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State v Konjim [2024] PGNC 283; N10951 (22 July 2024)

N10951

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 2022, 2023 & 2024 OF 2024

THE STATE

V

APE KONJIM, ANNA POKE & POKE KONJIM

Minj: Miviri J
2024 :19^th & 22^nd July

CRIMINAL LAW – Trial – Manslaughter Section 302 CCA – Assault by Three Accused – Internal Injuries – No Medical Treatment for 51 days – Death – Whether Injuries Direct Result of Assault – No Medical Confirmation – Account By Daughter Not Supported By Medical – Prima Facie No Link To Assault By Accused – Bed Ridden No Injuries Direct From Assault – Why Bed Ridden No Direct Link Lawfully to Accused – No Case to Answer X3 – Question of Law – No Lawful Basis to Link Death to Assault – Cannot Lawfully be Convicted – No Case Upheld – Acquitted Discharged X3 – Bail Refunded Forthwith X3 .

Cases Cited:

Rape, The State v [1976] PNGLR 96
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287

Counsel.
P. Tengdui, for the State
D. Pepson, for the Defendants

RULING ON NO CASE

22^nd July 2024

1. MIVIRI J: This is the ruling on the no case submission made by the defence after closure of State case against all three accused jointly indicted for manslaughter.
   
2. That is pursuant to section 302 of the Criminal Code which is in the following terms:
   

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

Penalty: Subject to Section 19, imprisonment for life.”

3. On the 10^th December 2022 an argument arose amongst the three Accused and the deceased, Anton Buma Dupre over K100 that was ordered by the village Court in favour of Poke Konjim and Anna Poke. It climaxed into a fight as the deceased accompanied by his daughter were on their way to church. Anna Poke is the wife of Poke Konjim who is the brother of Ape Konjim. The accused confronted the deceased who was 45 years old walking to church with his daughter.
   
4. Anna Poke was armed with a spade. Both Poke and Ape Konjim were unarmed when all approached the deceased. Anna Poke swung the spade at the deceased head. And both Ape and Poke Konjim assaulted the deceased on his body with their fists. In the course Ape grabbed the shirt of the deceased pulled and tore his shirt. Poke swung a hard punch at the deceased left rib area causing pain there, and he fell to the ground in pain. A Bystander came and stopped them. The three Accused left the deceased assisted by his daughter to the house. He did not go to the hospital and stayed in the house bed ridden as a result of the assaults and died 51 days later on the 30^th January 2023.
   
5. Postmortem revealed that he died from a condition called Orthostatic Pneumonia due to being bed ridden for a long time because of being physically assaulted. That the accused had caused the deceased to go into this condition and therefore were responsible for his death. They had unlawfully killed him. It was their assault that put him in this condition. And they aided and abetted each other therefore were guilty of manslaughter pursuant to section 302 of the Criminal Code Act.
   
6. Each record of interview of the Accused were tendered and marked Ape Konjim pidgin original conducted on the 31^st March 2023, exhibits P1(a), English translation P1(b), Anna Poke pidgin original version also conducted on the 31^st March 2023, exhibit P2(a), and the English translation P2(b), and of Poke Konjim pidgin original version conducted on the 30^th May 2023 exhibit P3(a) and the English translation P3(b). These basically denied that cause of the death of the deceased was attributed to their hands. He was not bed ridden by their actions leading eventually to his death.
   
7. The first witness on oath was the daughter of the deceased Donnie Boma who gave sworn evidence that on that day Sunday 10^th December 2022, she accompanied her father, Anton Boma Dupre to go to church. As they were walking to church the three Accused came down meeting them on the way. Poke approached and said when you are going to pay the credit and started attacking. Anna wanted to hit him with the spade on the head. Poke clenched his hand into a punch and hit him on the side. And he fell to the ground, and I was crying. Obert came and tried to stop the fight. He walked slowly up back to the house but never went to the hospital after that. He stayed in the house until he died. He was bed ridden after the assault. He did nothing except stay in bed.
   
8. Defence suggested that the date was not December 2022 but October 2022. She did not reply to an answer to the question. Similarly, when suggested that that was the day when there was a fight between her father and Poke. She made no reply to it. That he died from a sickness that he had within him.
   
9. Second witness on oath was Kuma Muk who also confirmed the assaults by the accused upon the deceased on that day 30^th January 2023 at Mansamp. That he did not go about normally after the assaults by the three Accused. It was suggested that he was immediately outside court within hearing of the witness Donnie Boma when she gave evidence. Assessment of that will be made if this case should go to a full hearing.
   
10. By the evidence of Doctor Kelvin Kalate Exhibit P4 Postmortem Report dated 07^th February 2023, Emergency Medical Registrar who had worked for four years at the Mt Hagen General Hospital, Anton Buma Dupre had died from Orthostatic Pneumonia due to being bed ridden for a long time. At the time of death, he had been bed ridden for (51) fifty one days after the assault. He did not have a broken leg, or that there were infections within the chest as a result of the assault that did not permit him mobile from it. As with a spleen where assault was direct to the spleen to cause it to rupture. Or a bullet from a gun that went into the chest injuring the lungs so that, where air was blood went in drowning the deceased. The cause of death was directly linked to the assault. Here the pneumonia was air borne. And was curable if proper administration sought at a hospital. It was not done by the deceased or the daughter, or any other witness so that he was cured of it. He contributed to his demise. It was not conclusive that the fault remained entirely even without the evidence of the Accused with them after closure of the State case. They could be lawfully convicted even without they going into evidence. He who alleges must make out a lawful cause for the Accused to answer. In law nothing has been laid out so that a conviction in law would result without the evidence of the accused. This is not proving beyond all reasonable doubt. That is at the end of all. We are not at that stage here.
    
11. Therefore it is primary to ascertain what injury was such that it was directly linked to the assaults that were made by the three Accused upon him so that he was bed ridden. It is not the doctor’s evidence that he sustained internal injuries to the chest and rib area that caused breathing problems making him immobile. So that he was bed ridden opening him to the pneumonia that got him because he was bed ridden and died as a result. There is a missing medical link that draws against calling the three Accused to answer the indictment that they unlawfully caused the death of Anton Buma Dupre on the 30^th January 2023 after he was assaulted 51 days back to 10^th December 2022 by them. That link will not call the three Accused lawfully to answer that allegation. Because that is what it is a question of law, not fact. It will not improve the case any further in law if the three accused are called to give evidence. Because with their silence at this stage, they cannot be lawfully convicted on the manslaughter of Anton Buma Dupre.
    
12. I am bound by the principles in this area based on Rape, The State v [1976] PNGLR 96 reinforced in Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287, that three Accused could not be lawfully convicted because prima facie, on the face of it, there is no injury directly resulting from their assault that led to the death of the deceased. It is a question of law, because “When, at the close of the case for the prosecution, a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a case to answer has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. That is a question of fact.
    
13. I determine and hold that after closure of the State case for the reasons set out above, all three Accused, Ape Konjim, Anna Poke, and Poke Konjim all of Mansamp, Anglimp, South Waghi, do not have a case to answer on the Indictment dated the 19^th July 2024 that they on the 30^th day of January 2023 at Mansamp in Papua New Guinea unlawfully killed Anton Buma Dupre.
    
14. I acquit all three Accused named from the Indictment forthwith, and order refund of all their bail moneys forthwith.
    

Orders Accordingly.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant