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State v Tommy [2014] PGNC 51; N5575 (22 April 2014)

N5575

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 296 & 495 OF 2012

THE STATE

V

SAPIK TOMMY & FIDEL NAMI

Madang: Cannings J
2013: 12, 13, 19, 20 August, 7, 11 November,
2014: 13, 17 February, 22 April

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – elements of the offence – whether the accused killed the deceased – Evidence Act, Section 20 (dying declarations) – circumstantial evidence – whether intention to do grievous bodily harm – Criminal Code, Section 7 – whether second accused enabled or aided first accused to commit the offence.

Two accused were charged with murder following an altercation between a group of men of which they were members and another group of men, which included the deceased. The first accused was charged with murder under Section 300(1)(a) of the Criminal Code. It was alleged that he directly killed the deceased by hitting him on the head with a piece of timber, intending to cause him grievous bodily harm. The second accused was alleged to have enabled and aided the first accused to commit the offence, thus making him guilty of murder under Sections 7(1)(b) and (c) of the Criminal Code. The State's case was built on circumstantial evidence, including a dying declaration by the deceased that the first accused had hit him. The defence of both accused was general denial. It was also claimed that the indictment was defective.

Held:

(1) The indictment was compliant with the Criminal Practice Rules. An indictment for murder does not have to specify the paragraph of Section 300(1) of the Criminal Code on which the charge is based.

(2) There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(3) As to (a), it is not necessary for there to be direct evidence that the accused killed the deceased. Proof that the accused killed the deceased may be constituted by circumstantial evidence, in which case the test to be applied is that the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt.

(4) Evidence of the deceased's statement made soon after the incident was a dying declaration under Section 20 of the Evidence Act as it satisfied the three preconditions for admission into evidence: (a) at the time he made the statement he may be reasonably supposed by the court to have believed that his death was imminent; (b) he would have been a competent witness; and (c) he could, if he had not died, have given direct oral evidence.

(5) The proven facts led reasonably to only one conclusion: that the first accused killed the deceased.

(6) As to the element of intention, the circumstances of the assault (a spontaneous, not planned, incident arising in the course of a group fight, members of each group having consumed substantial quantities of alcohol) and the general nature of the medical report (which suggested that death was caused by a single, heavy blow) meant that an intention on the first accused's part to do grievous bodily harm to the deceased was not proven. The accused was not guilty of murder.

(7) However, the killing of the deceased was unlawful, so the first accused was guilty of manslaughter.

(8) There was insufficient evidence that the second accused deliberately aided or enabled the first accused to kill the deceased, so he was acquitted.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Kutau v The State (2007) SC927
Paulus Pawa v The State [1981] PNGLR 498
Piakali v The State (2004) SC 771
The State v Cain Wosae (2010) N3996
The State v Raphael Kuanande [1994] PNGLR 512

Glossary

The following people and places are referred to in the evidence.

People

Alfred Murusin – the deceased, Bahor resident
Chris Imole – defence witness #4, Bahor resident
Chris Mark – State witness #5, Bahor resident, member of deceased's group
Dr Bobby Wellsh – the doctor who conducted the post-mortem investigation and report
Eddie Philipus – Telikom employee, member of deceased's group
Felicity Saspi – State witness #1, wife of Tony Samuel, sister of Noelyn, Bahor resident
Fidel Nami – second accused, defence witness #2, Bahor resident
Isil Adum – Bahor resident
Jonah Bebe – Bahor resident, did not give evidence, said by State witnesses to have assisted the deceased when he was injured
Mai Adaig – State witness #3, Bahor resident
Mair Kafudi – former accused, Bahor resident, member of accuseds' group
Noelyn Saspi – State witness #2; wife of Chris Mark, sister of Felicity, Bahor resident
Robin Amos – Telikom employee, member of deceased's group
Ruby Kafudi – defence witness #3, Bahor resident
Sapik Tommy – first accused, defence witness #1, Bahor resident
Sau Mair – former accused, Bahor resident, member of accuseds' group
Simon John – Telikom employee, referred to in evidence of Tony Samuel
Tam Manub – member of accuseds' group
Tony Samuel – State witness #4, member of deceased's group, husband of Felicity Saspi

Places

Bahor – village of incident, 12 km from Madang
Begesin – village in the area
Danben – village in the area
Gum – village in the area
Madang – provincial capital

TRIAL

This was the trial of two accused charged with murder.

Counsel

J Morog, for the State
S Tanei, for the first accused
B W Meten, for the second accused

22nd April, 2014

1. CANNINGS J: Sapik Tommy and Fidel Nami are charged with the murder of Alfred Murusin at Bahor village, near Madang town, on Friday 5 November 2010. They have pleaded not guilty so a trial has been conducted. The State alleges that:

• the first accused (Tommy) is guilty of murder under Section 300(1)(a) of the Criminal Code as he directly killed the deceased by hitting him on the head with a piece of timber, intending to cause him grievous bodily harm; and
  
• the second accused (Nami) enabled and aided the first accused to commit the offence, thus making him guilty of murder under Sections 7(1)(b) and 7(1)(c) of the Criminal Code.
  

2. The State's case is built on circumstantial evidence, including a dying declaration by the deceased that the first accused hit him. The defence of both accused is general denial. They concede that someone killed the deceased by hitting him on the head but deny that either of them hit him or had any involvement in his death. It was also claimed that the indictment was defective.

UNDISPUTED FACTS

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

• The deceased was a healthy man, aged 34, who lived at Bahor. He died at Modilon General Hospital on the afternoon of Saturday 6 November 2010 from a head injury he received the night before at Bahor during an altercation between two groups of men.
  
• The post-mortem report, prepared by Dr Bobby Wellsh, recorded the cause of death as "intra-cranial haemorrhage from blunt head trauma". The only significant abnormal finding was that "the deceased had a bleeding left ear".
  
• Both groups of men had been involved before the altercation in drinking sessions in different parts of the village. The length of time each group had been drinking and how much alcohol they had consumed are contentious. But it is agreed that the groups had been drinking for at least two hours each.
  
• The deceased was a member of the group that was in a Dyna truck driven by Chris Mark (State witness #5), a Bahor man who owned and operated his truck as a PMV. Chris Mark employed the deceased as his boss-crew. Other members of this group were:
  
  • ➢ Tony Samuel (State witness #4) who lived at nearby Gum village and worked for Telikom;
    
  • ➢ Tony Samuel's workmates, Eddie Philipus, Robin Amos and Simon John (none of whom gave evidence), who are not from Bahor.
    
• The two accused (Tommy, a villager, aged 23 at the time, and Nami, a schoolteacher, aged about 28 at the time) were in the second group. Other members of this group were:
  
  • ➢ Mair Kafudi, a Bahor man (who did not give evidence) who was also charged with murder under the same indictment as the two accused, however the State presented no evidence against him and he was acquitted;
    
  • ➢ Sau Mair, a Bahor man (who did not give evidence) who was also charged with murder under the same indictment as the two accused, however the State presented no evidence against him and he was acquitted;
    
  • ➢ Tam Manub, a Bahor man (who did not give evidence).
    
• Members of the deceased's group had met each other in town earlier that afternoon. After doing some shopping and attending to other domestic matters they went to Bahor. They began drinking at Chris Mark's house and in the early evening decided to drive to Gum. Mark was driving and the truck proceeded on the road through the village, heading towards the highway.
  
• That route took them past a concrete slab, the site of a demolished building, where the accuseds' group was drinking. The second accused called out "Escort?!" to the deceased's group (meaning do you want me to escort you to where you are going?). This led to a brief, unfriendly exchange of swearing between the two groups.
  
• Mark did not stop the truck and continued driving to Gum, where more beer was purchased, and then returned to Bahor.
  
• He drove a short distance past the accuseds' group on the way to his house, which was further along the road through the village.
  
• Mark then stopped the truck and reversed. It was dark by this time, between 8.00 and 9.00 pm. He drove the truck towards the accuseds' group, stopping in front of them and shining the headlights on them.
  
• Members of the deceased's' group, excluding Mark, got off the truck, approached the accuseds' group and there was a physical and loud verbal altercation: a fight.
  
• There is conflicting evidence about who started and who did what to whom in this fight. But it is agreed that soon after it started the second accused, Nami, threw a dry coconut at the truck, which hit the truck on a body panel, making a loud noise.
  
• The deceased, who was actively involved in the altercation, chased Nami into a dark area of bush behind the concrete slab.
  
• It was in that area that someone hit the deceased over the head with a piece of timber, injuring him, causing him to collapse.
  
• The deceased was, however, able to get up and he managed to walk with the assistance of others to Mark's house, which was not a long distance away, where he lay under the house. He was attended to by Mark's wife, Noelyn Saspi (State witness #2), and her sister Felicity Saspi (State witness #1), who is the wife of Samuel.
  
• The deceased was later that night taken to Modilon General Hospital where he died the next day from the injury he sustained that night at Bahor.
  
• The person(s) who hit the deceased with the piece of timber directly caused his death, ie killed him. There was no intervening cause of death.
  

ISSUES

4. As the defence has argued that the indictment is defective, that will be the first issue to address. If that issue is resolved in favour of the State, the attention of the Court will focus on the first accused, who is alleged to have directly killed the deceased and who would be guilty of murder under Section 300(1)(a) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: ...

if the offender intended to do grievous bodily harm to the person killed or to some other person.

5. The State will have the onus of proving beyond reasonable doubt that the first accused killed the deceased and that he intended to do grievous bodily harm. They are the two elements of the offence. If the court is not satisfied that the first element is proven, an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is satisfied but not the second, an alternative verdict of manslaughter can be considered under Section 539(2).

6. If the first accused is convicted of any offence, the focus will shift to the second accused, who is alleged to have enabled and aided the first accused. The primary issues are:

1. Is the indictment defective? If no, the following issues need to be determined.
   
2. Did the first accused kill the deceased?
   
3. Did he unlawfully do grievous bodily harm to the deceased or commit any other offence?
   
4. Was there an intention to do grievous bodily harm?
   
5. Should an alternative conviction for manslaughter be entered?
   
6. Is the second accused guilty of any offence?
   

1 IS THE INDICTMENT DEFECTIVE?

7. Mr Meten, counsel for the second accused, submitted that the indictment was vague and defective. It relevantly stated:

Sapik Tommy [and] Fidel Nami ... of Bahor village, Madang, Madang Province, stand charged that they on the 5th day of November 2010 at Bahor in Papua New Guinea murdered one Alfred Murusin.

8. Mr Meten submitted that there is no such offence as murder per se. The offence of murder is only committed if an accused kills a person in one of the circumstances prescribed by Section 300(1) (murder) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

9. Mr Meten submitted that the precise circumstance relied on by the State must be charged in the indictment. Only by doing that can the State fairly put to the accused the case against him.

10. Here, the indictment does not state the circumstances on which it is alleged the accused killed the deceased. Mr Meten submitted that the indictment alleges an offence that does not exist in law. The indictment therefore offends against Section 37(2) of the Constitution (protection of the law), which states:

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

11. Mr Meten submitted that the indictment also fails to comply with Section 528(1) (form of indictment) of the Criminal Code, which states:

An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged—

(a) in such a manner; and

(b) with such particulars as to—

(i) the alleged time and place of committing the offence; and

(ii) the person (if any) alleged to be aggrieved; and

(iii) the property (if any) in question,

as is necessary to inform the accused person of the nature of the charge.

12. I reject these submissions for several reasons. First, the challenge to the indictment has been made too late. It should have been made before the accuseds entered their pleas, in accordance with Sections 534 or 567 of the Criminal Code.

13. Section 534 (formal defects) states:

(1) An indictment is not open to objection—

(a) by reason of the designation of any person by a name of office or other descriptive title instead of by his proper name; or

(b) for omitting to state the time at which the offence was committed, unless the time is an essential element of the offence; or

(c) for stating imperfectly the time at which the offence was committed; or

(d) for stating the offence to have been committed on an impossible day, or on a day that never happened or has not yet happened.

(2) An objection to an indictment for a formal defect apparent on its face must be taken by motion to quash the indictment before the accused person pleads to the indictment.

14. Section 567 (demurrer) states:

(1) When an accused person demurs only and does not plead any plea, the court shall hear and determine the matter immediately.

(2) If the demurrer is overruled, the accused person shall be called on to plead to the indictment.

(3) When an accused person pleads and demurs together, it is in the discretion of the court whether the plea or demurrer is first disposed of.

(4) No joinder in demurrer is necessary.

15. Kariko J explained the importance of formally challenging an indictment before arraignment in The State v Cain Wosae (2010) N3996. If the challenge is not made until after the evidence is completed, as in the present case, it will generally be too late as the failure to raise objection to an indictment upon its presentation leads to a presumption that the accused accepts its correctness (Piakali v The State (2004) SC 771). Only if it is realised belatedly that the indictment is obviously defective and that it would be unjust for the Court to consider entering a conviction based on it should such a late objection, as in the present case, be entertained. This indictment, however, is not defective.

16. The indictment does not offend against Section 37(2) of the Constitution as it charges the accused with committing the offence of murder, which is an offence defined by a written law, Section 300(1) of the Criminal Code. Nor does it offend against Section 528(1) of the Criminal Code. It sets forth the offence with which the accused is charged in such a manner and with such particulars as to the alleged time and place of committing the offence (5 November 2011 at Bahor) and the person against whom the offence was committed (the deceased) as is necessary to inform the accused of the nature of the charge.

17. The indictment is compliant with the Criminal Practice Rules 1987. The combined effect of Order 3, Rules 1, 2 and 3, Form 1 of the First Schedule and Section 190 of the Second Schedule is that an indictment for murder does not have to specify the paragraph of Section 300(1) of the Criminal Code on which the charge is based. The charge must be drafted in simple terms: the accused "murdered" the deceased, and nothing more.

18. It was clear at the outset of this trial that the first accused was charged under Section 300(1)(a) and that the second accused was charged under Section 7(1)(b) of the Criminal Code. There was no procedural irregularity or unfairness in the way that they were charged. The indictment is not defective.

2 DID THE FIRST ACCUSED KILL THE DECEASED?

19. 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

20. Five witnesses gave evidence for the State, as summarised in the following table.

21. Seven exhibits were admitted into evidence by consent:

• The record of interview of each accused (exhibits P1A, P1B, P2A and P2B): each exercised his right to remain silent.
  
• A post-mortem report and medical certificate of death (exhibits P3 and P4) by Dr Bobby Wellsh of Modilon General Hospital. The cause of death was reported as "Intra-cranial haemorrhage from blunt head trauma". It was noted that "at the time of the post-mortem the deceased had a bleeding left ear. No other findings were detected on full physical examination".
  
• The piece of timber identified by State witness No 4, Tony Samuel (exhibit P5): described as being 4 inches x 2 inches, 2.21 metres long, sawn timber.
  
• A sketch map of the scene of the incident (exhibit P6).
  
• A statement by the Police investigating officer, Sgt Ray Ban, as to the steps taken during the police investigation (exhibit P7).
  

Evidence for the defence

22. Four witnesses gave evidence for the defence, as summarised in the following table.

Did the first accused kill the deceased?

Circumstantial evidence

23. It is the State's case that Sapik Tommy killed the deceased by hitting him with a piece of timber, exhibit P5. The State has no direct evidence to support this proposition. Its case is built on circumstantial evidence, which means, as explained by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
  

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

• do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.
  

Assessment of witnesses

25. Before setting out what I regard as proven facts I make the following general comments on the witnesses and their evidence. Putting aside for a moment the evidence of Tony Samuel (as he is the person who the defence says killed the deceased) I thought the overall quality of the evidence of the State witnesses was good.

26. Felicity Saspi was an impressive witness, as was her sister Noelyn Saspi. I accept their account of how the deceased, obviously badly injured, was brought to Noelyn's house and how they looked after him and most significantly what he said when he was asked what happened to him.

27. Mai Adaig was also impressive. I regard him as an independent witness. He was not a member of either of the drinking groups and I consider he gave a truthful account of the things he observed. He identified Sapik Tommy as being present near the spot that the deceased was found lying on the ground.

28. Chris Mark was a good witness. He is a senior member of the village community by virtue of being a businessman, a PMV owner-operator. He was the leader of his group. He is the one who reported the incident to the Police. He was close to the deceased who was his relative and employee. He is related to the two accused. He has an interest in seeing that justice is done and that the person(s) responsible for the death of the deceased are dealt with according to law.

29. In fact the same comment applies to the other State witnesses, apart from Tony Samuel: they are local people, they are related to the deceased and to the accused, they had no motive to give false evidence.

30. As to Tony Samuel, it was put to him in cross-examination that he was the one who killed the deceased and that he had done this accidentally as he was drunk and he got a piece of timber to use in the fight but got confused when he was running after Fidel Nami, the deceased and Mai Adaig in the dark area. I thought he adequately responded to this allegation: he had been drinking but was not so drunk that he would hit Alfred (his friend, who was on his side of the fight) either deliberately or by mistake.

31. By contrast, the defence witnesses were not convincing. Both accused tried too hard to distance themselves from all involvement in the fight. Their demeanour in the witness box was poor. Ruby Kafudi was unimpressive. Chris Imole's evidence was unbelievable. He said that he saw Tony Samuel strike the deceased with a piece of timber. But if he was there and saw what happened, why wasn't this information given to the Police? He said he did tell the Police but could not remember the name of the officer. This is too incredible a story to be true. I reject his evidence completely. I find that Tony Samuel did not strike the deceased.

Proven facts

32. I determine that the proven facts are as follows:

• Fidel Nami threw dry coconuts at Chris Mark's group, which led to the deceased Alfred Murusin chasing Fidel Nami into a dark area.
  
• Mai Adaig ran after Alfred, and Tony Samuel ran after Mai.
  
• Mai Adaig came upon Alfred who was lying on the ground. Next to him was a piece of timber, exhibit P5.
  
• Mai Adaig continued running past the spot where Alfred was lying. He saw Sapik Tommy close to that spot and called out his name. Sapik turned around, looked at him but did not say anything and ran away.
  
• Tony Samuel came upon the spot where the deceased was lying. Another person, Isil Adum, was there and they both helped Alfred get up and he was taken to Chris Mark's house.
  
• Alfred was lying down face-up, underneath Chris Mark's house, being cared for by Felicity Saspi and Noelyn Saspi. He was obviously badly injured. He was clutching his head. Noelyn asked who fought him and he replied: "Mi ronim Fidel i go na Sapik paitim mi" ("I chased Fidel and Sapik hit me").
  

The deceased's statement

33. The statement made by the deceased is admissible evidence as it satisfies the requirements of a dying declaration under Section 20 of the Evidence Act, which states:

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and

(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

34. I find that (a) at the time he made the statement the deceased may be reasonably supposed to have believed that his death was imminent; (b) he would have been a competent witness; and (c) he could, if he had not died, have given direct oral evidence (Kutau v The State (2007) SC927).

35. The dying declaration is a critical piece of evidence. I am satisfied that the two State witnesses who testified that that is what the deceased said, gave a truthful account of what he said. I find that the deceased actually said those words. There is no reason to regard what the deceased said as a false allegation. I find that it is a proven fact that the deceased genuinely believed and alleged that the person who hit him was Sapik Tommy.

Other critical fact

36. The other critical fact, based on the evidence of Mai Adaig, who has been assessed as an impressive witness, is that Sapik Tommy was observed behaving suspiciously in the immediate vicinity of where the deceased was lying on the ground, soon after the deceased was struck.

Do the proven facts lead to only one conclusion?

37. I consider that according to the principles in the Pawa's case those proven facts, particularly the two that have been highlighted (the dying declaration and the fact that Sapik Tommy was in the vicinity of the spot where the deceased had been hit) are inconsistent with any reasonable hypothesis other than that Sapik Tommy was the person who struck the deceased and was the person who killed him; and that hypothesis is the only rational inference that can be drawn.

38. According to the principles in David's case the proven facts lead reasonably to only one conclusion: that Sapik Tommy killed the deceased.

39. The defence counsel, Mr Tanei and Mr Meten, submitted that it was not open to the court to draw such a conclusion as there were other hypotheses available: that the person responsible for the death was Tony Samuel or perhaps Isil Adum (who was not called as a witness). I agree that it was desirable for Isil Adum to be called. However, it was also open to the defence to summon him to give evidence. The burden of proving the case against the accused beyond reasonable doubt never shifted from the State and the Court can only work on the evidence that is put before it.

Conclusion

40. The State has discharged the burden of proving beyond reasonable doubt that Sapik Tommy killed the deceased.

3 DID THE FIRST ACCUSED UNLAWFULLY DO GRIEVOUS BODILY HARM OR COMMIT ANY SIMILAR OFFENCE?

41. It is unnecessary to address this question in view of the finding that the first accused killed the deceased.

4. WAS THERE AN INTENTION TO DO GRIEVOUS BODILY HARM?
   

42. It is at this point of a murder trial that the Court is required to consider the accused's state of mind at the time that he acted (The State v Raphael Kuanande [1994] PNGLR 512). I find that the accused, having been a member of a group of men who had been drinking alcohol for a number of hours, and getting involved in a fight with another group of men who had also been drinking for some hours, was drunk. But the evidence suggests that he was not so drunk as to be completely out of his mind or incapable of forming an intention to do grievous bodily harm.

43. The medical evidence suggests that the deceased died due to a heavy ("blunt injury trauma") blow to the head. There is no evidence that there were multiple blows. It was a severe blow and it is reasonable to infer from its force – it was strong enough to kill – that the accused must have intended to do grievous bodily harm.

44. However, I don't think that is the only reasonable inference that can be drawn. It might be that the accused swung the timber at another part of the body. The deceased, who was also drunk, might have moved suddenly into the path of the timber. The accused is entitled to the benefit of the doubt on this issue. The State has not proven beyond reasonable doubt that there was an intention to do grievous bodily harm. The second element of murder is unproven.

5 SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

45. The court now has to consider whether an alternative verdict of manslaughter should be entered in light of Section 539(2) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

46. Section 302 (manslaughter) 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.

47. Manslaughter has two elements:

• kill another person;
• Unlawfully.
  

48. The first element has been proven. As to the second, Section 289 states:

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

49. No specific defence such as self-defence or accident has been raised, and none is available on the evidence. The killing of the deceased was not authorised, justified or excused by law, and the second element is proven. Therefore the first accused will be convicted of manslaughter.

6 IS THE SECOND ACCUSED GUILTY OF ANY OFFENCE?

50. The criminal liability of the second accused, Fidel Nami, 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.

51. The State's case against the second accused is based on Sections 7(1)(b) and 7(1)(c): he did acts (throwing the coconuts and luring the deceased into the dark area so that he could be attacked by Sapik Tommy) for the purpose of enabling or aiding Sapik Tommy to commit the offence and he aided Sapik Tommy in committing the offence.

52. I think this is a weak case. This was a fight. Things were happening quickly, spontaneously. I am not convinced that the second accused threw the coconuts for the purpose of luring the deceased into the dark. He might have thrown them in order to break up the fight. He might have thrown them in anger. He might have been trying to hit the deceased or his friends. It is too hard to say. There is insufficient evidence that the second accused deliberately aided or enabled the first accused to kill the deceased. He must be found not guilty.

CONCLUSION

53. Only one of the elements of murder – the killing of the deceased – has been proven against the first accused. However both elements of manslaughter have been proven. The State has failed to prove its case against the second accused and he will be acquitted.

VERDICTS

54. Sapik Tommy, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder but guilty of manslaughter under Section 302 of the Criminal Code.

55. Fidel Nami, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found not guilty of murder and not guilty of any other offence.

Verdicts accordingly.
_____________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the first accused
Meten Lawyers: Lawyers for the second accused