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State v Lenda [2024] PGNC 36; N10672 (1 March 2024)

N10672

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1480 OF 2021

THE STATE

V

JULIE LENDA

Waigani: Miviri J
2024: 22^nd February, 1^st March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – General Denial – Deceased With Accused Arguing Immediately Before Deceased Sustains Injury – No Other Person in Secluded Area with Deceased Except Accused – Blunt Force Injury to Left Side of Head – Internal Bleeding Death – Eyewitness Account – Assaults of Deceased with Blunt Instruments Stick & Stone Full View Witness – Question of Credibility – Whom To Believe – Ring of Truth State Evidence – Intention to Cause GBH – Death as A Result – Burden Discharged – Guilty of Murder Section 300 (1) (a) CCA.

Facts
Accused and deceased arguing to house. Inside house loud scream, deceased weak hurt coming out slowly from house. Falls outside house Followed by Accused who set upon him armed with Stick used all over the body of deceased beating him. Stick removed by Bystanders; Accused rearmed with big Stone used indiscriminately hitting all over body of Deceased. Blunt Force injury dead on arrival. She intended to cause grievous bodily harm from which she died.

Held
Trial
State evidence corroborative.
Strong ring of truth.
Medical report cause of death.
Blunt force Injury.
Recent Lies concocted.
Stick used and stone indiscriminately all over body.
Intent to cause Grievous bodily Harm.
Guilty of Murder section 300 (1) (a) CCA.

Cases Cited:
John Jaminan v The State [1983] PNGLR 318
Beng v The State [1977] PNGLR 115
State v Garitau [1996] PGNC 112; N1453
Pawa v The State [1981] PNGLR 498
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

S. Suwae, for the State
T. Yapao, for the Defendant

VERDICT

1^st March 2024

1. MIVIRI J: This is the verdict of Julie Lenda of Yaibos village, Wapenamanda, Enga Province who was charged with assaulting her husband Simon Lenda all over his body from which he sustained internal injuries to his head from which he died. She had intended to cause Grievous bodily harm, but death ensued.
   
2. She entered a not guilty plea to Murder, so a trial ensued. The charge was laid pursuant to section 300 (1) (a) of the Criminal Code Act. And it was in the following terms: -
   
   • (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;

(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;

(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);

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

(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.

3. The relevant facts on arraignment were that on the 27^th February 2021, at Mango Mine Settlement, 9 mile, NCD, between 2.00am and 3.00am the Accused Julie Lenda was with her husband Simon Lenda. An argument erupted between them, and the Accused began to question the deceased about money. The deceased got up and left for home followed by the Accused. And the argument continued as they walked home. A few minutes later a few boys who were playing rugby touch outside along the road head a loud scream coming from inside the couple’s yard. Some of the boys noticed the deceased open the fence and walk out supporting himself against the fence and then fell to the ground.
   
4. Bystanders who were there ran to the side of the deceased but the Accused who was armed with a stick came and stated that, her husband was pretending and begun to hit him with the stick from his legs up to the rest of the body. They disarmed her of the stick, but she picked up a stone and continued to assault him with it all over her body. The deceased did not move. The bystanders insisting that he was badly injured, the Accused continued hitting him. She then realized and stopped. He was rushed to the Port Moresby General Hospital but was pronounced dead on arrival. Autopsy was conducted establishing the cause of death as massive intracranial haemorrhage due to blunt trauma to the left side of the head. It also confirmed that there were bruises and wounds on various other parts of the deceased body. Therefore, the State says that the Accused had intended to cause him grievous bodily harm when she assaulted him in that way. And he died as a result contravening section 300 (1) (a) of the Criminal Code Act.
   
5. In its endeavour to establish its case the following evidence were tendered by consent and marked as Exhibits. These were - the three-page Statement of Constable Gerald Saiguyau dated the 29^th May 2021 which was marked Exhibit P1. The next was Exhibit P2 (1) to P2 (34) photographs of the deceased depicting the injuries on the body and postmortem photographs showing the injuries internally to the head and the brain. The other photographs showed injuries that were minor and did not contribute to death of the deceased. But photograph 18, and 19 were firstly, the general view of the injuries sustained on the left side of the head. And of the blood around the brain area there.
   
6. Exhibit P3 was the Statement of Doctor Sylvester Ratawa Kotapu who is a professional medical practitioner holding a Bachelor of Medicine and Bachelor of Surgery MBBS degree. He attained both in 1994 from the University of Papua New Guinea and was trained as a Pathology registrar and a candidate for fellowship in the Royal College of Pathologists of Australasia. And he has 25-year medical experience including conducting over several hundred postmortem examinations in various capacities. That on the 04^th March 2021 at 16.55hrs conducted a postmortem examination on the body of Late Simon Lenda adult male at the mortuary of Bethel Funeral Haven. And based on that he furnished his finding to the City Coroner.
7. Exhibit P4 is the subject Postmortem Report dated the 03^rd March 2021. Notable it sets the time of death as 03 am on the 27^th February 2021 at 9 mile. In the case history, he states, “That on the 27^th February 2021 between 2am and 3am, the deceased as above was at 9-mile Settlement, and he had a fight with his wife when he got stabbed all over his body. Deceased sustained multiple injuries to his body and was rushed to the hospital when he was confirmed dead on arrival.”
8. “Observation: Body of an adult male 165cm x 40cm multiple mostly superficial wounds; small stab wounds and skin-deep clean-cut wounds no more than two centimetres. Notable shoulder wounds on both sides are present-there interrupted circular impression causing marked bruising involving one hemisphere as in the left shoulder in pic 4. On the Right there are two smaller circular marks, one is identical to the left and the other is more consistent with a human bite mark.
9. Head and scalp hair are less than 0.5mm, recently shaven. Left temporal area has a circular bruised area about 4cm in diameter. Left ear canal showed blood present.
10. Mouth: left lower lip had bruised and lacerated mucosa with blood stains within the mouth, clearly a betel nut chewing teeth staining was noted. Nasal Cavities were free. The de-scalped skull showed bruised or haematoma of the left temporalis major muscle, but no obvious fracture was detected see pic 6. The right peri auricular and lower temporal area showed some degree of bruising.
11. The skull was particularly hardened as comparably. There were significant intracranial haemorrhage as shown in pic 7 & 8 shows a large pool of blood and cloths in the intracranial space after removing the brain.
12. The brain tissue showed swelling and flattened gyri most prominent on the posterior portion of the right as in pic 7. Chest: An area of superficial impressions of three focal areas suggesting a weapon of beaded kind on the lateral and back aspect of the trunk. No major injuries were seen on the external examination. Abdomen: No swelling and no obvious trauma.”
13. Based on the information available and my autopsy findings, I confirm and certify that the death of the late Simon Lenda has resulted mostly from the blunt trauma to the head that subsequently caused massive intracranial haemorrhage and subsequent brain injuries. There were also other multiple injuries consistent with the use of various weapons to the head and body where the manner and distribution of these injuries in my opinion suggest an attack with prior intent and or calculated approach at least to first overpower the victim.”
14. Exhibit P5 is the medical certificate of Death of the deceased Simon Lenda issued of the 04^th March 2021 by Doctor S Kotapu. Of Relevance is the “Deceased or condition directly leading to death- (a) Massive Intracranial Haemorrhage; blunt trauma to head; multiple weapon injuries.” This injury was authored upon the deceased by a person who had reason enough to attack the deceased so that he sustained a blunt force injury to the head. The accused disputes that he did not assault the deceased so that the above was the result emanating.
15. The evidence from the State Witness on oath, Sapo Tine is that they heard a loud scream coming from the house of the accused and the deceased. On that night 27^th February 2021 at about 2.00am to 3.00am together with other boys they were playing touch football. This was in front of the newly built ID24 store at 9 mile where there was a very big security light. I saw Daddy Sai and his wife Julie were drinking where the store is belonging to a man from Tari. When we were playing, we heard that Daddy Sai and Julie must have been cross, so we ran down to see. When we arrived at where they were both arguing and I heard Julie say, you get all your loan money and you never gave me some, but you went and gave to some of your other wives. And she was complaining and getting cross with Daddy Sai. Daddy Sai wants to go back to the house from where they were arguing, so Julie too followed him, and they went into the fence enclosing their house. Not long whilst we were playing, we heard a very loud scream from inside the house of daddy Sai and Julie. All of us boys we ran down and we saw Daddy Sai open the gate of the fence and fell outside just on the ground. At the place where he fell there was plenty of light from the sides of the store. When we looked, we saw that his left hand had a knife wound and we saw blood coming from there. And, on the muscle on the hand there was also blooding coming from it. And whilst he had fallen and was on the ground, Julie ran out from the gate with a big stone in his hand and called out at us and said, you clear he is pretending, she lifted the stone and was hitting him with it from both his legs up to his body. This was after the stick that She had initially used in similar manner was removed from her hands as she was hitting him with it from his legs up to his body. We saw that Daddy Sai was seriously injured and he was not retaliating against the assaults by Julie. Because he just laid there on the ground as she assaulted him. We called out at her; you leave him he is seriously injured. And she must have realized there and then that he was truly seriously injured so She stopped. Two boys one is Paias, I do not know his other name and the other both from Tari got a cab, Julie got in the front seat, and they took Daddy Sai to the hospital. Not long I, Freddy, Mathew, and another aunty we got on a cab that we knew and together we went to 3-mile hospital to see Daddy Sai. When we arrived at the hospital we checked at the accident and emergency ward, but he was not there. And a security guard told us that Daddy Sai’s body was taken to the Morgue. We went to the Morgue and saw that Daddy Sai had died and his body was lying on the trolley. And coming out of his nose was a yellow-coloured liquid. And there we cried and at about 4.0’clock or 5. 0’clock there about we went home.
16. This is the same evidence he gave on oath in court the subject of exhibit D1 tendered into court as prior inconsistent statement by the defence. In the statement it has been argued that there is a prior inconsistent statement, because on oath he said that accused assaulted the deceased with a stick that was removed by bystanders. But that was rearmed with a big stone by the accused. That is not his evidence in the statement. Which has been refuted by the witness, stating that he indeed told the policeman who collected the statement.
17. This is a young man who is aged 14 years old at time of the allegation. He is now about 17 years old at the time of this evidence in Court. He was confident in his evidence. He did not look for words or was hesitant in his evidence. To my mind he was not speaking to gain a favour or reward. He was consistent in his account of what he saw that night as it unfolded before him. It made sense and was logical to follow. That is what he told the Court. I find that he is a witness of the truth of the events of that early morning 27^th February 2021 at about 2.00am and 3.00am. He has very sound and strong fibre of truth in the account He give. I have no doubts in fact or in law to doubt the veracity of his evidence. He is not strongly affected by the consumption of alcohol as in the case of the accused. Who was drinking beer with her husband the deceased. After which they both got up and went together to the house but were arguing as they went into their house. And details of that argument have come out from the hearing by this witness.
18. I do not buy the argument that he has made a prior inconsistent statement. Because he has in my view told the truth as it unfolded. His evidence is not alone because it is primarily corroborated by the medical evidence that I have set out above of the Doctor, Exhibit P3, P4, and P5. They verify what this witness saw in the injuries that the Doctor describes in his evidence. The different weapons that were used to dish out the injuries to the body of the deceased have spoken. The doctor was not at the scene when the attack took place, but expert and professional description go hand in hand with that of the witness. That is also evident by Exhibit P2(1) to 34 of the photographs. They depict the injuries that the witness saw, and which is described by the doctor. The totality of this evidence is that they independently verify each other in the account given. It is not as if all are at the same place at the same time and have given that account. All are individually placed as they are but their evidence is one. There is in my view a very strong ring of truth that spirals in one fibre.
19. On the other hand, the accused is a drunken woman seriously and strongly effected by alcohol so much so that her evidence does not contain the veracity of truth in it. She is married to the “bubu” grandfather of the witness making her also his grandmother. Given that fact why would he choose his grandfather over his grandmother. She has given no explanation of that fact. His view is not affected by any lighting problem because he describes in detail that there are very powerful and new security lights there besides and in front of that ID24 store. It is so bright that they can play touch football there at 2.00am to 3.00am in the morning without any problems to see the ball and play. It means his sight of what he saw is not affected. Which is not the same for the accused who is drunk and strongly effected by alcohol. That is clear by his behaviour to the deceased.
20. There is no restraint or hesitance in the way she assaulted him. In my view the accused has lied to hide the fact that she had motive, and she was with the deceased all along that time and when they went into the fenced enclosure of where they both lived. And within that house the witness heard an argument between them over money. During which there was a loud scream within and then the deceased walked out slowly barely pushing the gate open and then falling onto the ground there. It is clear she was with the accused immediately before he collapsed as he did, all to be met with the veracity of the assaults that the accused perpetrated upon him with a stick, and then with a stone. It was in full view and in my view the witness account is consistent with common sense and logic. It is one with the fact that the area where the identification is made is well lit. The subject identified is no stranger but a relative, “bubu” of the witness. It is also consistent with the accused own version he was with the deceased and then both went into their enclosed area and the argument but twisted in that he is cutting his shoes and clothes when he cuts his finger. If that is the truth, why the other cuts on his body. Could he have put his shoes on his body and attempted to cut his shoes in that position. Let alone his own clothes.
    
21. What is evident is that the defendant has deliberately told lies to get out of evidence that is glaring and pointing to his guilt in the allegation. His lies corroborate the account of the State: John Jaminan v The State [1983] PNGLR 318. Because the identification is firm and meets the tests on all fours set out in Beng v The State [1977] PNGLR 115. It is made of a close relative at close quarters, and he communicates with the accused. There is no doubt casted by the circumstances of the identification. Circumstantially there is no one other than the accused who is arguing with the deceased in which there is a loud scream within the house, and from that enclosure the deceased enlightens slowly opens the gate and collapses onto the ground where he does not defend himself from the assault continued by the accused, firstly with a stick and then with a stone when She is stopped by the bystanders and the witness. To my mind this scene depicts that the injury He receives to the left side of his head is at the hands of the accused. There is no other who is arguing and fighting the deceased in that enclosure in the house except the accused. He is drunk and has been drinking whole day returning to the accused who argues with him culminating in the assault. He is not able to defend or to restrain the accused because of his drunken situation and sustains the injury fatal to the left side of his head leaving him bleeding internally from there leading to his collapse as he comes out of the gate of the house and falls. In my view the circumstances are inconsistent with any other reasonable hypothesis other than the guilt of the accused: State v Garitau [1996] PGNC 112; N1453 (8 July 1996) which approved and followed the law set out in Pawa v The State [1981] PNGLR 498.
22. What is conclusive is that a ring of truth spirals through the State evidence so much so that the version credible is that of the state which I prefer over and above that of the accused that she does not know how the deceased fell and injured himself. Because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). That in my view is the case in the sworn evidence of the accused. Viewed with her confession and record of interview I do not find any amount of truth within compounded. I reject all leaving only the State evidence. Because the accused continues with the assault of the deceased in full view of the witnesses who disarm her with the stick. But she continues with the stone undeterred.
23. I find as a fact that She was alone with Simon Lenda in their house enclosed by the fence outside. That both had gone into it arguing over money which continued inside. There was no other person within except both of them. And Julie Lenda was not as intoxicated by Alcohol as was the deceased who had been drinking at Tubuseria and returned to 9 mile where he lived with her. He bought her beer, and she drank initially with the K 100 that he gave her. She was the stronger of the two given and did assault him with a blunt instrument within. Which she continued with the stick when she followed him out and was disarmed by bystanders in the sight of the witness. And she rearmed herself with the stone assaulting him all over his body from the leg up. No one assaulted him after which he sustained the injuries except her, Julie Lenda. The death occurred after her continuous assaults inflicted on him. There is no other reasonable hypothesis given these facts other than the guilt of the accused. She had the opportunity and the motive, and she committed that crime by the assaults she inflicted with the weapons described intending to cause grievous bodily harm to him from which he sustained to his death. In accordance with State v Garitau (supra) and Pawa (supra) there is no other reasonable hypothesis other than the guilt of the accused of the crime of murder.
24. I am satisfied beyond all reasonable doubt that Julie Lenda intended to cause grievous bodily harm when she hit Simon Lenda the deceased with a blunt instrument to the left side of his head. I find her guilty of murder pursuant to section 300 (1) (a) of the Criminal Code and return that verdict accordingly.
25. Verdict Guilty of Murder section 300 (1) (a) Criminal Code Act. I remand the prisoner to await sentence.
    

Ordered Accordingly.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant