N7974
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1649 OF 2016

STATE
V
CHARLES KELLY
Kiunga: Manuhu, J
2019: 19, 20, 21 & 22 August

CRIMINAL LAW – Particular Offence – Murder – Domestic violence – Spleen death – Circumstantial evidence – Consideration of evidence.

Case Cited:
 State v Tom Morris [1981] PNGLR 493
Counsel:
J. Apo, for the State
E. Sasingian, for the Accused

22nd August, 2019
1.	MANUHU, J.:  The accused, Charles Kelly, was indicted on one count of murder.  It was alleged that on 9th April 2016 at Kiunga, he unlawfully murdered one Stephanie Kamai Short.  

2.	It was alleged that on 9th April 2016, the accused and his wife, who is the deceased, Stephanie Kamai Short, returned to their home from a drive around town during which time the accused and another drank alcohol.  They returned to their house in the evening of that day after the drive.

3.	When they got back home, the accused and the deceased got into an argument.  The State alleged that the accused assaulted the deceased and as a result, she ran out of the house. As she ran out, the accused followed her and called her back.  The accused confronted her outside the house and assaulted her.

4.	The deceased cried out for help and was then rushed to the hospital where she died on arrival.  The autopsy report shows that she died as a result of ruptured spleen due to a blunt trauma.

5.	The accused denied the charge.

6.	The cause of death is not disputed.  The only issue is what caused the blunt trauma? No one saw the accused assaulting the deceased so the prosecution’s case is based on circumstantial evidence.  In that regard, the law on circumstantial evidence is as stated in the case of State v Tom Morris [1981] PNGLR 493: 

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen[1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p.661.” 

7.	In this case, the prosecution has petitioned the court to draw an inference that the accused punched and or kicked the deceased in the abdomen which accounted for the blunt trauma resulting in the rapture of the spleen.  The accused is also asking the court to draw the inference that the deceased tripped and fell badly on metal car parts in the front yard of the house which caused the blunt trauma.  The task at hand is for the Court to decide between these two propositions.

8.	It is not disputed that there was no one else in the house at that time.  Only the accused and the deceased were in the house after they returned from their drive around town where the deceased shared two 40 Ounce hard stuff with George Bani who lived on the opposite side of the road.  George Bani returned to his house and then he went to see his girlfriend next door. 
 
9.	While there, George Bani saw the deceased running from the house onto the main road.  She ran after a white Nissan Navara seemingly looking for help but she was refused help.  She turned back and walked to the house.  The accused was calling her by then as she walked back.  After she returned to the house, George Bani heard the deceased saying in a loud voice, “Ok em inap, by mi harim tok!”.  Moments later, George Bani heard splashes of water and then the deceased was rushed to the hospital by the accused.
 
10.	The prosecution called Lydia Maim who gave evidence that the deceased was her friend and she knew that there were domestic fights between the deceased and the accused who also had another wife.  They confided with each other about their life and was aware that the deceased had been confronted by the accused first wife.

11.	The proposed version of events presented by the accused is that after they returned from their drive around town where he drank four to five cans (beer), the deceased insisted on them to continue driving but they had run out of fuel.  The deceased became upset and was complaining.  At the house, the deceased was still complaining and upset about various issues.  So, there was an argument between them in the house.
  
12.	The deceased continued to drink her hard stuff while the accused laid down near her and fell asleep.  While asleep, the deceased may have gone to the veranda. When he woke up, the deceased was not in the house so he went to the veranda to check on the deceased.  He called for her and the deceased rushed back into the yard from the right side to the back of the house.  The accused went to the back door but he didn’t see the deceased so he went down the steps and looked for the deceased but she wasn’t there.  He went to the other side of the house and heard the sounds of twigs.  The deceased was at the left front side of the house standing.  The accused shouted at her telling her what was wrong with her so she ran to the front of the house.  Then he heard a scream so the accused thought she may have fallen down.  The accused followed her and found her on the ground in the front yard.  The accused went over and started getting cross to her.  She was still on the ground.  The accused asked her why she was upset but she didn’t respond.  She was miming and was in pain.

13.	The accused told her to get to the house but she didn’t respond.  He got leaves to make her get up but she did not respond.  He physically lifted her but she couldn’t respond so he got a bucket of water and poured it on her but she was still unconscious so he got her into the car with help from a nephew she was taken to the hospital where she died on arrival. 
 
14.	The accused produced photographs of crucial locations around the house.  The Court visited the scene of the alleged crime.  The house is quite small, it can be called a match box house on low posts.  The pictures show the critical locations of the house and the yard.  The accused is also a mechanic and fixes cars in his yard.

15.	Which version should the court believe?

16.	I have considered the version of facts by the accused and am somewhat unimpressed for the following reasons. 
 
17.	Firstly, I find it odd and extraordinary for the deceased to be running away and hiding from the accused if the accused was harmless as he portrayed in his evidence.  It was as if they were playing hide and seek.  First, the accused fell asleep and when he woke up, the deceased wasn’t there.  At the veranda, the accused saw the deceased going to the back but he didn’t find the deceased at the back.  He went down and searched for the deceased and heard the sounds of twigs.  Then the accused saw the deceased running and she probably fell.  Why would the deceased be running around the yard for?  Why would the deceased be hiding from the accused? Again, these are relevant questions that remain unanswered.

18.	The impression I have is that the accused must have done something to the deceased for her to be avoiding him.

19.	In fact, the deceased wanted to get on the white Nissan Navara but she was refused lift.  It appears to me that she was running away from the accused because she feared him.  When she came back to the house, and with no option left, she was heard saying, “Ok em inap, by mi harim tok!”.  She said this loud enough for George Bani to hear her on the other side of the road.  That sounds like a woman in distress but with no option.  Moments later, water was being poured on her in an attempt to revive her.  It failed to revive her.

20.	Furthermore, the human body is wonderfully structured and created.  If a person trips, a series of messages are relayed quickly to other parts of the body to react.  If a person trips on one foot, the other leg and arms automatically react to restore balance to the body to avoid a fail or to reduce the impact of a fall.  When a person trips, he doesn’t fall to the ground like a lifeless piece of wood.  It is hard to believe that the deceased tripped and fell awkwardly on mental objects in the front yard.
21.	In any case, the external injuries on the body of the deceased are not consistent with a fall on metal objects as shown in the photograph evidence.  There are five metal objects in one spot.  If the deceased fell badly on them, they would have caused very serious external injuries.  The only external injury on the body was a 4cm x 2cm bruise on the right side.  It does not correspond with the metal objects as shown in the photographs.

22.	In addition, given that there were five large metal objects at the location where the accused said the deceased fell unconscious, the accused would have seen them when he was trying to get the deceased to get up and go to the house.  In his evidence, he made no mention at all about seeing the metal objects where the deceased laid and when he was talking to her.  If he didn’t see those metal objects, he would have stepped on them when he tried to carry the deceased to the house but he said nothing about the five metal objects.  This suggests that the metal objects were never there when the deceased was lying on the ground.

23.	In fact, after examining the photographs, I was of the impression that the metal objects appear to have been planted in the front yard to make it look as if the deceased fell on them.  I asked the accused the pertinent question to which he explained that he parked his vehicle on the road side.  That was an evasive response.  I asked again and he said the front yard was big enough to park his vehicle.  I asked counsel as to who the photographer was and counsel said the accused took the photographs.  When I asked the accused, the accused said his relatives took the photographs but he couldn’t name them, and he doesn’t know when the photographs were taken.  How then did the relative know where to take the shots?

24.	I am of the view that the photograph evidence is defective. It is an attempt by the accused to mislead the court. As the accused had made no mention of seeing the metal parts beside the unconscious deceased, I find that the deceased did not trip and did not fall on any metal part. This conclusion is fortified by the absence of any corresponding injury on the body of the deceased.  The injury on the body of the deceased is indeed consistent with physical assault.  Accordingly, the proposition put forward by the accused cannot be believed and is rejected outright.

25.	On the balance of the evidence, the accused and the deceased were the only two persons at the house.  It is not disputed that there was an argument.  They have a history of arguing and fighting.  The deceased died as a result of a ruptured spleen due to blunt trauma.  The accused and his nephew took the deceased to the hospital and would have told the medical officers as to the circumstances surrounding the death of the deceased.  It was reported that the “deceased was physically assaulted by her husband…”  After leaving the deceased at the hospital, the accused gave himself up to the police immediately.  It may be for his own safety because he knew he assaulted his wife who had died as a result.
  
26.	On the evidence as it is, the only conclusion that can be drawn is that the accused assaulted the deceased.  I find therefore that the blunt trauma which caused the rupture of the spleen was caused by the accused when he assaulted the deceased.

27.	It is however unsafe to find that the accused intended to cause grievous bodily harm so I find the accused not guilty of murder but guilty of manslaughter.

Verdict:  Not guilty of murder, Guilty of manslaughter.

________________________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyer for the State
Leslie Mamu, Public Solicitor: Lawyer for the Accused