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State v Kaki [2019] PGNC 461; N8246 (9 December 2019)

N8246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 793 OF 2017

THE STATE

V

PALA KAKI

Misima, Alotau: Toliken J
2019: 18^th, 19^th, 20^th June 09^th December

CRIMINAL LAW – Trial – Wilful Murder –Death in police custody – Eye- witness account – Report by Health Extension Officer - Inconsistency between eye-witness account and report by Health Extension Officer.

PRACTICE AND PROCEDURE – Evidence - Eye witness account vis-a-vis Report by Health Extension Officer – Whether report by Health Extension Officer or other non-medical Health professional is admissible – Admissible if its purpose is to merely show or record the officers’ observations of the condition of the subject/patient and the nature and extent of injuries sustained – Report inadmissible if officer expresses an opinion on cause or likely cause of death - Effect of – Observations inconsistent with eye witness account – Verdict – Not Guilty.

Cases Cited:

Paliau v The State (2016) SC1537

Counsel:

A Kupmain, for the State
R Yansion, for the Accused

VERDICT

09^th December, 2019

1. TOLIKEN, J: The accused Pala Kaki was, on 18^th June 2019, charged on indictment pursuant to Section 299 of the Criminal Code (the Code) for the wilful murder of one Camillo Willie on 23^rd day of December 2016 at the Misima Police Station.
   

FACTS

2. The State alleged that the accused is a policeman attached to the Misima Police Station. On 23^rd December 2016, the deceased was apprehended and detained at the Misima Police Station cells for his alleged involvement in the murder of another person.
   
3. The accused entered the deceased’s cell while the deceased was in custody and assaulted him by punching and kicking him repeatedly. He also used an iron rod to inflict injuries on the deceased while his hands were bound behind his back. The deceased bled profusely from the injuries he suffered to his head and other parts of his body. Other inmates called out for help when the deceased stopped moving. The deceased was rushed to the Misima Hospital but was pronounced dead on arrival. The State alleged that the accused intended to cause the death of the deceased.
   

PLEA

4. The accused generally denied the charge.
   

OFFENCE

5. Section 299 of the Code provides for the offence of wilful murder in the following terms –

299. WILFUL MURDER.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

ELEMENTS

6. To secure a conviction the State must prove that the accused –
   
   1. Intended to cause the death of the deceased; and
   2. Caused the death of the deceased; and
   3. He had no lawful excuse for doing so.

ISSUES

7. The general issues for the court’s determination are –
   
   1. Whether the accused killed the deceased
   2. Whether he intended to kill the deceased
   3. Whether the killing was lawful.

THE EVIDENCE

8. The State called the following witnesses –
   
   1. Ginisi Nunukeli (Nunukeli)
   2. Kopi Kanatupa (Kanatupa)
   3. Dailo Kayo (Kayo)
      
9. The State also tendered the following documentary evidence and real exhibits –
   
   • (a) Documentary Evidence
     
     1. Record of Interview dated 21^st April 2017 (A)
     2. Photograph of Interview Room (B)
     3. Photograph of cell block (C)
     4. Occurrence Book (D)
     5. Medical Report of DailoKaiyo annexing photographs (E)
     6. Affidavit of Dr. PersitaMamadi (F)
        
   • (b) Real Exhibits
   • (c)
     1. Broken axe handle (RE 1)
     2. Grass knife (RE 2)
     3. Long Iron rod (RE 3)
     4. Short Iron bar (RE 4)
        
10. The defense on the other hand called the accused himself and one Junly Samano (Samano).
    

ISSUE 1: Did the Accused Kill the Deceased?

Undisputed Facts

11. The deceased had been wanted by the Misima Police for his alleged involvement in the murder of one Jeffery Moimoi on 11^th December 2016 and had been evading arrest. On 23^rd December 2016 Reserve Constable Paul Lindsay reported to the PSC of Misima Police Station Sergeant Kopi Kanatupa that the deceased was at his house at Bwaguoia village. Sergeant Kanatupa got together a team of 7 Police Reservists and proceeded to the deceased’s village.
    
12. On arrival he divided them in two groups who approached the deceased’s house from different directions. They searched his house but did not locate him there. The deceased was, however, spotted up on a mango tree. Realizing that he could not escape he alighted and was apprehended. As Sergeant Kanatupa and his men did not have handcuffs they tied the deceased’s hands to the back and brought him to the Police Station. There is some dispute as to whether the policemen assaulted the deceased when they apprehended him. I will return to this later in the judgment.
    
13. Two other suspects in the murder case of Jeffery Moimoi had been apprehended previously and were in Cell 2. Sergeant Kanatupa moved them to Cell 1 and placed the deceased in Cell 2 with the intention of dealing with him later before he clocks off. He then made an entry into the Occurrence Book (OB) giving instructions that under no circumstances should the deceased be released, and then retreated to his office.
    
14. The accused arrived at the Station some minutes after the deceased was apprehended and detained. Reserve Constable Gilisi Nunukeli, the State’s principal witness was on duty as well. He had the cell keys. Learning of the deceased’s apprehension and detention the accused asked Nunukeli to open the cell the deceased was in. He then brought the deceased out, his hand still bound behind his back with a rope (described by the accused as similar to a bulk line) and took him to charge room to interview him.
    
15. The relatives of Jeffery Moimoi had by this time, converged on the Police Station and were putting up a ruckus outside. The accused and Nunukeli placed the deceased back in his cell and the accused left the Station. It is not disputed that the deceased had sustained serious injuries at some stage because he was soon rushed to the hospital where he was pronounced dead on arrival. What is disputed though is who inflicted those injuries on him. I will return to these presently also.

Disputed Facts

16. What principally is disputed is who inflicted the injuries on the deceased, whether the accused assaulted the deceased at the Police Station or whether the deceased was assaulted upon his apprehension before he was placed in the police cells. These are primary facts upon which the ultimate issue of whether the accused killed the deceased will turn.
    
    • (i) State’s Evidence
      
17. The state said the accused killed the deceased. Its evidence came principally from Reserve Constable Ginisi Nunukeli, Sergeant Kanatupa and the observations of HEO Kailo Kayo. Nunukeli testified that he was standing at the main entrance of the Police Station when the accused arrived and asked loudly as to who had the cells keys. He was told the keys were with Nunukeli. Nunukeli thought the accused wanted to interview a suspect so he gave him the keys.
    
18. The accused opened the main metal entrance door into the cell block as Nunukeli followed him in. He then opened the door into Cell 2 where the deceased was. He grabbed the deceased and told him to stand up and the deceased, whose hands were tied to the back stood up and the accused took him out to the charge room. Nunukeli locked the main cell doors, came out and stood in the doorway into the NCO’s office which was about 3 ½ - 4 meters from the charge table where the accused sat.
    
19. The accused then started questioning the accused, asking him if he had killed Jeffery Moimoi. The accused denied killing Moimoi. The accused continued to interrogate the deceased until he got very cross because of the deceased’s repeated denials of his alleged involvement in the killing of Moimoi. So, the accused picked an axe handle, a grass knife and a piece of iron rod and placed them on the table. He then proceeded to repeatedly hit the deceased all over his body including his head with the axe handle until the axe handle broke as he was lying on the floor. Then he picked up the grass knife and repeatedly continued to hit the deceased with the flat side of the grass knife until the handle broke.
    
20. Nunukeli called out to the accused a couple of times to stop, but he would not listen to him or stop. Then the accused picked up the iron rod and hit the deceased on the leg. At that moment Nunukeli again called out to the accused to stop, telling him that he had already put everyone in trouble. The accused did not listen to Nunukeli as he was busy questioning the deceased, who by then was speechless and immobile or motionless as he laid on the floor with his hands still bound behind his back. All this, Nunukeli said, was happening in the full view of the other detainees in Cell 1 as the main cell door was open.
    
21. The accused then picked up the deceased and placed him back in Cell 2 and then left the Station. After that Nunukeli and others washed away the blood that was on the floor and the walls. He then collected the axe handle, grass knife and iron and wrapped them up and placed them in the NCO’s office.
    
22. In cross-examination, Ginisi said that the accused hit the deceased’s leg only once with the iron rod and breaking the leg.
    
23. Station Commander Sergeant Kopi Kanatupa, testified that he placed the accused in Cell 2 when they took him in. He made an entry into the Occurrence Book and issued instructions that the accused should not be released from the cells under any circumstances. He then retreated to his office. After about ½ an hour later the accused came into his office and he (Kanatupa) advised him that they had already apprehended the deceased. The accused then left his office.
    
24. Some 2 – 3 hours later when Reserve Constable Jimmy Bellem was with him in his office, Reserve Constable Moko Pepe came in and asked Kanatupa to check the cells because the deceased had been badly assaulted by the accused. As the police vehicle was out on an errand, he immediately called for an Administration vehicle and proceeded to the cells. There he noticed that the accused had lost a lot of blood and was motionless. The deceased was then rushed to the hospital by Reserve Constables Jimmy Bellem and Ami John. Not long after that Kanatupa was informed that the deceased had died. The accused called into the Station later that day at around 6.30p.m. Kanatupa advised him of the deceased’s death and then went home.
    
25. In cross-examination Kanatupa denied that the deceased had resisted arrest hence forcing him and his men to tie his hands. He said the deceased was bound to run away so his hand had to be tied. He also denied that his men assaulted the deceased. He said the deceased came down willingly from the mango tree and co-operated. Since he was the investigating officer,he instructed his men not to use any force on the deceased.
    
26. Kanatupa said that his office is about 12 meters from the Cell Block and the interview room is just opposite his office. When asked if he could hear someone talking or yelling in the interview room from his office, he said he could, but in this case, he did not hear what was being said between the deceased and the accused. He said also that he was unaware that the accused and Nunukeli had opened the cells and was also not aware that the accused assaulted the deceased with an axe handle and a grass knife.
    
27. The State’s final witness is Dailo Kayo, a Health Extension Officer attached with the Misima hospital who attended to the deceased when he was brought into the Hospital. HEO Kayo prepared a report where she detailed her observations of the injuries on the deceased’s body. She also took photographs of the deceased which she annexed to the Report. The Report was annexed to Dr. Mamadi’s affidavit. HEO Kayo’s report was unsigned, but she confirmed on oath that it was hers.
    
28. The Report was accepted into evidence against objections by the defense. I will return to the reasons for over-ruling the defense’s objection presently.
    
29. That said, HEO Kayo noted the following in her report -
    
    1. Head - the right side of the head was swollen ++ with a lot of bruising.

And on palpation a dent was felt over the swollen spot. The left side of the forehead was slightly swollen with bruising as well.

Face – The face was covered with dried blood stains mostly on the nose bridge, nostrils, both cheeks, the lips and the chin. There was a lot of bruising noted mostly around the eye.

At the back of the Head – on the left side was a laceration (cut) which was approximately 5cm in length and 2-3cm in depth.

2. Body - Front – The front of the body chest down to abdomen appeared basically normal but was with dried blood stains.

Back – Bruising ++ was noted at the back

And a superficial laceration was also noted on the left side of the back which was approximately 4 – 5 cm in length.

3. Hand – There was a lot of bruising on the left upper arm. And a rugged laceration approximately 5 cm in length and 2 – 3 cm in depth was on the medial aspect of the right elbow joint. The wound also communicated with the elbow by two (2) small exits extending towards the elbow. Further down toward the forearm was another small laceration. There were two small cuts noted on the left hand and a lot of bruising over the arm.
4. Legs – Right leg – There was a small laceration on the medial aspect of the right knee with an abrasion on the same knee as well.
   
   • (ii) Defense Evidence
     
30. The accused on the other hand testified that on morning of the date in question he reported for duty. Around 9.30a.m. he left briefly for the shops and market. On his return he learned that the main suspect in Jeffery Moimoi’s killing, Camillo Willie had been apprehended. And so he asked Reserve Constable Nunukeli for the cell keys with the intention of interviewing the suspect for the murder of Jeffery Moimoi and other crimes he was alleged to have been involved in. Nunukeli opened the main cell door and he followed him in. Nunukeli struggled to open the door to Cell 2 where the suspect was detained so he (the accused) helped to open it. As he entered the cell he noticed a pool of blood on the cell floor. He also noticed that both of the suspect’s hands were tied behind his back very tightly with a bulk line type of rope. He noticed also that the suspect was bleeding from his face and his mouth was swollen and his clothes were soaked with blood.
    
31. The suspect struggled to stand up and so the accused grabbed the collar of his shirt to help him to stand. The suspect, however, was limping so the accused asked Nunukeli to assist the suspect to the duty counter while he locked the cell door and followed after them. At the duty counter the suspect sat on a blue bench form. Because he was in pain the accused just verbally interviewed him. About 10 -15 minutes into the interview the relatives of the late Jeffery Moimoi whom the suspect was alleged to have killed gathered outside the Police Station under the Mango tree and were intending to come into the police station. Police Reservists tried to stop them, but they could not. So, as they approached the Station Nunukeli helped the accused place the suspect back in the cell. The accused then came out and stopped the relatives of Jeffery Moimoi telling them that the matter was already in the hands of the law. He then left the Station and it was some hours later that day that he heard about the death of the deceased.
    
32. The accused denied that he assaulted the deceased lesser still attack him with the weapons Nunukeli said he used.
    
33. Junly Samano is the sister in law of the deceased. She testified that on the morning of 23^rd December 2016, she was preparing breakfast when the deceased arrived sometime between 9 – 10.00a.m and told her that he was hungry. She told him that she was just preparing breakfast, so the deceased left the house to feed the pigs. Then he told her that he wanted to climb a mango tree. The dogs had apparently eaten the pig’s food so Samano went down to chase the dogs away. When she returned the police arrived. There were 8 of them. Sergeant Kanatupa and Paul Lindsay approached her. Paul Lindsay asked for the people further down and Samano told them to go and check. Paul Lindsay went into the deceased’s mother’s house. No one was there except for the deceased’s brother who was asleep. Lindsay came out and rejoined the other policemen.
    
34. Then another group of policemen came up. They saw the deceased up on the mango tree. Lindsay and Sergeant Kanatupa told the deceased to come down. The deceased replied saying “Do not kill me, I am coming down” as they pointed their guns at him. The deceased begged them again not to kill him to which Lindsay swore at him saying “You fuck you, come down!”
    
35. The deceased then slowly climbed down. When he reached the last branch, he told the policemen that he will not run away and asked that he be allowed to pick some mangoes first. However, as he put his leg down to alight from the tree, Reservist Kuebo missed his legs with a coconut husker. When the deceased landed on the ground Kuebo hit him 3 times with the coconut husker, swinging at him with both hands. Kuebo and Reservist Fred then got the deceased to lay on the ground face down.
    
36. At that moment Samano’s child cried so she left to attend to the child but when she returned, she saw Lindsay kick the deceased on the side of his body. The deceased asked why he was being assaulted as he was not trying to flee or resist arrest and Reservist Fred told him to shut up. They then pulled him up. They asked him to pull his trousers up and a villager named Midas came over and assisted him. Samano then heard Sergeant Kanatupa issue directions to his men to burn the deceased’s house down. Midas ran into the deceased’s house and came out with a mattress. The policemen then took the deceased away.
    

DELIBERATIONS

37. I have heard the comprehensive written submissions by Mr. Yansion for the accused and the verbal reply by Mr. Kupmain for the State. I am grateful for their able assistance.
    
38. Now the question of whether or not the accused caused the death of the deceased must turn on the following question - Who inflicted the injuries on the deceased from which he died?
    
39. The State alleged that it was the accused while the defense appear to argue that he died from injuries he sustained when he was apprehended by the policemen before he was placed in the cell heavily restrained with his hands bound behind his back.
    
40. The most crucial evidence is that of Reserve Constable Nunukeli, Sergeant Kanatupa and the accused himself.
    
41. Nunukeli gave evidence in a confident manner and did not waver under cross-examination. According to him, as we have seen, the accused stormed into the Station demanding who among the police officers had the cell keys. The accused got the keys from Nunukeli, opened the main cell door, and Cell 2 where the deceased was held. He pulled the deceased whose hand were tied behind his back out to the duty office. There he sat behind the charge table and begun to interrogate the deceased, working himself to such a frenzy when the deceased repeatedly denied his involvement in the killing of Jeffery Moimoi. The accused was so angry that he picked up the axe handle (a heavy one he said), a grass knife and an iron or metal rod and placed them on the table as he continued to interrogate the deceased. In his anger he repeatedly hit the deceased all over his body including the head with the axe handle, breaking it in the process.
    
42. He then picked up the grass knife and continued to hit the deceased all over his body with the flat side of the knife until the handle broke. Still not satisfied the accused then picked the metal rod and hit the deceased on his leg once, breaking his leg. Nunukeli had to call out to the accused to stop several times as he was assaulting the deceased, but he would not listen to him. The deceased could not reply or talk anymore and lay motionless on the floor. The accused then took him back to the cell and left.
    
43. While all this was happening Sergeant Kanatupa was in his office which is situated just across from the charge room, oblivious to the what was happening in there. He did not hear a thing – not the cries from the deceased, who, if we were to believe Nunukeli, was being subjected to a brutal and sustained assault by the accused using a heavy axe handle, a grass knife and a metal rod, or Nunukeli’s repeated shouts for the accused to stop.
    
44. Sergeant Kanatupa’s office and the General Duty Office where the charge table is are separate only by a narrow corridor. Sergeant Kanatupa admitted in cross examination that he could normally hear suspects being interviewed in the charge room from his office. It is therefore rather odd that he did not hear a single thing in this instance. How could he have not heard anything?
    
45. With the kind of beating described by Nunukeli, it is not reasonable for the deceased to not have cried out in pain for he would have been in terrible pain. It is either that Sergeant Kanatupa suffered momentary loss of hearing (or memory for that matter), or that he heard what was happening within the close confines of his Station all along but told untruths to the court. Or could it be that the true situation was as narrated by the accused – that he took the deceased out of the Cell 2 with his hand already tightly bound and injured and bleeding from his face, and that he verbally interrogated him but could not continue when Jeffery Moimoi’s relatives converged on the Station forcing him to return the deceased to his cell?
    
46. All of these raise serious doubts on the State’s case, which was not helped by the fact that Nunukeli said he and other officers washed the deceased’s blood from the floor and walls, thus interfering with what was a crime scene, if we were to believe his evidence.
    
47. Sergeant Kanatupa denied that his men assaulted the deceased when they apprehended him because he said he was the one investigating the death of Jeffery Moimoi and instructed his men not to assault the deceased. I am, however, led to believe, and do find that they in fact assaulted him according to witness Samano.
    
48. Despite her apparent simplicity and unsophisticated nature, Samano came across as a truthful witness. I accept her evidence that as the deceased was alighting from the mango tree, Reservist Kuebo missed his legs with a coconut husker and when he landed on the ground Kuebo hit him 3 times with the husker. Samano left briefly to attend to her baby and did not see what happened next, but it is not unreasonable to infer that the policemen continued to assault the deceased. The deceased was bound and taken away in the police vehicle to the Station where he was placed in the Station with his hands still bound behind his back.
    
49. Now for someone who had been evading the police for some 2 – 3 weeks, it would be reasonable to say that the police would have been frustrated if not angry. It is therefore unreasonable to not infer that the Police Reservists vented their frustrations on him, as they normally do. I find therefore that some of the deceased’s injuries were inflicted by Sergeant Kanatupa’s men when they apprehended him and before he was placed in the cell.
    
50. How about HEO Kayo’s report? HEO Kayo is not a medical officer and therefore is not qualified to give an opinion as to the cause of death, and she apparently did not. That, however, does not prevent her from stating her observations on the nature and extent of the injuries on the deceased’s body.
    
51. Health Extension Officers and Nurses and Community Health Workers are often the only health professionals in rural hospitals and health centers and posts. They attend to persons brought into their facilities who have sustained serious injuries or assaults including sexual assaults and some unfortunately are brought in dead, pronounced dead on arrival or die while interned at those health facilities.
    
52. It is unreasonable to expect Health Extension Officers and other health professionals to not record their observations on the conditions of their patients, or injuries observed on them, lesser still not give evidence to that effect when required. In cases like this the court can accept such records as business records for that is really what they are. And as long as the relevant officer does not express an opinion which can only be expressed by a medical officer as to the medical cause or likely cause of death or injury observed on the subject, a non-medical officer should not be precluded from testifying nor should the court exclude a report from such an officer if its purpose is merely to show the officer’s general observations of the subject’s condition and any injuries, if any.
    
53. HEO Kayo’s report was therefore accepted into evidence - under protest by the defense of course - on that basis, because if it was not, then the court would not be in a position to appreciate the full nature and extent of the injuries sustained by the deceased.
    
54. Of course, as the Supreme Court recently said in Paliau v The State (2016) SC1537, a doctor’s opinion should not substitute the evidence of an eyewitness. On the same token, a report of a non-medical health worker’s observations should likewise not substitute the evidence of witnesses. However, that is not to say that such reports are entirely without probative value because they can, as I said, appraise the trial judge of the extent and nature of the injuries inflicted on the victim. The caution by the Supreme Court here is that a trial court should not act on a medical report alone without considering eyewitness evidence. And to that end it should necessarily follow, expert opinion aside, that observations of injuries on a subject/patient by a medical officer or a professional health worker such as a Health Extension Officer or a Community Health Worker should be consistent with eye-witness’ account on how the subject was assaulted for a conviction to be entered. If they are not, then obviously a conviction will not be safe.
    
55. So, are the injuries noted by HEO Kayo on the deceased consistent with the evidence of eyewitness Nunukeli? Nunukeli described a very brutal attack on the deceased by the accused. According to Nunukeli, he was repeatedly hit all over his body with a heavy axe handle which broke in the process. He was further hit repeatedly with the flat side of a grass knife and finally he was hit with a metal rod which fractured the leg.
    
56. Now, in those circumstances the deceased would have been reduced to pulp given the severity and frequency of the alleged blow by the weapons said to have been used on him and the nature of the weapons used. His body would have been covered in blood also. That, however, is not supported by the medical report or rather HEO Kayo’s observations. Fair enough, injuries are noted as we have seen, however, they are not consistent with the manner, severity and frequency of the attack as narrated by Nunukeli.
    
57. I cannot therefore be satisfied on the evidence before me and based on the serious doubts raised in the State’s principal witnesses’ evidence that the accused caused the death of the deceased.
    
58. Having held that, it is therefore unnecessary for me to consider the second and third elements of the offence of wilful murder.
    
59. It may possible that the accused may have assaulted the deceased when he took him out of the cell, but perhaps to a lesser degree. However, I cannot return a lesser alternative verdict for murder, manslaughter or unlawfully causing grievous bodily harm for the same reasons.
    
60. I therefore return a verdict of NOT GUILTY.
    
61. The accused is hereby acquitted and discharged forthwith, and his bail shall be refunded to him. Cash sureties paid by his guarantors shall be refunded to them as well.

Ordered accordingly.

_____________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
Yansion Lawyers: Lawyers for the Accused