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State v Pantagala [2021] PGNC 659; N9906 (6 August 2021)

N9906

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 237 & 238 OF 2021

THE STATE

V

BATAM PANTAGALA & JOB JOEL

Kibil/Kokopo: Suelip AJ
2021: 21^st May, 5^th, 6^th, 7^th, 19^th July & 6^th August

CRIMINAL LAW – trial – verdict – co-accused – murder s.300(1)(a) – deceased assaulted – second accused denies assaulting the deceased – deceased died – bruises on certain parts of body of the deceased – ruptured spleen – cause of death – alternative verdict - guilty of manslaughter

Cases Cited

State v. So’on Torah (2004) N2675
Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act Re: Section 539 of the Criminal Code (2020) SC1999

Counsel

G Tugah, for the State
S Pitep, for the Co-Accused

VERDICT

6^th August, 2021

1. SUELIP AJ: On 6 July 2021 at Kibil, the co-accused were each indicted on one count of the murder of Likot Laur, thus contravening section 300(1)(a) of the Criminal Code. Both denied the charge and a trial was conducted shortly thereafter.

2. This is my decision on verdict.

3. The allegations against the co-accused are these. On 19 June 2020 between 3 and 4pm at Nakukur village, Duke of York Island, both accused persons were at Batam Pantagala’s block of land. Batam shares a boundary with the block of land of Likot Laur, now deceased. At the said time and place, they saw the deceased working his block planting new cocoa seedlings so they both approached him. They accused him of stealing dry coconuts and cocoa from Batam’s block and they started beating him up. They punched him and hit him on his neck, his left and right ribs/abdomen area with sticks and stones. The deceased suffered bruises and abrasions on his body. He died due to a raptured spleen. The State alleged that their actions contravened section 300(1)(a) of the Criminal Code and charges them with one count of murder. The State also invokes sections 7 and 8 of the Criminal Code.

The offence

4. Section 300(1)(a) of the Criminal Code provides:

300. Murder

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

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

5. The elements for the State to prove beyond reasonable doubt are:

(i) the accused/accused persons killed the deceased
(ii) he/they intended to cause grievous bodily harm

6. The issues are:

(i) whether they were there at the scene of the crime?
(ii) whether they intended to cause grievous bodily harm

to the deceased?
(iii) whether they assaulted the deceased?
(iv) whether they caused the death of the deceased?

Evidence by consent

7. At the commencement of trial, the State tendered the following documents into evidence with the consent of the co-accused:

Document Exhibit

(i) Statement of Corroborator Pekka Samo dated 29/06/20 S1
(ii) Statement of Arresting Officer George Michael dated 29/06/20 S2
(iii) Confessional Statement of Batam Pantagala dated 22/06/20 S3

(iv) Record of Interview – English & Pidgin version of Batam Pantagala dated 29/06/20 S4

(v) Record of Interview – English & Pidgin version of Job Joel

dated 29/06/20 S5
(vi) Photographs Nos. 3, 4, 5 and 6 tendered through the

Arresting Officer, Constable George Michael S6
(vii) Statement of Constable George Michael dated 30/08/20 S7
(viii) Photograph 1 S8
(ix) Photograph 2 S9
(x) Post Mortem Report by Dr David Pomat dated 25/06/20 S10

Summary of the State’s evidence

8. The State called five (5) witnesses to give oral evidence in Court at trial. The State’s key witness is Elison Karabut. His oral testimony is that he knows the two accused and the deceased as they all are his nephews. He says they all live at Nakukur village. On the day of the incident, he says he was with his 2 small children at his block which is about 40 to 50 meters away from the block of the deceased and Batam’s block. It was then when he heard shouts of people fighting so he ran towards the commotion which was coming from the block of the deceased. He said he stood about 10 to 15 meters away and saw the two accused assaulting the deceased with a piece of stick on his shoulders at the back of his neck. He also said he saw Job Joel throwing stones at the deceased which hit him at his sides. The witness said he called out five (5) times at them before they stopped assaulting the deceased. He said the deceased then ran towards him like a drunkard and he helped him to his block where he tried to give the deceased some water to drink. He said during this time, the two accused were shouting out loud that they have killed a pig and for the public to come get the pig. He said the deceased then told him then that he was not feeling well and that was when he passed away.

