N10802

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 385. OF 2022

BETWEEN
THE STATE

AND
CLIFFORD MAXWELL
Accused

Bulolo/Lae: Polume-Kiele J
2022: 14th June, 21st & 25th October, 14th November
2023: 7th & 9th June, 6th December
2024: 7th February, 19th March, 5th April
CRIMINAL LAW – Trial – Accused, charged with one count of murder – s 300 (1) (a) – Criminal Code Act - No Case to Answer  – principles - The State v Paul Kundi Rape [1976] PNGLR 96 – Both limps of the test – (1)  "whether on the evidence as it stands the accused could lawfully be convicted?"  -(2) …  where the court considers that there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could convict on it” - Relevant considerations – Case to answer.
CRIMINAL LAW – Identification – State witness – close relationship - at scene of crime –sufficient lighting - no difficulty pointing directly and identifying accused as the person who hit the deceased – issue of intention addressed – No case submission dismissed– Accused had a case to answer.

CRIMINAL LAW – Causation - question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter:  The State v Namaliu [2020] N8284, State v Donia [2010] N4536.

Cases Cited:

Papua New Guinean Cases
The State v Paul Kundi Rape [1976] PNGLR 96 
State v Thomas Sange & Ors (2005) N2805
State v Nathan Kovoho CR. No. 163 of 2005, N2810
The State v Namaliu [2020] N8284
State v Donia [2010] N4536
The State v Misimb Kais [1978] PNGLR 241
State –v- Roka Pep No. 2 [1983] PNGLR 287
The State v Jerry Mota (Unreported Judgment dated 10 June 2021)
The State v Moses Manwau (2009) N3797
The State v Ipai Koivi (2010) N4167
The State v Mathew Moro (2011) N4906
The State –v- Gigere Udamu [1990] PNGLR 151

Overseas Cases
Hallet -v- R [1969J SASR 141 

Counsel:
Mr. O Toggo, for the accused
Ms. S. Joseph, for the State

RULING ON “NO CASE TO ANSWER” 

5th April 2024

1.	POLUME-KIELE J: An indictment was presented on the 25th of October 2022 charging the accused with one count of murder contrary Section 300 (1) (a) of the Criminal Code. 

2.	The accused pleaded not guilty, and a trial was conducted commencing on 14 November 2022 at Bulolo.

3.	At the close of the State’s case, the defence elected to make a “No case to Answer” submission and the matter was adjourned to a later date for hearing of the No Case to Answer submission.

4.	On 9 June 2023, Counsels addressed the Court on the “No Case to Answer”.

5.	 The Court reserved its ruling.

The charge

6.	The accused is charged with one count of murder under s 300 of the Criminal Code. Section 300 states- 

"300. MURDER

(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 other person killed or to some other person; or

(b)	...

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. "

The elements of the offence

7.	The elements of the offence of murder are that:

(i)	the accused killed.

(ii)	intended to cause grievous bodily harm.

(iii)	the accused caused the death of the deceased (issue of causation)

Arraignment

8.	On arraignment the accused pleaded not guilty, and the matter proceeded to trial.

No case to answer
9.	At the close of the State's case, the accused through his counsel opted to make a no case submission. The no case to answer submission is mounted on both limbs of the test in The State v Paul Kundi Rape [1976] PNGLR 96 case. 

10.	This ruling is on the no case submission.

The issue (s)

11.	The issue before the Court is one of causation.

(i)	whether or not the accused, Clifford Maxwell caused the death of the deceased, Kennedy Allingham?

Uncontested facts

12.	It is not disputed that on 14 September 2021, the deceased Kennedy Allingham was in the company of and or was with the accused Clifford Maxwell and within his family home at Nauti Village. The family had gathered to celebrate the birthday of a niece. There was party going on and the family and friends were drinking well into the night. It is also not disputed that during that night, a fight occurred between the deceased, Kennedy Allingham and the accused, Clifford Maxwell within the family residence.

State’s allegation- one count of murder, s 300 of the Criminal Code

13.	On 14 September 2021, the accused, Clifford Maxwell; the deceased, KENNEDY Allingham, and some other boys were at the home of the accused, Clifford Maxwell drinking alcohol.  Their drinking started from about 4.00 p.m. to 11.00 p.m., At some point during their drinking session, the accused started arguing with the deceased over his boom box charger which the deceased had broken.

14.	The accused, Clifford Maxwell, is alleged to have entered his mother’s house, and returned armed with a pinch bar. It is alleged that the accused, Clifford Maxwell, hit the deceased on his neck, ribs and hips with the pinch bar.

15.	The next morning (15 September 2021) the deceased returned to his home, Mangitawa. 

16.	On 26 September 2021, he succumbed to the injuries he sustained on 14 September 2021 and died.

17.	It is the State’s case that when the accused, Clifford Maxwell hit the deceased, Kennedy Allingham on the neck, ribs, and hips, he intended to cause grievous bodily harm to the deceased, and this led to his death. It is also the State’s case that the actions of the accused therefore amounted to the offence of Murder under Section 300 (1) (a) of the Criminal Code.

18.	To prove the elements of the offence, the State called 4 witnesses. These witnesses all gave oral evidence under oath in the Pidgin Language, and it was translated to English. They were all subject to cross-examination.

19.	In addition, the State also relied on several documents which were tendered by consent into evidence. These documents were:

(i)	Record of interview dated 8 October 2021, both Pidgin (original) & English Translation.

(ii)	Statement of First Constable Lazarus Busil dated 19 October 2021

(iii)	Statement of Constable Allan Alimaka dated 19 October 2021

(iv)	Affidavit by Dr Lucas Komnapi sworn on 7 October 2021

(v)	Autopsy Report of Kennedy Allingham; dated 7 October 2021; and

(vi)	Death Certificate of Kennedy Allingham dated 7 October 2021. 

Law on no case to answer
20.	At this juncture, I must warn myself that the question is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands can the accused be lawfully convicted?  

21.	The tests or principles of law governing on a no case to answer submission is enunciated in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96. In that case,  the Court held that two distinct but related tests apply and may arise at the close of the case for the prosecution or indeed at any stage of the trial (see The State v Misimb Kais [1978] PNGLR 241): 

“The first test is whether on the evidence as it stands the accused could be lawfully convicted. 

The second test is where the court considers that there is a case to answer, the Court has a further direction to disallow the case where the court considers that there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could convict on it”. 

22.	The above principles were adopted and expanded in the case of The State –v- Roka Pep No. 2 [1983] PNGLR 287 where the Supreme Court (per Kidu CJ, Kapi DCJ, Andrew and Kaputin JJ) expanded the principles in this way:
"Where in Criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the Judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence."
Where the tribunal decides there is no case to answer, the accused is acquitted and that is the end of the matter.
Where the tribunal decides there is a case to answer, it nevertheless has discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
A tribunal should make a finding of no case to answer where: (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person. (Per Pratt J)” 
23.	Regarding this present case, the prosecution must show some evidence of the existence of the elements of the offence under Section 300 (1) (a) of the Criminal Code.

The State’ Case

The State’s allegation – one count of murder, s 300 (1) (a) – Criminal Code

24.	Ms Joseph for the State submitted that the question before the Court is not whether the State has established its case beyond reasonable doubt but rather whether on the evidence as it stands the accused could lawfully be convicted in line with the principles set out in the case of Paul Kundi Rape v The State [1976] PNGLR 96.

25.	 To establish its case, Ms Joseph submitted that from the evidence adduced during trial, the State has established that there is some evidence of each element of the offence, which if accepted, would prove the element directly or enable its existence to be inferred.

26.	The State submits as follows: 

(A)	The accused, Clifford Maxwell killed the deceased.

This element of the offence is proved by the sworn evidence of three State witnesses and documents which were tendered into evidence by consent. 

(1)	State witness, Elsie Naminjo. 

The first witness called by the State was Ms. Elsie Naminjo.  Ms Naminjo gave oral evidence under oath in the Pidgin language, which was translated to English. She was subject to cross-examination. 

In her evidence, Ms Naminjo testified that on the night of 14 September 2021, she walked from Mangitawa village to Nauti Village to see Kennedy Allingham (the “deceased”). She states that the deceased, was with Clifford Maxwell, (the “accused”), at his house at Nauti Village. She states further that as she approached the house, she saw that the accused was fighting with deceased. 

She testified further that although it was nighttime, there was sufficient lighting within the area (there was power in the area) and she was able to clearly see that the accused was hitting the deceased on his shoulders and head with a pinch bar, twice. 

She also testified that she did not do anything. She was scared. She cried and left the scene after witnessing the assault. She did not do anything. 

(2)	Nita Danny

The second State witness is Nita Danny. She also gave oral evidence under oath in the Pidgin language, and it was translated to English. 

She testified that that she is from Nauti Village and married. She states that on Sunday 19 September 2021, she and her husband went to Nauti Village to see the VLO for Morobe Mining, but he was getting ready to go to church so accused’s (Clifford’s) stepmother, Lima, invited them to go and have a cup of tea whilst waiting. 

She testified further that whilst they were at the stepmother’ house, she (Lima) told them that the two brothers fought about land. She testified further that Lima told them that Clifford (the accused) picked up her pinch bar and hit Kennedy on the side, and when the mothers came to stop him, he chased them away. 

This witness, Nita Danny also testified that on 18 September 2021, she saw Kennedy (the deceased) but when she saw him, she saw that he was very badly hurt, he could not walk properly, had blood on his body, on the side of his legs and shirt. She did speak to him, but he did not respond. 

(3)	Allingham Soya

The third witness called by the State is the father of the deceased, Allingham Soya. He gave oral evidence under oath in the Pidgin language, and it was translated to English. He was also subject to cross-examination.

Allingham Soya testified that on the morning of the 14 September 2021, his son was fine and left the house. He went to his little cousin sister’s birthday party. He didn't see him until the next day, his son was looking like a sick man. His shirt is torn, blood all over his body. He got cross to him and told him to lie down on the bed. His son told him that Clifford (the accused) hit him using a pinch bar on his neck, head, and side. 

Documentary evidence

Further and in addition, all of the above evidence is corroborated by the admissions contained in the Record of Interview, conducted on 8 October 2021 between the accused, Clifford Maxwell, the Investigating Officer, First Constable Lazarus Busil and his corroborator First Constable Allan Alimaka. 

In the Record of Interview, the accused Clifford Maxwell made admission, particularly in Question and Answer No 21. In his response to Question 21, the accused, Clifford Maxwell did admit to the police that on the night of 14 September 2021, he hit the deceased Kennedy Allingham; on the neck, ribs, and hip using a pinch bar.

In the Autopsy Report prepared by Dr Komnapi dated 7 October 2021, the Autopsy Report, listed the following pathology findings as to cause of death:

• 	right peri-orbital haematoma

• 	a 10 cm x 4cm contusion on the base of the neck

• 	11 cm x 5cm bruises and contusion with induration

• 	a 34cm x 28cm contusion with induration on the lateral aspect of the lower abdomen extending to the upper thigh

• 	generalized subgalea haematoma on the back of the head (scalp)

• 	no underlying fractured skull bones

The Certificate of Death dated 7 October 2021 issued by Dr Komnapi of the ANGAU Hospital concludes that the deceased, Kennedy Allingham died from ‘traumatic brain injury as a result of blunt force trauma to the head with hard object/s. 

(B)	the accused intended to cause grievous bodily harm.

Again, the State submitted that this element of the offence is established in the evidence of the State witness, Elsie Naminjo, who gave sworn oral evidence that on the night of 14 September 2021, she had walked from Mangitawa Village to Nauti Village to see the deceased, Kennedy Allingham, who was at the family home of the accused, Clifford Maxwell. However, when she arrived at house of the accused, Clifford Maxwell, at Nauti Village, she saw the accused, Clifford Maxwell fighting with Kennedy. She gave evidence that she saw the accused, Clifford hit (assault) the deceased, Kennedy, twice, on the shoulder and head with a pinch bar.

This element of the offence is further collaborated by the evidence of the second State witness, Nita Danny who testified on oath that on Sunday 19 September 2021, she and her husband went to Nauti Village. When they arrive, Lima (stepmother of the accused) enquired if they saw Kennedy. She testified that Lima Maxwell then went on to tell the witness and her husband that Clifford assaulted Kennedy very badly using a pinch bar on the night of the birthday party. 

Further collaboration of this element of the offence is provided in the sworn testimony of Allingham Soya, the father of the deceased, Kennedy. He testified that on the morning of the 14 September 2021, his son was fine and left the house to attend his little cousin sister’s birthday party at Nauti Village. He didn't see him until the next day when he returned home. He testified further that upon his son’s return, he noted that his son was badly bruised and had blood stains all over his body and clothes. He testified that his son told him that Clifford hit him using a pinch bar on his neck, head, and side. 

The Record of Interview dated 8 October 2021, provides further corroboration of the assault. In that record of interview, the accused admitted during conduct of the record of interview with the police in Q & A No. 21, that on the night of 14 September 2021, he hit the deceased Kennedy on the neck, ribs, and hip with a pinch bar.

(C)	caused the death of the deceased.

Ms Joseph for the State submitted that Section 297 of the Criminal Code specifically stated that "a person shall be deemed not to have killed another if the death of the person does not take place within a year and a day of the cause of death."

In applying this provision to this present case, the deceased was assaulted on the 14 September 2021 at Nauti Village. On 15 September 2021, he returned to his father. On 22 September 2021, he travelled to Lae. On 23 of September 2021, he returned to Bulolo. On 26 September 2021, he passed on. In the case of The State v Namaliu [2020] N8284, where the deceased had passed away sometime after an assault occasioned on her, the Court stated:

"Causation is not a philosophical or scientific question. It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991J HCA 27; (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161. See also Sharp (supra)."

Further in the case of State v Donia [2010] PGNC 228; N4536 (14 October 2010). the Court expressly stated the following involving a homicide of a young girl who was raped and died after three days.

"Essentially causation arises when there is an intervening act or event in the cause of the death. The question therefore is whether the accused's conduct was so connected with the deceased's death that it must be said to be a substantial cause of the death. Could infection from her sexually transmitted infection be said to have supervened between the time the decease started bleeding and the time when she died? The State -v- Jimmy Bellam [1979J N192 followed.

In the South Australian case of Hallet -v- R [1969J SASR 141 (at p 149) the issue was stated as follows:

"The death of the deceased is the material event. The question to be asked is whether an act or series of act (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event, that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. "

The question, therefore, is whether the accused's conduct was so connected with the deceased’s death that it must be said to be a "substantial cause" or a major precipitating cause of the death. "

27.	Overall, the State submits that as it stands on the undisputed sworn evidence of all the State witnesses including the Autopsy Report dated 7 October 2021 performed by Dr Komnapi, the State with respect to each and every element of the offence of Murder has established a prima facie case against the accused, Clifford Maxwell. 

28.	Consequently, the State submits that the accused has a case to answer.

Submission by the Defence

29.	This is a case where there has been several Counsels representing the accused, Clifford Maxwell. Firstly, Mr. John Zauya, then Mr. Maik Karu of Daniels & Associates Lawyers. 

30.	On the day of the hearing of this submission, it was Mr. Toggoh of Daniels and Associates Lawyers who appeared before the Court and made the oral submission on the “No Case to Answer”. 

31.	I note that in their written and oral submission before, the Court, there was no dispute as to the brief facts presented. 

32.	However, the defence raised some issues with respect to the evidence adduced during the trial and relied on the case of The State v. Paul Kundi Rape [1976] PNGLR 96 to submit that the State has failed to established a case to answer against the accused, Clifford Maxwell. The defence relied on both limbs of the test on its ‘No case to answer submission.

33.	Mr Toggoh submits that in the case of The State v Roka Pep [1983] PNGLR 287 where the Court established that there are two tests to the “No case Submission”.

“The first test is whether on the face of the evidence, as it stands, could the accused be lawfully convicted.

The second test is where the court considers that there is a case to answer, the Court has a further direction to disallow the case where the court considers that there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could convict on it”. 

34.	In his submission, Mr. Toggoh submitted that this Court should not rely on the evidence of all the State witnesses as none of them had actually witnessed the fight between the accused and the deceased. He submitted further that in fact, none of the witnesses had seen the accused hitting the deceased on the head. 

35.	Furthermore, death occurred 12 days after the alleged assault hence, there may be some intervening factor that may have contributed to the head injuries that led to the death of the deceased. 

36.	He therefore submitted that the State had failed to produce any evidence that the accused killed the deceased. He submits further that the autopsy report did not reveal any injuries to the head.

37.	 He submits also that no evidence was adduced by the State to suggest that the accused killed the deceased.

38.	Mr. Toggoh for the accused further submits that the State failed to establish that the accused intended to kill the deceased. He submits that whilst there is evidence that the accused hit the deceased with a pinch bar, he did hit the deceased on parts of his body where it is not vulnerable. He was hit on the neck, hip and ribs which may indicate that he did not intend to cause the death of the deceased. 

39.	In all, Mr Toggoh submitted that the State has not satisfied all the elements of the offence of the charge of murder and thus the accused should be discharged.

Analysis of the evidence

40.	Having heard both counsels on the “No Case to Answer” to whom, I am most grateful for their assistance in pointing out the relevant applicable laws and principles.

41.	Further, I am minded to also warn myself that the question for determination before the Court is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands can the accused be lawfully convicted? The leading case on a no case to answer submission is the case of Paul Kundi Rape (supra) as correctly referred to by both counsels where it was stated that following the close of the State’s case two distinct and separate questions arise. 

At this juncture, I refer to my statement in the case of The State v Jack Mota (Unreported Judgment dated 10 June 2021), State v Manak [2022] N10339 (14 April 2022), in which I reiterated that there is no rule of law which says that the State can only prove its case by direct or oral evidence. Indeed, it is open to the State to prove its case by direct or oral evidence or by circumstantial evidence or by documentary evidence alone: The State v Moses Manwau (2009) N3797; The State v Ipai Koivi (2010) N4167; The State v Mathew Moro (2011) N4906

42.	Further, once the defence consented to prosecution evidence to be tendered into court by consent it cannot hark back and argue that the prosecution lacked evidence to prove its case. Furthermore, it cannot argue against their admissibility: The State v Mathew Moro (2011) N4906

43.	Having stated the above, I now deal with the issues raised by the parties, firstly, I must at this juncture say that I am minded to adopt and accept the submission of the State and say that each of the elements of the offence for the charge of murder is present as adduced during trial in the evidence of the State witnesses, and this evidence is also corroborated by several documents tendered in evidence by consent. Hence, it is safe to say that each of the elements of the offence is present and or would prove the element of offence directly or enable it to be inferred.

44.	To arrive at a conclusion, I answer the elements of the offence as follows:

(A).	 The accused, Clifford Maxwell killed the deceased.

45.	This element of the offence is present. This is shown in the evidence of the State witnesses, Elsie Naminjo, Nita Danny, and Allingham Soya. Their evidence is also corroborated by the statutory documents, that is, the Record of Interview dated 8 October 2021, the Autopsy Report dated 7 October 2021 and the Certificate of Death dated 7 October 2021 which were tendered into evidence by consent.

46.	I start with the evidence of State witness, Ms Naminjo who gave evidence that on the afternoon of 14 September 2021, she attended a birthday party with the deceased and some relatives at Nauti Village. Later that afternoon, she was dropped off at Mangitawa Village. But that evening, she walked back to Nauti Village to see Kennedy Allingham. When she got to Nauti Village, Kennedy Allingham was with Clifford Maxwell, at his house and she could see that they were fighting. She states that although it was already dark, she states that the place was sufficiently lighted and that as she approached the house, she saw the accused, Clifford Maxwell hitting Kennedy, the deceased on his shoulders and head with the pinch bar, twice. She did not do anything. She was scared. She cried and left the scene after witnessing the assault. She did not do anything. 

47.	So, here, there is evidence of an assault being inflicted upon the deceased on his head, shoulder with a pinch bar by the accused. 

48.	This witness gave direct eyewitness evidence of what she saw and witnessed from a distance of not more than 2 metres. She testified that the deceased was hit on the shoulder and head with a pinch bar twice by the accused, Clifford Maxwell. 

49.	The accused is not a stranger to the witness, they are related by marriage. Her big sister is married to the family. Further, the witness is in a relationship to the deceased and is no stranger. Whilst I note that this relationship is alleged to have been raised as to her allegiance, I am minded to point that that I accept her evidence as being independent of her allegiance because the accused himself has in fact admitted to fighting with the deceased and hitting him on the neck, side rib and side hip. This admission is contained in Question and Answer 21 of the Record of Interview dated 8 October 2021.

50.	In that regard, I accept that the evidence of Elsie Naminjo is corroborated by the admission of the accused, Clifford Maxwell, himself in Question and Answer 21 of the Record of Interview dated 8 October 2021. In the Record of Interview, the accused, Clifford Maxwell admitted to hitting the deceased on the neck, on his side rib and side hip.  Question and Answer 21 is reproduced below: 

“Questions and Answer No 21” in the Record of Interview dated 8 October 2021 between the accused and the Investigating Officer First Constable Lazarus Busil which was corroborated by First Constable Allan Alimaka is reproduced as follows: 

“Q: 21:	There were some people there when they saw you fight. They said that they saw you took the pinch bar and hit Kennedy on his neck, on his side rib, and on his side hip. What will you say to that”?

A: 21		I will say yes.” 

51.	Furthermore, the autopsy report dated 7 October 2021 does show that the cause of death was “traumatic brain injuries” due to “blunt force trauma to the head with hard object/s”. The following pathology findings list the cause of death:

•	right peri-orbital haematoma
•	a 1O cm x 4cm contusion on the base of the neck
•	11 cm x 5cm bruises and contusion with induration
•	a 34cm x 28cm contusion with induration on the lateral aspect of the lower abdomen extending to the upper thigh.
•	generalized subgalea haematoma on the back of the head (scalp)
•	no underlying fractured skull bones

52.	I am not a medical person but upon perusing the English Oxford Dictionary (9th Edition) (2015) as to what ‘haematoma’ means, I understand that it means that “a swollen area on the body consisting of blood that has become thick” something like blood clotting within the area on the back of the head. 

53.	Furthermore, ‘contusion’ means ‘an injury to the part of the body that does not break the skin’. In this case, there is injury to the base of the neck, lower abdomen extending to the upper thigh. 

54.	All these injuries are therefore consistent with the evidence of witness, Ms Naminjo and the accused himself which directly relate to the assault which the accused inflicted on the deceased on the neck, side ribs and side hips.

55.	These findings do prove the element directly or enable it to be inferred that the cause of death was due to injuries sustained by the deceased when he was hit by the accused on the neck, side rib, and side hip with a pinch bar on the night of 14 September 2021.

56.	Further corroboration of death is contained in the Medical Certificate of Death issued by Dr Komnapi of the ANGAU hospital dated 7 October 2021. Dr Komnapi did state in the Certificate of Death that:

“Disease or condition directly leading to death” – due to (or as a consequence of “Traumatic Brian Injuries (underlining mine)

Antecedent causes –

Morbid conditions if any, giving rise to the above cause, stating the underlying condition last – due to (or as a consequence of) Blunt force trauma to the head with hard object/s”. (Underlining mine)

57.	So, overall, all the above evidence does present some evidence for each of the elements of the offence and or would prove the element directly or enable it to be inferred.

58.	The only question remaining is the time of death. The question being whether the death occurred as a result of the injuries sustained during the fight with the accused or whether it was due to other intervening circumstances? 

59.	To answer that question, I adopt and apply the reasoning enunciated in the case of The State v Namaliu [20201 N8284, (per Her Honour Berrigan J) where she stated:

"Causation is not a philosophical or scientific question. It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991J HCA 27; (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161. See also Sharp (supra)."

60.	In adopting that statement and applying it to this present case, I reiterate that the cause of death here is a question of fact to be determined by applying the ‘common sense’ test to the facts as I find them; and appreciating that the purpose of this inquiry is to attribute legal responsibility in a criminal matter. 

61.	In addition, s 297 of the Criminal Code also enables this Court to accept the timing of cause of death. The death in this case occurred within 12 days of the assault being occasioned on the deceased.

62.	Consequently, I find that the facts of this case do prove that the accused, Clifford Maxwell hit the deceased, Kennedy Allingham, on his shoulders, head, neck, side rib, and side hip with a pinch bar. This is corroborated by his own admission (the accused, Clifford Maxwell himself) where he admitted in Question-and-Answer No. 21 of the record of interview dated 8 October 2021. In his response, the accused did admit that he hit the deceased on his shoulders, head, neck, side rib and side hip with a pinch bar. The injuries are also corroborated in the sworn direct evidence of State witness, Elsie Naminjo who testified that she saw Clifford hit Kennedy on the shoulder and head.  

63.	I also find further corroboration of cause of death is contained in the Medical Report dated 7 October 2021 and the Autopsy Report dated 7 October 2021. Both these documents show that the deceased died from blunt force trauma to the head. To put this into perspective, I find corroboration of this injury is shown in the pathology findings as cause of death:

•	right peri-orbital haematoma
•	a 1Ocm x 4cm contusion on the base of the neck
•	11 cm x 5cm bruises and contusion with induration
•	a 34cm x 28cm contusion with induration on the lateral aspect of the lower abdomen extending to the upper thigh.
•	generalized subgaleal haematoma on the back of the head (scalp)
•	no underlying fractured skull bones

64.	My understanding of the above pathological findings is that death occurred due haematoma (bleeding - blood clot) resulting from an injury in subgaleal area on the base of the head and contusion (bruise) with induration on the lateral aspect of the lower abdomen extending to the upper thigh. 

65.	In this present case, there is evidence of injury to the neck (a 1Ocm x 4cm contusion on the base of the neck, 11 cm x 5cm bruise and contusion with induration); generalised subgaleal haematoma on the back of the head (scalp), injury to the upper thigh (a 34 cm x 28 cm contusion with induration on the lateral aspect of the lower abdomen extending to the upper thigh), the deceased was hit on the side ribs and side hip and neck.

66.	The second State witness Nita Danny in her sworn oral evidence testified that Lima told them that Clifford picked up her pinch bar and hit Kennedy on the side, and when the mothers came to stop him, he chased them away.  She testified further that she saw Kennedy on 18 September 2021, and he was very badly hurt, he could not walk properly, Kennedy had blood on his body, on the side of his legs and shirt. She did speak to him, but he did not respond. This witness’s testimony confirms that the deceased sustained injuries to his body. 

67.	The third witness called by the State is the father of the deceased, Allingham Soya. He testified that on the morning of the 14 September 2021, his son was fine and left the house. He went to his little cousin sister’s birthday party. He didn't see him until the next day, his son was looking like a sick man. His shirt is torn, blood all over his body. He got cross to him and told him to lie down on the bed. His son told him that Clifford hit him with a pinch bar on his neck and thighs. This witness evidence confirms that the deceased did sustained injuries when he returned home on the 15 September 2021. 

68.	In the present case, I find overall, the State witnesses evidence is corroborated by the admission made by the accused in Question and Answer 21 of the record of interview dated 8 October 2021, the Autopsy Report dated 7 October 2021 and the Certificate of Death dated 7 October 2021. 

69.	All this evidence clearly shows that the deceased, died due to injuries he sustained to the neck, head, ribs and thighs when the accused hit him on the neck, shoulder, ribs, and hip side on the night of 14 September 2021 and thus timing of death is within the period specified under s 297 of the Criminal Code.

(B)	the accused intended to cause grievous bodily harm.

70.	I find that this element of the offence is proved in the evidence of the State witness, Elsie Naminjo, who gave sworn oral evidence that on the night of 14 September 2021, she saw that the accused, Clifford Maxwell hit the deceased, Kennedy on the shoulders and head twice with a pinch. 

71.	Further, this element of the offence is collaborated by the evidence of the second State witness, Nita Danny who testified on oath that on Sunday 19 September 2021, she and her husband went to Nauti Village, and they were invited by the Lima (stepmother of the accused) for a cup of tea. The stepmother also enquired if they saw Kennedy. Lima Maxwell then went on and told the witness and her husband that Clifford hit Kennedy very badly with her pinch bar on the night of the birthday party. The birthday party occurred on the afternoon of 14 September 2021.

72.	This element of offence is further collaborated by the sworn evidence of the father of the deceased, Kennedy Allingham. He testified that on the morning of the 14 September 2021, his son was fine and left the house to attend his little cousin sister’s birthday party. He didn't see him until the next day when he returned home. He testified further that upon his son’s return, he noted that his son was badly bruised and had blood stains all over his body and clothes. He testified that his son told him that Clifford hit him on his neck, and side with a pinch bar.

73.	Further and in addition, the accused Clifford Maxwell, himself in his response to Question-and-Answer No. 21 in the Record of Interview dated 8 October 2021, the accused, Clifford Maxwell did admit to the police that on the night of 14 September 2021, he hit the deceased Kennedy on the neck, ribs, and hip with a pinch bar.

(C) caused the death of the deceased.

74.	Whilst I do note the submission of Mr. Toggoh in relation to the cause of death and the 14 days interval relating to the death of the deceased, and argument that death could have occurred in circumstances other than alleged, I am  minded to accept and adopt the submission of Ms Joseph for the State who submitted that Section 297 of the Criminal Code specifically stated that "a person shall be deemed not to have killed another if the death of the person does not take place within a year and a day of the cause of death."

75.	In applying this provision to this present case, the deceased was assaulted on the 14 September 2021 at Nauti Village. On 15 September 2021, he returned to Mangitawa Village. His father was home, and he told his father of the assault. His father gave evidence of his physical conditions, that is, blood on his clothes and body and that he took Panadol for the pain and slept. On 22nd September 2021, the deceased and his father returned to Lae. On 23 of September 2021, the deceased travelled from Lae back to Bulolo. On 27 September, the father was informed of Kennedy’s death. There is a period of 12 days within which the deceased, Kennedy Allingham died.

76.	In determining the question as to the cause of death, I am guided by the deliberation in the case The State v Namaliu [20201 N8284, (per Her Honour Berrigan J) where she stated:

"Causation is not a philosophical or scientific question. It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991J HCA 27; (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161. See also Sharp (supra)."

77.	Further in the case of State v Donia [2010] PGNC 228; N4536 (14 October 2010). the Court expressly stated the following involving a homicide of a young girl who was raped and died after three days.

"Essentially causation arises when there is an intervening act or event in the cause of the death. The question therefore is whether the accused's conduct was so connected with the deceased's death that it must be said to be a substantial cause of the death. Could infection from her sexually transmitted infection be said to have supervened between the time the decease started bleeding and the time when she died? The State -v- Jimmy Bellam [1979J N192 followed.

In the South Australian case of Hallet -v- R [1969J SASR 141 (at p 149) the issue was stated as follows:

"The death of the deceased is the material event. The question to be asked is whether an act or series of act (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event, that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. "

The question, therefore, is whether the accused's conduct was so connected with the deceased’s death that it must be said to be a "substantial cause" or a major precipitating cause of the death. "

78.	Overall, as it stands on the undisputed sworn evidence of all the State witnesses, I can safely conclude that the accused's conduct was so connected with the deceased’s death that it must be said to be a "substantial cause" or a major precipitating cause of the death. " This is corroborated by findings of the Autopsy Report dated 7 October 2021 performed by Dr Komnapi. Consequently, I conclude that the State with respect to each and every element of the offence of Murder has established a prima facie case against the accused, Clifford Maxwell.  Hence, the accused has a case to answer.

79.	At this stage of the trial the court will not entertain any arguments on whether or not a certain defence has been raised by the defence. The court therefore rejects this argument by the defence counsel. The State –v- Gigere Udamu [1990] PNGLR 151 applied.

80.	The “No Case to Answer” is dismissed. The accused is ordered to answer the charge proffered against him.

Orders of the Court

(1)	The “No Case to Answer” is dismissed.

(2)	The accused has a case to answer the charge proffered against him for one count of 

(3)	The matter is referred to the Call-Over List on 2 May 2024 for allocation of a trial date
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Public Prosecutor: Lawyers for the State
Daniels & Associates: Lawyers for the Accused