State v Bekeram [2011] PGNC 333; N4298 (2 June 2011)

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CRIMINAL LAW – manslaughter – Criminal Code, Section 302 – trial – elements – whether the accused killed the deceased – no post-mortem report – lack of medical evidence – admissions in record of interview – circumstantial evidence.

The accused was charged with the manslaughter of his wife. It was alleged that he assaulted her and that she died as a result of the injuries he inflicted on her. There was no direct evidence of what happened and no post-mortem report. The State relied primarily on the evidence of the deceased's father, who made observations of the condition of the deceased's body two days after the date of death, the evidence of a doctor about what inferences could be drawn from those observations and admissions in the accused's record of interview. The accused gave no evidence.

Billy Nara v The State SCRA No 27 of 2005, 28.11.07
Devlyn David v The State (2006) SC881
Onama Andrew v The State (2009) SC997
Paulus Pawa v The State [1981] PNGLR 498
R v Namiropa Koinbondi [1969-1970] PNGLR 174
The State v Anton Jimbira (2009) N3799
The State v Gawango Ango (2010) N4034
The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N4013

1. CANNINGS J: The accused, John Yeon Bekeram, has been charged with the manslaughter of his wife, Tapita John. The offence is said to have been committed at Girigiri village, where they lived, in the Middle Ramu District of Madang Province between 5.00 and 6.00 pm on 8 August 2010. He pleaded not guilty so a trial has been held.

2. The State's case is that the accused was not happy with his wife as she had been away from home for a week. When she returned they had an argument and he assaulted her. He used his fist to hit her on the face and he kicked her in the abdomen and she died later that night from the injuries inflicted. There was no direct evidence of what happened and no post-mortem report. The State relied on the evidence of the deceased's father, who made observations of the condition of the deceased's body two days after the date of death, the evidence of a doctor about what inferences could be drawn from those observations and admissions in the accused's record of interview. The accused gave no evidence.

3. The accused is charged with manslaughter under Section 302 of the Criminal Code, which states:

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

4. As I suggested in The State v Anton Jimbira (2009) N3799 this offence has three elements:

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.

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

7. 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).

11. Jefferyson Sup is the deceased's father. He said that he was at another village when news reached him of his daughter's death at the hands of her husband. He arrived in Girigiri on 10 August 2010 and observed his daughter's body. The skin over her jaw looked blackened, much darker than other parts of the skin. The stomach was very swollen. There was no doctor or medically qualified person available to examine the body. He supervised the burial and the matter was reported to the police.

12. Dr John Maihua is the Acting Director of Medical Services at Modilon General Hospital. He was asked to provide an opinion on the likely cause of a darkened jaw and a swollen stomach, those being the observations made by the deceased's father. Dr Maihua said it was difficult to say, given the limited information available. The darkened skin over the jaw would be consistent with a blow to the face of significant force, causing soft tissue bleeding and possibly a bone fracture. If the blow to the face is strong it is possible that the tongue can be forced back and if the person loses consciousness the tongue might not be controlled and the airways may become blocked, causing death. As for the abdominal swelling this would be consistent with a spleen rupture and significant bleeding in the abdominal area, given the proximity of the spleen to the stomach and its susceptibility to rupture upon infliction of significant force. The spleen is a commonly injured organ caused by violent force, which can occur by playing body contact sport or by other causes. However, the possibility that the appearance of a swollen stomach being due to natural cell decomposition due to loss of oxygen could not be ruled out. Dead cells give off gases that can cause distension of the abdomen. Dr Maihua indicated that the opinion he was providing to the court as to the cause of death was inevitably inconclusive. The only way to be definite was to have an autopsy.

13. The accused's record of interview, dated 7 October 2010, was admitted into evidence without objection. It shows that the accused was interviewed, in Tok Pisin, by Frank Kikoli in the CID office. Also present was Sgt Nagi Maiak. The accused was asked if any inducement was used against him and he said no. He signed the record of interview. Questions 10 to 14 are relevant to the cause of death. They have been translated into English, without objection, as follows:

	Q 10 :	Can you recall back to the 8th day of August 2010 and tell me what you did between 5.00 pm and 6.00 pm in the village?
	A :	My wife (deceased) left me and went and stayed with her last [Aunty] for a week and she came back. I was not very happy about that. I hit her on her hand and leg and she cried and we stayed together and she collapsed and died.
	Q 11 :	I received information that you hit her first and threw her down from the house and she collapsed and died instantly. What do you say about that?
	A :	That I don't know. I have told my stories to Aiome Police and also told my stories to you.
	Q 12 :	What is the name of your wife?
	A :	Tapita.
	Q 13 :	Did you have intention to kill her?
	A :	No
	Q 14 :	Why did you kill her?
	A :	She told me and go away and stay with her [Aunty] and came back and that's why I slapped her and resulted in her dead. [sic]

14. Snr Sgt Frank Kikoli, the interviewing officer, gave evidence about the conduct of the interview. He said that the accused answered questions voluntarily. No force was used to extract answers from him. In cross-examination Mrs Meten asked him if the accused had been given an adequate opportunity to obtain legal advice. Snr Sgt Kikoli gave an ambivalent reply. He might not have told the accused of his right to see a lawyer, he said. However in re-examination Snr Sgt Kikoli indicated that the issue would have been addressed after the prosecutor, Mr Kaluwin, alerted him to this exchange at the beginning of the interview:

Q 4 The Constitution of Papua New Guinea says that I must tell you about your rights. First I must tell you why I brought you here. I brought you back because I believe that on the 8th day of August, 2010 between 5.00 pm and 6.00 pm you belted your wife and threw her down from the house and she got or received serious injuries on her body that resulted in her collapsing and died instantly. I am now holding your hand as I am now arresting you and you will be charged for manslaughter. Do you understand about your charge?

Q 5 If you want to you can talk to a member of your family or a personal friend or a lawyer or a Public Solicitor. If you get a lawyer he may come and see you wherever you are kept and you will be able to talk to him regarding this alleged matter. Do you understand?

16. At first glance the State has not presented a strong case. There is no post-mortem report and no evidence by any medically qualified person who examined the deceased's body. Dr Maihua's evidence was necessarily inconclusive. There is no direct evidence of what happened, either from an eyewitness or from someone who was in the vicinity of the alleged incident. The State's case is heavily dependent on alleged admissions made by the accused in his police interview.

17. Despite those apparent shortcomings in the evidence, a conviction is still possible as there is no rule of law that states that in a homicide case it is necessary to have admitted into evidence a post-mortem report or other report of the cause of death. Nor is it necessary for there to be direct evidence of an incident leading to death. A conviction in a homicide case may be based on an uncorroborated confession by the accused (R v Namiropa Koinbondi [1969-1970] PNGLR 174) or on circumstantial evidence.

18. Mrs Meten submitted that the State had fallen short of proving that the accused killed the deceased. The cause of death has not been established. The deceased's father's evidence is of little value as he was neither present nor in the vicinity of the alleged incident. He could only rely on hearsay to provide an opinion that his daughter was assaulted by the accused. Dr Maihua's evidence was inconclusive as to the cause of death and has no probative value. As for the admissions in the record of interview, they were unfairly obtained as the accused is an unsophisticated villager who was not given the opportunity to seek legal counsel. He was ignorant of his constitutional rights and he used words which he did not expect would be used against him in court. Though the record of interview is in evidence, it should be given no weight. The court should take the same approach it did in The State v Gawango Ango (2010) N4034. A record of interview containing admissions was admitted into evidence but the accused was found not guilty of murder after the court found that the integrity of the record of interview was suspect.

19. Mrs Meten has validly focussed on the apparent shortcomings in the State's evidence. I agree that, considered alone, neither the deceased's father's evidence nor Dr Maihua's evidence carries much weight. The deceased's father's evidence was based on what he had been told by others and the observations that he made about the darkened skin on the jaw and the swollen stomach were vague and came from a medically unqualified person. Dr Maihua's evidence was heavily qualified and necessarily inconclusive. However, it does not follow that either of those pieces of evidence should be rejected entirely. They may be of some value, depending on how the other evidence is regarded.

20. The record of interview is critical as it contains admissions. The question is how much weight, if any, should it be given? It was admitted into evidence without objection and that creates a presumption that the statements made by the accused that are recorded in it were made voluntarily and not obtained unfairly. This is not a case in which the accused has given evidence rebutting admissions he has made to the police. If that were the case, the rebuttal would have to be weighed carefully against the admissions (The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N4013). Here, the accused has made admissions, which have been recorded, the record of interview has been admitted into evidence and he has remained silent (as is his constitutional right).

21. I agree that some doubt was created by cross-examination of Snr Sgt Kikoli about whether the accused was afforded his rights under Constitution, Section 42(2) (liberty of the person), to communicate without delay after his arrest with a lawyer of his choice. However that doubt was removed in re-examination of Snr Sgt Kikoli. The record of interview shows that the accused was told of his right to see a lawyer. I distinguish this case from Gawango Ango's case where I regarded the record of interview as suspect as it contained a number of leading questions and neither the police officer who conducted the interview nor the other officer present at the interview gave evidence. In the present case the accused was asked a number of leading questions but the interviewing officer has given evidence and been subject to cross-examination. I am satisfied that the interview was not unfairly conducted. Considerable weight must therefore be given to the record of interview.

22. What did the accused admit? It is important to note that he did not expressly admit that he killed the deceased. He does not admit to hitting her in the face or kicking her or otherwise striking her in the abdominal region. He said that he was not happy with her because she had been away for a week. He hit her on her hand and leg and she cried. They stayed together and she collapsed and died (question-and-answer 10). He did not intend to kill her. He slapped her and that resulted in her death (questions-and-answers 13 and 14). The accused does not say that there was any other intervening cause of death. What these statements amount to, in my view, is an admission that he assaulted the deceased as he was angry with her for being away for a week and that she somehow died as a direct result of the assault. It is an admission that, even though he may not understand exactly how it happened, he caused the death of the deceased. In other words, that he killed her.

23. With those considerations in mind I will now apply the principles about entering a conviction based on circumstantial evidence. I point out that neither the prosecutor nor the defence counsel addressed the court on this issue. However I consider that it is necessary to do so in view of the nature of the State's case, which depends on a combination of circumstantial evidence and admissions (a confession) in a record of interview (Billy Nara v The State SCRA No 27 of 2005, 28.11.07; Onama Andrew v The State (2009) SC997).

24. The principles about entering a conviction based on circumstantial evidence were set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

25. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

27. I consider that according to the principles in Pawa's case those facts are inconsistent with any reasonable hypothesis other than that the accused killed the deceased; and that hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts lead reasonably to only one conclusion: that the accused killed the deceased. The first element of the offence has been proven beyond reasonable doubt.

28. The accused did not rely on any specific defence such as accident, compulsion, insanity, provocation or self-defence. His killing of the deceased is therefore not authorised, justified or excused by law and is therefore deemed by force of Section 289 of the Criminal Code to have been unlawful. The second element is proven beyond reasonable doubt.

29. Yes. This element is a formality as the accused was not charged with wilful murder, murder or infanticide.

30. John Yeon Bekeram, having been indicted on a charge of manslaughter under Section 302 of the Criminal Code, is found guilty of manslaughter.

Verdict accordingly.
____________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused

National Court of Papua New Guinea

State v Bekeram [2011] PGNC 333; N4298 (2 June 2011)