State v Lucas (No. 1) [2019] PGNC 180; N7900 (17 June 2019)

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CRIMINAL LAW – Verdict on charge of murder – section 300(1)(a) – Criminal Code Act Chapter No. 262 – whether words uttered by the deceased amounted to dying declaration – section 20 – Evidence Act Chapter No. 48 - circumstantial evidence – whether there was or were no other reasonable hypothesis other than the only explanation which was that the accused himself killed his wife – whether the accused had intended to cause her grievous bodily harm

The accused and the deceased were husband and wife. On the afternoon on the day in question, the accused, the deceased and their children were at their home. The deceased later held her stomach and went over to the neighbour’s kitchen yard shouting in pain and uttered words out to the neighbour’s wife before she died.

State v. Samela Lucas (No. 1) (2019) N7880
State v. Miriam Kakun (1997) N1673
State v Enny Bulen [1990] PNGLR 43
State v. Kelly Minong (2016) N6271
State v Morris [1981] PNGLR 493

1. ANIS J: The accused was indicted on 9 April of 2019, that is, in the earlier National Court Circuit sittings in Kerevat before His Honour, Acting Judge, Justice Susame. His Honour recused himself from hearing the matter. The matter was listed for hearing in the May National Court Circuit sittings in Kerevat. The trial commenced on 20 May 2019. At the end of the prosecution’s case on 22 May 2019, the defence made a no case to answer application. I reserved my ruling and handed a written decision on 24 May 2019. I refused the application. The decision was published as State v. Samela Lucas (2019) N7880. The trial was concluded on 24 May 2019. Presentation of submission on verdict was heard on 5 June 2019. The matter was adjourned to 17 June 2019 for ruling on verdict.

3. The indictment reads, and I quote in part, Samela Lucas, of TALO VILLAGE, LUMI DISTRICT, WEST SEPIK PROVINCE, stand charged that he on the 20^th day of May 2017 at Kolopom Block, Lasul Baining LLG, Gazelle District, East New Britain Province in Papua New Guinea, murdered MUMBO ILAI. The brief facts to the charge read, and I quote in part:

On the 20^th day of May, 2017 at between 3pm and 4pm, the accused Samela Lucas was at Kolopom Block, Lasul Baining, East New Britain Province. At the same time and place, his wife Mumbo Ilai (the deceased) was with him at their house. They were arguing. The accused assaulted the deceased inside the house by kicking her on the left side of her body (the left side of her abdomen) and dumping her, head first on the ground. The deceased felt pain and cried. She held her stomach and walked over to her brother’s house next door where she told her brother’s wife what the accused had done to her. Her brother and her son, who were also there at the time, also heard what the deceased said. The deceased then fell down on the ground and died. The deceased died of a splenic injury. The State says that the actions of the accused contravene section 300(1)(a) of the Criminal Code in that he intended to cause grievous bodily harm to Mumbo Ilai and unlawfully killed her.

4. Section 300(1)(a) of the Criminal Code Act Chapter No. 262 (Criminal Code) states, and I quote in part: ...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 elements of the offence, murder, are, (i), a person kills another person, and (ii), he or she intended to do grievous bodily harm to the person killed or to some other person. The defence agrees that the deceased was physically assaulted by someone which led to her death. But it denies that the accused was the assailant that was responsible. Regardless of that, the required standard of proof is beyond reasonable doubt, and it rests solely with the prosecution.

6. The State called in 3 witnesses who gave sworn oral evidence. They were, (i), Dorothy Musuwan, (ii), Jeremaiah Ilai, and (iii), James Ilai. The defence called in the accused who also gave sworn oral evidence. Evidence were also tendered by the State without objection. I set them out in a table format as follows:

Exhibit No.	Description	Date
P1	Statement of Police woman Constable Lovelyne Jihama	29 May 2017
P2	Statement of Senior Constable Joe Martin	29 May 2017
P3	Affidavit of Dr. Charles Magoekia (Post Mortem Report attached)	9 June 2017
P4	3 x Photographs of the crime scene	undated
P5	Record of Interview of accused Samela Lucas (English and Pidgin versions)	29 May 2017

7. The State evidence in this case are circumstantial, and the issues surrounding them, are as follows, (i), whether the deceased made a dying declaration prior to her death, (ii), whether the accused was the assailant that attacked and killed his wife, (iii), whether the established facts are inconsistent with any reasonable hypothesis other than guilt of the accused, and (iv) if so, whether the accused intended to cause her grievous bodily harm.

8. I will consider the evidence in totality, that is, following the second method as held in the case State v. Miriam Kakun (1997) N1673. I will consider both evidence, that is, from the prosecution and the defence, towards finding out the truth or nearer to the truth of what happened or did not happen on the day in question, or in determining whether the State has proven its case beyond reasonable doubt.

9. Let me address the issue of dying declaration first. All 3 State witnesses testified that they heard the deceased utter words before her death. Witness Dorothy was the first to testify. This is what she said she heard the deceased utter to her, when she went out of her kitchen house and onto the kitchen yard to talk to her. She said the deceased held onto her stomach in great pain and said, “I was unconscious. I woke up again and my husband kicked me on the ribs and threw me head first to the ground.” Witness Jeremiah said he was also present at the scene and that he also heard his mother uttered these, and I quote, “This man killed me. He kicked me on my ribs and threw me at the ground.” Witness James said he heard the witness utter these words, “My husband killed me. I got up, he kicked me on my ribs and threw me to the ground.”

10. Counsel for the defence concedes that the deceased had made a dying declaration before she died. Counsel, however, challenged the words that were uttered. He submits that it was established during cross-examinations of the State witnesses, that the deceased never used the words “my husband” but rather “this man”. Counsel submits that, based on what he claims were clear inconsistencies committed by State witnesses during their cross-examinations on the said subject matter.

11. I will say this. The prosecution firstly has the burden, regardless of the fact that the defence has conceded, that is, to prove that the words uttered by the deceased constitute a dying declaration within the meaning of section 20 of the Evidence Act Chapter No. 48 (Evidence Act). Section 20 reads, and I quote:

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—

(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.

12. Then Chief Justice, Sir Buri Kidu, in State v Enny Bulen [1990] PNGLR 43 summarised the considerations of what shall constitute a dying declaration. His Honour held, and I quote in part:

For the purpose of admitting a dying declaration into evidence under s 20 of the Evidence Act (Ch No 48), the statutory conditions require that:

13. Evidence adduced show that the deceased knew or must have known that she had an enlarged spleen. Witness James and the accused have attested to that in their testimonies. Post Mortem Report, tendered as Exhibit P3, confirms that the deceased had an enlarge spleen. I find that the deceased knew that her death was imminent at that time. She was in great pain and had held onto her stomach before she died. By running away to the neighbour’s house, it seems that she wanted to inform someone before she dies. And she verbally uttered her dying declaration when she arrived there which was heard by witnesses. She was an adult and was well before the incident and therefore would have been a competent witness. Had she survived, she would have given direct oral evidence to the Court.

14. I find that the prosecution has established beyond reasonable doubt that the deceased made a dying declaration before she died that day on 20 May 2017.

15. Now, coming back to the point and in relation to the contested words uttered, namely, “the man” as opposed to “my husband”, I say and find as follows. During cross-examination and on the question of whether the deceased uttered the words “my husband” or “this man”, witness Dorothy’s testimony was inconsistent. Although she said that the deceased had uttered the words “my husband” during examination in chief twice, she stated in cross-examination when she was asked to repeat the dying declaration, that the deceased used the words “this man” in her dying declaration. Witness Jeremiah, on this question, said that he heard her mother uttered in part the words “this man”. Witness Dorothy’s quote of the words “this man” in cross-examination is consistent with witness Jeremiah’s recollection. As for witness James, even though he maintained in examination in chief and in the first part of cross-examination that he heard the deceased uttered the words “my husband”, he was later asked this question, and I quote, “It was your opinion that the person she was referring to was her husband, is that true?” His reply was, “yes, true”. This to me suggests that he may have, based on his opinion, substituted part of the deceased uttered words, that is, from “this man” to “my husband”. To me, witness James’s said answer clouds his evidence to the question that is before this Court.

16. That said, and on the question, I will accept the evidence of witness Dorothy and witness Jeremiah as accurate because they are consistent in the end. Both witnesses said that the deceased uttered words “this man” in or as part of her dying declaration. I therefore find the dying declaration to read as follows, “I was unconscious. I woke up again and this man kicked me on the ribs and threw me head first to the ground.” I find, as a matter of fact, that the deceased did not say “my husband” but rather “this man” in her dying declaration.

17. Let me also say this to end my findings herein. In an actual scenario, it can be difficult for someone to recall exactly what was uttered because of the surroundings and various other factors that may have to be taken into account at the time of the incident. For example, it is not like in a studio where the environment is sound proof or where everyone is told to get ready to listen-in to something that is about to be said or played. In this case, the time when the deceased uttered her dying declaration to the time she collapsed and died, was sudden or brief. She uttered the words out aloud to witness Dorothy before she collapsed and died. Others that were nearby, namely, witness Jeremiah and witness James, also heard what was uttered. In my view and based on the evidence adduced, it all could have taken less than a minute or so. As such, it is not unreasonable to expect the words to slightly vary from one witness to another.

18. Let me consider the State evidence in regard to the first element of the offence, murder, that is, whether the accused killed his wife?

19. The State evidence are circumstantial. I will begin by looking at the evidence that were tendered by consent or without objection. I firstly refer to Exhibit P5, that is, the record of interview. The accused told police in the record of interview that on the day and time in question, at their house, he was upset with the deceased because the deceased swore at one of his children. As a result of that, he said, and I quote, I just slapped her and that she died. He said he could not explain why or how she died from that. He said he knew that the deceased had spleen which was why he said that he only slapped her on the right side of her face.

20. The accused, however, denies these when he testified in Court. He said that it was his first time to be arrested so he was scared. He said he was scared that policemen there would assault him. He said that was why he told lies to police at the record of interview. He said none of what he had said in the record of interview was true. He said he did not sign the record of interview. The prosecution submits otherwise. It says the statements were obtained voluntarily from the accused by police in the record of interview. It submits that despite asking the accused during cross-examination, the accused did not give any valid reason of why he was afraid at that time of the interview.

21. I will deal with it this way. Firstly, I note that the record of interview is already tendered and is part of the evidence that is before the Court for consideration. Under the circumstance, the defence could ask the Court to give little or no weight to the record of interview, when the Court is considering whether to find the accused guilty, or not guilty. I refer to the defence claim that the accused did not sign the record of interview. This obviously requires attention. What does the law say in this regard? Can an unsigned record of interview be regarded as good or valid evidence that is before the Court? In my decision in State v. Kelly Minong (2016) N6271, I set out the requirements which I will adopt herein. I held and I quote in part:

A record of interview that is tendered by consent of the parties at trial, which is not counter-signed by the accused, is good evidence before the Court for consideration provided there is evidence, which shows that the record of interview was legally obtained. For example, police must afford the accused his or her constitutional rights. Police must read out or translate the statement to the accused at the end of the interview. The accused must understand and agree with the content of the statement. The interviewer and corroborator may give sworn evidence or file statements to support the admissibility of the record of interview in question. (Cases followed: State v. Goi Mubin [1990] PNGLR 99; State v. Benjamin Garo (1996) N1521; The State v. Peter Raima [1993] PNGLR 230).

22. Did the prosecution adduce evidence to support or claim that the record of interview was duly obtained? To answer, I refer to Exhibits P1 and P2. These are signed statements by the interviewer Senior Sergeant Joe Martin, and the corroborating office Constable Lovelyne Jihama. They testify that despite the fact that the accused had refused to sign the record of interview, the interview was conducted following its due process. I am satisfied and find that police have duly conducted and obtained the transcript of the record of interview. I therefore find that the record of interview is properly before me for consideration.

23. I now turn to the next point of contention, that is, whether I should believe the accused’s subsequent evidence and therefore give little or no weight to the evidence obtained in the record of interview. The first query I had and had asked the defence counsel during the presentation of submissions hearing, was this. I inquired why the defence did not object to the tendering of the record of interview by the State, and also why it had not called for a voir dire hearing. I indicated that that would have been the proper approach in that it would have given a fair opportunity to the prosecution to call its witnesses or present its evidence in response. The defence counsel in reply said that they did not do that because the accused had already admitted in the record of interview and that they did not find any reason to retract from that. I find the answer to be unsatisfactory. I say this because if that is the case, then why is the accused now making a different claim in his sworn evidence? To me, this suggests and it may also be implied or considered negatively, against the accused. It suggests to me that the accused’s sworn testimony of the facts may constitute a recent invention.

24. I have also observed the demeanour of the accused. Though he spoke at times strongly, he did not look or sound convincing. I also did not find him to be a credible witness. In conclusion, I will give some credit to the record of interview of what he had said. I find some of his recollections in the record of interview as accurate as I will summarise below. However, I cannot say the same in relation to his sworn testimony. He says that on the day and time in question, he was asleep inside his house and did not know what was happening outside the house. He said he only became aware of the situation when he heard his children cry which was when he came outside of the house but only to find out what had happened to his wife. I, however, find the accused’s sworn testimony to be recently invented, and I reject it.

25. All the above findings so far do not establish the first element of the offence. I will now consider the material evidence of the prosecution that addresses the first element, that is, whether the accused killed his wife. Witness Dorothy is the wife of witness James. Witness James is the brother of the deceased. And witness Jeremiah is the adopted son of the accused. They all gave corroboratory evidence as follows. They said they all heard the deceased shouted out in pain on that afternoon on 20 May 2017. Witness Dorothy said that she was at their kitchen house at the time. From there, and a few minutes earlier, she said she saw the accused and the deceased arguing at their kitchen. She said she was the first to approach and speak to the deceased outside her kitchen yard, that is, after the deceased had shouted and had approached her kitchen yard. She heard the deceased uttered her dying declaration. Witness Jeremiah said he was playing outside not far away and he said he also saw her mother and heard what she had uttered out aloud at the kitchen yard of witness Dorothy. Witness James said that he was inside his house when he heard the deceased shout in pain. He said he also heard the words that were uttered by the deceased. I must confess that I found it quite hard to follow and understand some of the accounts as recalled by witness James. He was emotional in Court, and understandably so given that he was recalling the death of his sister. But some of his accounts did not corroborate with the other evidence. For example, he said at first that he was inside his house when his wife witness Dorothy came and told him that the deceased had passed on. Later he said that when he came out of the house, his sister was still alive and that the accused was there with them, but that when she died, the accused was gone. When the witness was cross-examined on this, he refused to answer the question and said that he had nothing more to say. Overall, I find the testimonies of witnesses Dorothy and Jeremiah credible. I cannot say the same for some of witness James’s testimony. I note that he was emotional when he was testifying so I can perhaps also wonder whether that has had an impact on his recollections of the events when he was testifying in Court.

26. It was not disputed that the 2 houses were close together, that is, the accused’s house from the house of witnesses James and Dorothy. They were a family unit and there were no other houses close-by. The second non-disputed fact is this. Only the accused, the deceased and their 3 children were at their house before, during and after the incident. This was also confirmed by the accused in his record of interview. The accused was also asked several times in Court under oath and he confirmed that there was no one else present at his house at the time of the incident except his wife, his 3 children and himself.

27. Let me now summarise the evidence adduced by the State in regard to the first element of offence, murder. First, I note that I have a partial confessional statement which is contained in the record of interview. The accused admitted to police that he, on the date and time in question, was with his wife and 3 children in their house. He said they were getting ready to go to watch a video show that evening. He said his wife was preparing their clothes. He said his wife swore at one of his children. He said he assaulted her by slapping her on her face, and that she died. He said he could not explain why. I will stop there and turn to the dying declaration. The decease uttered these words before she died, I was unconscious. I woke up again and this man kicked me on the ribs and threw me head first to the ground. I also refer to the Post Mortem report. The report shows, amongst others things, notable injuries to the scalp or head of the deceased. It also shows massive internal injuries inside her abdomen including multiple lacerations to her spleen. The injuries sustained by the deceased were consistent with what the deceased had described, that is, of how she was attacked, in her dying declaration. I also take into account the fact that witness Dorothy saw the deceased and the accused argue in their kitchen a few minutes before the deceased ran out shouting for help and clinging onto her stomach in pain. And I finally, may I again emphasis the evidence that the accused, in the record of interview, has said that he assaulted his wife by slapping her, and he actually went on to say, and I quote, and that she died.

28. With these evidence, I will now go on to ask myself this. Are the established facts inconsistent with any reasonable hypothesis other than guilt of the accused? See case: State v Morris [1981] PNGLR 493. The answer to that is, “the established facts are inconsistent with other reasonably hypothesis except the facts which show that the accused was the one that killed his wife.” This is how the incident occurred, that is, based on the totality of the evidence that have been adduced by the parties and as determined by this Court. The accused, the deceased and their children were preparing to go to watch video that evening on 20 May 2017. It was around 4pm. Witness Jeremiah was outside their house playing. The accused got into an argument with the deceased at their kitchen front or area. That was when witness Dorothy, who was nearby at her kitchen house, saw them. The argument escalated into a fight in their house. The accused knocked the deceased unconscious. When she woke up, he kicked her in her stomach. He also lifted her up at one point and dunked her head first to the ground. The deceased got up and ran away from him and from their house, to seek help. That was when she met witness Dorothy, and after making her dying declaration to her, she collapsed and died.

29. I find that the prosecution has proven the first element, that is, that the accused killed the deceased.

30. Did the accused intend to cause grievous bodily harm to the deceased? My answer to that is, “yes he did.” There is more than one evidence of that. The first is the dying declaration. The manner in which the deceased had described her attacker showed that her attacker who was the accused, had intended to cause her grievous bodily harm. She was knocked out cold. When she regained consciousness, she was kicked in her stomach. The seriousness of injuries received as recorded in the Post Mortem report shows that she could have been kicked in her stomach more than once. And after that, she was dunked or spear tackled to the ground. The accused himself with other State evidence show that the accused knew of the deceased’s spleen condition. Yet, he had to kick her in her stomach. Finally, the Post Mortem report. The accused suffered severe internal injuries. Three (3) litres of blood were drained from her abdomen cavity. She suffered grossly distended abdomen, splenomegaly, splenic multiple lacerations and Haemoperitoneum. These are evidence which go on to show an intention to cause grievous bodily harm.

31. I find that the prosecution has proven the second element of the offence, murder.

32. In summary, I find that the prosecution has proven beyond reasonable doubt that the accused murdered his wife Mumbo Ilai on the afternoon of 20 May 2017.

Verdict: Guilty as charged
_____________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Lucas (No. 1) [2019] PGNC 180; N7900 (17 June 2019)