N11223
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 603 OF 2021

THE STATE

V

KYLIE MONDUA

AND
CR NO. 604 OF 2021

THE STATE

V

BILL MATUL

AND
CR NO. 605 OF 2021

THE STATE

V

NOAH HENRY

AND
CR NO. 606 OF 2021

THE STATE

V

TOMMY MATUL

LAE: POLUME-KIELE J
18 & 21 JUNE,1 JULY, 5 AUGUST, 2 SEPTEMBER, 1 OCTOBER 2024; 16 JANUARY, 7 & 10 FEBRUARY 2025

CRIMINAL LAW- Verdict – accused indicted for murder – s 300 (1) (a) – Criminal Code – Plea of not guilty - Trial – relevant considerations

Brief fact

The accused Kylie Modua and deceased Charles Palei were living in a de-facto relationship. Kylie worked as a teller with the Bank of South Pacific Ltd (BSP) and was attached to the Top Town, Lae Branch. The deceased, Charles Palei then was employed as security officer with KK Kingston Ltd. They had lived at a rented property at Kamkumung but after some disagreement, in June of 2020, the accused, Kylie left the rented home and went to live with her relatives at the Papuan Compound. 

On the 17th of July 2020, between 5:00pm and 6:00pm, the accused persons namely, Bill Matul, Noah Henry, Tommy Matul and Eliab Korima went to the Bank of South Pacific (BSP), Top Town, Lae to pick Kylie after work.  The deceased Charles Palei and his friend, namely Philip Morea were also at Bank of South Pacific, Top Town, Lae, at the front area of the bank waiting to pick Kylie. They had earlier that morning served the accused, Kylie Mondua, a Court Order requiring her to return to her marital home with the deceased. 

The accused, Kylie Mondua upon becoming aware of the deceased's presence outside had contacted her relatives to come to her workplace to pick her up. They drove to the workplace in a Nissan (Double Cab) grey in colour which they parked outside the bank. 

Upon arrival at the Bank and seeing the deceased, a heated argument ensued between the accused persons and the deceased which led to a fight. During the fight the deceased was punched several times, and he fell backwards on the cement foot path. The accused also exchanged punches with the co-accused. The co-accused also threw punches at the deceased’s friend Philip Morea. 

The deceased was unable to walk upright so he was aided by his friend Philip Morea, and two members of the public; Nelson Tom and Levison to the police station. The deceased was then taken by the police to the Angau Memorial Hospital for medical attention accompanied by three men. He however died at 10 p.m. that night due to the injuries he sustained during the fight and fall onto the cement footpath.

A Post-mortem report revealed that the deceased died from traumatic brain injury due to blunt force trauma to the head (impact from fall) and there was also associated basal skull fracture. The internal examination reveal subgaleal haematoma of the scalp. The examinations of other systems were unremarkable. 

Cases cited
SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50
The State v Eremas Kuvir (No 1) (2015) N6034
The State v John Beng [1976] PNGLR 471
Luingi Yandasingi v The State [1995] PNGLR 268
R. v. Rumits-Gorok [1963] PNGLR 85
The State v Raphael Kuanande [1994] PNGLR 512

Counsel 
Mr. J. S. Wussik for the State
Mr. J Kusip for the accused persons

VERDICT

1.	POLUME-KIELE J: On the 18 June 2024, an indictment was presented by Ms Langtry of the Office of the Public Prosecutor against  the accused, Kylie Modua, Bill Matul, Tommy Matul and Noah Henry on one count of murder pursuant to Section 300(1)(a) of the Criminal Code. 

Allegations raised by the State

2.	The State alleges that on Friday, 17 July 2020 between 5pm and 6pm, the accused Ms Kylie Mondua, saw the deceased outside the bank, he was at the front entrance area of the Top Town branch of the 8ank of South Pacific and she formed a view that he was waiting for her (the accused, Kylie Mondua). Upon sighting the deceased, the accused Kylie Mondua called her relatives and co-accused amongst them namely BILL MATUL, NOAH HENRY and TOMMY MATUL to go the bank to pick her up. 

3.	When they arrived at the bank (scene of the crime), an argument erupted between the accused persons and the deceased which resulted in the accused persons assaulting the deceased by throwing punches at the deceased and a friend (Philip Morea) who was present with the deceased at the relevant period. 

4.	The deceased was punched several times, and he fell backwards hitting his head onto the cement (concrete)  footpath. When the deceased fell down backwards on his head on the cement (concrete) footpath and was lying motionless on the cement footpath, the accused returned to their vehicles and fled the scene. 

5.	The deceased Charles Palei was taken to the Angau Memorial Hospital but succumbed to the injuries he sustained and died. An autopsy report conducted revealed that the accused died from traumatic brain injury. 

6.	In view of the above circumstances, the State therefore says that when the accused persons Kylie MONDUA, BILL MATUL, NOAH HENRY and TOMMY MATUL assaulted the deceased they intended to cause grievous bodily harm thereby contravening Section 300 (1) (a) of the Criminal Code. 

7.	The State further invoked Section 7 and 8 upon each accused persons

8.	They all denied the charge and pleaded not guilty. 

9.	Trial was conducted on 18 June 2024 and the State closed its case.

10.	Upon the State closing its case, the defence raised a No Case To Answer” submission which was made verbally, I made an extempore ruling dismissing the No Case To Answer.

11.	The defence then proceeded to call its only witness, the co-accused Tommy Matul whilst the other accused, Kylie Mondua, Bill Matul and Noah Henry elected to remain silent.

12.	On 21 June 2024, I heard submission on verdict and reserved my decision which I now deliver. 

The Charge of murder

13.	Section 300 (1) (a) of the Criminal Code states:
“(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. Penalty: Subject to Section 19, imprisonment for life”

14.	The State invoked s 7 of the Criminal Code Act. This means that when an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it. 
“Division 2. – Parties to Offences.
“7. PRINCIPAL OFFENDERS.
(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: –

(a)	 every person who actually does the act or makes the omission that constitutes the offence;
(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)	 every person who aids another person in committing the offence;
(d)	any person who counsels or procures any other person to commit the offence.

(2)	In Subsection (1)(d), the person may be charged with–

(a)committing the offence; or
(b) counselling or procuring its commission.
(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–
(a) guilty of an offence of the same kind; and
(b) liable to the same punishment,
as if he had done the act or made the omission and may be charged with himself doing the act or making the omission”. 
Issues for determination
15.	The issues for determination by this Court are to consider: 

(i)	whether the accused, Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul intended to cause the death of the deceased, Charles Palei? 

(ii)	whether the accused. Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul unlawfully killed the deceased, Charles Palei?

16.	It is a general principle of law that the onus is on the prosecution to prove the offence alleged.  (See SCR No 2 of 1981: Re Section 14 of the Summary Offences Act [1981] PNGLR 50) The State therefore bears the burden of proving all the essential elements of the alleged offence beyond any reasonable doubt. The burden of proving all essential elements of an offence derives from the protection that is available to all persons charged with an offence under s 37 (4) (a) of the Constitution, where an accused was presumed innocent until proven guilty according to law. 

17.	Similarly, under s 37 (4) (a) of the Constitution, it requires that the prosecution disprove each defence put forth or explanation given by an accused: (see The State v Eremas Kuvir (No 1) (2015) N6034).  

18.	In this case the evidence adduced by the State against the accused Kylie Mondua, Bill Matul and Noah Henry stands alone and unchallenged owing to the accused electing to remain silent. If any evidence offered it is not tested by cross-examination by the State. 

19.	I also take note that the position taken by the defence is not an admission or indication of guilt. The election is a matter of choice available to the accused as of right and not a concession that the prosecution had proved all the essential elements of the offence charged. 

20.	Only the co-accused, Tommy Matul elected to give evidence for the defence. 

21.	Further and in addition, the Defence also purported to offer a defence of general denial.  

22.	 No specific defence such as self-defence (269); provocation (s 303) of the Criminal Code or accident has been raised by the defence. 

23.	Earlier in the trial, Counsel for the defence did raise objections in relation to the exhibits which were being tendered by the State, which were later tendered through State witness, Constable Andy Ikime. Otherwise, the tendering of all the Record of Interview dated 4 November 2020 (Exhibits “1 to 4”) in which the accused, Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul exercised their rights to remain silent were done by consent.

24.	Other documents tendered into evidence included an affidavit deposed to by Dr Lucas Komnapi dated 24 July 2020, a medical practitioner (registered under the Medical Services Act 1965) at that relevant period. In his affidavit, Dr. Komnapi deposed that he conducted an autopsy on the deceased and as per his medical examination, he states that in his opinion, the deceased died from traumatic brain injury due to blunt force trauma to the head (impact from fall) and there was also associated basal skull fracture. The internal examination reveal subgaleal haematoma of the scalp. The examinations of other systems were unremarkable. He deposed that the deceased died at about 10 p.m. on the night of 17 July 2020, at Angau Hospital. The body was however viewed on 24 July 2020, and a medical examination was done on the same day. The grounds of objection were that Dr. Komnapi has since passed and thus, the Defence required a new medical practitioner to re-assess the medical report. The objection was refused for the reason that the report is based on the physical body of the deceased at the relevant period and thus, having a new assessment done is near impossible

25.	Also tendered into evidence were 8 exhibits (photographs) of the viewing of the deceased conducted on 18 July 2020 by Constable Andy Ikime.

The State’s case

26.	It is the State’s case that the accused Kylie Mondua was in a de-facto relationship with the deceased Charles Palei. In this case, Kylie Mondua's co-accused Tommy Matul, Bill Matul and Noah Henry are her relatives (all related to her)

27.	At the time of the alleged offence, the relationship between the accused and deceased was an estranged one. 

28.	It is also the State's case that on 17 July 2020, the deceased and his friend Philip Morea were standing outside the BSP Bank, Top Town, Lae,  the work place of the accused, Kylie Mondua. When the accused,  Kylie Mondua saw them outside, she called her relatives (Bill Matul, Noah Henry, Elaib Korima and Tommy Matul) to go to her work place to pick her up. When the relatives turned up at workplace, a heated argument erupted between Bill Matul, Noah Henry, Tommy Matul (co-accused) and the deceased outside the workplace, (at the front of the BSP Bank, Top Town, Lae). 

29.	This argument led to the co-accused persons exchanging punches with the deceased. The accused, Bill Matul, Noah Henry and Tommy Matul punched  the deceased, and he fell backwards hitting the back of his head onto the cement footpath (pavement).  Following the fall, the deceased was not able to walk properly so he was aided by his friend, Philip Morea and 2 other members of the public, namely Nelson Tom and Levison. They all assisted the deceased and took him to the nearest police station. From there, the police assisted them take the deceased to the Angau Memorial Hospital, for medical attention. He succumbed to the injuries he sustained during the fight and fall. He died at 10 p.m., on the night of 17 July 2020.

30.	A Post-mortem report revealed that the deceased died from traumatic brain injury due to blunt force trauma to the head (impact from fall) and there was also associated basal skull fracture. The internal examination reveal subgaleal haematoma of the scalp. The examinations of other systems were unremarkable. 

31.	The State says that when the accused, Kylie Modua, Noah Henry, Bill Matul and Tommy Matul punched the deceased and he fell down backwards hitting his head on the cement footpath (pavement); the impact from the fall resulted in the deceased sustaining traumatic brain injury to the head which resulted in his death at 10.00 p.m., that night on 17 July 2020.

32.	Consequently, the State says that the accused, Kylie Modua, Bill Matul, Noah Henry and Tommy Matul killed the deceased and intended to do grievous bodily harm to the deceased and the Court must return a verdict of guilty of murder contrary to s 300 (1) (a) of the Criminal Code.

Evidence for the State 

33.	To prove its case, the State relied on several documentary evidence and sworn oral witness testimonies. 
Documents tendered into evidence by consent
34.	The documentary evidence which were tendered into evidence by consent are as follows: 

(i)	Record of Interview of Kylie Mondua both translated and original- dated 3d of November 2020.

(ii)	Record of Interview of Bill Matul both translated and original- dated 3rd of November 2020

(iii)	Record of Interview of Noah Henry both translated and original- dated 4th of November 2020

(iv)	Record of Interview of Tommy Matul both translated and original- dated 4th of November 2020

(v)	Statement by Detective Sergeant Conny Winjan (Investigating officer)undated

(vi)	Affidavit of Dr. Lucas Komnapi- dated 24th of July 2020. 

(vii)	The Autopsy Report for the deceased Charles Palei - dated 24th of July 2020

(viii)	Medical Certificate of Death for the deceased Charles Palei- dated 12th of July 2020

(ix)	Statement of Simon Levison, both translated and original- dated 18th of July 2020

(x)	IPO District Court Order of Kylie Mondua and Charles Palei- dated 14th of July 2020
Oral Evidence
35.	The State also called four (4) witnesses who gave sworn oral evidence and tendered into court several exhibits (photographs) through Constable Andy Ikime who was present during the cause of the post mortem conducted on the deceased, Charles Palei. 

Evidence in Chief

(1)	Philip Morea

36.	Mr. Philip Toari Morea was the first witness called by the State. Mr. Morea gave sworn oral evidence in English. In his sworn testimony, he states that he is from Moveave Village, Gulf Province but a very close friend and like a brother to the deceased who is from Namatanai. They both joined the police force in their young days.  They have known each other for a very long time. Both have since left the police force and work as security officers. He is now self-employed. The deceased worked as a security officer, with KK Kingston company. 

37.	He states that on 17 July 2022, he accompanied the deceased and was present at the crime scene within close proximity of the altercation between the accused persons and the deceased. He testified that he was also assaulted by the accused persons. He gave detailed account of both pre- and post-incident.

38.	He says the deceased and him were standing at the front of the Bank where the rubbish bin is usually stationed, directly to the entrance. Whilst they were standing, he noticed that Kylie's relatives surrounded them. He recognised them because he sees them at the court house, regularly when the deceased and his estranged wife, Kylie Mondua were going through the Court because of the Interim Protection Order (IPO) so when he saw them, he automatically clicked on, and was apprehensive that trouble would follow. 

39.	He states that he saw a short stocky built guy pointed his hand at the deceased and spoke words to this effect "you sa paitim meri, nau you pait wantaim mipla ol man, mipla ba pinisim you." When I heard that I knew trouble would follow so I pulled him and told him we go to police station, because they were many, we could not fight with them. But the deceased insisted, he wanted to go and explain the court order. 

40.	Mr. Morea stated further that he pulled the deceased back, but he said leave me, I want to explain. Mr. Morea stated that he then called the policeman nearby to come stop the commotion because they were plenty and when the deceased was trying to turn around it was too late, the accused were already throwing punches at him, all four of them and he fell backwards and hitting his head on the cement footpath. He further gave evidence that when the deceased’s head hit the cement footpath, there was a loud noise. It was like, a coconut tree falling down making a very loud noise. 

41.	Mr. Morea also testified that when the deceased fell backwards on the cement footpath, the accused persons, who he recognised as Bill, run towards him. Bill then pointed to me saying word to this effect "you usually follow him," and started throwing punches at me. They were plenty, one hit me on the ribs, and I fell down, then got up and started punching them again. They ran away to a car, jumped on and took off.

42.	After that, he ran to where the deceased had fallen to check on him. He was sleeping (lying down) motionless on where he fell down, not moving. He tried to lift him and two boys from Southern Highlands came and helped him. They then carried the deceased across to the police station; put him on a police car and took him to Angau. He states that when they took him to Angau, he was still not moving. The deceased was pronounced death after a while at Angau Emergency ward.

43.	The witness estimated that the distance from where he was standing to where the deceased was assaulted, was, not more than 10 meters apart . It was a sunny and bright afternoon.

44.	When asked if he could identify any of the accused person within the Court premises, he then pointed to the dock where the accused persons were sitting. He then identified the lady wearing a coloured meri (red) blouse first from the left of the witness dock as Kylie Mondua. He then continued on to identify the young lad second from left as Tommy Matul, then the elderly guy in coloured button shirt as Bill Matul and the stocky built, black skin guy being the fourth from the left of the dock as Noah Henry.

(2) Nelson Tom

45.	Mr. Nelson Tom is the second witness called by the State. Mr. Tom gave sworn oral evidence in pidgin which was translated to English and was cross-examined. Mr. Tom testified that he is from Mendi and a resident of 7 St, Lae. He has been a resident there for 7 years. He is employed by Farmset. He testified that on 17 July 2020, he was at Eriku and then came up to Top Town, Papindo and was on his way walking towards the BSP Bank with his friend Lewis who is also from Mendi. He states that he was about 5 metres away when 4 men came and fought with one of the men there. One of the men and he uttered words to this effect: "kaikai kan, you fit long paitim men, yu save long paitim meri, you no fit long paitim man," and punched the deceased on his left side, whilst the deceased was still standing, he punched him the second time and he fell backwards, sounding like a pumpkin onto the cement. After the second blow the deceased fell. Levison and I felt sorry for him.

46.	He described a black skin man, taller than me came and argued with them, A middle aged man (papsy), came punched him and he fell down, then left followed the footpath down to their car. The men also came and fought with a friend of the deceased. This friend also fell down. 

47.	We assisted the deceased and took him to Angau Hospital. We stayed with the deceased at Angau. We were there but were hungry, so the deceased’s friend and I went to get biscuits and whilst still on way to get biscuit, but we were alerted that the deceased was having difficulties, so we all ran back and were present with the deceased when he passed away due to his conditions.

48.	When put to him if he recognised the face of any of the accused persons, he replied that yes, he can recognise their faces as they were very close to him. It was (sunsetting) but a clear afternoon and the time is around 5 p.m., the sun had not set yet. 

49.	Regarding the four men that he saw at the scene fighting with the deceased, it was put to him if he can identify them, he replied, yes. He identified the man, Noah Henry) he saw as being the muscle man, sitting in the dock he is the man throwing punches at the deceased to his left side. He also testified that there was a fourth man, but he is not in Court.

50.	In his testimony regarding the men that he saw that afternoon, he identified “Paps” as Bill Matul, an older man who was seen throwing punches at the deceased. He went on to identify Tommy Matul, who he referred to as “Bata” as being the student who was walking around arguing with the deceased and he was with these men.

51.	Mr. Tom also testified that after the deceased fell down on the cement, they all ran away and jumped into a vehicle and left. He described the vehicles as a Toyota Land Cruiser, a Nissan and a Prado (old type). He was less than 10 metres away from the scene.

52.	In cross-examination, he was asked if he saw any of the four men punched the deceased, he replied, group came, but he only saw him (Noah Henry) punch the deceased and they left going towards the ATM, ANZ area.

53.	Regarding the condition of the deceased, he gave evidence that the deceased could not walk so we carried him and took him to the police station although he was still breathing, he did not talk to us.

54.	When put to him that the deceased and his friend were drunk, he replied that no, he does not know and can’t say if they were drunk.

55.	There was no re-examination.

(3)	Arnold Mundala

56.	Mr. Arnold Mundala is the third witness called by the State. He gave oral sworn testimony in Pidgin which was translated to English. He was cross-examined on his evidence. Mr. Mundala testified that he is from Bukawa, Lae and resides at Kamkumung for 20 – 30 years. He is employed with Plumbers & Builder Supplies. 

57.	He gave evidence that he was present at the time of the alleged offence on 17 July 2020. He stated that he was heading home from work thinking of going to the ATM but then went to 86 to get some shopping and getting cash.

58.	He states that as he was coming out of 86, about 10 metres away from the bank, he noticed the commotion and he recognised Charles and Philip, two former policemen. He then realised and saw that some boys were arguing with Charles and then they threw punches at Charles. I heard them say something to this effect. “yu pait wantaim ol meri, nau yu fight with men”, Charles fell backwards and hit his head on the cement. Then a big man came and confronted Philip and threw punches at Philip and he fell down but Philip got up and exchanged punches at the man. All this time, the deceased was still lying on the ground where he fell and the accused persons were now exchanging punches with his friend, Philip.

59.	When asked if he saw the four or five people involved in the fight again,  will he recognise them? He agreed and pointed out the accused persons in the dock. He pointed out Bill Matul (third from the left), the one in coloured button shirt as the one pointing at Philip Morea and saying you usually follow the deceased around. 

60.	He also pointed out Noah Henry with tattoos all over his hand who seated fourth from left as the one punching the deceased and causing him to fall. His story corroborates Nelson Tom's story. 

61.	He pointed out Tommy Matul who is seated second from left as the one talking and going around the group. 

62.	In cross examination, it was put to him that, not all accused persons punched the deceased but only one. He agreed that the person who punched the deceased and he fell down is a tight skin man, muscle man, short and stocky man who is identified as Noah Henry who punched the deceased, and he fell down. He however maintained that they all came in group.

63.	He states further that after the fight, they all fled in a car, an open back white Nissan or something similar.

(4)	Constable Andy Ikime

64.	The last witness called by the State is Constable Andy Ikime. Constable Ikime gave sworn oral evidence in pidgin, and this was translated to English. In his testimony, he testified that he is attached to Criminal Investigation Division. He states that he has more over 11 years of experience in investigation, attending to crime scene, documenting crime scene in likes of photographs where possible in cases of rape, homicide etc... he has done numerous cases in line of his courier.

65.	On the 18th of July 2020 at about 2.40 p.m., he attended to deceased Charles Palei purposely to capture certain digital colour pictures. Upon his examination, he noted blood on the back of the head. 

66.	He gave further evidence that on Friday the 24 July 2020  he attended to Post mortem of the same deceased. He noted 3cm x 2m bruise on the right-side forehead, bleeding from the ears and head. He attached to his statement dated 3rd of August 2020 which was tendered into evidence with attaches 8 photographs of the deceased showing the injuries sustained in the head and the internal bleeding.
Exhibits 

67.	The exhibits tendered into evidence are set out below:

Photograph 1 	
shows the general view of the deceased 	

Photograph two:	
shows the close-up view of the deceased face for identification purposes.	

Photograph three:
	
shows the general view of the deceased head depicting from the back of the head indicated in the circle and the blood stain on the white cloth or bed sheet	
Photograph four:	shows the general view of the deceased during the post mortem at Glenrowan Funeral Home, 14 Mile, Lae Morobe Province.	
Photograph five:	shows the close-up view of the deceased face at the post mortem depicting bleeding from the nose and ears	
Photograph six 	shows the close-up view of the deceased right face at the post mortem depicting bruises measuring 3 cm x 2cm indicating in the circle. 	
Photograph seven	Shows the general view of the deceased’s back of the head during the post mortem depicting bruises in the head and bleeding indicated in the circle. 	
Photograph eight	Shows the general view of the deceased subgaleal haemorrhage and haematoma to the skull (bleeding in the head and skull filled with blood)	

The Defence case

68.	For the defence, it is noted that the accused, Kylie Mondua, Bill Matul, Noah Henry exercised their rights to continue to remain silent. Only their co-accused, Tommy Matul elected to give evidence in his defence.

69.	Overall, the general thrust of the defence case is that the accused persons did not assault the deceased. He was drunk and arguing with some security personnel including the general public when they arrived at the bank and consequently, he may have injured himself or was injured by persons other than themselves. 

Oral evidence for the defence
Evidence in Chief
(1)	Tommy Matul

70.	Tommy Matul gave sworn oral evidence in pidgin which was translated to English and was cross-examined. He testified that he is part Manus and Siassi. He is 24 years old and is employed by Papindo as a mechanic. He is still currently employed.

71.	He testified that on 17 July 2020, after school, he had returned home and was at home when his father drove in and mentioned that he was going into town to pick up Kylie from work. Because he was intending to go to town himself, so he hopped on the vehicle with his father and two of his brothers, Eliab and Noah. They drove out in a dark grey Nissan (double cab) and they went into town.

72.	He testified further that when they arrived in town, outside the BSP bank, there was already a crowd gathering around the bank and they stood beside the car observing. He then saw that it was his brother-in-law fighting with the security guards and some BSP Officers. 

73.	He states that when all this was going, his two brothers stepped out of the car to go and see what was happening, so when they arrived at the front of BSP, his brother-in-law and his friend who were really drunk were arguing with the security guards outside the bank and when they say them, his brother-in-law pick up a fight with them and it was really hard controlling them.  

74.	He states that his brother-in-law upon seeing Noah, started arguing with Noah and said something to this effect: “Yu brata blong meri” and started to throw punches at Noah and picking a fight with him but Noah did not fight with him, but said this words- “yu fit long paitim meri, yu no fit long pait wantaim man”

75.	I just stood there looking at my phone but when he saw me, he ran to me and that was when he became unbalanced and fell down. I saw him fall, but noted that he was not unconscious, there was no blood. Afterwards, he got up, looked around for his phone, found it in his pocket and then ran to the other side of road and shouted “Kaikai kan, I will get the police on you”

76.	He stated further that it was the deceased who threw punches at him three times. He was only 20 years old at the time and did not really understand what was going on but knew that Kylie was still inside the bank at that time. He wanted to help but the deceased and his friend were really drunk, and it was really hard to control him. 

77.	Overall, the defence case in summary is that the co-accused, Tommy Matul was there outside the BSP Bank, Top Town branch to pick up Kylie from work but denies that he punched the deceased. It was the deceased who punched him three times and in doing so, became unbalanced and because he was standing on the steps at the front door of the bank, and he fell backwards onto the pavement. He did not cause the fall.

Submission for the State

78.	Mr. Wussik for the State submitted that all the required elements of the charge of murder under s 300 (1) (a) of the Criminal Code have been satisfied.   Firstly, the State submitted further that with respect to each element of the offence, it contends that from the evidence of Mr. Phillip Morea, Mr. Nelson Tom and Mr. Arnold Mundala, all have testified that on 17 July 2020, between 5 pm and 6 pm, they were within the vicinity of the BSP Bank, Top Town, Lae. They were there for various reasons, but they all testified that they bear witnesses to a fight which took place within the vicinity of the front entrance to the BSP Bank. 

79.	All three witnesses in their evidence also identified the accused, Bill Matul, Noah Henry and Tommy Matul as the persons who were seen who came as a group and started an argument with the deceased, Charles Palei and including his friend Philip Morea. The fight took place outside the BSP Bank, which is the workplace of their co-accused Kylie Mondua and the focus of their argument. It is noted that the co-accused Kylie Mondua was aware and witnessing the commotion or the fight which was going on outside the bank. 

80.	In the evidence of Philip Morea, he testified that he is familiar with all the accused persons as he has seen and can recognise all of them because he has seen them all during all the Court hearings that had been ongoing between the co-accused Kylie Mondua and the deceased, Charles Palei. He states that he is familiar with the co-accused, Kylie Mondua as he visits the deceased at his home and is well acquainted with the co-accused. He has also witnessed some of her behaviour towards the deceased. He then identified the lady wearing a coloured meri (red) blouse first from the left of the witness dock as Kylie Mondua. He then continued on to identify the young lad second from left as Tommy Matul, then the elderly guy in coloured button shirt as Bill Matul and the stocky built, black skin guy being the fourth from the left of the dock as Noah Henry.

81.	He testified further that all the co-accused, Bill Matul, Noah Henry and Tommy Matul threw punches at the deceased, and he fell down backwards hitting his head on the cement pavement in front of the BSP Bank. He states further that when the deceased fell down backwards hitting his head hard, it sounded like a coconut tree falling down. Mr. Morea also testified that he was also chased and punched by Bill Matul, fell but got up to his feet and threw a punch as well at Bill Matul. 

82.	Whilst his evidence differs to that of Mr. Nelson Tom who testified that he only saw Noah Henry take a punch at the deceased’s left side and a second punch which caused the deceased to fall backwards onto the cement footpath (pavement) hitting his head hard and sounding like a pumpkin. 

83.	He submitted that the demeanour of this State witness was consistent with that of an honest witness who was recalling the events of the day. Irrespective of minor inconsistency of him saying all four male co-accused persons assaulted the deceased. Which differs from other state witnesses who say that the one punching the deceased was short, stocky built and black skin, the rest of his evidence was consistent with that of the other state evidence and detailed account of pre and post incident.

84.	The evidence of this witness was not discredited, and he maintained his answers in cross examination. Almost all his answers was affirmed in cross-examination.

85.	Similarly, the evidence of Nelson Tom who testified that he also present at the time of the alleged offence. His account of the event of that afternoon was clear as to how the accused persons attacked the deceased. His evidence confirmed in the cross-examination.

86.	He said that he was walking to town from Eriku with his brother, Levison. When they were about 5 meters away from the BSP bank, he saw four men coming into confrontation with two men and fighting them and broke his head making noise like a pumpkin.

87.	His story corroborates that of Philip Morea in that he says one of the man, black skin, taller than me came and argued with them, a middle-aged father (according to Philip it was Bill Matul the uncle of Kylie Mondua) who came and fought with the man who was with the deceased (Philip Morea). The accused persons followed foot path towards Kina Bank ATM machine, got on an open back Nissan and drove off.

88.	He affirmed that it was a sunny afternoon. When asked did he see the four persons face, he answered yes. When further asked if he see them again will he recognise them? agreed.

89.	He said the other person is not in the court, identified other three as Bill Matul was the one third from left, Tommy Matul as the Student who seated second from left and pointed out Noah Henry as the one who threw punches on the deceased face and is the one described as stocky built, black skin and short.

90.	In cross examination, it was put to him that not all four co accused persons punched the deceased, but just one. He agreed but maintained that they all came in group. It was also put to him that the deceased woke up and walked over to the police station, he said no, the deceased was supported by his brother, him and Philip Morea. He agreed that the deceased was still breathing on the way to the hospital but did not talk.

91.	He was a witness of truth, most of his story corroborates with the other State witnesses and so, court can safely accept his evidence.

92.	The evidence of Arnold Mundala is also consistent with that of an honest witness who was recalling the events of the day. His evidence was consistent with that of the other state evidence and also has not been discredited. He maintained his answers in cross examination. His confidence and demeanour was that of a truthful witness, he was loud and clear, looked at the lawyer and Judge in the eyes when giving answers. The court should safely accept his evidence as credible and trustworthy.

93.	Constable Andy Ikime testified that he has been employed in this line of work for many years and has dealt with many criminal cases. His evidence was never discredited or weaken in cross-examination, he verified the pictures he took.

94.	He is a credible witness and his evidence as to his investigations and evidence collected, particularly the photos during the postmortem taken which shows the impact point on the deceased head and general views of the deceased is credible and must be accepted.

95.	Overall, the State submitted that the evidence of the three Sate witnesses are consistent, and all these witnesses were present at the crime scene. According to Philip Morea, the three male accused persons all assaulted the deceased while Kylie Mondua was standing inside the bank watching. They all gave the same account that a short stocky built person, identified as Noah Henry in the court room (which description matched) punched the deceased Charles Palei on the face, causing him to fall down backwards hitting his head on the cement footpath (pavement). 

96.	The medical certificate of death dated 24 July 2020 confirmed that the condition directly leading to death is: (a) Traumatic Brain Injury caused by (b) blunt force trauma to heading under the underlying condition last (c ) physical assault and fall and other significant conditions contributing to the death… basal skull fracture. 

97.	The principles on identification are settled in the case of The State v John Beng [1976] PNGLR 471. The only relevant matter of law relating to the dangers of identification evidence is stated in that case where the court held that:

“Where the identification relied upon is that of a single witness it is proper to be mindful that the identification "was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice", and the Court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification” 

98.	In relation to the quality of identification, the Supreme Court in Luingi Yandasingi v The State [19951 PNGLR 268: stated various factors that established quality of identification, and they are:

(i)	Whether the witness knew the accused before the event in question
(ii)	The lighting conditions at the time.
(iii)	The distance between the witness and the accused at the time of the event in question.
(iv)	Was there any object which may have obstructed the view of the witness?

99.	In consideration of the evidence before the Court, the State has the onus of proving all the elements of the charge and disproving any viable defences beyond reasonable doubt. The accused do not dispute that they were all at the crime scene at Top Town, Bank South Pacific on the afternoon of 17th July 2020.

100.	In fact, the evidence of the co-accused, Tommy Matul places all of them at the crime scene at BSP Bank, Top Town, Lae at the relevant time. This evidence is also consistent with the evidence from majority of the State witnesses is that it was the accused Noah Henry described as stocky built, short and black skin who punched the deceased on the face. The other accused persons were within close proximity of the crime scene.

101.	There are no different versions of events told by each of the respective witnesses from the State except Philip Morea who says the three male co-accused all assaulted the deceased. In this case, the evidence is uniform except the defence denying that they assaulted the deceased. Other than that, all accused persons opted to remain silent and letting only their co-accused, Tommy Matul give evidence in his defence.  

102.	The evidence of the accused, Tommy Matul confirmed that he, after being attacked by the deceased about three times exchanged punches with the deceased on the stairs of the bank entrance which caused the deceased to go off balance and he fell. His evidence is a mere claim, which is not corroborated by other independent evidence. 

103.	On the other hand, all three state witnesses say it was the short stocky built guy and black skin, who punched the deceased, and he fell backwards hitting his head on the pavement.  To add on Arnold Mundala gave sworn evidence that he Tommy Matul was talking and going around at the crime scene inciting the commotion. Witness Nelson mentioned that there was a student involved in the fighting and pointed out Tommy Matul as the second person from the left in the accused dock.

104.	This then raises the question as to who the Court should believe. The question of who to believe will be based on the credibility of the witnesses. The Court can make a finding of truthfulness based on the demeanour of the witnesses as well.

105.	In conclusion, the State submits that the Court should accept the evidence of the State witnesses because they were honest and reliable witnesses whose evidence the Court would accept as credible. Their demeanour showed that they were witnesses of truth. They spoke loudly and clearly, maintained composure and gave detailed account of how the incident unfolded. 

106.	All the State witnesses quoted what the accused persons said before fighting as "Kaikai kan na you man blo paitim ol meri, now ba you pait wantaim mipla ol man". 
Submission for the Defence
107.	Mr. Kusip for the defence submitted that the accused, Bill Matul, Noah Henry and Tommy Matul were there at the BSP Bank to pick up the co-accused Kylie Mondua who works at the bank. They denied assaulting the deceased. 

108.	It is the evidence of the co-accused, Tommy Matul, that the deceased was very drunk and unruly, he was very aggressive towards them when they were only there to pick up their relative who works at the bank. He was uncontrollable and he was already engaged in a fight with the BSP Bank security guards and other members of the public when they arrived. 

109.	He also stated that when the deceased saw them, he picked a fight with them and in so doing, became unbalanced and fell down onto the cement footpath (pavement). However, he was able to stand up. He stood up and walked off shouting obscenity and threatening to get the police on them

110.	So generally, the accused, Tommy Matul denied that they assaulted the deceased. He states that the injuries sustained may have occurred in circumstances other than alleged. 

111.	Consequently, Mr. Kusip submits that the State has failed to prove beyond reasonable doubt that the accused, Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul unlawfully killed the deceased and or intended to do grievous bodily harm to the deceased (or some other person) 

Element of the offence
112.	The standard of proof in criminal cases is beyond reasonable doubt and this onus is on the prosecution to prove each element of an offence beyond reasonable doubt. The essential elements for the charge of murder are:

(i)	A person (s) 

(ii)	 kills another person

(iii)	 the person (s) intended to do grievous bodily harm to the deceased (or some other person) 

Assessment of evidence

113.	In assessing the evidence of the Defence witnesses as opposed to the State witnesses, the State submits that the Defence witness should not be believed. The State submits that the Court would find the accused evidence to be lacking in credibility. His version of story is a mere claim; he places the accused persons at the crime scene, except denying that accused persons assaulted anyone when they were at the crime scene. He says he and his brothers hopped on their family car, Nissan open back (double cab) and were heading to town to pick up their sister Kylie Mondua. The description fits the description given by State's witness Arnold Mundala and Nelson Tom who said the accused persons after hitting the deceased and fleeing, headed towards where the Kina Bank ATM machine is, got on a Nissan open back and left. When they were at the front of the bank, they saw crowds gathering and his in law was fighting with the security guards. When the deceased saw his brother Noah Henry he went and confronted him, after Noel Henry left the deceased and walked away, he saw him and came to him. The deceased threw some punches at him and saying you are Kylies brother. After that he threw about three punches at him, the witness threw a punch causing him to go off balance and he fell down.

114.	Given his evidence above, I am of the view that his version of the story, description of the car, location, time of the offence are all in conformity with the state witnesses. However, he denies that the other accused persons assaulted the deceased. He was the one who punched the deceased after the deceased threw punches at him and not his brother as testified by State witnesses. It was him, Tommy Matul who threw punches at the deceased, causing him to go off balance and he fell down onto the cement footpath (pavement).

115.	The question then comes to which story should this Court believe? The story given by the State witnesses or the story of the accused, Tommy Matul. 

116.	If the story of the accused, Tommy Matul is to be believed that it can be accepted that the accused, Tommy Matul did in fact punch the deceased and he fell backwards hitting his head on the cement footpath (pavement). Hence, his evidence is consistent with the evidence of the state witnesses, Philip Morea, Nelson Tom and Arnold Mundala  who all testify that when the accused punched the deceased, he fell backwards hitting his head on the cement footpath (pavement) and he laid there on the footpath motionless. The accused persons, all returned to their cars and fled the scene.  

117.	So, it is clear that the evidence of the accused, Tommy Matul placed him at the crime scene, participating in the fight and then fleeing after the deceased had fallen onto the cement footpath (pavement) and was lying on the pavement motionless.

118.	At the same time, I am also puzzled by the fact that the accused, Kylie Modua was earlier during the day, served with an IPO order requiring her to return to the marital home with the deceased. If she did not wish to return back to the home, she should have intervened and told the deceased that she did not wish to return. Why would she allow her relatives to continue to pick a fight with the deceased. 

119.	Further, the police station is just across the street, why didn’t anyone from the bank call the police to disperse the crowd. 

120.	Furthermore, there must be surveillance cameras installed within the bank premises, if there are, I cannot at this stage, understand why, none was summoned for viewing by any of the parties. It would be more helpful, but I cannot say more than that. 

121.	 Here the only independent witnesses or a neutral persons who gave evidence are Nelson Tom and Arnold Mundala. Persons who have no personal interest in the dispute between Kylie Modua and the deceased. 

122.	 Overall, I am of the view that whilst the accused, Tommy Matul gave some insightful evidence as to the events of the day, he however, displayed poor body demeanour when testifying, he was not confident. Irrespective, I however note that his recollection of the events during that fateful day is somewhat reliable which to me, seems to be seen as owning up to taking responsibility for the actions of his co-accused, namely Bill Matul, Noah Henry and Kylie Modua. It is a commendable action, however, his decision in doing a favour for his relatives would not relieve him of responsibility for the offending. This is where I find him to be not a witness of truth. Consequently, his evidence is unreliable. 

123.	In so far as the evidence of the State witness, Philip Morea and the other State witnesses go, I find their evidence to be more honest and reliable. Whilst it is apparent that Philip Morea is a friend of the deceased, I find his recollection of the events of the day more credible and reliable. 

124.	Similarly, I also find that the evidence of the two independent witnesses, Nelson Tom and Arnold Mundala more consistent and they clearly had no personal interest in the dispute between the accused persons, Kylie Modua, Bill Matul, Noah Henry and Tommy Matul and the deceased. They were simply giving accounts of what they observed and how they assisted in taking the deceased to the hospital and being there for him in his venerable hour of need. They were with him at his dying hour. I find them truthful and reliable witnesses. 

125.	In regard to the evidence of Constable Andy Ikime, I am of the opinion that the medical evidence do speak for itself. Consequently, I am satisfied that the photographs, Medical Report and cause of death are credible and reliable. The photograph (No. 6) adduced through Constable Andy Ikime revealed bruises measuring 3cm x 2cm on the right face of the deceased. It is inferred that this injury was caused by the punches onto the face by the accused, Noah Henry (as referred to in the evidence of Nelson Tom and Arnold Mundala). 

126.	Photograph No.7 adduced through Constable Andi Ikime also revealed a bruise on the back of the head and bleeding in the head. This again corroborates the evidence of Nelson Tom and Arnold Mundala that when the deceased was punched, he fell backwards hitting the back of his head on the cement footpath (pavement). This infers directly that the deceased was punched hard on the face and the picture corroborates the version of evidence of Nelson Tom and Arnold Mundala who testified that the deceased was punched by the accused person identified in court as Noah Henry and described as short, stocky built and black skin. According to the evidence of Nelson Tom; the accused punched the deceased, and he fell backwards on the cement footpath (pavement). The fall sounded like a pumpkin when thrown on the ground, making loud noise. This evidence is corroborated by the evidence of Arnold Mundala who also gave sworn evidence that when Noah Henry punched the deceased, he fell down hit his head on the footpath which made a loud noise like a coconut falling down.

127.	I now come to address the issue of whether when the accused, Bill Matul, Noah Henry and Tommy Matul punched the deceased, did they intend to do grievous bodily harm to the person killed (or to some other person?)

128.	To answer that question, I must at the outset remind myself that the evidence suggest that there were prevailing circumstances of provocation (although not raised by the defence). The evidence shows that there exist prevailing circumstances of provocation. In that there exist some marital dispute between the accused, Kylie Modua and the deceased. She returned to her family. As to whether she wished to continue with the relationship, she elected not to give evidence so that part of the relationship is left as it is.

129.	However, her actions on that fateful afternoon where she is alleged to have called her relatives to pick her up following service of an IPO (District Court Order) and presence of the deceased at the front entrance of her workplace is indicative of her unwillingness to return to the marital home. Here, the question to ask is why would one be forced to continue to live in a relationship that was becoming obnoxious? In any event, the defence did not address the court on these matters and therefore, it can only be inferred. 

130.	In light of the above matters, I am of the view that in view of the prevailing circumstance of provocation, it can be inferred that the actions or reactions of the accused, namely, Bill Matul, Noah Henry and Tommy Matul in seeing the deceased still pursuing their sister and relative, the accused, Kylie Modua, they lost control and a heated argument ensued; which had resulted in punches being thrown at each other and the deceased falling down hitting his head on the cement footpath. 

131.	Whilst the act done may have been carried out in the heat of passion, this aspect was not address by counsel for the defence. Irrespective, I am looking at all the incidents which have occurred prior to the alleged offending, and I am minded to accept that the prevailing circumstances of facts led the accused persons punching the deceased, actions which were carried out in the heat of passion. 

132.	Whilst I do acknowledge that a heated argument had ensued between the parties. Accusations were thrown at each other and punches were thrown, but the overarching issue was that the accused, Kylie Modua did not wish to return to the marital relationship, and she did file for an Interim Protection Order. An order which was granted in her favour which was served on her by the deceased at her workplace in the earlier part of the day.

133.	Looking at the series of incidents as recounted in the evidence of Philip Morea and leading to the institution of the District Court proceedings where the accused, Kylie Modua had secured an IPO order dated 14 July 2022 particularly, (Term 1 of that order which states: “The defendant (deceased) is  restrained from intimidating, threatening, insulting and assaulting the complainant (Kylie Modua) at anytime, anywhere at any place” I accept that all the incidents do infer prevailing circumstances of provocation to determine whether s 539 (2) applies. 

134.	Of course, the accused were angry when they saw the deceased at Kylie Modua’s workplace. Why does the deceased continue to harass and intimidate their sister and relative? Her actions in filing for a protective court order is indicative of her wishing to stay out of the relationship. So, there was scuffle with the deceased. As to who instigated the first move, it is not very clear,  but I take it that the words uttered inferred that the accused made the first move because they were angry. However, I am of the view that mere anger is not sufficient, there must be passion taking the place of reason: see R. v. Rumits- Gorok ((1963) PNGLR at p.85).” There was a scuffle, and passion took place of reasons. The punch resulted in the deceased falling backwards hitting his head on the cement footpath. 

135.	Or should the Court believe the evidence of the co-accused, Tommy Matul, where he states that the deceased lost his balance and fell down hitting his head on the cement footpath. 

136.	The other issue is whether the force used is reasonably necessary to prevent repetition of an act or insult. Here Section 268 of the Criminal Code provides that: 

“268.	It is lawful for a person to use such force as is reasonably necessary to prevent repetition of an act or insult of such a nature as to be provocation to him for an assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm” 

137.	In this case it appears from the evidence that it is the accused, Kylie Mondua who has instituted legal proceedings to secure an IPO Order seeking protection from the deceased from pursuing her. The evidence adduced during trial shows that it was the deceased who picked up the IPO order and in fact, purportedly served it on the accused, Kylie Mondua in the early part of the day (17 July 2020). And later during the course of the day, fronted up at the workplace of the accused, Kylie Mondua. What was his purpose of being there at the first place?

138.	Here, the deceased appeared to be the one pursuing the IPO.  What is the whole purpose of obtaining an Interim Protection Order if it does not protect you from being harassed or intimidated? I do not understand but then again, the defence have not addressed the court on this matter, so I leave it there. 

139.	I do note that the defence in their submission have submitted that the alternative charge of manslaughter would not be applicable since the alternative charge of manslaughter was not preferred the State. 

140.	I am minded to reject this submission as the defence has not raised s269 (Self -Defence) of the Criminal Code as a defence in this matter. It is only raised in submission. 

141.	Similarly, the Defence of provocation under s 303 of the Criminal Code has also not be raised by the Defence and I reject this submission as well. 

Credibility of witness

142.	Applying the established facts to the evidence adduced during the trial of this matter, I address these as follows: Firstly, whilst accepting that there are two versions of what Witness Philip Morea and Nelson Tom saw it is common ground that the accused Bill Matul, Noah Henry and Tommy Matul were at the crime scene on the day, 17 July 2020. They all were seen in front of the BSP Bank, Top Town, Lae. Yes, there was an altercation with the deceased about some dispute involving a woman. This is because of the words which were uttered, and I quote “Yu fit long paitim meri, nau yu pait wantaim man” . Whatever their dispute, it is the State’s allegation that the dispute led to them punching the deceased and he fell down backwards onto the cement pavement in front of the BSP Bank hitting his head which resulted in his demise due to traumatic brain injuries. 

143.	The autopsy report confirming the extent of the brain injuries and a medical certificate of death. This medial evidence is not challenged by the defence except to tender a general denial of denying that they did assault the deceased.

144.	I accept that the accused Noah Henry did punch the deceased once on his left side and the second time which resulted in the deceased falling down and hitting his head on the cement pavement hard. The landing sounded like a pumpkin and or a coconut tree falling down. All this evidence also remains unchallenged. 

145.	The accused, Noah Henry, Tommy Matul and Bill Matul were within close proximity to each other and also participating in the scuffle or altercation one way or the other. They were all present at the scene. The accused, Kylie was inside the bank observing what was happening outside and bearing witness to her co-accused punching the deceased, falling back backwards, hitting his head on the cement footpath (pavement). 

146.	The postmortem report on his death confirmed that the deceased was punched hard on the face by Noah Henry with the intention of causing grievous bodily harm to him when he fell backwards hitting his head on the cement foot path.

147.	I also find that no other evidence have been adduced which challenges the State’s evidence that when the accused, Noah Henry, Bill Matul and Tommy Matul punched the deceased and he fell down backwards hitting his head on the cement pavement, he died as a result of the injuries he sustained to the head. In this case, the autopsy report confirmed that the deceased died from traumatic brain injury due to blunt force trauma to the head (impact from fall) and there was also associated basal skull fracture. The internal examination reveal subgaleal haematoma of the scalp. The examinations of other systems were unremarkable. 

Conclusion of submissions on the issue

Did the accused unlawfully do grievous bodily harm or commit any similar offence?

148.	It is clear that the accused unlawfully caused grievous bodily harm by punching the deceased and he fell backwards hitting his head on the cement footpath (pavement) and he died as a result of injuries sustained to his head. 

Was there an intention to do grievous bodily harm?

149.	At this juncture, as the Court is required to consider the state of mind of an accused, I am minded to refer to the decision of The State v Raphael Kuanande [1994] PNGLR 512  where his Honour Injia AJ (then) did highlight several factors that would have to be considered as relevant to assess the accused's state of mind when he committed the act that constitutes or is an element of the offence. He states

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

150.	In this case there was no direct evidence of the accused's expression of an intention to do grievous bodily harm. So, what can be inferred from the course of conduct of the accused prior to, at the time of and subsequent to the assault on the deceased?

151.	Prior to the assault: it seems that the accused spoke firmly, but not violently, when he uttered these words, “Yu fit long paitim meri, nau yu pait wantaim man” This suggests that the incident that occurred soon afterwards was a spontaneous, not planned, incident because the accused was frustrated with the deceased of continuing to pursue the accused, Kylie Modua.

152.	Overall, whilst I am of the view that the evidence presented by the State is more consistent and relevant, it therefore established beyond a reasonable doubt that the accused described as short, stocky in built and black skin identified by state witnesses (Philip Morea, Nelson Tom and Arnold Mundala) as Noah Henry punched the deceased with his fist on his face, causing him to fall backwards hitting  his head on the cement footpath (pavement). When Noah Henry punched the deceased, Billy Matul, Tommy Matul and Kylie Mondua were all actively involved and present within close proximity of the scene pursuant to s 7 and s 8 of the Criminal Code. 

153.	The element of the offence is that the accused person(s) intended to do grievous bodily harm to the person killed (or some other person). In addition, there is sufficient evidence to establish beyond a reasonable doubt that the accused person had the intention to do grievous bodily harm to the deceased and punched him on the face with force resulting in the deceased Charles Palei falling down hitting his head on the cement footpath.

154.	I find that all elements of the offence have been satisfied by the State and am minded to reject the evidence to the accused, Tommy Matul. 

155.	However irrespective of rejecting the evidence of the accused, Tommy Matul, I am also minded tolook at all the evidence adduced during trial generally, more so in relation to incidents and actions which occurred prior to the alleged offending and up to the time of the offending. 

156.	In this present, the issue at play is the estranged relationship between the accused, Kylie Modua and the deceased, Charles Palei. 

157.	In the lead up to the argument and subsequent punches being exchanged, the deceased had apparently picked up an Interim Protection Order (IPO) (“Exhibit 9”) from the District Court and served on the accused, Kylie Modua. It is puzzling that the deceased, is aggressively pursuing this IPO as I would have thought that it would be the complainant, in the proceedings, Kylie Modua who is the one seeking protection from the deceased, not the other way around. In fact, looking closely at the terms of the IPO, Term 1 specifically states that:

“1.	“The defendant (deceased) is restrained from intimidating, threatening, insulting and assaulting the complainant (Kylie Modua) at anytime, anywhere at any place”

158.	Given that, I am minded to accept that the prevailing circumstances of facts infers element of provocation, in that when the accused persons punched the deceased, these were actions carried out in the heat of passion. This is because I gather from a series of incidents which has culminated in the heated argument between the accused and the deceased, although it may appear that the provocation does not appear to be sudden, I must say that I think I am entitled to say so as I look at these incidents, all these incidents did set the stage for what is said to be sudden provocation. That is, and I repeat myself, when the deceased continuing to pursue the accused, Kylie Modua when the terms of IPO was quite specific? It defeats all logic and common sense. This goes to infer that the circumstances of the case show that the accused were  acting out of control rather than mere anger. 

159.	I find that reasonable doubt exist to discharge the accused with the charge of murder. Alternatively, I find that the accused did act in the  heat of passion  caused by sudden provocation and before there was time for their passion to cool. It is clear that death was caused by means of an act done in the prosecution of an unlawful purpose. The unlawful purpose was the undisputed act of punching the deceased on the face which led to him falling down backwards and hitting his head on the cement footpath. The force of such a punch; including the fall itself on the concrete pavement; are acts likely to endanger human life.  

160.	At the time of the assault: the medical evidence, constituted by the medical report and the oral evidence of Philip Morea, there were no injuries other than the traumatic brain injury caused by blunt force trauma to the head) which suggests that death was caused by the fall to the head when his head hit the cement footpath (pavement). It appears to be a single blow. No weapons used. 

161.	After the assault: The conduct of the accused immediately afterwards – they may have felt bad and afraid, they left suddenly, in fact, there is no evidence of them picking up the accused, Kylie Modua. They did not even stop to check on the deceased. Could they have done something to help? I don’t know. As testified by the accused, Tommy Matul, he saw the deceased searching his pockets for his phone and then standing up and walking away. This suggest that if the deceased was seriously injured, it was not evident. He assumed that the deceased was ok, despite the fall. 

162.	Given all these factors, I am minded to accept that these factors suggest that  there was no conscious intention by the accused to cause grievous bodily harm. Thus, I would arrive at a conclusion that the second element of the offence of murder has therefore not been proven.

Should an alternative verdict be entered?

163.	The court now has to consider whether an alternative verdict of manslaughter should be entered in light of Section 539(2) (charge of murder or manslaughter) of the Criminal Code, which states:

“539.	On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

164.	Section 302 (manslaughter) of the Criminal Code states:

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

165.	The offence of  Manslaughter has three elements. These are:

(i)	kill another person;
(ii)	unlawfully;
(iii)	under such circumstances as not to constitute wilful murder, murder or infanticide.

166.	In this case, the State has proven the first element.

167.	Regarding the second element, counsel did address the Court on this aspect, and I refer to Section 289 which states:

“289.	It is unlawful to kill a person unless the killing is authorised or justified or excused by law” 

168.	Here, the defence did not raised any specific defence such as self-defence or accident has been raised, and none is available on the evidence. Therefore, the killing of the deceased was not authorised, justified or excused by law, and therefore, the second element is proven.

169.	As for the third element, I find that all elements have been proven beyond reasonable doubt. 

170.	Therefore, the accused, Kylie Modua, Bill Matul, Noah Henry, Tommy Matul will be convicted of manslaughter under s 302 of the Criminal Code.

VERDICT

171.	I therefore return a verdict of guilty of one count of manslaughter against the accused, Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul contrary to s 302 of the Criminal Code and enter a conviction against the accused, Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul accordingly.

172.	The accused, Kylie Mondua, Bill Matul, Noah Henry and Tommy Matul are to be remanded into CIS custody, awaiting sentence.

Verdict accordingly
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Lawyer for the State: Public Prosecutor	
Lawyers for the accused: Kusip Lawyers