9. The State’s second witness is Constable George Michael. He is the arresting officer and is attached to the Criminal Investigation Division at Kokopo Police Station. He said he visited the crime scene on 20 June 2020 and took photographs. He tendered into evidence Exhibit S6 which comprised of photographs 3, 4, 5 and 6 which he took of the crime scene. He says although it was the State witnesses who assisted him at the crime scene, one of the accused, Job Joel was also there with them. He said from what he was told, the assault occurred at the block of the deceased and it was a fair distance from where the assault started to where he died.

10. The State’s expert witness is Dr David Pomat, a medical doctor at Nonga General Hospital who performed the autopsy on the deceased and authored the Post-Mortem Report. This report is Exhibit S10. The doctor gave a thorough description of the injuries sustained by the deceased. He also described the bruises and what may have caused such injuries. In this case, he says those various injuries would have been caused by trauma to the body or a fall. He explained the various parts of the body that were injured, inside and outside. He said there were bruising abrasions on the right and left scapula which may have been caused by someone hitting the deceased with a stick. He also said that there were also bruising and abrasions on the left posterior iliac area and this was consistent with someone throwing stones onto the back left side of the deceased. He concluded that the deceased died of blunt abdominal trauma which raptured the spleen and resulted in a pool of blood inside the body.

11. The State’s fourth witness is Elabok Ekonia. This witness said she was with Michaelyne, Grace and Rodie and they were on their way to the beach to wash when they met one of the accused, Job Joel. He asked them if they heard an argument coming from the block further down and when they said they did, he went to find out what had happened. The witness and her friends continued down and when they arrived at Ellison’s block, they assisted Ellison with the deceased. She said she heard the deceased say he wanted to sleep and laid his head on Michaelyne’s lap and then he passed away. She said both accused were standing on Batam’s cocoa block and were shouting and swearing. She said she heard them say that a pig has been slaughtered for the villagers to have. This witness also said that the two accused were standing about 15 to 20 meters away and were screaming at the deceased.

12. The last witness for the State is Michaelyne Eliuda. She verified all that Elabok had testified. She confirmed that the deceased had laid his head on her lap and passed away.

Summary of the Defence evidence

13. Both accused gave evidence in their defence. The first accused, Batam Pantagala was called in first. In his testimony, he said he was planting banana on his block on the date of the alleged murder. After planting banana, he saw the deceased at his block and hid and watched the deceased. He then saw the deceased collecting coconuts from his block and throwing them over to his block. The accused said that was when he approached the deceased and punched him twice on his head before he ran away. The accused did not know where the deceased ran to, and he denied seeing Ellison standing about 15 meters away and telling him to stop assaulting the deceased. He then said the other accused, Job Joel arrived at the block and when he was told of what had just happened, he heard Job say ‘Likot, u stil man’. Thereafter, both the accused returned to the village.

14. For the co-accused, Job Joel, he gave evidence that he was at his block cutting copra on the day of the alleged murder. He then said he followed the road to Nakukur village to get the buffalo. On his way, he said he met some girls namely Michaelyne, Grace and Elabok. He said there were other girls with the group, but he did not know their names. He asked the girls if they heard arguments and when they said they did, he left them and headed towards where the arguments were coming from. He then said he met the first accused, Batam at his block and Batam told him of what had just happened. Job said that after he heard what had happened, he screamed at the deceased saying ‘Likot u stil man’. He said thereafter, both accused left to return to the village.

Submissions

15. In summary, the State contend that both accused persons were seen assaulting the deceased. Whilst Batam was hitting the deceased with a piece of stick on his shoulders at the back of his neck, Job was throwing stones at the deceased. The postmortem report confirms that the deceased had injuries to his shoulders and around his stomach. These injuries are caused by blunt force trauma that raptured the spleen of the deceased and caused his death. It is the State’s submission that there is proof beyond reasonable doubt that the two accused killed the deceased and they both had the intention to cause grievous bodily harm to the deceased.

16. In their defence, they argued that the evidence of Elabok Ekonia and Michaelyne Eliuda corroborates Job’s story when they say they met Job on the main road, and he asked them if they heard arguments coming from the blocks. They said he then left them and went towards the area where the arguments came from. No threats were made to the ladies then. Both witnesses also deny the accusations that after the assault both the accused screamed out loud telling the public to come get the slaughtered pig. Evidence showed that only Job screamed after Likot saying “Likot, u stil man”.

17. Both accused did not take issue on the doctor’s report but agree that there was indeed an argument and Batam only punched the deceased twice before the deceased ran away. The two accused say that Batam’s punches did not cause the blunt force trauma to the deceased and something else caused it after the deceased had left Batam’s block. In the end, they submit that the State has not proven its case beyond reasonable doubt and so the Court should find each of them not guilty of the charge of murder.

Consideration

18. The burden of proof rests on the State to prove that the two accused persons killed the deceased and that they both intended to cause grievous bodily harm to the deceased.

19. The first element of the offence to prove is that the two accused killed the deceased. Both denied that they killed the deceased. However, the postmortem report concluded that the deceased died of blunt abdominal trauma which raptured the spleen that resulted in a pool of blood inside the body. This is also dependent on the size of the spleen, whether it was an enlarged one or not. Regardless, the amount of blood collected during autopsy as seen in the postmortem report implies that either a greater force was used, or it was an enlarged spleen ready to rapture. Naturally, normal punches on the deceased alone would not have killed him unless it was an enlarged spleen which required minimum force to cause it to rapture.

20. As it is, it is Ellison’s word against the two accused. However, it is not disputed that Batam and the deceased were at his block on the day of the offence. It is also not disputed that an argument broke out as Batam saw the deceased steal dry coconuts from his block and throwing them over to the next block which belonged to the deceased. Further, it is not disputed that Batam assaulted the deceased. Batam also said Job was not with him at the time of the assault and he only arrived at the scene after Batam had assaulted the deceased and the deceased had ran away. Batam was seen assaulting the deceased and he also confessed to punching the deceased twice. The State’s key witness said at trial he saw Batam throwing stones at the deceased but in his statement provided to the police, he says he saw both accused hitting the deceased with pieces of wood. In Batam’s Record of Interview (Exhibit S3 and S4) he denied Job’s participation in the assault. Also, at trial that Batam denied Job, was with him when he assaulted the deceased. Besides, the other State witnesses, Elabok and Michaelyne, also confirm that they met Job on the main road when they heard the arguments coming from the somewhere beyond the road. Job could not have participated in the assault as he arrived late at the scene or unless he joined in much later.

21. Having considered all these, I do not think Job Joel participated in the assault. This is despite Ellison testifying that he saw both accused hitting the deceased with pieces of wood. Batam did say Job arrived after the assault. Elabok and Michaelyne also said Job met them about the time the arguments were heard coming from the blocks. From evidence presented, it appears that only Batam assaulted the deceased to stop him from stealing coconuts, and as a result of the injuries sustained by the deceased, he died.

22. As regards the other element of both accused having an intention to cause grievous bodily harm to the deceased, it is clear from evidence, that Batam was angry when he saw the deceased collecting dry coconuts from his block and throwing them to them next block. This angered Batam and he confronted the deceased and assaulted him. This was to stop the deceased from stealing. Even though the accused said he only punched him twice, the State’s key witness saw Batam hitting the deceased on his left shoulder at the back of his neck. He did not say how long the assault lasted but he said he had called 5 times to stop it. The postmortem report agrees with this evidence where it said there were bruising and abrasions on the right and left scapula which may have been caused by someone hitting the deceased with a stick. It may also have been caused by Batam when he punched the deceased with his hands.

23. Further, I am required to consider the state of mind at the time of both accused when they acted. Batam was angry and lost self-control and in the process inflicted injuries that proved fatal. He was seen hitting the deceased with a piece of stick on the back shoulder under his neck. The injuries sustained were consistent with blows from the stick or from his hands. Those injuries were not on a vulnerable part of the body. On the other hand, Batam said he only slapped the deceased twice on his head. If that were so, there will be no or less bruising and abrasions. Further, in his Record of Interview, he said he was hitting the deceased with his hands, but he may have also hit him on some other parts of his body subconsciously. Therefore, in my mind, there is doubt that there was intention on the part of the first accused to do grievous bodily harm to the deceased. He only meant to stop the deceased from stealing coconuts. The deceased would not have died from his external injuries alone. Hence, this element of the offence is not proven beyond reasonable doubt.

24. Thus far, evidence show that only Batam had assaulted the deceased, not Job. The State’s key witness says otherwise.

25. This brings me to the question of the credibility of each of the witnesses. This will determine whose story I should believe. I adopt the statement of His Honor Justice Kandakasi (as he then was) in State v. So’on Torah (2004) N2675, at page 5 of his judgment where he says:

“Finding credibility is in turn dependent on matters of logic and common sense as well as the demeanor of the witnesses and consistencies in their evidence”.

26. The State’s key witness is an ordinary witness. He gave a recount of what he saw happened. However, the only evidence he gave that did not make sense was that he saw the other accused, Job also assaulting the deceased. If Job was part of the assault, why would Batam deny it? It is not logical for Batam to say Job did not participate in the assault. He would not want to take the fall himself. The other evidence that the key witness gave was that the ladies Job met on the main road were threatened not to speak about the assault. None of the State witnesses mentioned any threat made to them by Job.

27. The other State witnesses are observed to be truthful in their evidence as they only spoke of what they said, saw and did on that day but the fact is they did not see the two accused assaulting the deceased. Besides, they met Job on the main road about the same time the assault was taking place on Batam’s block as they all heard the shouts.

28. For the two accused, most parts of their evidence are observed to be true. However, some parts of their evidence are unbelievable especially where they deny shouting and swearing.

29. Essentially, the State has therefore not proven beyond reasonable doubt that the two accused intended to cause grievous bodily harm to the deceased. As such, this Court cannot find the co-accused guilty of murder.

30. However, this Court can find an accused guilty on a lesser charge of manslaughter. In the Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act Re: Section 539 of the Criminal Code SC1999, I quote in part: -

“If the only charge on an indictment is wilful murder and, after trial, all elements of the offence are not proven, s539 of the Criminal Code allows the Court, if satisfied of the elements, to enter a conviction for an alternative offence of murder, manslaughter, unlawful grievous bodily harm, unlawful assault doing bodily harm, unlawful wounding or unlawful assault.”...

31. Further, Section 539(2) of the Criminal Code states:

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

32. The offence of manslaughter under Section 302 of the Criminal Code provides as follows:

302. Manslaughter

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder and infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

33. The elements of this offence are these:

(i) the accused killed the deceased
(ii) unlawfully

34. The first element of the offence has been made out, as discussed in paragraphs 19, 20 and 21 above.

35. The other element of the offence the State must prove is that the killing was unlawful. Batam admitted to assaulting the deceased after he saw him stealing coconuts from his block. Batam reacted that way as he was enraged. He wanted to stop the deceased from stealing his coconuts. That rage caused him to punch the deceased recklessly and he may have unconsciously hit the deceased on his stomach where his spleen was located. This is a vulnerable part of the body and so his actions were unlawful.

Findings

36. I find that only Batam killed the deceased, but he did not intend to cause grievous bodily harm to the deceased. He only wanted to stop the deceased from stealing his coconuts. Also, the deceased would not have died from his external injuries alone. The State, therefore, has not proven beyond reasonable doubt that the two accused murdered the deceased. However, I find the State has proven beyond reasonable doubt the alternative charge of manslaughter only against Batam Pantagala. Job Joel never participated in the assault on the deceased.

Verdict

37. Batam Pantagala is found not guilty on the charge of murder under section 300(1)(a) of the Criminal Code. He is found guilty of the alternative charge of manslaughter under section 302 of the Criminal Code.

38. Job Joel is not found guilty on a charge of murder pursuant to section 300(1)(a) of the Criminal Code and not guilty on any other offence. He is therefore discharged forthwith, and his bail monies will be refunded to him.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Co-Accused