N6372
                                       PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]
CR No.786 OF 2016

THE STATE 

V

GERARD CHAWANIN No. 1

Lorengau:  Geita J
2016: 15, 16, 21 June

CRIMINAL LAW –Trial – Murder - Not guilty plea -– Evidence on trial – Oral and documentary - Criminal Code s.300 (1) (a).
CRIMINAL LAW - Death inflicted by punch to the chest and kicks on the body as victim lay helpless on the ground - Evidence of identification credible and good – State witness no motive to lie in court – Intention to harm not made out - assault resulted in death, a day later.
CRIMINAL LAW – Accused found not guilty of murder – Instead found guilty of manslaughter – s. 539 (2) Criminal Code - Guilty Verdict returned for manslaughter.
Cases Cited:
None
Counsel:
Ms. R Koralyo, for the State
Mr. L Mamu, for Accused

JUDGMENT ON VERDICT
21 June 2016 
1.	  GEITA J: The accused was indicted with one count of murder pursuant to Section 300 (1) (a) of the Criminal Code. The accused plead not guilty to the murder of Jacob Bukum on 4 December 2014 at Ward 6 compound, Lorengau town, Manus Province.
Trial
2. 	Two witnesses were called by the State together with the following documents tendered by consent. They include:
•	Autopsy Report of death by Dr Samson Vava -23/12/2014 Exhibit  “1”  
•	Written statement from Investigation Officer Gamui Markson -16/12/2015  Exhibit  “2” 
•	Record of Interview Exhibit “3” a & b (English & Pidgin versions) 10/2/2015
•	Statement from Investigation Officer Gamui Markson – 10/2/2015 - Exhibit “4”
•	Statement from Pondros – 10/2/2015. - Exhibit “5”
•	Statement from Raga Lakani – 15/12/2014 – Exhibit “6”
State Evidence in summary - Witness 1 Denika Jacob- 13 years
3.   Denika’s evidence may be conveniently summarized as follows:- 
		
1)	After the fight her and her father were walking towards their house,
2)	The accused, Gerard came from the back and hit her father on his chest causing him to fall down facing upwards near the laulau tree,
3)	She described her father’s fall like a “falling coconut”,
4)	The man went and kicked her father and she cried out for him to stop as her father was dead,
5)	Five people were involved in the fight near Elisabeth’s house,
6)	Her father was drunk,
7)	There was light coming from neighbour’s house close by,
8)	She recognized the accused and described him with a twisted hair,
9)	She pointed to the accused in the dock as Gerard,
10)	Her father was taken to the hospital because he could not walk as a 
  result of the fall,
11)	In the emergency room he slept for a while and he died on Friday,
12)	Four boys and Gerard came to the hospital and said sorry.
4.	In cross examination the witness admitted children her age would be in bed by 10 pm and 11pm. She admitted her father was drunk that night and was not shouting everywhere. She maintained that Gerard came from behind the laulau tree and hit her dad. Only three persons were there at the time her father was hit. Defence Counsel pointed out to inconsistences in her oral evidence: a fourth person Jerry Bulihau was also present at the time. The witness remained adamant that her father did not fight with Lima or Selan but admit that her father wanted to fight the accused near Elizabeth’s house. She agreed that Ivan Mathew, the Peace Officer came to stop them fighting. She maintained that her father did not charge the accused and threw punches, saying that was not true. She admitted that her father was drunk and as a result of the fight he fell down. The witness denied defence suggestions that the only time she saw the accused was during their visit to the hospital to say sorry to her father. NB: Witness written statement tended into court forming part of prior inconsistent statement. 
Witness 2 Raga Lakani
5.	Lakani’s evidence may be conveniently summarized as follows:- 
1)	On 4th December 2014 he came out from his house onto the road and saw Jacob fighting with some people,
2)	He pointed to the accused sitting in the dock as the man who came from the back and punched Jacob, causing him to fall on his back,
3)	As Jacob fell on the ground the man kicked him and his daughter came and climbed on him,
4)	Youths from Ward 6 came and chased the person who punched Jacob,
5)	The youths brought an ambulance and took Jacob to the hospital,
6)	The man who hit Jacob was standing at the back of one laulau tree before the fight with Jacob,
7)	Fight was in front of our house near the road,
8)	As Jacob fell on his back youths came and chased the man away,
9)	I can’t tell name of another man who fought with Jacob as he was hiding behind the laulau tree.
6.	In cross examination the witness admitted that some youths were also drunk and argued with the deceased. The witness however denied seeing the deceased fighting with Lima and Selan. The witness admitted that punches were exchanged between the deceased and the accused, causing the deceased to fall down. He maintained that when Jacob walked there the accused came from the back and punched him. He maintained that as the deceased lay on the ground the accused kicked him. When suggested to him that Jacobs daughter was not there at the time the witness said as Jacob lay on the ground his daughter was on top of him. NB: Public Prosecutor successfully moved for the witness statement to be admitted into evidence, now marked as exhibit “6”
Record of Interview (In summary form)
7.	The accused buying three cigarettes for the victim when he came to Elizabeth’s house. Thereafter the victim turn nasty and hurl abusive words at the accused, challenged him to a fight. As he came out of the house he saw Lima on the ground. David Danika had assaulted him. At the time he phoned Jerry M’buliau and told him about the fight. David Danika came and challenged his cousin Posangat Pondrelei to come and fight under the street light. The victim took off again to Ivan Mathew’s house and upon returning he assaulted his nephew Selan, Elizabeth’s son. Some boys at the compound came and assaulted him and he ran away.  The accused said as he stood near the laulau tree near the road the victim suddenly appeared and was about to punch him when he blocked his hand causing him to fall down. All the time the victim was shouting obscene words at the accused and his mother. As the street boys came onto the scene the accused escaped in the dark towards Dr. Mundri’s house.
Medical Report
8.	The autopsy findings by Dr Samson Vava confirm that the deceased sustained blunt force trauma to the back of the causing traumatic brain injury and intracranial bleeding. The cause of death was from massive epidural hematoma or blood cloth causing compression, brain shift and increased intracranial pressure. 
The two Police Statements 
9. 	The Investigator and corroborator recorded admissions by the accused during interview.
Defence Evidence in Summary- The Accused
10.	Gerard Chawanin’s evidence may be conveniently summarised as follows:-
1)	After selling his fish on 4 December 2014 he went to his sister’s house at Ward 6 compound in the afternoon,
2)	Whilst on his way to buy cigarettes with his cousin Elizabeth, Jacob came and begged him for cigarettes so he gave him three cigarettes,
3)	 Victim pointed his fingers at him and accused him for playing with him,
4)	When his brother Lima came out Jacob went to him, and was also swearing back at the accused.
5)	As he came out of the house he saw Lima lying on the ground. Jacob hit him and ran towards Mathew Ivan’s house
6)	Jacob was still shouting obscenities when they stopped him and left for his sister’s house.
7)	The witness rang Jerry Buliau and told him that some youths from Ward 6 were trying to fight with him.
8)	Whilst they were in the house Jacob came and called out to his cousin Posanag for a fair fight under the street light, but they did not fight.
9)	Jacob ran towards Ivan Mathew’s and some boys fought with him. The witness heard that Jacob had hit his uncle Selan.
10)	The witness than ran towards the junction to a laulau tree, but by then he said Jacob had left;
11)	Suddenly he heard Jacob shouted obscenities to him and his mother and ran towards him;
12)	Jacob punched him and he blocked his punches and they wrestled when Jacob fell down.
13)	As he fell down youths who were with him tried to fight him so he ran away.
14)	The accused, Lima, Jerry, his sister Elizabeth and Peace Officer Ivan Mathews visited the deceased at the hospital the next day, offered them K50 and returned home.
15)	Upon his return to his village his sister called and told him that Police have charged him,
16)	He returned to Manus on 6 December 2014 and was eventually charged and detained on 19 December 2014.
11.	During examination in chief the accused denied and grudges nor problems with the deceased. He said during that night some people were with Jacob. He said Jacob’s daughter was not with him during the fight. When asked what he did after Jacob fell the accused said some youths came and wanted to fight with him. He denied hitting Jacob or kicking him.
Cross Examination
12.	During cross examinations the accused maintained that he was not familiar with Ward 6 compound and did not know where Jacobs house was until on the day of visit to the hospital. He admitted buying 3 cigarettes for a stranger, Jacob. He admitted that he did not see Lima fall to the ground and who fought him. Likewise he admitted that he did not see who hit Selan but only heard about it. When suggested to him that he was mad and angry with Jacob’s swearing at him and his mother the witness said he was not mad. He maintained that Jacob’s daughter was not with him when he punched him.
Cross examination continue:
Q. 36 You recall Jacob telling court about Jacob charging at you?	
A. Yes
Q.37 You blocked his hand, recall?
A. Yes
Q.38 He fell down?
A. Yes, he punched me the second time and I blocked and he fell.
Q. 40 Did you see him fall down?
A. No.
Q. 41 If that is correct he would fall on his face?
A. I don’t know.
Q. 42 I put to you that that’s not what happened, you hid behind laulau tree?
A. No
Q.49. If your story was true youths would have gone to your sister’s house and assault you?
A. Yes
Q. 50 That’s why I say you hid, hit the deceased, what do you say?
A. No.
Court question to the Witness.
1. Did you drink beer that night?
Ans. No.
Defence Address on Verdict 
13.	The Defence contention is that the evidence of two State witnesses must be treated with caution in that another person Jerry Bulihau was also present at the crime scene but this evidence was omitted from their oral evidence. Defence took issue with contradictions of assault areas on the body: face instead of chest etc.; contradictions in Denika Jacob’s positioning in the crime scene etc. Defence concede that there was a fight between the accused and Jacob resulting in Jacob falling onto the ground injuring his head. 
The Defence went into great lengths to demonstrate to the Court that the accused should not be held liable for the crime but the deceased because he was drunk. He held abuses, was drunk, rowdy and disorderly therefore the accused version of events must be believed. During the early part of the evening the victim assaulted two members of the accused’s family and so was hungry for some more fight. When the opportunity presented itself with the accused on the scene Jacob charged at him and threw the first punch. 
Mr. Mamu submitted that the accused acted in self-defence to protect himself from a dunk man and advanced that the force used by his client to ward to Jacob’s punches was reasonable under the circumstances. The force used by the accused was proportionate to the force of the victims attack and that he should not be held liable, hence the element of “kill “not established. Likewise Defence advanced that the elements of intention to do grievous bodily harm not proven. 
Defence submitted that the State has not proved beyond reasonable doubt that the accused committed the crime and urged court to return a verdict of not guilty and have the accused acquitted.
State Address on Verdict
14.	Ms Koralyo submitted that there is no dispute that a fight ensued between the accused and the deceased resulting in the deceased falling down and died a day later in hospital. It was the accused who hit the deceased in retaliation of his advances with a punch or a block as he maintains. The fighting and injuries sustained was corroborated by the Dr’s Report on injuries on the neck and head, admissions in the record of interview and police statements. 
Ms Koralyo took issues with defence suggestion of self-defence available to the accused as no credible evidence was available for it to stand. Only then will the onus shift to the State to negative such defence. 
The Public Prosecutor submitted that the State has successfully discharged its duties in meeting all elements of the charge and the accused be found guilty as charged. The elements of intention to cause grievous bodily harm was present coupled with the medical report of death and the nature of injuries sustained. In this case the type of force applied on the victim in the manner described: a block or punch is immaterial? The victim fell backwards on his head is what matters from either one of those actions by the accused. There was direct evidence and not circumstantial. 
She submitted that Denika and Raga’s evidence be accepted by the court as they were witnesses of truth. Denika, a child gave evidence reliving the murder of her father more than a year ago and gave near accurate recollections of what happened that fatal night to her father. The attempted inconsistence raised by the defence in her earlier statements merely corroborated her statement given to police on vital areas: Reference to Jerry Bulihau in his statement. Lakani on the other hand was an eye witness and his evidence should be believed as he has nothing to gain from this case, save to come and tell court what he saw happen that fatal night. His evidence finds corroboration in Denika’s evidence and should be accepted.
Ms Koralyo conceded that there were some inconsistences during cross examination due to human infallibilities and such statement detailing events now recalled a year later. The crucial factors of the fight between the accused and the victim resulting in the fall and eventual death remain undisturbed.
She submitted that the Defence witness was not a witness of truth and his evidence disregarded ahead of state witness evidence. The accused’s version of events were discredited and he was an unreliable witness.
A guilty verdict of murder to be returned instead Ms. Koralyo submitted. In the alternative a guilty verdict of manslaughter be entered pursuant to section 539 (2) Criminal Code.
Court Remarks
It is generally acknowledged that some inconsistencies will present themselves during evidence from both sides and prior inconsistence statements raise to rebut credibility, depending on whose side you are on. For the State the young witness gave her statement to Police on 14 December 2014, some 10 days before the death of her father on 4 December 2014. She gave sworn oral evidence on 14 June 2016, some 18 months ago. Her evidence in my view was detailed and her recollection of events unmoved for a witness her age. Save for minor inconsistences in both her evidence I did not consider them fatal in key areas. If anything they found corroboration with the defence evidence in most parts. I have no reason to disbelief her recollection of events the way she saw them unfold before her eyes. The same cannot be said for the accused. Bearing in mind that he is a mature adult witness and his recollection of events would be near accurate. However that was not the case. He was very slow and cautious in formulating his answers. The court detected instances of recent invention when he attributed the victim’s fall to his blocking action: Indicating that the victim fell forwards. Unfortunately this recent invention fail to find corroboration with other evidence and the medical findings on the nature of the wounds: back of his head. To my mind these findings are crucial and raise questions of credibility of the accused’s version of events. In short I did not find him to be a witness of truth.   
I remain at a loss to work out defence assertion that because the victim was overly drunk the accused cannot be found guilty of the crime. I ask myself: what’s that got to do with the process of guilt finding. In my view that amounts to verbiage which should not find its way into submissions.  
The Law
15.	Section 300 of the Criminal Code creates the offence of murder and it is in the following terms:
“300 Murder
(1)  Subject to the succeeding provision of this Code a person who kills another person, under any of the following circumstances is guilty of murder:-
(a)  If the offender intended to do grievous bodily harm to the person or to some other person;
Penalty: Subject to Section 19, imprisonment for life.”
Elements
16.	The mandatory elements being 1. A person who kills another person, 2. The death of another person and 3. Intention to do grievous bodily harm.
Findings
Issue of Identification, a person and death of another person

17.	The question of identification is easily made out at the outset. This finding is premised on the evidence of accused and those of State witnesses: that there was a skirmish between the accused and the deceased and punches exchanged. Although a third person was said to be at the crime scene there is no evidence of his involvement in the fight. If follows therefore that the accused was the assailant. I have no reason to disbelieve the State witness version of identification.  The element of who that person was who caused the death and to whom the death was occasioned are equally proven: The accused Gerard Chawanin and the deceased Jacob Bukum. 

Demeanour of Witnesses
18.	Having observed the demeanour of the two State witnesses they remained calm and focused in giving their evidence. Their respective stories were short and brief and they told court of events as they unfolded which culminated into the death of the accused. Witness Raga gave eye witness account of seeing the accused hit the deceased causing him to fall down backwards.   
The defence witnesses appeared to me too be tensed up and very evasive during evidence and cross examinations. Specific details of evidence were omitted and only adduced during careful prodding in re-examination. He remained evasive and at times and showed signs of   reluctance to answer questions.  I am therefore not convinced that he is a witness of truth and his evidence not to be believed in parts.    
Provocation – Self-Defence
19.	The defence attempts to raise this defence remain futile in my view. No evidence was produced to sustain this defence. This defence is therefore not available to the accused. A sober person as opposed to an overly drunk person raises serious issues of proportionality of the defence. Common sense dictates that a sober person is greatly advantaged in such given situations. He has the ability to control his physical and mental faculties of self-control and restraint from oncoming danger from an overly drunk assailant. There is ample evidence before the court showing that the victim was unarmed and overly drunk and posed no real danger to the accused or the general public save his big mouthing obscene words. In short his advances at the material time were not life threatening for the defence of provocation to be sustained. Section 269 Criminal Code reads:
269. SELF-DEFENCE AGAINST UNPROVOKED ASSAULT
(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful 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 grievous bodily harm.
(2) If–
(a) the nature of the assault is such as to cause reasonable       apprehension of death or grievous bodily harm; and (Emphasis      mine)
(b) the person using force by way of defence believes, on reasonable      grounds, that he cannot otherwise preserve the person defended      from death or grievous 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 grievous bodily harm.
There is no evidence should that the imminent assault from the victim posed a real apprehension of death or grievous bodily harm. Hence this proportion in defence submissions remains futile. 

Whether intention to do grievous bodily harm?

20.	The accused Gerard Chawanin testified of blocking the victim’s punches which ensued in a struggle thus corroborating State’s version of events but only differing on the nature of assault: a punch as opposed to a blocking action. State assertion that the accused intention to harm the victim was real in that two of his family members were assaulted earlier on and the accused used abusive words at him and his family. This assertion remains unfounded due to lack of evidence. The two State witnesses denied that Selan and Lima were assaulted by the victim. Could this be an attempt by the accused to form the basis of his retaliation on the victim? I don’t know. Had such evidence found substance it would strengthen State assertion that the accused had intention to harm. He had motive to cause harm. 
	
From the evidence before me, the victim was very drunk, unruly and rowdy at the time. His fall to the ground was described by his daughter as that of a coconut falling onto the ground, usually with a heavy thud or knock. It is therefore safe for this court to find that at that stage of being overly drunk any slightest block or push would cause him to loose self-control and hurt himself, the way he did in this fall. Furthermore the mere fact that the accused and his family members visit the next day to say sorry, is demonstrative enough for believing that the skirmish was not serious and could easily be reconciled with apologies. However to their dismay it turned fatal. Put differently had the accused intended to cause grievous bodily harm to the victim the previous night he would obviously flee form the compound and return to his island. This he did not do, instead he went to apologise to the victim and his family. In the absence of any evidence to the contrary, although there were some speculations surrounding his intentions at the time I am not satisfied that the accused had intended to do grievous bodily harm to the victim.
21.	Applying the above findings to the facts of this case, I have no doubt in my mind that the accused was responsible for the death of the deceased Jacob Bukum on 4 December 2014 at Ward 6, Lorengau and that he did not intent to cause grievous bodily harm to the victim. 
Verdict
Therefore I find the accused not guilty of murder under s. 300 (1) (a). However I find the accused guilty of manslaughter. I return an alternative verdict of manslaughter instead and convict him accordingly pursuant to section 539 (2) Criminal Code.
_____________________________________________________________
Public Prosecutor:   Lawyer for the State 
Public Solicitor:   Lawyer for the Accused