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Moses v The State [2024] PGSC 89; SC2624 (5 September 2024)

SC2624

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 4, 5 & 6 OF 2023

LINUS MOSES, ESAU MOSES & SAMSON MOSES
Appellants

AND
THE STATE
Respondent

Waigani: Mogish J, Berrigan J and Miviri J
2024: 30 July and 5 September

CRIMINAL APPEAL – AGAINST CONVICTION – S 302, Criminal Code – Manslaughter – Appeal dismissed.

Counsel
J Bibilo, for the Appellants
A Kaipu, for the Respondent State

DECISION ON APPEAL

5^th September 2024

1. BY THE COURT: The appellants were convicted of manslaughter, contrary to s 302 of the Criminal Code (Chapter 262) (the Criminal Code), following trial and sentenced to 10 years of imprisonment. They appeal against conviction.
   
2. The appellants were jointly charged with murder. The appellants, the deceased and the State’s eye witness, Melanie, were related. There was no dispute that the three appellants were drinking alcohol and listening to music with a group of friends on the night of 12 September 2020 on the street in Kerema.
   
3. The trial judge heard and accepted Melanie’s evidence that she was sitting on the verandah of her grandmother’s house when she saw the deceased walk down to where the appellants were sitting in front of the house. She heard the deceased say something to the group but could not hear what was actually said. In response, Linus stood up, said “olsem wanem?”, walked towards the deceased and slapped him twice on the face, following which Linus turned to his two brothers, Esau and Samson, who were now standing. All three appellants then ganged up on the deceased and each punched him once to the chest. The deceased fell backwards, his head making a loud crack as it hit the ground. Samson kicked the deceased once as he lay on the ground before calling out to those in the house to bring water as the deceased was unconscious. Another person, Omae, threw water on the deceased, who regained consciousness and Omae, with assistance from Linus and Esau carried the deceased to the house.
   
4. Other evidence established that thereafter the deceased showed signs of discomfort, pain and headaches. He was taken to the hospital on 16 and then again on 17 September, when he was admitted. He died on 20 September 2020.
   
5. The trial judge found that the State had failed to establish an intent to cause grievous bodily harm on the part of the appellants and convicted each of them of manslaughter.
   

GROUNDS OF APPEAL

6. The appellants contend that the trial judge erred in: a) admitting and relying on the State’s medical evidence; b) failing to consider that the appellants were provoked by the deceased; and c) giving undue weight to hearsay evidence.
   

MEDICAL EVIDENCE

7. There was no error on the part of the trial judge in admitting and relying on the medical report of Dr Cherobim Kapanambo, a doctor of 14 years standing, who conducted the autopsy of the deceased on 9 October 2020.
   
8. The medical report was accompanied by an affidavit and was in admissible form. The fact that it did not form part of the committal depositions did not render it inadmissible. It is not uncommon for the State to obtain additional evidence following committal: see for instance State v Paraka (2021) N9159. The trial judge asked defence counsel if he required further time to consider the report and he declined the opportunity to do so after reviewing it over the luncheon adjournment. The State made it clear that the doctor was available for cross-examination but he was not required by defence counsel. The appellants are bound by the conduct of their counsel at the lower court (Roland Tom v The State (2019) SC1833), whose conduct appears entirely proper to us. There was no issue as to the credibility of the medical practitioner or the reliability of his findings, which were straightforward, albeit they supported the State’s case, namely that the deceased died on 20 September as a result of subdural haemorrhage from blunt force injury to the rear left brain.
   

PROVOCATION

9. It was for the State to exclude the possibility of provocation beyond reasonable doubt.
   
10. As above, the trial judge found that the appellants jointly assaulted the deceased. In doing so he rejected the appellants’ evidence that the deceased swore repeatedly at them. He rejected Linus’s evidence that he slapped the deceased twice but then turned away and did not see what happened. He rejected Samson’s evidence that upon seeing Linus slap the deceased he simply turned around and sat down before calling for water to be poured over his brother. He rejected Esau’s evidence that he went in to stop Linus and the deceased fighting and that it was the deceased who threw a punch at Linus, which Esau blocked. The trial judge rejected their evidence as contrived and implausible. He did so after hearing and observing each of the appellants give evidence and having regard to inconsistencies in their records of interview. He was entitled to make those findings.
    
11. Even if it was accepted that the deceased swore at the appellants would such an act or insult be likely to deprive an ordinary person of the power of self-control and induce him to assault the deceased in the manner in which the appellants did? No. An ordinary person might be angry or offended but that is not sufficient. The fact that the appellants were perhaps unable to control themselves because they were drunk does not assist them. For similar reasons it cannot be said that the force used was proportionate to the provocation for the purposes of s 267, Criminal Code.
    

HEARSAY AND INCONSISTENCY

12. This ground is misconceived. The evidence of the State’s eye witness was not hearsay. It was direct evidence of what she saw and heard whilst sitting on the verandah, ten metres from events, in conditions of light.
    
13. The fact that she heard a loud crack when the deceased’s head hit the ground but did not hear him swearing at the appellants is not an inconsistency or improbability that renders her evidence implausible.
    
14. Her evidence that she could not hear what the deceased said to the appellants simply contradicted the appellants’ evidence that the deceased repeatedly “screamed” insults at them.
    
15. As a matter of common sense and experience, there is nothing implausible about her evidence that the deceased’s head made a loud crack when it hit whatever rock or hard ground that it fell upon. Nor did the fact that the medical report showed subdural haemorrhage to the rear left brain but no fracture of the skull contradict that evidence.
    
16. All grounds of appeal are accordingly dismissed.
    

ORDERS

17. We make the following orders in each case:
    
    • (a) The appellant’s appeal against conviction is dismissed.
    • (b) The sentence of ten years of imprisonment is affirmed.

________________________________________________________________
Office of the Public Solicitor: Lawyer for the Appellant
Office of the Public Prosecutor: Lawyer for the Respondent