N4977

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 870 0F 2007

THE STATE

V

CHARLICE LAMETE

Buka: Cannings J
2007: 7, 11 September

CRIMINAL LAW – trial – manslaughter; secret disposition of child's body – Criminal Code, Sections 302; 313 – no-case submission
 
The accused was charged with the manslaughter of her new born child, due to her allowing another woman to negligently administer medicine through her vagina when pregnant. The baby died soon after birth. The accused faced an alternative charge of concealing the birth of the child through secret disposition of its body. Defence counsel made a no-case submission at the close of the State's case.

Held:

(1)	As to the manslaughter charge, there is not only a scintilla of evidence. The evidence is not so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it. The trial on the manslaughter charge will therefore proceed.

(2)	As to the charge of concealing the birth, there is only a scintilla of evidence; the evidence is so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it. The trial on the concealment of birth charge will not proceed and the accused is acquitted of that charge.

Cases cited

The following cases are cited in the judgment:

The State v Jenny Kabana Peter (2005) N2813
The State v Meli Heti [1977] PNGLR 173
The State v Paul Kundi Rape [1976] PNGLR 96

RULING

This is a ruling on a no-case submission.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

11 September, 2007

1. CANNINGS J: This is a ruling on a no-case submission made after the close of the State's case in a trial in which the accused, a young woman, is facing a primary charge of manslaughter of her new born child and an alternative charge of secret disposition of that child's body. The defence counsel, Mr Kaluwin, based the submission on what is known as the second limb of the decision in The State v Paul Kundi Rape [1976] PNGLR 96. That means that, though there may be some evidence of the elements of each offence, the question to ask is:

•	Is there only a scintilla of evidence?
•	Or, put another way, is the evidence so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it?

If the answer is yes, I have a discretion to exercise: to enter an acquittal or order the trial to proceed. If the answer is no, the trial must proceed.

THE CHARGES

2. The State's case is that the accused was seven months pregnant and wanted to give birth quickly so she purchased six tablets of a medicine and arranged for a female friend to administer the tablets through her vagina. That was done on the afternoon of Saturday 31 March 2007 at Arawa. The next day she gave birth to a baby, who died soon after birth. The accused then secretly buried the body. The State does not allege that the accused intended to kill her baby; rather that she negligently killed the baby by allowing the tablets to be administered to her, resulting in the baby's death, thereby being guilty of manslaughter under Section 302 of the Criminal Code. In the alternative, it is alleged that by her secret burial of the body she committed an offence under Section 313 of the Criminal Code.

WHAT EVIDENCE HAS THE STATE ADDUCED?

3. Seven exhibits have been admitted into evidence.

A – a statement by a friend of the accused, LJ, who says that the accused was staying at her place which is near a river the night before she gave birth. LJ says that when she arrived at the place where the accused gave birth, the baby was already dead.

B – a statement by another friend of the accused, MJ, who says that she arrived on the scene shortly after the accused gave birth and saw the baby pull its last breath.

C – a statement by another friend of the accused, RB, who says the day after the baby was born she and her husband went to the river where they saw that some young boys had dug up the body. RB says that she felt sorry for the baby so she took the body back to her house and made a short funeral and re-buried the body near her house. The next day the Arawa police came and dug up the body and took it away for their investigations.

D – a statement by the police officer, Constable Sheena Cook, who interviewed the accused. She says that the accused admitted to committing the offence.

E – a statement by the police officer, Probationary Constable Genevieve Kepino, who corroborated the accused's interview. She says that during the interview the accused freely admitted committing infanticide.

F – the record of interview, which was conducted nine days after the accused gave birth. The accused says she is 19 years old of mixed Bougainville and Solomon Islands parentage, educated at Arawa Primary to grade 7, single with no children and unemployed. It was true that she used medicine to force her child out when it was not yet its right time. She paid K200.00 for the medicine and got six doses and allowed the woman from whom she purchased them to insert them in her vagina. She did not know the name of the medicine or how it worked. She started to feel labour pains soon after the medicines were inserted. She was by herself when she gave birth at the trunk of a big tree near the Bivo River at Section 10 Arawa, at 6.00 am on Sunday 1 April 2007. The baby was alive when born but did not cry and did not live for very long. When the baby died she buried it. Asked why she 'got rid of' her baby, the accused replied:

My aunties used to say all sorts of negative things about me, like, if I gave birth I would look after the child on my own and I wasn't capable of that, that's why I did it.

G – photos of the baby's body and the gravesite.

H – statement by Charles Tawora, HEO, Arawa Health Centre – states that he examined the 'dead foetus' belonging to a young mother who was alleged to have aborted her full term pregnancy with the aid of tablets inserted in her vagina. He reports that the cord and placenta were still attached, there were mild facial bruises especially near the cheekbone and a swollen neck, indicating force was used on it. He concludes:

The suspicion is high that the baby could have been strangulated or neck twisted.

4. No witnesses gave oral evidence and the State's case was closed upon admission of the above exhibits. To make an assessment of whether they constitute only a scintilla (a minute amount) of evidence or are so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on them, it is necessary to consider the elements of the two offences the accused is charged with.

THE OFFENCE OF MANSLAUGHTER

5. Section 302 of the Criminal Code states:

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

Penalty: Subject to Section 19, imprisonment for life.

6. The offence therefore has three elements:

1	kill another person;
2	unlawfully;
3	under such circumstances as not to constitute wilful murder, murder or infanticide.

First element: killing another person

7. There is a definition of killing in Section 291:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

8. It is possible for a child to be killed by virtue of acts or omissions of other people prior to the child's birth. This is made clear by Section 292, which states:

When a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do the act shall be deemed to have killed the child.

Second element: killing must be unlawful

9. As to the second element of manslaughter, Section 289 explains what must be proven:

It is unlawful to kill a person unless the killing is authorized or justified or excused by law.

10. Sections 286 (duty of persons doing dangerous acts) and 287 (duty of persons in charge of dangerous things) are also relevant to the unlawfulness element.

11. Section 286 states:

It is the duty of every person who, except in a case of necessity, undertakes—

(a)	to administer surgical or medical treatment to any other person; or

(b)	to do any other lawful act that is or may be dangerous to human life or health,

to have reasonable skill and to use reasonable care in doing the act, and he shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to observe or perform that duty.

12. Section 287 states:

(1)	It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2)	A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

13. Those provisions show that a person who, for example, negligently administers medicine (such as a doctor or a pregnant mother as in the present case) can be guilty of manslaughter if their negligent act or omission (which would be regarded as unlawful, thus satisfying the second element) causes the death of another person (constituting the first element, to kill).

Third element: no intention to kill etc

14. All that is necessary to prove here is that the circumstances in which the deceased was killed were not such as to amount to any of the other three homicide offences: wilful murder (where there must be an intention to kill); murder (which is committed where, for example, the killer intended to do grievous bodily harm to the victim or some other person); and infanticide (where a woman by wilful act or omission causes the death of her child under the age of 12 months).

THE OFFENCE OF CONCEALING THE BIRTH OF A CHILD

15. Section 313 (concealing the birth of children) of the Criminal Code states:

A person who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, is guilty of a misdemeanour whether the child died before, at or after its birth.

Penalty: Imprisonment for a term not exceeding two years.

16. As I pointed out in another Bougainville case, The State v Jenny Kabana Peter (2005) N2813, this offence has six elements. A person must be proven to have:

1	endeavoured;
2	to conceal;
3	the birth of a child;
4	when a woman is delivered of a child;
5	by secret disposition of;
6	the dead body of the child.

17. The "child" must be a child, as distinct from a foetus. It must be such that, if he or she had not died at or after birth, he or she had a capacity in the ordinary course for a continued existence. Generally if a woman is seven months pregnant or more, she will have delivered a "child" for the purposes of the section (The State v Meli Heti [1977] PNGLR 173).

IS THERE ONLY A SCINTILLA OF EVIDENCE OF MANSLAUGHTER? IS THE EVIDENCE WEAK, TAINTED OR UNRELIABLE?

18. Mr Kaluwin argues that this is a simple case of the death of a child to whom the accused had given birth but there is no more than a scintilla of evidence that the accused killed the child. I do not accept that proposition. I uphold the submission of the prosecutor, Mr Rangan, that there is evidence that the accused, by her own admission, acted negligently by allowing medicine to be inserted in her vagina when she was seven months pregnant, apparently without medical supervision and without knowing the name of the medicine or what its effects might be. That evidence can be relied on in support of the second element of manslaughter: the element of unlawfulness.

19. As to whether the administration of the medicine led to the death of the child, I consider that that is an inference that might reasonably be drawn from the evidence. So there is more than a scintilla of evidence to support the first element of manslaughter: that the accused killed her child, ie caused its death, directly or indirectly.

20. That leaves only the third element: that this was an unlawful killing that was not wilful murder, murder or infanticide. That is a formality in this case.

21. I conclude that there is not only a scintilla of evidence of manslaughter. The evidence is not so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it. The trial on the manslaughter charge must therefore proceed.

IS THERE ONLY A SCINTILLA OF EVIDENCE OF CONCEALMENT OF THE BIRTH? IS THE EVIDENCE WEAK, TAINTED OR UNRELIABLE?

22. I uphold Mr Kaluwin's submission that there is only a scintilla of evidence to support this charge. The evidence suggests that the accused was not trying to make a secret of the fact that she had given birth or that the child had died. It appears that many people knew that she was about to give birth and many people knew that she had given birth. The evidence is so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it. It would not be fair to the accused for her to continue to face this unmeritorious charge. I will exercise my discretion by ordering that the trial on the concealment of birth charge will not proceed and acquitting the accused of that charge.

ORDER

(1)	The no-case submission on count 1, manslaughter, is refused and the trial will proceed on count 1.

(2)	The no-case submission on count 2, concealment of birth, is sustained and the trial will not proceed on count 2 and the accused is acquitted of that charge.

Ruling accordingly.
_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused