N5103
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.811 of 2011

BETWEEN:

THE STATE

AND:

ALBERT TIKI
Accused

Mt. Hagen: David, J
2013 : 20 & 21 February,
4, 5 & 12 March

CRIMINAL LAW – verdict – trial - accused charged for one count of murder – defence of accident raised – accused pursuing wife following an argument in trade store operated by accused – accused held by a person to stop him from assaulting wife – accused hit deceased sitting nearby in front of the trade store with a brick-like object directed at wife with intention to hurt her and to cause her pain while being held – deceased struck at the back of head – fractured skull - death due to severe subdural and intracranial bleeding - killing accidental and unintentional – criminal negligence - defence of accident not available in the particular circumstances - alternative conviction for manslaughter - Criminal Code, Sections 24, 287, 289, 291, 298, 300 (1)(a), 302 and 539 (2).

Cases cited
Papua New Guinea cases

Mamote Kulang v Regina (1963) PNGLR 163
R v Tsagaroan-Kagobo (1965-66) PNGLR 122
Timbu Kolian v The Queen [1967-68] PNGLR 320
SCR No. 1 of 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28
Paulus Pawa v The State (1981) PNGLR 498
Java Johnson Beraro v The State (1988-89) PNGLR 562
The State v Waiyake Komane John (1992) PGNC 50, N1068
The State v Peter Malihombu (2003) PGNC124, N2365 
Paru Aihi v Sir Moi Avei (2004) PGNC250, N2523
The State v Martin Maso Naipo, CR 92 of 2004, Unreported & Unnumbered Judgment delivered by Kirriwom, J on 21 June 2005
The State v Ali Kei Paiya, CR 478 of 2004, Unreported & Unnumbered Judgment delivered by Sawong, J on 9 August 2005
The State v Mas Judah Binas (2007) PGNC 20, N3118
The State v Jacob Dugura Roy (2007) PGNC30, N3137
The State v Bomai Hesi (No.1) (2007) PGNC101, N3231 
The State v Angeline Winara (2008) PGNC 65, N3345

Overseas Cases

Woolmington v Director of Public Prosecutions [1935] AC 462 

Treatise cited

Chalmers Weisbrot and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd Edition, Law book Co, 2001

Counsel

Joe Kesan, for the State
Philip Kapi, for the accused

VERDICT

1. DAVID, J: INTRODUCTION: The accused, Albert Tiki of Dobel village, Mt. Hagen, Western Highlands Province in Papua New Guinea was brought before me from custody on an indictment dated 20 February 2013 charged with one count of murder pursuant to Section 300 (1)(a) of the Criminal Code. This is the verdict of the Court. 

ARRAIGNMENT

2. The State's brief allegations were that on 21 April 2011, the deceased, Frank Wak (the deceased) was sitting together with three other companions and telling stories at the Dobel Market outside Mt Hagen city between the hours of 08:00 am and 09:00 am. Whilst there, the accused got a rock, came from the back of the deceased and threw it which landed on the back of deceased's head. As a result, the deceased collapsed and died. His death was due to severe subdural and intracranial bleeding. The accused intended to cause grievous bodily harm to the deceased.

3. When arraigned, the accused denied the charge and a trial followed to determine the guilt or otherwise of the accused. 

ELEMENTS OF OFFENCE OF MURDER

4. The elements of the offence of murder are:
 1. the accused killed the deceased; and 
2. the accused intended to do grievous bodily harm to the deceased.

DEFENCE OF ACCIDENT

5. The accused has raised the defence of accident which is specifically prescribed under Section 24 (1)(b) of the Code.

BURDEN AND STANDARD OF PROOF

6. The prosecution has the burden of proving beyond reasonable doubt all the elements of the offence in order to secure a guilty verdict and conviction: Woolmington v Director of Public Prosecutions [1935] AC 462; SCR No. 1 of 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28. The rule applies equally to exclude or negative any defence raised.

PROSECUTION EVIDENCE

7. The prosecution evidence was constituted by documentary and sworn oral evidence. All State witnesses called to give evidence were subjected to cross-examination.

8. The following documents were tendered by consent of the defence:

1.	Medical Report consisting of the Affidavit of Dr. Michael Dokup sworn on 3 May 2011, the Post Mortem Report of Dr. Michael Dokup and the Medical Certificate of Death dated 3 May 2011 (Exhibit "A");

2.	Record of Interview conducted between Detective Sergeant Johannes Poia, Investigator, the accused and Constable Samson Balg at the CID Office, Kagamuga Police Station on 25 May 2011 (Tok Pisin version, Exhibit "B1" and English translation, Exhibit "B2").

Medical Report

9. The Medical Report was compiled by Dr. Michael Dokup, Director, Medical Services of the Mt. Hagen General Hospital. The deceased aged about 43 years was struck by a stone on his head and was admitted to the Mt. Hagen General Hospital following the incident. The deceased died a couple of days after the incident on 25 April 2011 at the Intensive Care Unit, Mt. Hagen General Hospital at about 06:00 am. Dr. Dokup conducted an autopsy of the body of the deceased at the Mt. Hagen General Hospital on 29 April 2011 at 01:30 pm. The deceased died as a result of cardiac arrest due to severe subdural and intracranial bleeding from the posterior skull base fracture.

Record of Interview

10. The accused is from Dobel village, Mt. Hagen. He is married with four children. He completed Grade 6 formal education. On Thursday, 21 April 2011 at about 11:00 am, he was inside his trade store in the kitchen area cooking flour and meat for sale. With him were his wife, his children and his sister. The deceased had been to see him about 1 ½ hours before the incident and asked for the telephone number for a Dick Wama which he gave and went out of the store with his brother namely Ari. Ari left him sitting outside on a bench in front of the store with some men namely, Yuanes Pena, Moses Bonie and Soma Wama telling stories. He had an argument with his wife in the store and when he tried to assault her, she ran out of the store. He got a piece of cement and ran after her. Soma tried to prevent the accused from hitting his wife with the piece of cement and in the process, the piece of cement which he had hurled with a lot of force (since his wife was already some distance away from him) was caused to be diverted and hit the deceased on his head. Realising that he had struck the deceased who had fallen to the ground unconscious, he rushed into his store, got cold water and poured it over the deceased's body. Yuanes Pena tried to assault him for hitting the deceased. Before the incident, he bore no animosity towards the deceased and vice versa. He and the deceased are from the same family. He did not mean to kill him, it was an accident. 

Yuanes Pena

11. He is from Dobel village, Mt. Hagen. He is a chief of the Yamka tribe. He resides at the village with his family.

12. He knows the accused and the deceased who are from the same village as his. The accused is like a son to him while the deceased was regarded as a brother. The accused and the deceased were good friends.

13. On 21 April 2011 at about 10:00 am, he was with Soma, Frank and Moses telling stories in front of a trade store belonging to the accused's father at the Dobel Market when the accused came from the back of his house and at the back of Soma, Frank and Moses and hit the deceased on the back of his head with a big stone, the size of a clenched fist. Under cross-examination, he said the accused came from the back of the store. The distance between the accused and the deceased when he threw the stone was about that between the witness box and the bench. He hurled the stone using one hand. Under further cross-examination and when questioned by the Court, he said the accused had the stone in his hand when he struck the deceased with it. The deceased then fell. He was standing about four metres away from Soma, Frank and Moses who were sitting on a bench and facing them. There was no one else near them including the accused's wife and he did not see the accused chasing her. There was no argument between the accused and any of them there therefore they were surprised by the accused's action. The accused hit the deceased for no reason at all. Under cross-examination when it was suggested that either Soma or Moses prevented the accused from hitting his wife with a stone by holding him therefore the direction of the flight of the stone was interfered with, he refuted the suggestion by saying he did not see that happen. It was not an accident. He then assaulted the accused. The deceased did not retaliate or say anything back at him. He took the deceased to the hospital for treatment, but he was already dead. Under cross-examination, he said the deceased died at the hospital.

14. The problem associated with the death of the deceased was sorted out within the family.

Moses Bonie

15. He is from Dobel village, Mt. Hagen. At the time of the incident, he was employed by Inter Oil as a despatcher, but he has since left that employment.

16. The accused comes from the same village as his. The accused and the deceased are brothers to him although not biologically having all come from the same family and "hausman".

17. On 21 April 2011 at about 10:00 am, he was at the Dobel Market with Yuanes Pena, Soma Wama and the deceased telling stories. He, Soma and the deceased were sitting on a form at the front of a trade store operated by the accused, but at the far end of the store facing the road whilst Yuanes was standing about 1 ½ metres from them and facing them and the area at their back. The store was open at the time. He and the deceased sat side by side with the deceased on the outside of him whilst there was some distance between him and Soma. None of the accused's family members including his wife was there when the incident happened. The accused came out from the right side of the store and threw a stone or brick-like object from a distance of about two metres which hit the deceased at the back of his head causing him to fall to the ground. The stone was as big as the "palm of his hand". Under cross-examination when it was suggested to him that the accused had run out of the store chasing his wife and that Soma held the accused and was struggling with him when he threw the stone, he denied seeing anything like that occur. The deceased did not die there. Immediately after hitting the deceased, the accused said sorry, but he told him to go away. He stopped a vehicle and he and others took the deceased to the hospital. 

18. Yuanes was in a better position than him of seeing the accused in the process of approaching the deceased and either throwing the stone or hitting the deceased with the stone still in his hand. It was immaterial as to how the accused actually hit the deceased with the stone.

19. The stone was not collected or preserved as an exhibit.

20. He did not know the reason why the accused hit the deceased. The accused did not have any argument with the deceased or his relatives or those sitting with the deceased prior to the incident.

21. He did not hear anything about the accused assaulting his wife at any time after the incident. 

Soma Wama

22. He is from Dobel village, Mt. Hagen. He is employed by Mitre Pacific as a driver.

23. He knows the accused. The accused and his family live in the same community. 

24. On 21 April 2011 at about 10:00 am, he was at the Dobel Market telling stories with Moses Bonie, the deceased and Yuanes Pena outside a store operated by the accused. Apart from selling a variety of store goods, the accused also sold cooked flour balls and lamb flaps. The accused's wife helped out in the store. The store was open at the time. He was sitting on a form with Moses and the deceased and Yuanes was standing. The accused approached the deceased from the back of them without any warning or him seeing the accused and hit the deceased at the back of his head with a stone whilst it was still in his hand causing the deceased to fall to the ground. He did not see any member of the accused's family including his wife namely, Clara standing around there before the incident occurred. Under cross-examination when asked if he had seen Clara running out of the store pursued by the accused, he responded in the negative. When further questioned under cross-examination as to whether he stopped or held the accused as he was about to throw the stone at his wife and causing the stone to land on the deceased instead, he said he was still seated and did not see the accused approaching when the accused hit the deceased. The accused did not say anything immediately after the incident. Yuanes slapped the accused however. He and others stopped a bus and took the deceased to the hospital.

25. They were all surprised by the accused's action as there was no disagreement between the accused and the deceased before the incident. To this day, he does not know the reason why the accused killed the deceased. 

DEFENCE EVIDENCE

26. The accused was the only witness called to give evidence in his defence. He gave evidence under oath and was subjected to cross-examination.

27. He is from Dobel village, Mt. Hagen. 

28. He knows all the State witnesses namely, Yuanes Pena, Moses Bonie and Soma Wama who have given evidence against him concerning the killing of the deceased at Dobel. They are not his "birua" or enemies. He regards two of them as his brothers and the other as his father. The deceased was also not his "birua" or enemy before the incident. They were close friends or he regarded him as his last-born uncle and they would go around together. There was no disagreement between them or between the deceased's own family and his.

29. On Thursday, 21 April 2011, he was in the trade store owned by his father, but operated by him more particularly at the kitchen with his wife and four children cooking flour balls. Whilst cooking, the deceased approached him and asked for Dick Wama's phone number which he gave from memory. His phone was in his pocket so he was unable to take it out with his hands covered with flour in order to confirm the correctness of the number. The deceased was unsuccessful with his call to Dick Wama, the call diverting to voice mail, so he asked if others in the store had his correct number. The accused referred him to his younger brother who was in the house. As the deceased was about to leave, his wife asked him if he cared to have some cooked flour balls. He told her that he wanted to get Dick Wama's number first and then return to have some.

30. About an hour later at around 10:00 and 11.00 am, the deceased returned. Not many people were at the market at that time. Only one woman was selling betel nut. As shops were going to close, he told his wife to go to town and get some store goods. His wife did not hear him the first time as she was busy looking for lice on the children's heads. He told her the second time, but she still did not respond. When he told her the third time and did not receive any response from her again, he told her that she was "half- sense". She became upset at hearing that and began to argue with him. At the time, he was still cooking and his wife was some distance from him like that from the witness box to the back of the Court room and swearing at him. She spat on the flour balls and this infuriated him. He tried grabbing her there in order to assault her, but she ran off before he did. He pursued her out of the store and towards the big gate. She pushed the gate open and ran out and he continued in pursuit.

31. At the corner of the store sitting down were Soma Wama, Moses Bonie and the deceased. The deceased sat in the middle of Soma and Moses. His wife ran past these men and Soma stood up and held him. The struggle between him and Soma occurred away from the deceased at the corner of the store and on the side where the deceased and Moses were seated. Yuanes Pena was on the other side of these men. He told Soma to let him go, but he did not. Soma held him from the back for about 30 seconds and this allowed his wife to gain about five metres from him. The others were just looking on. He had run out of the store without any object in his hands. 

32. Whilst struggling with Soma, he managed to pick up an object which looked like a stone from the ground the size of his fist. Soma managed to hold him with the stone in his hand against the store, but he was intent on throwing the stone at his wife who was running away. Under cross-examination when it was suggested to him that he intended to kill his wife or cause her some pain, he said he intended to cause her some pain. When he managed to throw the stone with force sufficient to travel six metres or reach his wife with the intention of hitting his wife, it hit the store, ricocheted off the wall and struck the deceased on his head and he fell to the ground. The stone would not have landed on the deceased's head had Soma not held him as he was hurling the stone causing it to divert from its intended direction.

33. Yuanes immediately asked him why he struck the deceased with the stone and he said he did not deliberately do that and that it was an accident. Yuanes then held his hands, but he managed to break free. He went to the store, got some cold water and poured it on the deceased's body.

34. He and others then took the deceased to the hospital. He surrendered to the police on Saturday. The deceased might have died on Monday. He was very sorry to hear about his death. He did not contribute to funeral expenses as he was already in custody and was uncertain as to whether his own family made any contribution.

35. His wife was afraid so fled to her village in the Madang Province. He has not talked to her since whilst remanded.

ANALYSIS OF THE EVIDENCE

Undisputed facts

36. From all the evidence before me, the uncontested facts are:

1. The incident giving rise to the charge occurred on Thursday, 21 April 2011 in the morning between 10:00 am and 11:00 am in the vicinity of the Dobel Market, but more particularly in the vicinity of the trade store operated by the accused.

2.	The deceased was with Soma Wama, Moses Bonie and Yuanes Pena telling stories outside the trade store.

3.	The deceased, Soma and Moses were sitting on a form with their backs to the trade store and facing the road whilst Yuanes was standing facing them and the store. 

4.	An object described as a piece of cement, stone or brick-like (the brick-like object) was used to strike the deceased.

5.	The deceased died as a direct result of being struck by the brick-like object.

6.	The accused struck the deceased with the brick-like object.

7.	The accused struck the deceased at the posterior skull base (back of the base of the skull).

8.	The deceased was knocked unconscious and fell to the ground. 

9.	The deceased died as a result of cardiac arrest due to severe subdural and intracranial bleeding from the posterior skull base fracture.

10.	The deceased was admitted to the Mt. Hagen General Hospital after the incident.

11.	The deceased died at the hospital on Monday, 25 April 2011.

12.	The deceased was not the accused's "birua" or enemy before the incident, they being close friends and the accused regarding the deceased as his last-born uncle, and there were no disagreements between themselves and the deceased's own family and the accused's. 

13.	There was no motive or reason for the accused to hit the deceased.

14.	The prosecution witnesses, the deceased and the accused are all from Dobel village and are related to one another.

Disputed facts

37. From all the evidence before, the contested facts are:

1. The accused and his wife had an argument in the trade store.

2.	The accused's wife ran out of the trade store pursued by the accused armed with the brick-like object.

3.	Soma grabbed the accused and was stopping him from assaulting his wife.

4.	The direction of the flight of the brick-like object intended by the accused to hit his wife when thrown was diverted during the scuffle between the accused and Soma ricocheting off the wall of the trade store and hitting the deceased at the back of his head instead.

5.	The accused did not intend to do grievous bodily harm to the deceased; death was caused accidentally or unintentionally.

Prosecution submissions 

38. Written and oral submissions were made by Mr. Kesan of counsel for the prosecution. I have considered the submissions. 

39. It was submitted that I should accept the prosecution evidence for the following reasons. Firstly, the prosecution witnesses were all independent witnesses and related to each other therefore there was no reason to lie. Secondly, the evidence of prosecution witnesses is corroborated by another independent source namely, the Medical Report which shows that there was a fracture of the skull at the back of the head which in turn was indicative of a direct and forceful strike from the back of the deceased. Any intervention by Soma Wama would have reduced the force exerted to hit the deceased so as not to cause a fracture of the skull. Thirdly, the accused's account of the incident as to how Soma grabbed the accused so as to interfere with the direction of the flight of the stone or brick-like object, i.e., whether he was grabbed around the waist, shoulder or by his hands, but still managing to strike the deceased with the brick-like object, was not clear and vague. 

40. For those reasons, it was submitted that the only credible story before the Court was that presented by the prosecution. The converse was that the accused's story lacked credibility and was not consistent with common sense it was further submitted. The accused should be convicted as charged counsel said.

Defence submissions 

41. Written and oral submissions were made by Mr. Kapi of counsel for the defence. I have considered the submissions. Counsel essentially submitted that the prosecution witnesses were not totally credible and reliable and therefore should not be believed because there were material inconsistencies in their evidence as to how the accused approached the deceased and the manner in which the deceased was struck at the back of his head by the brick-like object.

42. On the question of how the accused approached the deceased, it was submitted that the inconsistency was that Moses Bonie said the accused approached the deceased from the side or right side whilst Yuanes Pena and Soma Wama said the accused approached the deceased from the back. It was submitted that Moses' evidence was consistent with the accused's evidence as was demonstrated by the accused in Court. Counsel submitted that as the form on which the deceased, Soma and Moses was placed against the store, it was not possible for the accused to have approached the deceased from the back. 

43. On the question of the manner in which the deceased was struck by the brick-like object, i.e., whether the object was thrown or was in the accused's hand, Mr. Kapi submitted that the inconsistency was that Yuanes and Soma said the accused hit the deceased with the brick-like object with the object in his hand whilst Moses Bonie despite retracting his evidence under cross-examination in order to be consistent with the evidence of Yuanes and Soma initially said the object was thrown at the deceased from a distance of about two metres. 

44. It was also submitted that the evidence contained in the Record of Interview which formed part of the prosecution case highlighted overwhelming inconsistencies with the evidence of the prosecution witnesses.

45. On the other hand, counsel submitted that the accused's evidence was generally consistent with the evidence contained in the Record of Interview. That was the true account of how the incident occurred counsel said. The accused clearly recalled what transpired and demonstrated or reconstructed in Court how the incident occurred and his demeanour in the witness box was impressive counsel further submitted. The account of the incident he gave to the police to refute the allegation made against him was made at the earliest possible opportunity available and not a belated one so as to be perceived as a recent fabrication or concoction counsel submitted. It was submitted that that accorded with the principle enunciated by Andrew, J in Paulus Pawa v The State (1981) PNGLR 498 at 504 where His Honour observed that:

"An innocent man charged with the crime or with any conduct reflecting upon his reputation can be expected to refute the allegation as soon as he can by giving his own version of what happened."

46. The undisputed fact of there being no motive or reason for the killing of the deceased who was a relative further strengthens the accused's case counsel submitted.

47. For those reasons, counsel submitted that the accused's evidence was credible and reliable, he was a truthful witness and therefore his evidence should be believed and accepted. 

Reasons for judgment

48. How do I ascertain the truth with regards to the contested facts? First, I remind myself that there is no rule of law that states that where two or more witnesses tell the same story, that story represents the truth as opposed to a single witness, but the Court must do its best in all the circumstances of a particular case to strike a balance between what is deemed logical and more probable by human comprehension than what is illogical or plainly false in order to convict an accused beyond a reasonable doubt. That proposition was propounded by Davani, J in The State v Jacob Dugura Roy (2007) PGNC 30, N3137 at paragraphs 34 to 36. I will adopt the proposition and apply it in the present case.

49. I also remind myself that corroboration or supportive evidence from other witnesses is not a legal requirement, but preferable and a good rule of practice. That proposition was propounded by Injia, J as he then was in Paru Aihi v Sir Moi Avei (2004) PGNC 250, N2523. I will adopt the proposition and apply it in the present case.

50. I also remind myself that a record of interview is an unsworn statement that is not of equal value compared to a sworn testimony of an accused given under oath and subjected to cross-examination even if the record of interview were tendered by consent of the defence: The State v Martin Maso Naipo, CR 92 of 2004, Unreported & Unnumbered Judgment delivered by Kirriwom, J on 21 June 2005; The State v Ali Kei Paiya, CR 478 of 2004, Unreported & Unnumbered Judgment delivered by Sawong, J on 9 August 2005. The benefit of doubt created by any inconsistency must go to the accused: The State v Peter Malihombu (2003) PGNC124, N2365. 

51. Credibility of witnesses will in the end be the deciding factor when deciding which version of the competing stories advanced by the prosecution and the defence is to be believed and accepted. Factors such as logic and common sense and the conduct and demeanour of witnesses in the witness box including the degree of consistency of one's own evidence and those of other witnesses will come into play when assessing the credibility of witnesses. 

52. Both parties have advanced very good arguments as to why I should accept one version of the incident over the other. On this note, I concur with the prosecution submission that the evidence of prosecution witnesses, who I find could be categorised as independent witnesses although related to the accused, as to the deceased being hit with force from the back is consistent with and corroborated by the findings of the cause of death from the Medical Report, an independent source of evidence as well. On the other hand, I also accept the defence argument that the accused's account of the incident is generally consistent with the statements he made to the police at the earliest opportunity available in the Record of Interview. I think the question of credibility and reliability of evidence adduced by the parties is evenly and fairly balanced.

53. There is one important piece of evidence that was lacking in specificity or not adduced by any of the parties which could have tipped the balance in favour of either party and that is the distance between the trade store and where the deceased, Soma Wama and Moses Bonie were sitting. The defence submitted that as the form on which the deceased, Soma and Moses was placed against the store, it was not possible for the accused to have approached the deceased from the back. There is no evidentiary basis for that submission. On the other hand, if, as the prosecution allege, there was some space between the trade store and where the deceased, Soma and Moses were sitting big enough for the accused to have access to the deceased, it would have strengthened the prosecution version of the incident that the accused approached and assaulted the deceased with the brick-like object directly from the back. 

54. In the circumstances, I agree with the defence that the benefit of the doubt in the prosecution evidence should go to the defence. It is on that basis that I make the following findings of fact in relation to the contested facts.

1. The accused and his wife had an argument in the trade store.

2.	The accused's wife ran out of the trade store pursued by the accused without any object in his hands.

3.	Soma Wama grabbed the accused and was stopping him from assaulting his wife.

4.	The brick-like object which the accused picked up from the ground later and directed by him at his wife was diverted during the scuffle between the accused and Soma ricocheting off the wall of the store and hitting the deceased instead.

5.	The accused did not intend to do grievous bodily harm to the deceased; death was caused accidentally or unintentionally.

DISCUSSIONS OF DEFENCE OF ACCIDENT

55. Having found that the death of the deceased was caused accidently or unintentionally, the charge for the offence of murder cannot be sustained. This, as I have alluded to already, is because out of the two elements of the offence, the element that the accused intended to cause grievous bodily harm cannot be satisfied. Should the accused then be totally exculpated or exonerated from any criminal responsibility? 

Prosecution submissions

56. It was submitted that if the court were to accept the accused's version of the incident, an alternative verdict of manslaughter under Section 302 should be returned by the combined operation of Section 287 (Duty of persons in charge of dangerous things) and Section 539 (2) (Charge of murder or manslaughter) of the Code because the defence of accident in the terms of Section 24 of the Code could not be raised under the circumstances described. Counsel drew my attention to R v Tsagaroan-Kagobo (1965-66) PNGLR 122 to support the proposition. Counsel further submitted that the accused should be criminally responsible for his conduct notwithstanding that death may have been accidental or unintentional because the death of the deceased was a foreseeable consequence of the negligent handling of the brick-like object by the accused. 

