N9032

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 348 OF 2011

THE STATE

V
PHILEMON ISEI

Alotau:  Toliken, AJ
2013:   6th, 24th May

CRIMINAL LAW – Particular offence – Manslaughter - Trial –Accused stabbed deceased with a blade of a scissors in confrontation with deceased - Self-defence raised - Criminal Code Act Ch. 262, ss 302, 269.

CRIMINAL LAW – Practice and Procedure - Evidence – Written statements – Use of - Though permissible discouraged where there are critical issues of facts.

CRIMINAL LAW – Evidence - Prosecution case consist entirely of written statement of witnesses – Eyewitness to confrontation between accused and deceased not called - No reason offered by prosecution - Critical issue of fact - Witness states that “deceased was already on his feet” when assaulted by accused – Witness does not elaborate – Statement lacks clarity – Court unable to make necessary finding of fact on critical issue – Verdict of not guilty returned.

Cases Cited

Epeli Devinga v The State [1995] PNGLR 263
Fred Bukoya v The State (2007) SC 887

Counsel

R. Auka, for the State
N. Wallis, for the accused

JUDGMENT ON VERDICT

24th May, 2013

1.	TOLIKEN, AJ:	    On 7th May 2010, the accused, Philemon Isei pleaded not guilty to one count of manslaughter contrary to S.302 of the Criminal Code Act, Chapter 262 (the Code).

2.	The State alleged that on the 2nd day of April 2010 at Hinaota village, Misima Island, Milne Bay Province, he unlawfully killed one Henry Esiloni.

THE ALLEGATIONS

3.	The allegations by the State are that on the evening of 24th of April 2010, the accused and a Brian Peter had been drinking home-made (illicit) brew (JJ) at Hinaota village.

4.	After that, they walked to a place where some young boys were arguing.  The accused fought one of them.  The deceased, Henry Esiloni was present and came to the aid of the young boy.  He punched both Brian Peter and the accused who both fell to the ground.  The deceased then approached them to punch them again but slipped and fell on the ground.

5.	While he was on the ground, the accused got up and advanced at the deceased with half a blade of a scissors and stabbed him on left lower side of his body causing a wound measuring 2cm length and 10cm deep.

6.	The deceased got up and tried to run away but collapsed to the ground bleeding heavily. He was later taken to the local hospital but died on arrival from heavy blood loss.

8.	The State alleged that the accused was not authorized or excused by law when he stabbed the deceased with a pair of scissors which resulted in his death.

PLEA

9.	The accused pleaded not guilty. He admitted killing the deceased but raised self-defense under Section 269 of the Code.

THE ISSUE

10.	The ultimate issue for me to determine then is whether the accused acted in self-defense. 

THE EVIDENCE

Evidence for the State

11.	The State’s evidence consisted entirely of statements of witnesses and the accused’s Record of Interview that were tendered into evidence by consent. These were: 
1.	Statement of Brian Peter dated 10/05/10 (Exhibit “A”)
2.	Statement of Angela Gilbert dated 11/05/10 (Exhibit “B”).
3.	Statement of Matoni Donigi dated 10/05/10 (Exhibit “C”)
4.	Statement of Mattisen Esiloni dated 10/05/10 (Exhibit “D”)
5.	Statement of Edrick Philip dated 01/06/10 (Exhibit “E”)
6.	Medical Report dated 03/05/10 by HEO, Naomi Sailasa (Exhibit “F”)
7.	Statement of Moses Hilibobo dated 19/08/10 (Exhibit “G”)
8.	Statement of Leonard Romel dated 20/08/10 (Exhibit “H”)
9.	Record of Interview dated 17/08/10 (Exhibit “I”)

12.	Of these, only the statements of Brian Peter and Angela Gilbert attest to what happened at the relevant time.  Then of course, there is the Record of Interview where the accused makes some statements which also attest to the events in question.  The statements of witnesses Matoni Donigi, Mattisen Esiloni and Edrick Philip depose of events that happened after the event.

Statement of Brian Peter

13.	Brian Peter stated that on the afternoon of Saturday 24th of April 2010, he and his brother, one Amitar Peter had returned to Hineota from Balmatana village where they had earlier gone to fix the outrigger to their canoe.  He went over to the accused’s parent’s house to visit him.  When he arrived, the accused went into his room and brought out a 3-litre container of illicit spirits which they set about to drinking.

14.	After they finished drinking, they decided to go over to Brian Peter’s house, hoping that they would eat some fish there as Brian Peter’s father had gone fishing that day.
	
15.	The accused walked on ahead while Brian Peter followed him slowly.  Brian Peter met a man from Kambwaga and bid him good night.  He then walked to Naisi’s house where a group of boys were playing guitars and practising songs.

16.	He then briefly left for his house to drink water.  When he returned, he met the accused and stood watching the youths playing guitars and singing.  At that time, the accused walked away.  He looked around for him but could not see or locate him so walked back to the main road where he met his sister Angela’s mother-in-law and decided to escort her to her house.

17.	After bringing the old lady to her house, he walked back to the main road.  There, he met the accused who began asking him who had hit him.  Brian Peter said he had no idea as he had just walked out to the main road.

18.	At that moment, he saw some people passing by in between Tapala and Simon’s houses. The accused then walked to where the group of young boys were standing and started fighting with Livinai and Norman. Brian Peter followed the accused with the intention of stopping him from assaulting the boys.

19.	At that moment, the deceased walked onto the road and wanted to fight the accused.  Brian Peter stepped forward to stop the deceased, but the deceased punched him, and he fell to the ground.  When he got up, the deceased punched him the second time and he again fell to the ground.  The deceased then picked him up and dumped him to the ground.  And while Brian Peter was on the ground, the deceased turned to the accused and punched him, felling him to the ground.

20.	Brian Peter stated that he didn’t know what happened at that exact moment.  However, he saw the deceased run away from the accused and fell beside him.  The deceased then got up and started running towards his house.

21.	Brian Peter, not knowing that the accused had stabbed the deceased, shouted after the deceased calling him a “girlie girlie.”

22.	Brian Peter stated that his sister, Angela Gilbert witnessed everything that happened.  She told him and the accused to stop and follow her to her house.  As they were walking to Angela’s house, the accused told him that he had stabbed the deceased and that was why he ran away.  At that moment, the accused asked him to exchange shorts with him which he did.  Angela then took him to their parent’s house and then returned to her own house.  Brian later heard that the deceased had died.

Statement of Angela Gilbert

23.	Angela Gilbert deposed that on the date in question she was at home with her husband who had just returned from Alotau.  At about 11.00 p.m, she heard some boys fighting on the main road, so she decided to go and see who they were.  It was a bright moon lit night, so she didn’t bother to bring a torch along.

24.	When she arrived at the main road, she saw the deceased punch her small brother Brian Peter twice, felling him to the ground.  The deceased then picked Brian Peter up and threw him down to the ground.  He then turned to the accused and punched him to the ground.  He then moved towards the accused as he was lying on the ground but somehow slid on an empty can and fell.

25.	 At that moment, the accused got up and advance towards the deceased.  Angela then saw the accused swung his left hand to the deceased right chest and then the right hand to the deceased’s left chest.  The deceased was already on his feet when the accused attacked him.  The deceased staggered backwards and fell near Brian who was still lying on the ground.  The deceased got up and started running to his hamlet.

26.	Angela stated that she didn’t know that the accused had stabbed the deceased.  She stated also that the deceased was bigger than Brian and the accused.

27.	She confirmed that as the deceased was running away, Brian and the accused shouted after him saying that he was a “girlie, girlie”. She, however, told them to stop and follow her to her house.  As they were walking away with her, she noticed that both Brian and the accused were drunk. The accused’s father, Isei, later came on to the scene so Angela told him to take his son away while she takes Brian to her parent’s house.

28.	As she and Brian were walking to their parent’s house , the accused ran after them and told them that he had stabbed the deceased and that was why he was running off to his hamlet.  He asked them not to tell anyone.  The accused then asked Brian to exchange shorts with him which they did and then he then left them.

29.	Angela took her brother Brian to their parent’s house and then returned to her own house.  She later learned that the deceased had died and that his body had been placed in the hospital morgue.

Medical Report

30.	Health Extension Officer (HEO), Naomi Sailasi briefly examined the body when it was first brought in at about 12:15 am on the 26th of April 2013.  She again examined the body later that morning in the presence of the Station Commander of Misima Police Station and others.

31.	In her report, she stated:

“... I attended the [deceased] at 12:15 mid might when I arrived.  On my arrival, I saw a motionless body on the bed while the staffs (sic.) were trying to resuscitate him and there was no respiratory effort.  There was no pulse felt or the heartbeat heard.  The body was cold and cyanosed.  I had to call off the resuscitation as our effort was not making any changes to the patient and confirmed the death.  The body was examined briefly with a lamp as there was no power outage and could only see a stab wound over the left lower back with a lot of blood coming out from the locality.  The body was later taken to the morgue for storage.

On the lower back around the thoracic lumber region, there was a stab wound that was ragged and about 2 cm in length and about 10 cm deep.  There was bleeding seen profusely coming out from the wound while it was examined during fuming of the body.

I had concluded based on the examination done as above that the possible cause of death could be haemo-pneumothorax from the lung being punctured from the stabbing or the kidneys and the spleen been also punctured causing internal bleeding.” (Sic.)

32.	Hence, the possible cause of death in layman’s terms could have been bleeding in the chest cavity due to punctured lungs or kidneys and spleen as a result of the penetrating wound to the left lower back area around lumber region – i.e., the general area under which the kidneys would normally be located.

Record of Interview

33.	In his Record of Interview, the accused confirmed much of Brian Peter and Angela Gilbert’s statements.  He admitted that he and Brian Peter had gone to where some boys were playing guitar after they had consumed illicit Spirit (JJ), that he had hit one of the boys and that the deceased assaulted him and Brian Peter because of that.

34.	He was asked, in Q20 if he could tell what had happened at that point in time when the deceased assaulted them on the road, and this is what he said in answer:

“The deceased, Henry Esiloni got angry for me hitting one of these young boys so he went to fight with me but Brian Peter was stopping [him] so he got angry and punched Brian Peter twice and then he dump[ed] Brian Peter onto the ground.  While Brian was lying on the ground, he went forward and punched me and I fell to the ground.  Henry Esiloni went forward again and tried to punch me again but somehow, he slid and fell to the ground.  He got up and I got up at the same time so I went forward with the half scissors which I was carrying and stabbed him on the left side.  Henry Esiloni ran and fell to the ground and then got up and ran off to his house.  I remember that I stabbed Henry Esiloni once and when he ran away, Brian and I followed Angela to her house and from there, I ran away. (Sic.)

35.	In answer to Q23, the accused replied in the negative when it was put to him if he knew that it was wrong for him to stab somebody with the half scissors.

Sworn Evidence of Accused

36.	The accused chose to give sworn evidence.  As in his Record of Interview he confirmed much of what Brian Peter had stated in his statement about their having consumed illicit spirit that afternoon and then walking over to where some young boys were playing guitar and singing.

37.	After a while, he left and was on the road when someone missed him with a stone.  He later asked Brian who said he didn’t know.  He saw some boys walking to the deceased’s house, so he followed them.  He argued with two of these boys.  The deceased was not happy about this, so he tried to fight him.

38.	Brian Peter, however, tried to stop him but the deceased punched him, and he fell.  The deceased then walked to the accused and assaulted him by punching him to the ground.  When he fell to the ground, the deceased ran up to him again.  The accused stood up with fear and so stabbed the deceased’s left side of his body.

39.	In examination in chief, the accused said that he feared the deceased because he was bigger than him and he could not have been able to fight him.  He also said that the deceased wanted to kill him.  He said that the deceased was a big fat man whom he could not fight.

40.	When asked why he could not have used his hands to fight the deceased, the accused said he saw that if the deceased had punched him, he could have killed him.  So, he used the scissors blade.

41.	In cross-examination, it was put to the accused that the deceased had hit Brian Peter three times, but he did not die.  The accused said that when Brian was punched by the deceased, he remained lying on the ground and only rose after he (the accused) had stabbed the deceased.

42.	The accused insisted during cross-examination that he feared the deceased because of his built and that he could have lost his life if he was hit by the deceased.

43.	He said he used the scissors blade because he could not fight the deceased and to defend himself.

44.	When it was put to him that the deceased was at that relevant time, struggling to get back to his feet when he stabbed him, the accused said that he had felt how powerful his punch was.

45.	The accused said he told Brian Peter that he was frightened of the deceased, hence he stabbed him and later told his story to the police.

46.	Of course, none of this was mentioned to the arresting officer during the Record of Interview or at the Committal Case when a ruling was made that the accused had a case to answer.

THE FACTS

47.	At this juncture, I must state again that much of the evidence on what happened immediately prior to the eventual fatal stabbing of the deceased is not disputed.  In fact, the sworn evidence of the accused confirms the statement evidence of Brian Peter and Angela Gilbert.

48.	Without being too repetitious, it is accepted that at the relevant time on that night of the 24th day of April 2010, the deceased had assaulted the accused and Brian Peter clearly in defence of some young boys, Livinai and Norman whom the accused was assaulting. The deceased punched Brian Peter to the ground twice and then lifted him up and dumped him on to the ground when Brian came in between him and the accused. After flooring Brian Peter, the deceased punched the accused to the ground.  As he was moving forward to hit the accused again, he slipped on an empty can and fell.  Soon after that, the accused then stabbed the deceased with single scissors blade.

49.	Now, what happened at that critical moment is crucial.  And the only evidence that can shed light to this is the statement evidence of Angela Gilbert and the oral evidence of the accused.

50.	Angela described what happened in the following terms: 

“I stood on the side of the road and watched Henry [deceased] punched Brian twice and he fell to the ground on the road.  Then Henry went forward towards Brian who was lying on the ground.  He grabbed hold of Brian and lifted him up and threw him onto the ground.  Brian was lying on the ground when Henry went forward to Philemon Esei and punched him to the ground.  Philemon fell to the ground and Henry walked toward Philemon but somehow stepped onto an empty can which was lying on the ground.  He slided on that can and he fell to the ground.  Then Philemon got up from the ground and went forward to Henry Esiloni (deceased) and I saw him swung his left hand at Henry’s right chest and then the right hand at Henry’s left side. Henry was already on his feet when Philemon attacked him.  Henry went backward and fell near Brian who was still lying on the ground.” (Sic)

51.	I accept as a fact that the accused did stab the deceased once.

DELIBERATIONS

52.	However, the most critical issue of fact which I must necessarily have to make a finding on and upon which the guilt or innocence of the accused, must rest ultimately is Angela Gilbert’s statement that the deceased “was already on his feet when [the accused] attacked him”.  Angela does not elaborate further in her statement as to what she meant by that.  And even if it can be accepted that the deceased was in fact on his feet it is not apparent from the statement what he was doing at that moment he was on his feet.  Unfortunately, the witness was not called to give evidence.

53.	But why should I be discussing or raising this issue at this point?  Why should I not leave the point to when I shall discuss the defence raised by the accused – i.e., self-defence?

54.	The answer to this lies in the way the State sought to prove its case i.e., entirely through the tender of untested witnesses’ statements.

55.	There is no question that the prosecution can tender statements of witnesses, even with consent by defence counsel in a trial.  Its case may even consist entirely of documentary evidence such as witnesses’ statements as in this case (see Epeli Devinga –v- The State [1995] PNGLR 263.  However, when this happens, even if the defence does not object to such a procedure, when statements are admitted without being subjected to cross-examination, the court has a duty to consider carefully if such a course will not deprive the accused of his right under Section 37 (4) (f) of the Constitution to cross-examine personally or through his lawyer any person called by the prosecution.  Where the accused is deprived of that right then such evidence should not be tendered.

56.	This is an issue that was directly addressed by the Supreme Court (in Fred Bukoya v The State (2007) SC 887 (Sevua, Mogish & Lay, JJ). 

57.	There, the trial of the appellant was conducted entirely through the tender of witnesses’ statements which were admitted by consent and the sworn evidence of the accused.

58.	In allowing the appeal and ordering a re-trial, the Court among other things, held that permitting the State’s case to proceed solely on tendered statements was a wrong course which tainted the whole trial.  The Judge should have refused to accept the statements of evidence as it is not in the best interest of justice.  The State ought to have been allowed to produce witnesses to give evidence.  Admitting untested evidence on critical and contested issues rendered the verdict unsafe and unsatisfactory.  

59.	The Court also held that a trial based solely on admissions should be avoided. Furthermore, as a rule, a trial court should not admit affidavits or statements by consent in the case for the prosecution if:

(a)	The credibility of the witness is an issue.
(b)	The accuracy of the witness is an issue.
(c)	The witnesses’ statements conflict with a particular relevant fact going to the guilt or innocence of the accused.
(d)	The witness’ evidence bears on a contested fact on the issue of guilt or innocence or on the inferences of such fact to be drawn by the Court in reaching its verdict.

60.	Now, these considerations ideally ought to have been raised if not addressed by the Court during the time the State sought to tender the statements of witnesses.

61.	However, I do not see any harm in adverting my mind to this issue at this stage of the trial, particularly when I am considering what the facts are on which the guilt or innocence of the accused will turn.

62.	In the case before me, the statement of Angela Gilbert particularly that part where she says the deceased was already on his feet when he was attacked by the accused bears upon the factual question of whether the accused acted in self-defence, hence impacting on his guilt or innocence.

63.	The statement lacks clarity and without any further detail as I have said, which could have only come from the witness if she was called to give sworn evidence, to proceed to draw any inference from that statement would be denying the accused a fair trial.  In fact, in hindsight, he had been denied a fair trial when his right to cross-examine this vital witness for the State was not accorded to him.

64.	There is no explanation by the prosecution why Angela Gilbert or any other witness for the State was not called.

65.	In the circumstances, I am therefore, unable to make any factual findings or draw any inferences from the State’s evidence upon which a verdict of guilty against the accused can be returned in the face of the defence of self-defence raised by the accused. To proceed further would be prejudicial to the accused and unfair as I have already said.  

66.	There is, therefore, no need for me to consider the central issue of whether the accused unlawfully killed the deceased.

VERDICT

67.	I find the accused not guilty and order that he be acquitted of the charge of manslaughter and that he is discharged forthwith.

Orders accordingly.

__________________________________________________________________
The Public Prosecutor:	Lawyer for the State
Paraka Lawyers:	Lawyers for the Accused