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State v Wesley [2010] PGNC 259; N4181 (24 September 2010)

N4181

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1049 OF 2008

STATE

V

JAMES WESLEY

Lae: Manuhu, J.
2010: 9, 10, 11 & 24 September

CRIMINAL LAW – Particular offence – Murder – Deceased wounded on knee – Severe bleeding from lacerated artery - Whether injury accidental or deliberate – Delay in seeking medical attention – Whether delay is omission that hastened death - Whether Accused guilty of murder.

Case cited:

R v Yambiwato [1967-1968] PNGLR 222.

Counsel:

H. Simon, with A. Lloyd, for the State.
D. Wayne, for the Accused.

24 September, 2010

1. MANUHU, J.: The Accused, James Wesley, was indicted for the murder of Mile Wesley, his wife ("Deceased"), on 30 March 2008 at Kamkumung in Lae City, Morobe Province. The Accused denied the charge.

2. The prosecution alleged that on Sunday 30 March 2008, at about 7:30pm the Accused was with the Deceased at their residence at Gravel Pit, Kamkumung. He was drunk. They cooked dinner and when rice was ready the Accused took a knife belonging to the Deceased and tried to open a tinned fish.

3. The Deceased did not want the Accused to use her knife so she pulled the knife and they had a scuffle over it. The Accused secured the knife and stabbed the Deceased on the leg. He then left her bleeding on the floor while he sat at the doorway and blocked it for 3 to 4 hours and did not attend to her. The Deceased passed out at about 10:00pm so the Accused sought help from a neighbor to take the deceased to the hospital. She was pronounced dead on arrival due to severe loss of blood.

4. It was not disputed that the Accused and the Deceased were married and they have a child. The Deceased was one month pregnant at the time of death. It was not disputed that the Deceased was medically pronounced dead on arrival. It was not disputed that the Deceased was wounded with a knife and died from severe loss of blood.

5. However, the Accused denied the allegation that he stabbed the Deceased. In relation to the allegation that he did not attend to the Deceased quickly enough, the Accused stated that he did not have a watch and suggested that there was no delay. He stated that it took some time to locate a vehicle at Kamkumung and some time for the doctors to see the Deceased. He also said that the Deceased refused his offer for assistance.

6. Therefore, the questions of fact for the Court to resolve are: how was the wound inflicted? Was there a delay in attending to the Deceased? The second question is material only if it is found that the Accused did not inflict the knife wound. Then, if there was a delay in attending to the Deceased, the next questions would be questions of law: is the delay an omission that hastened the death? And, if so, could the Accused be convicted for murder?

7. The only direct evidence on how the knife wound was inflicted was from the record of interview and the Accused's sworn testimony. Essentially, the Accused said he tried to open the tinned fish with the knife and the Deceased pulled the knife and accidently cut herself. The medical report reveals that the wound was 3 cm long and 1 cm wide. The wound lacerated the "anterior tibialis artery", which is an artery responsible for blood supply from the heart, causing "fresh bleeding. The doctor, in his sworn testimony, also stated that in his opinion an injury of such degree required substantial force. Therefore, it must have been deliberate.

8. The doctor's explanation is acceptable except that in the absence of other direct evidence I cannot rule out the Accused's explanation as a possible cause of the injury. The Accused said the Deceased did not want her knife to be used to open the tinned fish so she pulled the knife and wounded herself. How people behave and react to situations is not easy to comprehend. I would like to think that the wound was inflicted intentionally but I cannot rule out that such a wound could have also been caused as described by the Accused. I am therefore unable to reach a conclusive finding of fact on how the wound was inflicted.

9. In relation to the issue of delay, it is first necessary to consider the evidence on the timing of the Accused's actions from the time when the Deceased was wounded to when help was sought. The only reliable evidence on timing came from James Kobale, a witness for the prosecution. James Kobale and his wife lived in the upper room. The bottom room was where the Accused and the Deceased occupied. He overheard the Accused and the Deceased arguing at 7:30 pm. At 8:00 pm, the Deceased called to him for help so he came down.

10. The Accused was sitting at the doorway. The Deceased was bleeding and there was a piece of cloth tied around the leg to reduce the bleeding. The only light was from a kerosene lamp. The area of the room was not more than 9 square metres. James Kobale thought the wound was not serious even though the Deceased was bleeding. He sat there and conversed with the Accused while the Deceased bled until 11:00 pm. That was when he and the Accused carried the Deceased onto the main road where they found a vehicle. James Kobale said the Deceased was already dead then. The Deceased was pronounced dead on arrival at the hospital.

11. The Accused had to explain why they waited until 11:00 pm. He said he did not have a watch and could not tell what time it was. Questions on timing were answered in that manner. He claimed generally that the incident happened late at night. But he was not able to align the sequence of events with any evidence on timing.

12. The Accused was a disservice to himself. He completed Grade 10 in 1996 and appeared confident and smart. He chose to give evidence in pidgin but intermittently gave evidence in confident English. I was of the impression that having heard the allegations and evidence of James Kobale, he was simply evasive in order to distance himself from the allegation that he allowed the Deceased to bleed for 3 hours.

13. The Accused also stated that he wanted to help the Deceased but the Deceased did not want him to help. I do not accept that because such important aspect of the evidence, if true, would have been stated in the record of interview but the Accused did not say it. It was not raised in cross-examination. I am of the impression that he did not tell police and his lawyer because the claim is not true. It is also not true because the Deceased had called James Kobale to come over because the Accused ignored her and her bleeding.

14. Furthermore, I do not accept the claim by the Accused and James Kobale that the wound was not serious. I do not accept that the Accused was not aware that the Deceased was wounded when he played a part in it. The Deceased died as a result of severe bleeding. How could the Accused claim it was not serious when she must have been bleeding badly in a 9 square metre space in his presence? The seriousness of the wound must have been apparent from the severity of the bleeding. An artery was lacerated from which the Deceased was bleeding.

15. The Accused should have sought help at 8:00 pm but he waited until 11:00 pm. The reasons given for the delay is unacceptable. The doctor gave evidence that the Deceased would have survived if she was taken to the hospital earlier. I find therefore that there was a considerable delay and there is no good explanation for the delay.

16. Does the delay amount to an omission that hastened the death? Section 294 of the Criminal Code provides that a person who "does any act or makes any omission that hastens the death of another person who, when the act is done or the omission is made, is suffering from some disorder or disease arising from another cause, shall be deemed to have killed that other person."

17. I have found that there was a delay of at least 3 hours. I have found that the explanation for the delay is unacceptable. In any case, the explanation by the Accused is discredited by his evasiveness and his unsatisfactory answers. I have accepted the doctor's evidence that if the Deceased was brought to the hospital earlier, she would not have died.

18. We all know that bleeding leads to death. In legal language, a severe bleeding from an external wound is, to a reasonable man, cause for a reasonable apprehension of death. To claim otherwise is absurd and unreasonable. It is wrong for a husband to let his wife bleed severely for 3 hours. I am satisfied, therefore, that the Accused is guilty of omission that hastened the death of the Deceased.

19. Is the injury a disorder? In R v Yambiwato [1967-1968] PNGLR 222, it is suggested that 'disorder' should be given a wide meaning so as to include injuries. In that case, the act which hastened the death was an axe blow to the head of a severely injured and dying man. His injury was a disorder. I am so satisfied that in this case, the wound is a disorder.

20. For these reasons, I am satisfied that the Accused unlawfully caused the death of the Deceased in that for 3 hours he failed to arrange for the Deceased to get medical assistance in relation to her life-threatening injury amounts to omission that hastened the death.

21. Ultimately, could the Accused be convicted for murder? Consistent with the finding that the Accused allowed his wife to bleed for 3 hours and with death being a reasonable apprehension, the Accused could be convicted for murder. But I will give the Accused the benefit of the doubt because cases on section 294 are scarce. This case may be regarded as a test case. Accordingly, I cannot convict the Accused for murder but I can on manslaughter because he unlawfully caused the death. I find him guilty accordingly.

_________________

Jim Wala Tamate, Acting Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused