N6933

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1313 of 2015

THE STATE
V
SERAH GLEN

Kimbe: Miviri AJ
  2017	 : 19th 20th 22nd September
6th October 

CRIMINAL LAW - Practice and procedure – trial S299 wilful murder - kicked by accused - death 4 days later-medical evidence – causation –witnesses - Question of whom to believe - independent evidence corroboration - no intent to cause GBH - unlawful assault – death - guilty of manslaughter.

Facts

The Accused kicked and punched the deceased in the chest causing internal bleeding and died. 

Held

No intent to cause GBH
Unlawful assault
Death
Guilty of manslaughter

Cases cited:

Nil

Counsel:

L. Rangan, for the State
B. Popeu, for the Defendants
					
VERDICT
6th October, 2017
 
1.	MIVIRI AJ: This is the verdict of the court after trial of accused who beat up deceased causing internal injuries from which death occurred.

Background Facts 

2.	Sera Glend kicked and punched Caspania Issac Uma on the chest on the 18th May 2015. She suffered internal injuries to her left lung and died as a result.

Arraignment

3.	Accused upon arraignment stated, “Em itru”, it is true and I entered a guilty plea but vacated on the application of defence counsel pursuant to the Code section 563 Entry of plea of not guilty. Because causation was the issue on trial there was no denial that the accused did assault the deceased with a slap on the cheek but the cause of death was trauma to the chest and internal bleeding in the cavity between the rib cage and the lung. 

Evidence tendered

4.	Exhibit S1was witness statement of Minove Gosuve undated Policeman investigator and the arresting officer in the case. The statement was only in respect of that fact of the conduct of the record of interview except at Question 38 accused was asked, “You gat sampela toktok long mekim long bekim dispela sas blong yu? Ans: Mi ino mean long kilim em idai. Mi tok sori, kot iken marimari long mi. Interpreted, “do you have got anything to say in answer to your charge? Ans: I don’t mean to kill her to death. I will say sorry. Court can have mercy on me”. 

5.	This excerpt reinforced the application made by counsel to vacate the plea of guilty and so the trial was run on that aspect. I did not mean to kill her, I say sorry, court can have mercy on me.

6.	Exhibit S2 was the Police corroborating officer in the record of interview Alois Barku.

7.	Exhibit S3A was the original pidgin record of interview of the defendant Sera Glend and police conducted on the 1st June 2015. At Question 13 she was asked she denied the assault upon the deceased and maintained that she only slapped her. That She only fought the mother Gummite who fell and hit herself on the stone and bled as a result. She signed the record of interview.

8.	Exhibit S3B was the English translation of the record of interview of accused.

9.	Exhibit S4A was the affidavit of Doctor Willie Toua made 6th August 2015 where he made a medical examination of a body identified as of Casparia Issac Uba on the 29th May 2015 and he made a post mortem report and a medical certificate of death both documents he attached to his affidavit. He was called on oath by the state confirming the exhibits that he authored. He explained that it was a very strong force with a blunt object that was applied directly to the left rib cage and chest.

10.	Exhibit S4B was the post mortem report attached to the affidavit which was conducted on the 29th May 2015 at 1430 hrs, “ the cause of death was left Haemopneumothorax”

11.	Exhibit S4C was the medical certificate of death of the deceased Casparia Issac Umba dated the 29th May 2015 which set out the disease or condition leading to death as:

(a)	Haemopneumothorax
(b)	Blunt chest trauma 

12.	What was established by all these evidence tendered by consent was that the deceased Casparia Issac Umba had died on the 22nd May 2015. The post mortem was conducted on the 29th May 2015. Indictment had charged that the death occurred on the 18th May 2015. It is clear that the medical evidence showed that the deceased died on the 22nd May 2015 four days after.

Issue

13.	Did Sera Glend assault the deceased and cause her death?

Undisputed fact

14.	It was undisputed that on the 18th May 2015 Casparia Isaac Umba suffered a blunt force injury to the cavity between the rib cage and the left lung. She was admitted because of that fact to the Kimbe General Hospital staying until the 22nd May 2015 where she died, medical certificate of death setting cause of death as Haemopneumothorax and Blunt chest trauma.  

State case

15.	First Oral witness was Rufina Umba who gave sworn evidence that she lived at Tamba block 7. She was the second of two sisters, the other Casparia Issac Umba who was now deceased. Accused fought our mother who was injured so we poured water to revive her. Accused used her legs and hands to fight Casparia and hit her on the right side. There in the night it was the same day now at night she was coughing and vomited blood. We took her to the hospital and she died.  Incident occurred at 8.00am on April 2015 Monday and she died on Wednesday at the Kimbe General Hospital. It was a sunny day. Serah Glend is the defendant before the court who assaulted Casparia.  She got another lady and they were going around in the night saw her and talked to her. Isaac is the husband of my sister Caspania. He is the accused blood brother. Accused trained to be a kick boxer. At the time when she kicked mother down my two cousin brothers Dick and Manu came to assist and she fought them off so we all ran away to the road thinking to short cut to the block. There she fought Caspania using her legs and hands. When she was punching she was aiming the face but because Caspania had her baby she bent down and the punches went to the back of the neck missing her face. She did so to protect the baby in her hands.  She kicked her on the right ribs where bones are with her right leg three times. Sister fell to the ground still carrying her baby. She sat to the ground using her knee to support herself. Accused continued to kick her on her right side once as she was on the ground. I was about the witness box to recorder 5 meters away where she was assaulting my sister and she had her back to me. Accused went back to block we followed the road, took a bus and came to town.

16.	Doctor Willie Toua MBBS (UPNG) School of medicine and health Sciences, medical doctor for five years with Kimbe hospital for three years now. The purpose of a post mortem is to investigate the cause of death. And all are trained in this regard.  Surgery is compulsory and we know what it is all about.  I have done a lot of post mortems. As proof of post mortem we sign a post mortem report and a medical certificate of death. First document is my affidavit, next post mortem report and the medical certificate of death. My signature appears on each of the documents, firstly my affidavit Exhibit S4A, the post mortem report Exhibit S5B and the medical certificate of death Exhibit S5C. Report of Post Mortem haemopneumothorax blood and air in pleural cavity in the lungs. Pleural cavity is between the lung and the wall of the chest. It is on the left side of the body. Pouch of Douglas no fluid there. Blunt chest trauma won’t see evidence on the outside but it cause injury inside. Trauma is injury sustained by a person. Injury inside the body but no evidence outside the body. Left Haemopneumothorax was caused by the blunt chest trauma. Possible causes of death would be motor vehicle accident or boxing matches or fights trauma from blunt objects. Penetrating injury would cause. Others would be spontaneous like TB there would be air only. It is the force that is exerted in the chest. It will depend on the patient’s history as to whether or not TB is the cause. There was no indication of TB on the patient.  A simple slapping of the cheek would not have caused this injury. As it does not relate. There was blood pooling around there when we cut air rushed out. Blood and air would not have occurred with direct hit to it or vice versa. It was direct to the left not the right. There should not be any fluid and air in the pleural cavity.

17.	The next witness on oath was Dick Yalawa educated to grade 10 Bialla High School resident of Soi Block in Bialla, who was sitting in court together with his brother Manu Yalawa at the time that Ruffina Umba was giving her evidence. He said Serah Glend the accused was the sister in law of Caspania Umba his sister. That he saw accused threw three punches at Caspania who was carrying her baby so she bent her head down sheltering her baby and she missed her. Accused kicked her with her right leg two times on her left ribs. She sat down slowly as she was holding the baby. We took her to the police station and then to the block. And that same night we took her to the hospital because she was feeling pain. Two days later she died whilst in the hospital.  This happened in April 2015. He said he and his small brother Manu stopped the fight as it was between the deceased and accused who were family and only women involved.

18.	The next witness was Manu Yalawa who lived at Soi Block Bialla educated to grade 5. Who gave evidence on oath that Serah Glend had brought a lady and gave the lady to her brother Isaac the husband of Caspania. When Caspania saw this an argument started between herself and Serah Glend. Mother of Caspania joined the argument and Serah Glend fought her. She received injuries so we washed her.  Then we came to the road Serah Glend the accused pointing and identifying her in court followed us and came and assaulted us. She used both her hands and legs to assault her. She punched her on the shoulder, she kicked Caspania with her right leg to her left rib and she fell down. We lifted her up and she told Serah you have hit me already that is enough. I was about from the box to the associate 7 meters when I saw this. We lifted her up went down to the house, got the clothes and they went to police station and reported the matter. I went to Salvation and slept there. The next day I went to Bialla.  Following day she died. At the time that Serah assaulted Caspania there was mother, Rufina, I and my brother. The time this happened in April 2015. We stopped the fight between them and she also assaulted us but we did not retaliate back.
Defence case
19.	Serah Glend gave sworn evidence in defence stating that she admitted that she fought and did cause injuries upon the mother of the deceased. But merely slapped the deceased on the cheek and not in the rib cage area. She denied kicking the deceased because she had a baby immediately in-front of her on a baby carrier. She never did assault her as described by the witnesses.

20.	Robert Konga sworn in pidgin stated that he resided at Nahavio block 285 and 351 married with three children. He was a ward councillor at Nahavio resident for 27 years originally from Southern Highlands. It was a Monday morning so I told ward development committee to meet with the people. I came to the road and met my ward committee member his name is Stanley and the other is Francis Waninara. We came and there was a crowd there saying there was an incident. Same time I saw Serah Glend. It was around 8.00am. And I also saw her sister in law with others I did not know her name but we were from the same ward. They have a bore water that we used to go and use that is why I know she is the in-law of Serah. Serah slapped her saying you talk too much. This was 4 meters in-front of me. We cautioned her to stop her as the sister in law had a baby, I went and stopped them.

Analysis of Evidence

21.	These are the material evidence for the State. At the outset all state witnesses are not independent witnesses. They are all related, Rufina is the blood sister of the deceased. Dick and Manu Yalawa are the cousin brothers of the deceased. So they naturally have an interest in the favourable outcome of the proceedings. Their evidence must be treated with caution. For the brothers Dick and Manu both have been sitting in court in the evidence of Rufina their cousin sister. It is therefore important that there is corroboration of the account that they all give. All state witnesses are in agreement including the defendant that the only person who fought Caspania Isaac Umba is the accused. The accused says he slapped her and not kicked her. But that is not consistent with medical evidence which says it must be a blunt force applied immediately to that area as here to the left rib cage. A slap could not cause the injury as he saw. There is also no other intervening factor that has been shown other than what the doctor has given in evidence that it was a boxing match or a hit by a vehicle which is not the case here. Here is a kick to the left rib cage area by the accused. And that is borne out by the accused own admission initially and in the record of interview excerpt I have set out above “You gat sampela toktok long mekim long bekim dispela sas blong yu? Ans: Mi ino mean long kilim em idai. Mi tok sori, kot iken marimari long mi. Interpreted, “do you have anything to say in answer to your charge? Ans: I don’t mean to kill her to death. I will say sorry. Court will have mercy on me”. She has accepted responsibility for the actions that she authored and the findings of the court confirm that fact. And the date is the 18th May 2015 with the death on the 22nd May 2015 which makes the dates by the state witness not true for the reasons I have already set out above. The accused has called a witness Robert Konga who she says was at the scene at that time. And that witnessed by him she only slapped the deceased. This witness’s evidence does not stand in the light of the medical evidence set out above and also following.

22.	The evidence of Doctor Willie Toua is the independent evidence. He is the doctor who carried out the post mortem examination of the body of the deceased. He is not related to anyone of the parties in either side of the matter. He is trained professional giving evidence from the basis of that school as to what injuries there on the body of Caspania Isaac Umba. Notably he says there was blood and air in pleural cavity in the lungs. Pleural cavity is between the lung and the wall of the chest. It is on the left side of the body. Blunt chest trauma won’t see evidence on the outside but it cause injury inside. Trauma is injury sustained by a person. Injury inside the body but no evidence outside the body. He stated that possible causes of death would be motor vehicle accident or boxing matches or fights trauma from blunt objects. And that a slap could not cause a trauma to left side of the chest as he saw. It was a direct blunt force applied immediately to that area to cause the trauma there.

Findings of Fact
23.	In the light of this analysis, I make the following findings of fact based:

(a)	That on the 18th May 2015 at Nahavio Serah Glend assaulted Caspania Issac Umba using her hands and legs.
(b)	That her hands missed Caspania because she bent her head over the baby she was carrying.
(c)	That the Right leg landed on the left ribs of Caspania Issac Umba.
(d)	That this was the only direct blunt force that was applied to the left side of the rib cage causing the injury to the left pleural cavity where blood and air converged in pleural cavity in the lungs.
(e)	That Caspania Isaac Umba was admitted to the Kimbe General hospital that night of the 18th May 2015.
(f)	That these caused the death of Caspania Isaac Umba on the 22nd May 2015 at the Kimbe General Hospital which was four days only after the assault.
(g)	That there was no other intervening factor other than the assault inflicted by Serah Glend to the left side of the rib cage which was the direct cause of the injury within and her death. 
(h)	That there was no intention on the part of Serah Glend to cause grievous bodily harm upon Caspania Isaac Umba.
(i)	That She unlawfully assaulted Caspania Isaac Umba causing her death.

Verdict
24.	I am not satisfied beyond all reasonable doubt that there was intent to cause grievous bodily harm upon the deceased by the accused. But I am satisfied beyond all reasonable doubt that the Accused unlawfully assaulted the deceased by kicking her with her right leg in the left ribs causing internal injury to the left chest and lung to cause her death.

25.	I find in accordance with Section 539 (2) of the Criminal Code the accused guilty of Manslaughter pursuant to Section 302 of the Criminal Code.

26.	Verdict guilty of Manslaughter. Remanded pending sentence. Bail refunded forthwith.

Orders Accordingly,
________________________________________________________________
Public Prosecutor:  Lawyer for the State		 
Public Solicitor:  Lawyer for the Defendant