N4785

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1539 & 1561 OF 2010

THE STATE

V

NOELYN ANTON & LOVELYN MARK

Madang: Cannings J
2012: 15, 16 May, 20, 21, 22 August,
11, 20 September

CRIMINAL LAW – manslaughter – Criminal Code, Section 302 – trial – two accused – elements of offence – whether either of the accused killed the deceased – whether one accused aided or assisted the other: Criminal Code, Section 7.

Two women were charged with the manslaughter of another woman. It was the State's case that one of the two accused directly killed the deceased in the course of an altercation with her by hitting her on the side of the body with a bamboo stick, rupturing her spleen, and that the other accused aided and assisted the first accused by holding on to the deceased, preventing the deceased from defending herself. The State relied on the evidence of two eyewitnesses, the police investigator and a post-mortem report. Both accused gave sworn evidence, denying that they assaulted the deceased. The defence case was that the first accused and the deceased were struggling over the bamboo, pulling it at opposite ends and that the accused lost her grip and the deceased pulled it into her body, rupturing her spleen, thus the accused did not kill her; but if she did, she was acting in self-defence. As to the second accused, the defence case was that she was an onlooker only and did not aid the accused in any way.

Held:

(1)	To prove its case against the first accused, who is alleged to have actually done the act constituting the offence, the State must prove the two elements of manslaughter: (a) that the accused killed the deceased; and (b) that she did so unlawfully.

(2)	By virtue of Section 291 of the Criminal Code a person kills another person when he or she causes the death of the deceased, directly or indirectly, by any means.

(3)	By virtue of Section 289 of the Criminal Code it is unlawful to kill another person unless the killing is authorised or justified or excused by law.

(4)	The killing of a person is justified and lawful if, for example, the elements of the defence of self-defence are made out for the purposes of Sections 269 or 270 of the Criminal Code.

(5)	Here, the eyewitness evidence of the State witnesses was impressive and the post-mortem report supported the State's case and the evidence of the accused was rejected. The first accused directly caused the death of the deceased by hitting her with a bamboo stick. The first element of manslaughter was proven.

(6)	The State proved beyond reasonable doubt that the defence of self-defence did not apply to the first accused. She was convicted.

(7)	The State failed to prove beyond reasonable doubt that the second accused had done acts for the purpose of enabling or aiding the first accused to commit the offence or that she had aided the first accused in committing the offence or that she was criminally responsible in any other way for the death of the deceased. She was acquitted.

(8)	In summary: the first accused was found guilty, the second accused was found not guilty.

Cases cited

The following cases are cited in the judgment:

Tapea Kwapena v The State [1978] PNGLR 316
The State v Anton Jimbira (2009) N3799
The State v David Yakuye Daniel (2005) N2869
The State v Lenny Banabu (2005) N2871
The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

This was the trial of two accused charged with manslaughter.

Counsel

J W Tamate & J Morog, for the State
R C Pinggah & D Joseph, for the accused

20 September, 2012 

1. CANNINGS J: Noelyn Anton and Lovelyn Mark are charged with the manslaughter of Makang Isaac at Tobenam on Friday 19 February 2010 contrary to Section 302 of the Criminal Code. It is the State's case that the first accused, Noelyn Anton, directly and unlawfully killed the deceased in the course of an altercation with her by hitting her on the side of the body with a bamboo stick, rupturing her spleen, and that the second accused, Lovelyn Mark, aided and assisted the first accused by holding on to the deceased, preventing the deceased from defending herself and is guilty by virtue of Section 7(1) of the Criminal Code. Two State witnesses gave evidence of what happened, and the State relied on a post-mortem report. Both accused gave sworn evidence, denying that they had assaulted the deceased. The defence case was that the first accused and the deceased were struggling over the bamboo, pulling it at opposite ends and that the accused lost her grip and the deceased pulled it into her body, rupturing her spleen, thus the accused did not kill her; but if she did, she was acting in self-defence. As to the second accused, the defence case was that she was an onlooker only and did not aid the first accused in any way.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:

•	The deceased, Makang Isaac, was the daughter of Anna Isaac (State witness No 1) and Isaac Dilol. She was 33 years old at the time of her death at Tobenam on 19 February 2010.

•	The first accused, Noelyn Anton, and the second accused, Lovelyn Mark, were about 24 and 29 years old respectively at the time of the incident. They are cousins and are from Dugulaba village, Manam Island. They had been living at the Tobenam care centre since the 2004 volcanic eruptions on Manam Island. They lived across the road, the Bogia Highway, from the Isaac family and the families knew each other well; in fact, they are related as Anna Isaac is originally from their part of Manam Island.

•	There was an incident at Daigul Market, 1.5 km from Tobenam, at 8.00 am on the morning of 19 February which triggered a second incident about an hour later, at Tobenam, resulting in Makang Isaac's death.

•	In the first incident Anna Isaac, aged about 50, confronted Noelyn Anton and abused her loudly in public, accusing her of having an affair with Anna's husband, Isaac Dilol, saying insulting things such as 'You have been selling your vagina and now you are using the money to buy goods at the market'. Anna genuinely believed that Noelyn had been going around with her husband and that he had been giving her money. There was no physical altercation at the market. Noelyn Anton did not respond to the insults. Anna Isaac left the market and went home.

•	Noelyn Anton followed Anna Isaac to Tobenam and the second incident took place, at the front of the Isaac residence. Noelyn Anton confronted Anna Isaac and questioned why she was accusing her (Noelyn) of having an affair with her husband. The pair had a heated argument. Quite a number of other people were present, including Lovelyn Mark and Anna Isaac's daughter-in-law Priscilla, who was aged in her mid-30s.

•	The argument escalated into a physical altercation between Noelyn Anton and Anna Isaac, and Priscilla called out to the deceased, Makang, who rushed to the scene to assist her mother. During this time someone (who it was is contentious) introduced a piece of bamboo into the fight, and this piece of bamboo – 60 to 100 cm long and 8 to 18 cm in diameter – came into contact with the side of the deceased's body with such force that it ruptured her spleen and she died almost instantly.

•	The second State witness, Steven Kaun, is the deceased's uncle. His evidence that he witnessed the second incident is contested.

•	A post-mortem report prepared by Dr V Atua of Modilon General Hospital revealed that the cause of death was internal bleeding caused by a ruptured spleen and noted there were three litres of free blood in the peritoneal cavity and that the spleen was 'enlarged – Hackett grade three, ruptured at Hyla'.

ISSUES

3. To prove its case against the first accused the State must prove the two elements of manslaughter: (a) that the accused killed the deceased; and (b) that she did so unlawfully. (It can be said, as I did in The State v Anton Jimbira (2009) N3799, that there is a third element, 'in circumstances as not to constitute wilful murder, murder or infanticide. On reflection, as the third element is invariably non-contentious, it is more convenient to regard the offence as consisting of just two elements.)

4. By virtue of Section 291 of the Criminal Code a person kills another person when he or she causes the death of the deceased, directly or indirectly, by any means. By virtue of Section 289 of the Criminal Code it is unlawful to kill another person unless the killing is authorised or justified or excused by law. The killing of a person is justified and lawful if, for example, the elements of the defence of self-defence are made out for the purposes of Sections 269 or 270 of the Criminal Code.

5. The primary issues are:

1	Did the first accused kill the deceased?
2	If yes, was the killing unlawful?
3	If yes, is the second accused guilty under Section 7(1) of the Criminal Code?

1 	DID THE FIRST ACCUSED KILL THE DECEASED?

6. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the accused killed the deceased.

Evidence for the State

7. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Anna Isaac	Deceased's mother, purported eyewitness, Tobenam villager	
Evidence	She got cross with Noelyn upon seeing her at the market – abused her, then went home, Noelyn followed her to Tobenam and confronted her and punched her and hit her on the head with a bamboo stick (the same one later used to hit Makang) and she (Anna) fell, semi-conscious – Priscilla called out for assistance and Makang, who was unarmed, came from the house, saying that she did not want to fight, she just wanted to assist her mother – Lovelyn grabbed Makang's hands and locked them, allowing Noelyn, holding the bamboo stick in both hands, to hit her on the side of the back with the bamboo: Makang fell and died instantly.	
2	Steven Kaun 	Deceased's uncle, purported eyewitness, Tobenam villager 	
Evidence	On that Friday morning he had bought some things near the market and was walking back to Tobenam, while Anna (his sister-in-law, who he calls 'Mother') and Priscilla were ahead – Noelyn approached Anna, they quarrelled and were fighting while he observed the scene from a distance of 20 to 30 metres – Noelyn ran towards her house and got a bamboo stick and struck Anna's head with it – Anna fell, Priscilla called out for Makang who came and saw that her mother was lying on the ground – Makang was not holding anything, she went to assist her mother but Lovelyn grabbed her, locked her hands, then Noelyn hit Makang on the left side of her body, causing Makang to fall and die – he walked to where Makang lay and tried to wake her up but she was not responding – he told Anna 'Because of your suspicions, your daughter has died' – he told the many Manam people present; 'Here is your pig, come and eat it' – he was the only member of Makang's lain present – he rejected the claim in cross-examination that he was not present and that his evidence was concocted – he also rejected the assertion that if he was in the vicinity he could not have been close enough to see what happened as he failed to intervene in the altercations that were taking place: he said that he was outnumbered.	
3	Bekio Marisa, Sgt	Police investigator	
Evidence	He attended the scene of the second incident on Friday 19 February – he took possession of the bamboo stick, it was an old piece of bamboo, about 60 cm long and 18 cm in diameter – kept it in his office at Bogia police station but had to throw it out as it went rotten – he prepared a statement of facts for the committal proceedings, which included "deceased armed with a piece of bamboo confronted the defendant and hit her with the bamboo and upon seeing this the other defendant Mrs Lovelyn Mark also joined in the fight and the four females fought. During the fight deceased and defendant Noelyn Anton struggled over the piece of bamboo and during the process the edge of the bamboo struck deceased on her ribs while she was pulling at the bamboo to her and as a result she collapsed and died" – he stated in cross-examination that those statements represented his initial impression of the circumstances of the incident, which he has since come to realise after interviewing witnesses was not a correct impression.	

Evidence for the defence

8. Two witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description	
1	Noelyn Anton	1st accused	
Evidence	She learned for the first time when at the market of the allegation that she was having an affair with Anna's husband – she (Noelyn) felt ashamed, even though the allegation was not true – she did not say anything and just went to her house – Anna Isaac started the fight at Tobenam by throwing punches at her so she (Noelyn) retaliated and punched her and she fell into the kunai grass – Priscilla called out for Makang and Priscilla left the scene – Makang came into the scene, swearing, and brandishing a piece of bamboo – Lovelyn was there and prevented Makang from hitting Noelyn – then she (Noelyn) turned round and grabbed the bamboo at one end, while Makang was holding it at the other end – they struggled for a while but Makang was stronger than her, she pulled it from her (Noelyn), fell, and died – Steven Kaun was not present, he only arrived after Makang had died – she denied in cross-examination that she started the fight with Anna and brought the bamboo stick into the fight and struck Makang with the bamboo.	
2	Lovelyn Mark	2nd accused	
Evidence	She was at the market with Noelyn when Anna started swearing at Noelyn, who felt ashamed and left – she (Lovelyn) and some other women left after Noelyn had left, they followed her after about an hour, then she (Lovelyn) went to her house – she heard a commotion on the road and looked out and saw Makang holding a bamboo stick, approaching the fight between Anna and Noelyn, but she did not see how that fight started – she told Makang 'It's not your problem' but Makang responded 'Let me break her head' – Makang was about to hit Noelyn with the bamboo when she (Lovelyn) warned Noelyn of what was coming, so Noelyn turned around, grabbed the bamboo at one end, they struggled, then Makang pulled it back into her side, she fell and died – Anna was watching the struggle over the bamboo. Noelyn did not strike Makang with the bamboo – Noelyn just lost her grip of it and Makang pulled it into her own body. She denied in cross-examination of locking the hands of Makang – Steven Kaun was not present.	

The critical question: did the first accused cause the death of the deceased?

9. Having weighed the competing evidence and the submissions of counsel I have concluded for the following reasons that the State has proven beyond reasonable doubt that Noelyn Anton killed Makang Isaac:

(a)	It is intrinsically difficult to believe that an injury of the nature that the deceased suffered would be self-inflicted in the sense that she would be capable of pulling a bamboo stick into her own body with such force as to rupture her spleen. The post-mortem report states that she had an enlarged spleen, which I presume is symptomatic of some internal abnormality and may have made her vulnerable to strong force in the area of the spleen. I nonetheless consider that the cause of death – internal bleeding caused by a ruptured spleen – is a much more likely consequence of heavy force being employed with a blunt object (the bamboo stick) that was wielded deliberately by another person than of a sudden and unexpected jerk of the bamboo into the body of the sort described by the two accused in their evidence.

(b)	There was direct, credible evidence by two State witnesses of Noelyn wielding the bamboo into the side of the deceased. Neither of the two eyewitnesses can be regarded as independent, especially Anna who had an underlying grievance with Noelyn due to the suspicion of an affair between Noelyn and Isaac. However, their demeanour was sound. They were not proven to have given false evidence. I prefer their evidence to that of the two accused, whose demeanour in the witness box was not as impressive. Anna conceded, in effect, that she started the chain of events that led to her daughter's death by abusing Noelyn and causing a scene at the market over the (still unproven) allegation of an affair between her husband and Noelyn. However her evidence remained strong and consistent under cross-examination.

(c)	Anna's evidence was corroborated by that of Steven Kaun. He was asked some very good questions about why he did not intervene but I consider his explanation (that he was outnumbered and the incident happened suddenly) was acceptable. I reject the defence case that he was not present.

(d)	The evidence of the two accused was uncorroborated. This does not mean that it must be rejected. The State must always prove its case. It is not up to the defence to disprove the State's case. But the absence of any witness to say that the accuseds' version of events is the correct one, especially as the deceased died in a public place, on the roadside, in the presence of quite a number of bystanders, has made it difficult to undermine the evidence of the State witnesses, which appeared credible.

(e)	Though the defence counsel properly grilled Sgt Marisa on the statement of fact that he drafted for the committal proceedings, which clearly stated that it was the deceased that introduced the bamboo stick into the fight, not the first accused, ultimately I consider that the statement is of little probative value. Sgt Marisa was not and never claimed to be an eyewitness to the incident. He explained that that was the original impression he gained of what happened. He later formed a different impression. Ultimately a police investigator's impression is just that: an impression, an opinion, a summary: of something that is inherently variable and unbinding. It is of little probative value.

10. In summary, the State has produced two eyewitnesses whose evidence was credible. Their version of how the deceased died is consistent with the medical evidence. The defence case is inconsistent with the medical evidence. The evidence of the two accused was not strong. It was uncorroborated. I find that the first accused directly caused the death of the deceased by hitting her with the bamboo stick on the side of her body. This ruptured her spleen, which led to severe internal bleeding and instant death.

2 	WAS THE KILLING UNLAWFUL?

11. The defence case is that this was not an unlawful killing as the first accused acted in self-defence against assaults against her by both Anna Isaac and Makang Isaac. It is argued that this provides her with a complete defence under Section 269 (self-defence against unprovoked assault), which states:

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	If—

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

12. As the force used by the accused in the process of defending herself did, as a matter of fact, cause the death of the deceased, she must rely on Section 269(2), which means that the court must be satisfied that the following five elements of the defence exist:

1	the accused was unlawfully assaulted; and

2	the accused did not provoke the assault; and

3	the nature of the assault was such as to cause reasonable apprehension on the part of the accused that she would die or suffer grievous bodily harm; and

4	the accused believed on reasonable grounds that she could not otherwise preserve herself from being killed or suffering grievous bodily harm; and

5	the accused used such force as was necessary for her defence.

13. If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant (The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316). Once the accused puts evidence of self-defence the onus rests on the prosecution to disprove the defence (The State v David Yakuye Daniel (2005) N2869, The State v Lenny Banabu (2005) N2871). 

14. There is sufficient evidence before the court for the accused to legitimately raise self-defence. Whether it is a valid defence depends on whether the prosecution has discharged the onus of proving beyond reasonable doubt that one or more of the elements of the defence did not exist.

15. I will restate the elements of the defence by posing five questions:

1	was the accused unlawfully assaulted?

2	did she not provoke the assault?

3	was the nature of the assault such as to cause the accused reasonable apprehension that she would die or suffer grievous bodily harm?

4	did the accused believe on reasonable grounds that she could not otherwise preserve herself from being killed or suffer grievous bodily harm?

5	did the accused use only such force as was necessary for her defence?

16. The prosecution must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

17. I consider that the first two questions should be answered yes. I accept Noelyn's and Lovelyn's evidence that Noelyn was unlawfully assaulted by Anna Isaac and that she (Noelyn) did not provoke the assault. I reject the evidence that Makang assaulted Noelyn.

18. However, the last three questions are answered no. The assault by Anna, who is a considerably older woman than Noelyn, would not have caused Noelyn reasonable apprehension (ie she would not have thought on reasonable grounds) that she might be about to die or suffer grievous bodily harm. She did not believe on reasonable grounds that she could not otherwise preserve herself from being killed or suffering grievous bodily harm. She used more force than was necessary for her defence. The prosecution has discharged the onus of disproving three elements of the defence. One was sufficient. The defence of self-defence does not apply.

19. The second element of manslaughter has been proven against the first accused beyond reasonable doubt. She will be convicted.

3 	IS THE SECOND ACCUSED GUILTY UNDER SECTION 7(1) OF THE CRIMINAL CODE?

20. The criminal liability of the second accused, Lovelyn Mark, must now be considered in the light of Section 7(1) of the Criminal Code:

When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a)	every person who actually does the act or makes the omission that constitutes the offence; and

(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c)	every person who aids another person in committing the offence; and

(d)	any person who counsels or procures any other person to commit the offence.

21. The State's case against Lovelyn Mark is based on Sections 7(1)(b) and 7(1)(c): she did acts (locking the hands of the deceased, making her an easy target for the bamboo wielded by Noelyn Anton) for the purpose of enabling or aiding Noelyn to commit the offence and she aided Noelyn in committing the offence.

22. I accept the evidence of the State witnesses that Lovelyn did in fact hold the hands of Makang in the manner alleged and that this in fact made Makang an easy target for the bamboo wielded by Noelyn. But I am not convinced that Lovelyn did what she did for the purpose of enabling Noelyn to commit the offence of manslaughter. At one point in her examination-in-chief Lovelyn was asked what was in her mind when she was witnessing the fight between Noelyn, Anna and Makang. Her telling reply was 'nothing was in my mind', which I take to mean that she was just witnessing a spontaneous incident that had erupted without her input, which had been fuelled by the earlier incident at the market. I accept that part of Lovelyn's evidence. I find that she did hold Makang's hands but that by doing so she was simply reacting without much thought to an explosive incident, coming to the aid of her cousin Noelyn but also trying to defuse the situation by controlling one of the combatants (Makang). She was not holding on to Makang for the purpose of enabling or aiding Noelyn to kill Makang. I note that in Section 7(1)(c) there is no requirement to prove that an act was done for the purpose of aiding the other person to commit the offence. I regard that as inconsequential. Sections 7(1)(b) and 7(1)(c) are overlapping in the type of acts or omissions to which criminal responsibility attaches. The "for the purpose of" requirement must be read into Section 7(1)(c) in order to give the whole of Section 7(1) a practical and logical operation. I conclude that the State has not proven beyond reasonable doubt that any of the acts committed by Lovelyn Mark were done for the purpose of enabling or aiding Noelyn Anton to commit the crime of manslaughter. She cannot be deemed under Section 7(1) to have taken part in committing the offence of manslaughter or to be guilty of it or any other offence.

CONCLUSION

23. The two elements of manslaughter have been proven against Noelyn Anton: she killed the deceased and did so unlawfully, so she will be convicted as charged. The State has failed to prove its case against Lovelyn Mark and she will be acquitted.

VERDICTS

(1)	Noelyn Anton, having been indicted on a charge of manslaughter under Section 302 of the Criminal Code, is found guilty of manslaughter.

(2)	Lovelyn Mark, having been indicted on a charge of manslaughter under Section 302 of the Criminal Code, is found not guilty of manslaughter and not guilty of any other offence.

Verdicts accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused