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State v Jangau [1984] PGNC 4; N463 (9 April 1984)

Unreported National Court Decisions

N463

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
SAMSON JANGAU OF TABELE, E.S.P.

Wewak

Kaputin J
3-4 April 1984
9 April 1984

JUDGMENT

KAPUTIN J: The accused starial upon ipon indictment of a charge that he on the 10th day of February, 1983, at Tabele in Papua New Guinea, unlawfully killed one Ronda Jau, contrary to s.3 the Criminal Code.

The accused person raisesaises the defence of accident, under s.24 of the Criminal Code, which reads:

“24. Intention: Motive

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for:

(a) &##160;;&#t or omission than thaurs indently of the exer exercise cise of hiof his wils will; orl; or

(b) en evhat tccuro by acc.

(2) ;&#16less the inhe intenintenintention to cause a particular result is expressly declared to be an elemf thence ctutedwholeart, act or omission, ton, the rehe result sult intended to be caused by an act or omor omissioission is n is immaterial.

(3) ҈& Unless less otherwtherwise expressly declared, the motive by which a person is induced:

(a) ; to omit to do an oct; >

(b) ; to form an intentntentionntion

is immaterial in so far as regariminsponsty.&#

The State called Dokas Jau, the mother of the deceaseceased chid child, wld, who waho was an eye witness, and the father of the deceased child who was not an eye witness. Both gave sworn testimonies for the State’s case. The defence called the accused who also gave evidence on oath. The father of the deceased was called mainly as to the issue of death. However, as there was no dispute as to this, I should not really go into the father’s evidence in detail. So what we have is the evidence of the mother, as against that of the accused. Allegations were made by the defence that the evidence of Dokas should not be accepted because, as the mother of the deceased, she would naturally be very upset at the death of her child, and would try to make her evidence so as to secure a conviction. That could be true. However, the witness was not cross-examined on this aspect. In any case this was a question of motive to which I have to apply the objective test in assessing whether, in fact, her evidence could be suspect. In any event it could equally be said that the accused may have had the same motive to frame evidence to suit his case. Again this would be a question of fact.

In regard to the State witness, Dokas, I have no reason at all to doubt her credibility. She spoke well, her demeanour was very good and, further, if she had any motive to lie, it would have been evident in the vigorous cross-examination that she withstood quite well. She was consistent in her evidence throughout. I accept her as a truthful witness and would therefore rely on her testimony. As for the defence witness, I would be hesitant to place greater weight on his evidence because, apart from his demeanour which is doubtful to some extent, there were major inconsistencies in his evidence which I will later come to when I analyse the evidence and make my finding of facts. Such would also taint his credit-worthiness and make his evidence doubtful. In other words, the inconsistencies therein were such as to destroy the defence’s own case.

In this case the accused was trying to hit his niece, Helen Kame, by way of chastisement with a piece of coconut branch (pangal) for refusing to go with him to work in the garden that morning. Helen had gone to sit on a bed on the verandah of a house with Dokas and her child (deceased), who was one year old then. The verandah was waist high. The incident happened at about 7.00 o’clock in the morning of the day in question. There are some disputes as to how these people were sitting on the bed and as to how many of them there were. It was raised in cross-examination of the State witness that the accused said there was another woman there also, together with Helen, Dokas and the child. I find that there was no other person there apart from Helen, Dokas and the child. If there had been the defence should have called her as it would have been of assistance to the defence case. In any case, this was the first time this was raised. Dokas, whom I have held to be an honest witness, did not know of any other person there at the time. It must be that this was a recent invention. Anyway the defence evidence is that there was another woman who was sitting at the front side of the bed facing the direction from which the accused was coming. She was with Helen on the front side of the bed. Dokas and the child were sitting on the opposite side of the bed which was at the back. The accused had not seen Dokas and her daughter at the back as both were obscured by Helen and the unknown woman. As he approached them, he swung the stick sideways from the left at Helen. She ducked, and moved backwards to avoid the force of the stick. The accused missed Helen and the stick landed on the child who received the full impact of it and fell unconscious immediately thereafter. She died about an hour later. The accused said the first time he knew about the presence of the child was when the stick struck her.

The defence is that, under the circumstances, the defence of accident in either leg of s.24 should succeed in that it was unintended and unforeseen and, further, that as the mother was not seen there, it raised the greater possibility that the child was not expected to be there. Be that as it may, there are other features of this part of the evidence that have to be considered. First, the piece of stick used was about three feet long, three-quarters of an inch in diameter, and of medium weight. If the accused had stood on the ground, as he did, and swung the stick, it would not have reached the child on the other side of the bed as it would have fallen short. This is if it were true that the child was at the other side of the bed, as according to the defence evidence. However, somehow during submissions by counsel it was suggested that the child was in the middle of the bed between that unknown woman and Dokas. Should I accept counsel’s statement as evidence? Absolutely not. It is not evidence. What then shall I believe? I reject the version that the defence attempts to establish as the true account and I find the following facts.

Dokas and her baby and Helen were the only ones present and sitting on the bed. There was no other woman there. The three were facing the direction from which the accused was coming. Dokas and Helen saw him coming towards them. They knew he was coming as he had, earlier that morning, twice sent his son to fetch Helen, but Helen had refused to go. As he was approaching them he could clearly see them, including the child, as they were sitting abreast, Dokas on the right, the child in the middle and Helen on the left. There was no way that the child could not have been seen. There was nothing in between that could have obscured visibility.

As to the immediate circumstances of the striking of Helen, and how she reacted, there is no greater divergency between the two versions. What I find is that as the accused struck Helen sideways from the left she ducked and moved frantically backwards to avoid the blow. He missed Helen and the stick caught the child. This is more consistent with what would have occurred in reality under the circumstances as described here. The evidence of Dokas, in fact, establishes it.

The defence of it being an accident therefore fails. Even though the act of striking was unintended, it could easily have been foreseen, under the circumstances, by the accused, and such an event could easily have been foreseeable by an ordinary person. In order for the defence under s.24 to succeed the three elements must exist: Timbu-Kolian v. R (1967-68) P. & N.G.L.R. 320 and The State v. Kaiwa Iasumi (unreported) judgment No. N163 dated 14 August 1978. In the instant case only one element is present. I hold, therefore, that the State has negatived the whole defence of accident.

The defence is simply caught by the fact that the accused acted with reckless indifference under the circumstances.

For the reasons which I have stated, I am satisfied that the State has proved its case beyond reasonable doubt. I find the accused guilty of the charge and convict him accordingly.

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor

Counsel: Mr I. Brown with Mr L. Lausi

Lawyer for the Accused: N. Kirriwom, Public Solicitor

Counsel: Mr S. Liosi