considerable difference in what the deceased said in paragraph 1 on page 2 and the subsequent paragraph. The both paragraphs basically mean the same thing. The result was dropped down unconscious. The act was speared on the head with an iron pipe. 

18. The Record of Interview both in English and Pidgin versions were tendered as evidence before this court. The English version was marked as Exhibit A and the Pidgin version was marked as Exhibit B. Question & Answer 29. He came and what did he do to you? He came and swore at me and fought with me and he took out the knife and he stabbed me then I got an iron pipe and hit him and he fell on the cement floor. Q&A 30. You said you hit him with an iron pipe, which part of the skin? It was in the night I am not sure whether the head or.Q &A 31. Can you make it clear to court that which statement is correct, you said the injuries James Maniapi sustained using an iron pipe, the injuries he sustained he fell on the cement floor? The injuries he sustained were not with the iron pipe, the injuries he sustained he fell on the cement floor. Q & A 38. You must state clearly and admit he died because you hit him with an iron pipe. What will you say about this? Yes he died on this incident I admit thus denying is not a good thing to do. 

Defence case

19. Defence called only one witness and that was the accused himself. He gave evidence on oath. He told the court that on the night in question, he was in his house, fast asleep when deceased came to his yard. Deceased was drunk and shouted loud at him. He said the deceased used insulting words at him. He also asked why accused had used insulting words against his wife. Accused said he heard the deceased kicked a small gate in front of the house, so he came out of the door.

20. He said as he came out of the door, deceased was already there like a meter away from him. The accused said before he could do anything, the deceased stabbed him on his left arm and it penetrated to the other side. He said he was shocked and out of fear of being attacked the second time that deceased might killed him, he fended the knife, grabbed an iron pipe and struck the deceased with it. He said he did not know which part of the body of the deceased so long as it stopped the deceased from attacking him again. He said he was heavily bleeding from the stab and he feared he might die so he did it out of fear of his own life.

21. He said there was no light in the area as there is no electricity. He said there was little bit of light through the moon light. He told the court that two weeks ago he cracked joke with his niece, the deceased wife but his niece took offence with him. He later felt bad and took K100.00 to Lucy to say sorry but the husband refused so he said he returned back to his house. This is quite contrary to what the deceased stated in his statement tendered to court. In paragraph 3 of his statement the deceased stated that, "the suspect has failed his commitment to approach me and my wife two weeks ago to solve this problem. That was when he had promised himself. So I decided to go to his house and force this person, Thomas Abaua to better use his common sense and behave like an elderly man." Georgina Gideon in her statement tendered to court marked a Exhibit F supported deceased version that accused had not taken steps to resolved the matter he created. Thus Georgina stated that; "the accused had promised to have the matter sorted out between him and his niece but failed to do so."

22. During cross examination accused revealed that during the incident, he was only with his two daughters in the house. He said his son Thomas Gevola is a Pastor with the Revival Church of Papua New Guinea and was based at Tapini. This is again contrary to what the State had alleged. State's case is that when the deceased entered the premises of the accused, the Thomas Gelova armed himself with a bush knife and approached the deceased. Thomas Gelova is a co-accused to Thomas Abaua. He has escaped from Police Custody and a bench warrant for his arrest has been issued. His case is still pending. 

23. Accused also said he was able to see the deceased holding a bottle of beer in on his right hand and a bonnet knife on his right hand. He said though there is no electricity, with a little bit of moon light he was able to see. He said deceased held the knife but hid the knife. Then he said he was able to see the knife when deceased stabbed him with the knife. In defence submission at page 14, defence submitted that the accused said he heard the deceased kicking a small gate in front of his house so he came out of the door to see the deceased. He said when he came out of the door, the deceased who was a meter away stabbed him and he was shocked. Based on this, the defence submitted on page 15 of their submission that the accused did not know that the deceased was armed with the knife until he was stabbed. So, defence submitted that at first instance prior to being stabbed, accused did not do anything as he only approached deceased to find out why he was verbally abusive. This is contrary to what the deceased had stated in his statement that the accused used an iron bar to put him off. He said the deceased came from his (deceased) left side where it was dark and that he (deceased) cannot saved himself.

24. Accused was asked during cross examination as to when did he pick up the iron pipe, before or after the stabbing? He said he already stabbed me. I was covered in blood; if I had left it there he would have stabbed me again. I looked around nothing so I used pipe and hit him. I don't know where I hit him it was night. This is consistent with his Record of Interview-Question and answer 30. When s.96 of the District Court Act was administered, this was what the accused said; "He stabbed me with a knife. I got an iron pipe and hit him on the head and he fell down." There seem to be two versions of evidence given by the accused and these are completely contradicting each other. First, he said it was dark and he did not know where he had hit the deceased let alone at the beginning he said there was a little bit of light through the moon light. Then the latter evidence that he was spot on when he said he hit the deceased on the head. 

25. When cross examined that, when deceased stabbed you, the knife got lose? Accused answered 'Yes.' Next question-After knife got lose, you got the pipe? Answer 'yes.' There is considerable difference in answers given to similar questions asked in cross examination and during re-examination. During re-examination, accused was asked, 'After he stabbed you, was he holding the knife? Answer: 'Yes, he stabbed me and attempted to stab me.' Question: When you got the pipe was he holding on to the knife? Answer: 'Yes.' 

26. In State's submission, State Prosecutor submitted that the accused described his injuries as quite serious. Accused said the knife went straight through his upper arm and came out and scratch his chest. After he was stabbed, there was blood everywhere. After deceased fell, he also fell. Accused at first said he was unconscious but later readjusted his story in re-examination and said that he was awake but not capable of moving. This was because he was weak. So the accused was lying there from around 1.00am to 4.00am bleeding. Then he got up and walked to 9 mile market, still bleeding. An Elcom vehicle came and took him to Bomana Clinic where Sister Rebecca treated him. He said the Nurse stuffed cotton wool to his wound to stop his bleeding and put him on drip. He was then he was taken to 3mile, where he was still bleeding.

27. State argued that considering how the accused was attacked and the injuries he sustained, he would have died from loss of blood and say at the scene of attack. Counsel submitted that it totally defies logic and common sense considering the accused bleed from 1.00am to 4.00am and had walked to 9mile market given the extent of injuries he has claimed to have sustained. State also submitted that there was no medical report from Bomana Clinic or even from Port Moresby General Hospital where the accused received medical treatment.

Given the above inconsistency evidence by the accused, I find him to be not the witness of truth and therefore, unreliable. I have decided that I will place a little or even give no weight at all to his evidence. That was the approach taken by Kandakasi, J in State v Toude (No.2) N2298 (16 October, 2001).

Defence of provocation

28. The defence of provocation cannot be sustained as the accused came out clear that when the deceased entered his yard, shouted and kicked the small gate, he went out to investigate as the deceased was his brother in-law. 

Whether the defence of self defence has been made out?

29. The defence of self defence under the Criminal Code Act is an absolute defence. S. 269 of the Code thus provides;

"269 Self-defence against unprovoked assault

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawfully for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause death or grevious bodily harm.

(2)	If-

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grevious bodily harm; and

(b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the defended from death or grevious bodily harm, it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grevious bodily harm. 

30. State maintained that the deceased was not armed. On the contrary, defence said the deceased was armed with a knife and used that knife to stab the accused. It is therefore open to this court to make a finding as to whether the deceased was armed or not. If I find that the deceased was unarmed, defence of self-defence cannot be sustained.

31. The accused has sustained injuries and this in my view cannot be brush aside easily. Yet again, which weapon the deceased was armed with is in dispute? The defence case theory as contained in their Pre-Trial Review statement stated a spear whilst evidence given during trial mentioned knife. In defence submission paragraph 39, defence explained that the author of the statement is Michael August and not the accused so Michael August is bound to misunderstood the instruction. This reasoning or justification is shallow and can hold grounds. Despite this the accused has sustained injuries. The accused said he did what he did by striking the deceased with an iron pipe otherwise the deceased would have killed him.

32. The law recognises the right of an accused person to act in self-defence from an attack. The right arises where a person believes that the act in self-defence was necessary in order to defend himself and that, what the accused did was a reasonable response in the circumstances as the accused perceived them. The court must therefore consider the circumstances as the accused perceived them to be at the time the accused acted in self-defence. 

33.The accused said he heard the deceased shouting and kicking the small gate and he opened the door and came out. He was about one meter apart from the deceased when the deceased stabbed him with a knife. He then got an iron pipe and struck the deceased on his head. Deceased fell on the cement and he said at the same time he fell on the cement floor. The question that arises is; by picking an iron pipe and striking the deceased on his head-was that a reasonable response as accused perceived it to be? 

34. Given the extent of injuries as the accused described he has sustained, I can say would be a reasonable response. However, given the injuries and the loss of blood that the accused as a result the stabbing from the time he received medical treatment defies logic and common sense. I share the same view as the State Prosecutor. Given the nature of injury the accused said he sustained and the loss of blood from 1.00 am to 4.00 am and the fact that he walked all the way to 9mile market still bleeding he would have died from loss of blood. This then begs the question; did the accused really sustain the kind of injury he said he sustained and the loss of blood from 1.00am to 4.00am then he walked a distance to the 9mile market still losing blood? From this given facts I am of the strong view that the accused has in fact not really sustained the kind of injury and loss of blood. My view is supported by the fact that there is no medical report from the nurse and doctor who treated the accused.

35. Basing on this reasoning and in relation to the accused defence of self-defence, I view the accused act of picking up an iron pipe and striking the deceased on the vital part of his body, the head as an act which went beyond the force which was necessary for self-defence and therefore was unlawful. See R –V- Hor Mui (Administrative Report) (1946) No. 25. 

36. I find the accused intention was to defend himself and in the circumstance that was for a lawful purpose however, the force used was excessive. The force used by the accused was excessive and not justified by s.269 of the Criminal Code Act. I find the killing was unlawful. Since this is my finding, that the killing was unlawful, I find the accused guilty of the offence of Manslaughter under s.302 of the Criminal Code Act in substitute of Murder.

Verdict: Guilty of Manslaughter.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused