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State v Nulai [2017] PGNC 268; N6932 (6 October 2017)

N6932

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR 1330 of 2014

THE STATE

V

JOHN NULAI

Kimbe: Miviri AJ

2017 : 14^th, 15^th, 18^th & 21^st September

6^th October

CRIMINAL LAW - Practice and procedure - Witnesses - Hostile witnesses – preliminary grounds – declaration hostile – evidence effect of - Intimation to court of prior inconsistent statement - Judge not prevented from hearing - No injustice to accused.

CRIMINAL LAW - Practice and procedure-trial-S299 wilful murder-credibility of principle eye witness-circumstantial - child witness-corroboration matter of practise-veracity of truth-witnesses independent of principle-ring of truth - credible-corroboration-no intent to kill-intent to do GBH-guilty of murder.

Facts

The Accused beat up his wife. She sustained internal injuries from which she later died. He intended to kill her and killed her.

Held

6 year old child witness corroborated.
Defendant assaulted wife
No intent to kill
Intent to cause GBH
Guilty of murder

Cases cited:

Jaminan v The State [1983] PNGLR 318
Morikawa v The State [2000] SC656
Nawa and Yakola v The State [1991] PNGLR 76
Pawa v The State [1981] PNGLR 498

Counsel:

L. Rangan, for the State
B. Popeu, for the Defendants

VERDICT
06^th October, 2017

1. MIVIRI AJ: After trial this is the verdict of a man who assaulted his wife repeatedly causing internal injuries from which she died.
   

Background Facts

2. John Nulai suspected his wife over allegation of infidelity and fought her in their Kumbango home on the morning of the 5^th July 2014. She suffered grievous internal injuries from which she died. He had intended to kill her.
   

Charge

3. The state indicted him under section 299 of the Criminal Code, that he had unlawfully intended to kill her and did kill her. The elements it had to prove were: (1) a person, (2) unlawfully, (3) Kills another person (4) intending to cause the death.
   

Admitted evidence proven facts

4. It is undisputed that on the 5^th July 2014, Julie Nulai had died because her heart and lungs had stopped because she had a fracture of the sternum or the breast bone which had bleeding leading to collection of blood within. Her medical certificate of death dated the 10^th July 2014 by Doctor Charles Magoeiga marked as exhibit S7B and Exhibits S7 the medical affidavit dated the 10^th June 2014 by the Doctor attaching Exhibit S7A the report on post mortem examination dated the 8^th June 2014 were all tendered by consent before the court; including the record of interview of the accused Exhibit S6A pidgin original and exhibit S6B the English translation conducted the 5^th August 2014 containing no admission except election by the accused to tell his story to court electing not to sign it. Exhibit S5 was the statement of the arresting officer Philipus Pusco Orep on the conduct of the record of interview, together with Exhibit S8 was the statement of the corroborating police officer Peter Mirio.
   

Issue

5. What caused the death of Julie Nulai? Was there intent to kill or not, if not what verdict was open?
   

State Evidence

6. Shallon Nulai the eldest child of the union between the deceased Julie Nulai and the accused John Nulai was with both at the time of the allegation. Initially she made an affidavit to police which incriminated the accused that he assaulted her mother leading to death. I observed her give evidence before me and deduced that she did understood what it meant to tell the truth there and now. She gave evidence in fluent tokpisin she was affluent, very responsive, and appeared well canvassed as to the events of that day 5^th July 2014 and also why she was before the court to tell the truth. She said because she could not write then she was given a pen to tick after making her story, and she identified the tick as one she made before the police. Given the veracity of what she gave out of court to police and the disclaimer in court, it was of importance that there was corroboration to verify the truth.
   
7. The state tendered as exhibit S1 her affidavit in English recounting events of the date of the allegation 5^th July 2014 at 9.00am my parents had an argument in the course of which father beat mother, bumping her head on the wall kicking her head, leg and face. When she struggled to escape he dragged her with force assaulting her. I rushed with tears to Boken’s house and told his wife, Boken shouted at her father to stop fighting. Terry Molit Sister in Charge nurse came and went inside the house and checked mother who was in a critical condition, the body was covered all over in blood. I went and informed my uncle about the incident and the ambulance and security guards came and transported the body to the clinic with father. Later I heard that mother had died. She also stated that father had beaten his second wife to her death in 2010. Her name is Lucy and she is from Simbu. And we were together at Kumbango mill when he killed her. He was in police custody then came back and assaulted mother to her death. I consider this excerpt of the allegation of the death of Lucy not relevant to the present indictment and will by law not treat it in any way for the purposes of the present case.
   
8. In cross examination she gave evidence that her father the accused had run out chased by the deceased her mother who was armed with a knife to stab him. She fell down from the veranda and hit her head on the stones set next to the veranda and did not wake up. She helped her father pour water on her to revive her and to bring her into the house after that. Then her father went to the mess rang for an ambulance which came and took them to the hospital. She said the story that she gave to the police initially was not true as it was told to her by her mother’s relatives one Steven, her small mother Nawi, and other mother Julie who wanted her father to be locked away. That the true story was the one she told in court not the initial story to police. She was adamant and explained that what she told the court was the truth and not the original version to Police.
   
9. This posed as to how I should treat her evidence in the light of the facts set out above.The case on point given is Morikawa v The State [2000] SC656, where the court had this to say:\
   

“In the absence of any statutory provision and case law on the point, in our jurisdiction, I see no reason why we should not adopt the common law rule re-stated in Hargan v. R (supra) as part of the underlying law for the reason that the reliability of the evidence of a child is always a matter of concern for the Court. As a matter of practice, the warning is necessary in all cases in which a judge is contemplating convicting an accused on the uncorroborated evidence of a child of tender years, to show that the judge has addressed his mind to the dangers of convicting on the evidence of the child, and that it is safe to convict on the uncorroborated evidence of the child if the evidence is "very cogent indeed" and "convincing" and the Court is satisfied that the child is telling the truth.”

10. The facts of the present case are similar Shallon Nulai is the first born daughter of the accused and the deceased. She is 8 years old now, but was 6 years old at the time when the mother Julie Nulai died. She is not an independent witness being the daughter of both accused and deceased. She has also being declared hostile because of the fact that she has changed her initial story to police of incriminating the accused to now not incriminating him. Here in accordance with Jaminan v The State [1983] PNGLR 318 and also sections 21, 22, and 23 of the Evidence Act 1975, the State prosecutor had alerted the court to this and set in place preliminary examination of the witness and on that basis sought to have her declared hostile. That was granted having satisfied myself on the basis of the preliminary material that she be declared hostile and examined on her initial affidavit Exhibit S1 made to police dated at Kimbe the 19^th Tuesday July 2014. Because this was not likened to the situation in Nawa and Yakola, The State v [1991] PNGLR 76 where the principle witness was threatened, enticed and forced to make the statement to Police. His statement was not brought before the court. So as to have him declared hostile and cross examined. The court also considered sections 22 and 23 of the Evidence Act holding that it was not necessary to have the witness declared hostile and to be cross examined.
    
11. I am satisfied that that is not the case here and so have ruled in favour that the application to declare hostile Shallon Nulai be granted she be cross examined on her affidavit Exhibit S1 to Police. And I have set out the particulars of her evidence illuminated above in this judgement suffice to say she did not incriminate as she previously did in the initial affidavit. It is therefore important to serve justice and its interest both for the state and the accused that there be corroboration of her assertions now. In Morikawa (supra) appellant appealed against his conviction arguing that reliance on the evidence of his 6 year old daughter to convict him without corroboration of her evidence was an error of law and therefore the conviction could not stand against him. The court held that although corroboration was not required as a matter of law, it was good practise and should be adopted as part of the underlying law and followed. In so applying it considered that there was corroboration of the evidence from the medical report that was before the court. There was nothing in her evidence that vitiated the truth that she told and accordingly affirmed the conviction and the sentence passed dismissing the appeal. I will canvass the application of the law here as I go through the course of this judgement.
    
12. Next prosecution witness was Detective Senior Constable Kingsford Mahuvu who was with criminal investigation for 22 years. He was the officer in charge of Kimbe serious crimes squad. He had served 15 years in Kimbe CID before he resigned to join the Kimbe Urban Local level Government as a Rules Inspector now for only a month and a half. On the 5^th July 2014 he reported on duty at about 7.00am to 7.45am. This was the very day of the murder reported to me at the police Station by Mosa Security. They reported that a couple fought and the husband had killed the wife. They came in a NBPOL security vehicle. I took the initial complaint and made entry into the Occurrence Book (OB).Then I got on that security vehicle, as ours was not in and attended at Mosa Clinic where the body had been taken for medical treatment. She was already declared dead so I asked for the covering on the body to be removed. I viewed only the face which was swollen and the neck. Her clothing were stained with blood. At that time I never assumed nor presumed that she was assaulted by the husband until I attended the crime scene. I asked the medical personal there to take the body in the ambulance to Kimbe. I proceeded to the scene which was already condoned off fenced off by security personal so I was the first person into the house the scene and no other person when I attended with my camera. This was still on the morning of the killing. I smelt very strong stench of urine and observed that there was blood spilled all over the floor including the bed sheets and several clothing and spoon. I found the boot which could have been used to kick the woman concealed exhibit S4 at the back of the door where I have indicated with a star in the sketch plan Exhibit S2 that I personally drew. On the heel and sole there was blood and dirty clothes were thrown over it as if to conceal it. Clothes which immediately touched the boots had blood on them. There were no blood on the clothes immediately up. I was of the view that there may have been a very big struggle in the fight and she could have been kicked. I also found a twisted spoon with saliva and blood; I believe it may have been used to force open her mouth in an attempt to get her breathing again. There was no blood outside the house but inside the door as cut off point of the blood. It was entirely inside the sleeping area in an open cubicle. I did a sketch Exhibit S2 indicating three spots were blood clots were heavy bleeding bigger on the sheet there was urine and blood stench from it. The boot was at the door fridge on left side and boots on right where star is. What is on is a printing error. Small Square is the fridge. I took seven photographs Exhibit S3A, blood clot on the floor she urinated so much there was no water reddish is exactly blood mixed with urine, 3B spoon with blood and saliva twisted, 3C bed sheets soaked with blood, 3D floor with blood clots, 3E blood spilled on mattress floor adjacent also with blood, 3F clothes with blood, 3G right side of boots with blood stain used possibly to kick the deceased with. I do not opinion that she fell as I found the boot located at the back she could have been booted from the face and the body. And the boot was concealed behind the back of the door and clothing immediate which was placed on top of the boots which had blood on them dripping from the boots. The others which were atop did not have blood so it was an attempt to conceal the boots that were used in the fight. It could have been used to kick the woman with. And in the room there was very strong stench of urine mixed with blood. There was no water on the small veranda. From my observation there I believe she was booted and that there was a big fight there. As there was blood everywhere in the house and blood spit across the floor. And she may have rolled as the smell of urine was so big and blood was spilled across whole room. As depicted in the photographs there were no gaps in the flooring of the house. The accused had already been taken away by the Mosa Security personal. I handed everything over to the investigator Constable Pusco the next day the 7^th July 2014. I merely attended the crime scene everything else was done by the arresting officer, including obtaining statements.
    
13. Next prosecution witness was Andrew Mangel from Watom Island, East New Britain Province. He worked with NBPOL at Mosa as mill process operator processing the oil, and had worked with NBPOL for 7 years now. I have come to witness John Nulai’s case points accused in dock. The case is about the killing of his wife. It was on the 5^th July 2014 at Kumbango oil mill compound at 9.00am. I was at home with my family outside drinking tea at that time. My house is (the witness box) John’s house will be where the road is a distance of about 50 meters apart. I heard John Nulai’s small daughter shouting and running around the house. I ran out to see what happened. When I ran there at the veranda looking in I saw the lady sleeping lying on the floor inside the house. I told security supervisor Joseph Silis and informed him that John belted his wife and she is sleeping inside the house she is injured. I ran back to John’s house and stood outside on the veranda side. I heard the small daughter Shallom the same one who gave evidence and has just gone out of court now, of John Nulai shouting and crying, “Papa paitim mama na mama kisim bagarap na slip inside house” interpreted, “father has assaulted mother and she has received serious injuries and is sleeping inside the house”. I knew they needed help so I ran there. Julie Nulai was seriously injured. I assumed John Nulai had assaulted her he was the only one there. I told the security supervisor John belted his wife because I heard the daughter say dad belted mother and she was injured sleeping in the house, I came and saw her sleeping inside the house I went and told the security supervisor. I was standing at the veranda but it was not wet there, it was wet inside the house like pouring water there. My house is the same plan as that lived by John Nulai. It is a DLQH house the post is 2 meters high. I was at the side on the ground and looked through veranda into inside of the house. The steps into the house are made of cement at the base on the ground there were long bricks. When I first arrived and saw her lying on the ground John Nulai was standing at the side inside the house at the side of the door. I did not talk to him. I saw blood on the floor and on her mouth apart from seeing that they had poured water on her. Shallon Nulai was outside on the veranda side on the ground. On the veranda of John Nulai’s house there was no part used for sleeping. From veranda a door had to be opened to go into the house. There is a door in the middle and there is another room at the back, there are two rooms in the house. I saw the mother lying injured on the floor. She was still there when I reported to the security and returned. The security supervisor Joseph Sili asked us to remain outside and he went inside the house. He rang the ambulance it came got the body and went to Mosa Clinic. I did not see how they fought. But it is company policy that if there is a wrong committed we should report the matter to the company. I reported him for being drunk at work so company can deal with him.
    
14. Next witness was Boken Yanga originally from Aseki, Morobe Province employed by NBPOL as mill processor at Kumbango. I worked in the night the incident happened Saturday morning. I came back from work and was asleep; the husband John Nulai sitting over there pointing out the accused assaulted his wife. On the 5^th July 2014 when I woke up the lady was already dead and they took her out of the house. We shared the same house wall separating us he was on the other side and I was on the other side. I heard the guy beating the lady but I did not see with my own eyes. She was shouting aloud as he was beating her. I was asleep and they were disturbing. I heard John Nulai asking, you were at the block and you went and stayed at block what happened tell me now. And the deceased did not ask for money. And then she called out, “My chest my chest in pidgin; bros bilong mi ah bros bilong mi ah” and I did not hear anything after that. This was inside the house. I woke up at about 8.30am. When I came out people had gathered outside the house. I looked to John Nulai’s veranda and they brought the lady out as I was standing and looking on. The people who took her out were the nurse and the securities of the company Mosa. They all got on the ambulance and went. The body was brought straight to the ambulance it was not laid on the veranda. We usually argue over our children excreting in our side of the house. The company gave us the house it roomed it we were allocated it. I gave the same story to police he hit her on her chest. I was on my bed I heard what was being said my ears could hear what was said. He must have placed his boot on her chest.
    
15. The arresting officer Detective Constable Pusco Orep Criminal investigation division, Kimbe Police gave evidence that he was 5 years experience as an investigator starting early 2013. He confirmed Exhibit S5 as his statement. The crime scene was attended to by Detective Senior Constable Kingsford Mahuve.The small girl Shallon Nulai came to the office brought by step mother third wife of accused Anna Nulai and uncles from mother’s side. When statement was obtained she was 6 years old. And here there was no certification clause similar to the one witness made in Exhibit S5. And he confirmed that he had to type it and then get it signed some days later. It was an affidavit as opposed to a police statement.
    
16. Next prosecution witness Doctor Lawrence Warangi whose qualifications were MBBS (UPNG) Masters degree in surgery (UPNG), chief surgeon of Kimbe General Hospital, working as a medical doctor for 39 years. He had done a lot of post mortems and autopsies. The state had called him to give evidence on the explanation of medical terms used in the medical report evidence before court in place of the doctor who initially conducted who was now in Lae Angau Memorial Hospital. The medical evidence being business records within the Evidence Act and the doctor from that hospital to explain its report to court in particular the medical terms.
    
17. Fracture is discontinuation of a bone. Sternum is the breast bone anchored by the rib cage; Sternum fracture is fracture of the sternum bone. Haematoma is collection of blood old clotted blood. Clotted blood can be dried up or liquid. Mediastinum compartment within chest wall compartment within the chest wall and the heart there was collection of clotted blood. Aorta large vein takes blood away from the heart. Collection of blood between the sternum and the heart. The sternum is a very difficult bone to fracture and mild force cannot fracture it. It would need a huge force or a blunt object to cause it to fracture. Blunt object is not sharp and cannot pierce the body of a human being. The death here is related to trauma not the enlarged organs such as the liver and the spleen.
    
18. Medical certificate of death by Doctor Charles Magoella was that the heart and lung had stopped functioning because there was blood clot within and the heart could not pump clotted blood. There were no associated injuries from protective reflexes such as a fracture or bruises on the lower and upper lip in the case of a fall by the deceased.
    

Defence case

19. John Nulai gave sworn evidence in defence. He was originally from Ganike village, Kerowagi, Simbu Province employed with Mosa as operator residing at Kumbango. He was married to the deceased with three children Shallon 10 years, Steven 7 years, and the last one Kawale 4 years old. The house where he lived had a veranda which height was 1.5 meters and there were total of three steps made of solid cement up to the veranda. And he had placed cement slabs to make a foot path leading to the steps. He recalled the 5^th July 2014 a Saturday at about 6.00 am to 9.00am deceased asked for money to help her brother. He refused to help stating that he should help himself by cutting oil palm for money. Deceased ran into house took a knife and attempted to stab him. He ran out to where the veranda was and jumped onto the ground, and ran onto the road as the deceased attempted to stab, she missed and her weight forced her to fall down and hit her head on the cement blocks below and died. Upon seeing this he came back lifted her up with 6 year old daughter Shallon and both carried her into the veranda room, washed her there and he went off to look for ambulance and to take her to hospital at Mosa. The ambulance came to the house took the deceased to the hospital at Mosa where a drip was administered. The security came and took him into the security vehicle and to the police station.
    

Incredibility Defence evidence

20. Deceased was fat and off balanced as she tried to stab him and fell to the ground. He did not see how she landed he was running away and on the road. Where he turned around to see Shallon their daughter was attending to her because she was on the ground. Without caution he turned back to her to attend to her. He held her around the mid rift area whilst Shallon carried her head and both moved deceased into the veranda room where it was their bedroom. Because deceased had just chased him with a knife in an attempt to stab him common sense dictated that he would not just approach her but would do so with caution, as she may have played dead to get up and to stab him. It would then allow for the bleeding from the mouth to go onto the cement and the steps where she fell. And because she was a fat woman he the only adult with his 6 year old daughter would have taken time to move her body into the room because of her weight. In that process there would have been blood spilling out from the mouth onto the cement where she initially fell leading as both carried her up into the room where she was finally laid down. By nature blood trail would lead in there was none here. And Kingsford Mahuvu who attended the scene immediately after did not see any blood as accused contended. There was never any fall on the veranda because of Julie chasing him with a knife. Because there was no knife tendered in as the knife used to chase him with by the deceased. Further there were no defensive injuries on the hand showing that she indeed had fallen as he described. And from which there would have been blood. He did not give any evidence as to why he did not leave her where she fell with the knife in her hand or near her to show what he was telling the court.
    

Analysis of Evidence

21. What Sallon Nulai told police initially Exhibit S1 was closer in time to the 5^th July 2014. She was a child then of 6 years she told the truth. Because it is common sense and logic that events that have just happened are fresh in the mind and do not wither and decay. She is now 10 years old it is 3 years 2 months since 5^th July 2014. I adopt and apply the case of Morikawa (supra) that her evidence must be corroborated because both the deceased and the accused are her natural parents. Julie Nulai her mother is dead and her father accused is facing a very serious charge with serious consequences attaching. She would lean to circumstances favourable to her situation given. And she has two competing versions of her evidence and has been declared hostile and cross examined on both. Her credibility as a witness is questionable in view, and therefore it is important to establish which of the versions that she has given is the more credible and the truth viewed with all other evidence led. She has not discussed her evidence with any of the other state witnesses called. There is no evidence to this effect. All have come independently before the court to testify as to what they each observed from where they were in respect of the allegation.
    
22. Andrew Mangel is not an immediate relative nor is he as the defence counsel wanted the court to believe, a witness with vengeance or revenge in mind when he gave evidence. A wrong is a wrong and a company employee be it this witness or any other has a duty to report it to put an end to it. So reporting the accused for being drunk or effected by alcohol and going about his duties was genuine as the repercussion to company property and all at large was immense, so it did not make him a witness with motive to tell against the accused. I reject that assertion as not effecting the truth and veracity of his evidence before me. I find him as a witness of truth, he did not add or subtract to his evidence he merely told the truth as it unfolded before him. He was not for the deceased or the accused. He merely came to assist the court with the truth as he saw it.
    
23. He heard from his house a distance of 50 meters, Shallon Nulai crying and shouting out, Papa paitim mama na mama kisim bagarap na slip inside house” meaning, “father has assaulted mother and she has received serious injuries and is sleeping inside the house.” That would be consistent and verifies what Shallon Nulai has initially told the police in Exhibit S1. He makes an independent observation that he verifies upon attendance at the house of John Nulai of seeing Julie Nulai seriously injured blood on her mouth and in the room with water poured on her and on the floor. He sees no water outside on the veranda. She is inside the house in the room not on the veranda. He draws the matter to the security supervisor Joseph Sili who arranges so that ambulance comes to the house picks up the body from inside the house not on the veranda. And the Security supervisor seals off the house and scene presumably for police. This is consistent with the evidence of Shallon Nulai initially given. And also with the evidence of Kingsford Mahuvu.
    
24. Then there is the evidence of Boken Yanga who says he heard John Nulai asking his wife Julie Nulai, you were at the block and you went and stayed at block what happened tell me now. And then he heard “My chest my chest” in pidgin, “bros bilong mi ah bros biling mi ah”by Julie Nulai separated by the wall He must have placed his boot on her chest opinions this witness. Again this is consistent with the evidence Exhibit S1 of the beatings administered with his leg seen by Shallon Nulai of her father the accused upon the deceased her mother. Each witness is at their respective location not adding or subtracting to the evidence but simply recounting as it occurred to them each. I am not convinced that Boken Yanga is a witness with motive to get back at John Nulai as the defence would want court to believe. If so he would have added to his evidence to tailor conviction upon the accused. He has not done that he has simply given the truth as it occurred to him even to admitting with honesty that he argued with accused over the fact that their children were excreting on his side of the house. And he regarded him as his enemy it did not add to exterminate him as a witness of the truth. His evidence is also corroborated by another witness also at another location Andrew Mangel. There is consistency and there is ring of truth in his evidence. I do not doubt the veracity of his evidence. Because of his location and what he observed stating there was a wall and he merely heard and did not see.
    
25. Detective senior Constable Kingsford Mahuvu has seen the scene at the house and collected evidence from there immediately after the death on the morning of the 5^th July 2014. He is the first criminal investigation officer to the scene condoned off purposely for his attendance. From my observation there I believe she was booted and that there was a big fight there. As there was blood everywhere in the house and blood spit across the floor. And she may have rolled as the smell of urine was so big and blood was spilled across the whole room. As depicted in the photographs there were no gaps in the flooring of the house. The blood stained boots was concealed amongst clothes thrown over it behind the door. And attempt made to revive her with the blood stained spoon twisted found at the scene. His evidence corroborates in all material particulars the evidence of Shallon Nulai initially given to police. A child rarely lies and may do so because an adult imposes a particular line of thought as is the case here borne out by the independent evidence that corroborate what is the truth on that day the 5^th July 2014 when Julie Nulai died. The body of Julie Nulai underwent heavy beating within the room where the blood was and that is the place where Shallon Nulai saw her mother being beaten by her father her initial evidence to the police. And where she cries out in pidgin that her father has beaten her mother to an extent were she is seriously injured and lying in the room, as heard by Andrew Mangel.
    
26. It is also very important to note the evidence of utterance by Julie Nulai heard by Boken Yanga who says he heard John Nulai asking his wife Julie Nulai, “you were at the block and you went and stayed at the block what happened tell me now”. And then he hears “My chest my chest” in pidgin, “bros bilong mi ah bros biling mi ah”by Julie Nulai separated by the wall. This is borne out by the medical evidence, Exhibit S7, S7A and S7B which I have set out above collectively the sternum was fractured. The doctor was not at the scene where the assault was taking place nor was Boken Yanga or Andrew Mangel. All are independent corroboration of the account of Shallon Nulai.
    
27. These four witnesses are further corroborated by the evidence of Doctor Lawrence Warangi MBBS (UPNG) Masters degree in surgery chief surgeon of Kimbe General Hospital working as a medical doctor for 39 years expert witness with vast experience in post mortems and autopsies medical evidence explaining that the cause of death is from fractured sternum with blood which has clotted that the heart cannot pump and so its stoppage collapsing the lung as well leading to death.
    
28. The doctor is an independent expert in his professional field not related to the state or the defence. He is merely giving evidence as he saw it unfold from his profession as a doctor qualified experienced in that field of science in medicine. His evidence corroborates in all material particulars that of Shallon Nulai, Kingsford Mahuvu, Andrew Mangel and Boken Yanga all for the prosecution.
29. Consequently it sets out that Julie Nulai never sustained a fall nor did she chase the accused with a knife. That knife is not before the court. There is no water on the veranda where accused poured over Julie Nulai to revive her. There is no evidence before me led as to why it is not there when the scene is condoned off and attended to by police. There is no blood where she fell and got herself injured from the veranda down to the cement. Viewed in total both prosecution as well as the defence it is against the weight of the evidence that the deceased had never chased the accused with a knife trying to stab him but fell injuring herself and dying therefrom. Accordingly I am led to make the following findings of fact on the evidence.
    

Findings of Fact

30. I find as a fact that the child witness Shallon Nulai told the truth in the Exhibit S1 which is corroborated by all the State evidence and the lies of the accused. And that what she told the court is not the truth for the reasons I set out above.
    
31. I find as a fact that the accused has deliberately lied to the court that the deceased was chasing him with a knife, fell and injured herself from which she died.
    
32. I find as a fact that the accused had assaulted his wife because she did not give a satisfactory answer as to what she was doing at the block by kicking her with the boot exhibit S4 in the chest area that is why she cried out, “My chest my chest” in pidgin, “bros bilong mi ah bros biling mi ah” heard by Boken Yanga.
    
33. And I find as a fact that that caused the breast bone or the sternum to fracture to cause internal bleeding and blood clot subsequently causing a collapse of the heart and the lung leading to the death of Julie Nulai.
    
34. I find as a fact that this was grievous bodily injury caused upon Julie Nulai directly by the assault inflicted with the kick with the boots by the accused.
    
35. I further find that there are no other reasonable hypothesis open here on the basis of all these evidence other than the guilt of the accused, Pawa v The State [1981] PNGLR 498.
    

Verdict

36. I am satisfied beyond all reasonable doubt that John Nulai intended to cause grievous bodily harm upon Julie Nulai at the time that he assaulted her. I am not satisfied that he intended to kill her. In accordance with section 539 of the Code I return a verdict of guilty of murder pursuant to Section 300(1) (a) of the Criminal Code.
    

Ordered accordingly,
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant