N6612

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.1282 & 1283OF 2015

THE STATE

V

KELLY BONIFACE & IAPITA VANAVANA

Kokopo: Lenalia, J.
2016: 6th, 7th, & 21st December

CRIMINAL LAW – Manslaughter – Plea of Not guilty – Criminal Code s.302 –
Trial – Evidence by prosecution and that of the defendants – Assessment of all evidence. 

CRIMINAL LAW – Charge of manslaughter – Evidence by the State – Cause of death – Fire blown away by the wind from fire-place to the dwelling house of the two accused where the two children of the two accused were sleeping. 

CRIMINAL LAW –Dwelling house caught fire while two accused were collecting banana leaves for the mumu – Verdict of not guilty returned to each and severally. 

Cases cited:

Java Johnson Beraro v The State [1988-1989] PNGLR 562
Regina v Tsagaroan [1965] PNGLR 122
R v Druet [1965-1966] PNGLR 397
Regina v Bile Mumapa (1968) N498
The State v Charlice Lamete (2007) N4984 
Counsel:	

Mr. L. J. Rangan, for State
Ms. J. M. Ainui, for Accused

21st December, 2016

1.	LENALIA J: The two accused pleaded not guilty to two counts of manslaughter of their two biological children. This is an offence against s.302of the Criminal Code. The crimes were allegedly committed at Bitakapuk village, Toma in the Gazelle District on 1st August 2015. 

2.	The section under which the two offenders are charged is short. It states:

	“302. Manslaughter.

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

Penalty: Subject to Section 19, imprisonment for life.”

3.	The charge is not one of wilful murder. The two little victims were not killed in any of the circumstances or elements defined in s.299 of the Code. There was no intention to kill their children. This section states:

	“299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.”

4.  	I quote the section that defines murder, which is s.300 because it sets out circumstances under which an offender can be responsible for killing someone that is there is no intention to kill. This provision reads: 

“(1) Subject to the succeeding provisions 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 killed or to some other person; or

(b) if death was caused by means of an act—
(i) done in the prosecution of an unlawful purpose; and
(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—
(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—
(a) did not intend to cause death; or
(b) did not know that death was likely to result.” 

Prosecution Evidence

5.  	Two prosecution witnesses were called. The evidence of Vincent John and Thomas Kaile is similar. Both witnesses were not on the scene when the fire was lit on the dwelling house where the two victims Jenelyne Kelly and Thomas Kelly were sleeping. Their evidence is that between 1pm and 2pm on 1st August 2015, they came their own ways. In case of Thomas Kaile, he was together with the two accused first born son Alois. They came up on the hill overlooking the direction where the dwelling house was burning; they saw the house was already on fire. When they ran down to where the house was burning, it was totally burnt down on their arrival. 

6.  	In case of Vincent John, when he got off the truck he was on, he stood on the road and saw great smoke on the house where the two accused and their children were using. He called out to the two accused and ran down to where the two accused were in banana patch and told them about the fire burning their house. Accused Kelly informed Vincent that their children were in the house sleeping. The two accused rushed from there and took a short cut and Vincent went the other way. When they arrived at the house, it was already burnt down. 

7.  	The court has read all evidence tendered by consent. They included statements, the medical report and the doctor’s affidavit and the records of interviews. The Court has read those documents. Particularly the records of interview about what the two accused said when they were asked about how the fire started. 

9.  	After the prosecution case was closed, the two accused were warned under s.572 of the Criminal Code if they wanted to give evidence, make unsworn statements or remain silent. They each elected to remain silent. Ms. Ainui, counsel representing the offenders confirmed this, she submitted, her clients had indicated to her that they will remain silent and give no evidence or even call any witnesses. 

Addresses on Verdicts 

10.  	The prosecution counsel addressed the court first on verdict. Mr. Rangan’s submission is that, the two accused are responsible for the death of their children because they were negligent in not managing the fire properly which caused the family house to burn. Counsel referred to a number of cases which the court will refer to later. He based his argument on the grounds that, the fire could have been properly put out by the male accused as he was the last person to leave to the Taraiu. 

11.  	Ms. Ainui replied by saying that, the two offenders did nothing to cause the fire to burn the family house down. She argued that, there is no hint or scintilla of evidence upon which the two offenders can or may be blamed as the cause of the fire is not known as to who set fire to the house. She referred to a number of sections in the Criminal Code and submitted that, the two accused should not be found guilty. 

Application of Law to the Evidence

12.  	There is no evidence of how the fire spread to the dwelling house. There is no issue, the two children now deceased were sleeping in the house. The issue is, can the two offenders be held responsible for the deaths of their two children? 
The State argued in submission that, the manner and approach taken by the two accused in how they did not control the fire was and is the subject of criminal negligence. They rely on s.287 of the Criminal Code which states:

	“287.	 Duty of persons in charge of dangerous things.

(1)	It is the duty of every person who has in his charge or under his control anything, 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.”

13.	There is evidence of the two children were left in their house sleeping soundly. There is no evidence of how long was the fire-place from the dwelling house. There is evidence that it was a windy day. The house was located on the side of a hill and so it was open for the wind to blow whenever it was windy. 

14.  	I differentiate these cases from the two cases referred to the Court by the prosecution counsel. In the case of The State v Charlice Lamete (2007) N4984 a case in Buka, Autonomous Region of Bougainville, the offender was charged for manslaughter for criminal negligence. Mr. Rangan was the prosecuting counsel on that case. It was the case where the offender was 7 months old pregnant when after having found out that she was pregnant, she bought some medicine known as misoprostol (also known as cytotec) and she returned she asked another woman to insert six of those cytotec tablets into her vagina to induce labour. When she gave birth prematurely, the child died. She was charged for manslaughter. She was found guilty of the charge of manslaughter. 

15. 	 In the case of Regina v Tsagaroan[1965] PNGLR 122, the accused threw a stick at his wife. He was angered by the wife complaining about firewood she had cut and was meant to be kept for the next day’s use. Because the accused did not heed his wife’s concern, she threw a piece of partly burnt stick at the accused which hit his head and it bleed. The accused immediately threw the same stick at his wife and it hit the child and also injured his wife’s knees. The child died. The accused was charged for manslaughter. The offender was found guilty and given a 2 years good behaviour bond with orders to come up for sentence if called upon. The offender and his wife were told that they should regard the penalty as probation and if there were further trouble, between the two of them, the question of punishment could be reopened. 

16.  	The circumstances of the instant trial totally differ from the above cases. There is no issue about the loss of the two accused children. On the charge of manslaughter, three elements must be proven. They are:

•	A person must have been killed,
•	Was the killing unlawful?
•	Evidence must prove that the circumstances of the killing, do not constitute, elements of wilful murder or murder.

17.  	Considering the three elements, did the two accused commit any circumstances or anything not constituting crimes of murder or wilful murder which would qualify under s.302 of the Code?  I answer this question in the negative. The two children were killed by the burning fire. 

18.  	Mr. Rangan argued in submission that, the two accused did not carry out their duties by ensuring that the fire was properly put off before the two accused left to collect banana leaves for their mumu and the two accused were negligent because, when they left for the bush, there was still fire left on the fire place. The first accused admitted in the record of interview that, he was the last person to leave after lighting his smoke. He sat for a while and separated the two coconut shells before he left. Both defendants admitted in their record of interview that, at that time it was windy. 

19.  	I am of the view that this was the case where the two accused and particularly accused Kelly Boniface had taken precaution to separate the two pieces of coconut shells with the hope that, it could no longer ignite into anything. The second accused lit the fire on the fireplace to boil water. In answer to question 32 of the record of interview with accused Iapita Vanavana, she said, it was windy but they had put up something to block off the wind from the direction where the wind was coming from to contain the fire. 

20.  	The State relies on s.287 of the Code. The standard of negligence to be established on any criminal trial is the criminal standard. Evidence ought to show that as on these trials, the two accused acted with such reckless disregard for the lives and safety of their two children and such conduct their conduct in how they controlled the fire if they were careless should deserve punishment: R v Druet [1965-1966] PNGLR 397. To substantiate the indictment for the crime of manslaughter, the prosecution ought to prove a breach of the duty imposed like on this case on the two accused to the standard of criminal proof.

21.  	Added to this is the fact that, the prosecution ought to establish that, the allegation of negligence complained of is a direct cause on the death or inquiry. The old preindependence case of Regina v Bile Mumapa (1968) N498 establishes that, it is not necessary that it should be the sole direct cause of the death.

22.  	For the court to determine, “whether the two accused are criminally negligent or not? I must look at the circumstances which surrounded the factual background evidence which has been adduced in all evidence of the instant trial. The court considers the situation prevailing at the time the two offenders are said to have been negligent: Java Johnson Beraro v The State [1988-1989] PNGLR 562 at 575. 

23.  	I consider the evidence adduced on this trial by the prosecution. The issue is, did the two offenders take reasonable care and took reasonable precautions to avoid the danger that latter came upon the two deceased children? I find that the two accused did all they could to put off the fire before they left for the bush. 

24.  	I find that the conduct of the two offenders cannot be characterized as “grossly careless or reckless” as similar cases cited above have decided. The court finds the two accused not guilty. Their case is dismissed and they shall be discharged forthwith if they have no other pending criminal case against them. 

________________________________________________________________ 
The Public Prosecutor	:	Lawyer for the State
The Public Solicitor	:	Lawyer for the two Accused