Defence submissions

57. The defence submitted that the defence of accident under Section 24 of the Code was available to the accused because there was a specific intervening factor unknown and beyond the control of the accused, that is the intervention by Soma Wama, which caused the diversion of the flight of the brick-like object to strike the deceased other than the intended target, the accused's wife. The death of the deceased was caused by, an involuntary act of the accused, the act was unintentionally executed, the act was unforeseeable from a reasonable man's perspective and the act was not per incuriam or want of care by the accused. Counsel referred me to a number of cases where the defence of accident was raised in circumstances where the offenders had full control of weapons and aiming at their targets and causing injury or fatalities with no intervention at all by way of comparison. These are; Mamote Kulang v Regina (1963) PNGLR 163, Java Johnson Beraro v The State (1988-89) PNGLR 562, The State v Waiyake Komane John (1992) PGNC 50, N1068, The State v Mas Judah Binas (2007) PGNC 20, N3118, The State v Bomai Hesi (No.1) (2007) PGNC101, N3231 and The State v Angeline Winara (2008) PGNC 65, N3345. I have considered them. The facts of the present case bear no similarities to those cases.

58. Counsel contended that the accused has made out the defence of accident under Section 24 of the Code which was a complete defence and he should be acquitted.

59. Just as the prosecution had contended, counsel further contended that an alternative verdict of manslaughter was open to the Court if it were to find that the accused was criminally negligent.

Reasons for judgment

60. Section 24 (1)(b) of the Code states that a person is not criminally responsible for an event that occurs by accident. That provision however is made "subject to the express provisions of this Code relating to negligent acts and omissions,.." For these purposes, the relevant provision is Section 287 (Duty of persons in charge of dangerous things) of the Code. That provision states:

"(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty."

61. For an offender to raise the defence of accident within the meaning of Section 24 of the Code, the event was a consequence that must not be intended, is not foreseen and would not reasonably have been foreseeable by an ordinary person. In the pre-independence Supreme Court judgment of Timbu Kolian v The Queen [1967-68] PNGLR 320 at 341, Windeyer, J states the principle as follows:

"....an event occurs by accident if it was not intended, not foreseen, and unlikely, that is not reasonably to be foreseen as a consequence of a man's conduct." 

62. In Chalmers Weisbrot and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd Edition, Lawbook Co, 2001 at 164, the learned authors comment on the application of Section 24 of the Code as follows:

"Section 24 is intended to make it clear that, subject to the express provisions of the Code relating to negligent acts and omissions, where a person is charged with the commission of a crime, criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused, or where, in association with some act or omission of the accused, there has occurred some accidental event, which has substantially brought about the final result, see Mamote Kulang of Tamagot v The Queen (1964) 111 CLR 62."

63. The conduct of the accused when picking up the brick-like object which was a dangerous thing within his control and management and hurling it with force intending to hit his wife despite being held by Soma Wama at the market place in front of his trade store and in fact with the deceased, Moses Bonie and Yuanes Pena in close proximity was an act of criminal negligence. The accused acted with such a reckless disregard for the lives and safety of those near him. There is proof beyond reasonable doubt. Either of Moses and Yuanes may have been the victim. Moreover, had Soma not intervened, the accused's wife may have been the victim. The deceased died as a direct consequence of the accused's conduct although unintended. I am satisfied therefore that the accused's conduct although accidental and unintentional was not such as to warrant the defence of accident to be raised as a complete defence within the meaning of Section 24 of the Code. In other words, the defence of accident is not open to the accused. 

64. The killing of the deceased caused by the conduct of the accused was unlawful within the combined meaning of Sections 289 (Homicide) 291, (Definition of killing) 298 (Unlawful homicide) and 302 (Manslaughter) of the Code.

65. Section 289 reads:

"It is unlawful to kill a person unless the killing is authorized or justified or excused by law."

66. Section 291 reads:

"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."

67. Section 298 reads:

"A person who unlawfully kills another is guilty of the crime of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case."

68. Section 302 reads:

"A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter."

69. Where manslaughter occurs by criminal negligence, the defence of accident under Section 24 of the Code is not available: R v Tsagaroan Kagobo; Java Johnson Beraro v The State.

VERDICT

70. For all the foregoing reasons, I return a verdict of not guilty on the charge of murder, but return an alternative verdict of guilty of the offence of manslaughter under Section 302 of the Code by virtue of Section 539 (2) of the Code.

Verdict accordingly.
__________________________________________________ 
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused