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State v Bulen [1990] PGNC 87; [1990] PNGLR 43; N789 (16 January 1990)

N789

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ENNY BULEN

Madang
Kidu CJ
11-12 January 1990
15-16 January 1990

CRIMINAL LAW - Evidence - Dying declarations - Admissibility - Religious beliefs of declarant irrelevant - Evidence Act (Ch No 48), s 20.

EVIDENCE - Admissibility - Dying declarations - Religious beliefs of declarant irrelevant - Evidence Act (Ch No 48), s 20.

The Evidence Act (Ch No 48), s 20, provides:

"20. Dying Declarations.

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 —

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person makes 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."

Held:

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:

(a) the declaration be oral;

(b) that the declarant believed that death was imminent;

(c) that the declarant/deceased would have been a competent witness; and

(d) that direct oral evidence of the matter declared was admissible;

the religious beliefs of the declarant are irrelevant.

Cases Cited

The following cases are cited in the judgment:

R v Ambimp [1971-72] PNGLR 258.
R v Kipali-Ikarum [1967-68] PNGLR 119.
R v Madobi-Madogai [1963] PNGLR 252.
R v Woodcock [1789] EngR 2091; [1789] 1 Leach 500; 168 ER 352.

Counsel:

J Kuvi and C Bidar, for the State.
C Inkisopo, for the accused.
Cur adv vult

16 January 1990

KIDU CJ.: The accused is charged with the unlawful killing (manslaughter) of the late Amo Gui, a female.

It is alleged by the State that, on Friday, 23 June 1989, the accused assaulted the deceased, ruptured her enlarged spleen and thereby caused her death. The medical evidence is that she bled to death as a result of the ruptured spleen.

The deceased was living at Nagada Plantation with her husband and children. The accused was employed at the same plantation as a driver.

On the morning of Friday, 23 June 1986, the accused was at the plantation manager’s house. This house is about 15 metres away from the house which the deceased and her husband and others occupy.

At the time of her death, the deceased was, according to her husband, a mad woman. He says she had become "long long" in April 1989 and had remained so. Her mental condition was such that she talked "nonsense", according to her husband. There is no medical evidence of the deceased woman’s mental condition. But I accept the evidence of the husband that she was "long long". This is supported by the defence witness, Yapeng Kawa, Manager of Nagada Plantation. This aspect is important as it bears directly on the question of the deceased’s dying words. I will come to this later.

Two State witnesses gave evidence of the alleged assault of the deceased by the accused: the deceased’s husband, Gurimba Gui, and the woman, Mrs Sipar Gingkewe.

Gurimba Gui’s evidence is suspect. He says he saw the assault but he indicated at the view that the assault took place at the front of the manager’s house. It was clear from the view that he could not have seen anything — his house is behind the manager’s house. Also he did nothing when he allegedly saw his wife being assaulted. A man seeing his wife being assaulted would have gone to her aid unless he hated her or had had a fight with her and refused to help. No such evidence is before me. It is quite clear to me that Gurimba Gui has lied to this Court. The part of his evidence that I accept is that relating to what his deceased wife said before she died and this is only because an independent witness, Mrs Piro Weangkepe, said: "She [deceased] said, ‘Enny assaulted me’ ... ". It was after she said this that the deceased died. In cross-examination, she said that the deceased said, "Enny beat me". I will deal with the admissibility or otherwise of this statement after I deal with Mrs Sipar Gingkewe’s evidence.

MRS SIPAR GINGKEWE’S EVIDENCE

She had gone to her small store to serve a customer at about 7 am. After she served the customer and locked the door of the store, she was about to go back to her house behind the store when she looked across to the plantation manager’s house and saw the accused "grab the mad woman by her shoulders and push her". She goes on to say:

"Then he swung his legs to her sides. He used his left leg and his right leg. He swung his legs at the woman on her sides. He held her on the shoulders from behind. He then kicked her on both sides with his legs. He was wearing brown shoes. He kicked her on the left side with his left foot and on her right with his right foot."

She says when she saw this she shouted at the accused and said, "Do not assault her". This assault, she says, took place on the side of the manager’s house.

Her store and house are about 100 metres or more from the manager’s house. She could see what she says she saw from where she was but I doubt, from that distance, whether she could tell what colour of shoes the accused wore at the time.

If the incident took place near the sink at the front of the manager’s house (as contended by the defence), she could not have seen the alleged assault.

She says that, after she saw the accused assault the deceased, she went to her house to sleep as she had a headache but later she went to the plantation clinic for treatment.

Also, she said that that morning the accused was brought to work by the manager. Later, in cross-examination, she changed her story and said that because the manager usually picked up the accused, she assumed he did on the morning of 23 June 1989.

But the most damaging part of her evidence is as follows:

"Q. That morning you saw Enny wearing brown shoes, where you see him?

A. The road comes past my house. He came past my house to go to work and I saw him.

Q. Is it a track or a footpath?

A. A footpath.

Q. Where did he live at the time?

A. At Milinat.

Q. He is a driver at Nagada Plantation?

A. Yes.

Q. Did you know he drove to Nagada in a vehicle?

A. He came in his bicycle."

After some cross-examination on the type of bicycle, she said:

"A. I can say sometimes he came in a bike and sometimes in a plantation car. But on that particular day he was riding someone else’s bike."

The point to be emphasised here is that the accused could not have gone to work on 23 June 1989 on a bicyle and also have been brought to work in a plantation vehicle by the plantation manager.

There is also the telling information from her that, although she was married to the deceased’s brother, when she saw her allegedly being beaten by the accused and walking away clutching her sides in pain, she did not go to her aid. Instead she went to her house to sleep. This is most difficult to believe. In Papua New Guinea (and elsewhere I would imagine), if a person sees one of his or her relatives being abused or assaulted by another person, that person would go in aid of his/her relative and not go to sleep! In all the circumstances, I do not accept Sipar Gingkewe as a truthful witness. It is my considered opinion that she lied in this Court.

DECEASED’S DYING DECLARATION

Having discounted the evidence of the deceased’s husband and that of Sipar, the only evidence the State can rely on is the "dying declaration". I accept that the deceased, just before she died, said that the accused assaulted her or beat her or bashed her up. But is this statement admissible? Section 20 of the Evidence Act (Ch No 48) says:

"20. Dying Declarations.

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 —

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person makes 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."

I consider that s 20 is very clear in its terms. There is nothing in s 20 which suggests that the religious belief of a declarant is a relevant consideration as to whether his/her dying declaration should be accepted as evidence. The legislature has laid down the conditions that must be satisfied before a dying person’s statement can be admitted into evidence. These conditions do not include the religious beliefs of the person making the statement or dying declaration. The rule laid down in R v Woodcock [1789] EngR 2091; [1789] 1 Leach 500 and referred to and applied in R v Madobi-Madogai [1963] PNGLR 252 does not apply any more in Papua New Guinea.

In that case Ollerenshaw J said (at 253):

"The admissibility of what was said by the victim in homicide depends upon the declarant having spoken under a sense of impending death and the principle upon which it is then admissible is that a sense of impending death creates a sanction equal to the obligation of the oath.

I have no doubt, upon the evidence, that when he answered his brother, Topuludou believed that he was about to die from the wound, which he had received in this encounter, and was without hope of recovery.

However, I have nothing before me to show that such a belief would create a sanction enjoining him to speak the truth.

In R v Woodcock [1789] EngR 2091; [1789] 1 Leach 500 at 504, Eyre CB, as cited in Phipson at p 331, remarked:

‘The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.’

It is generally assumed that such a sanction exists where the deceased was a civilized member of a Christian community and such an assumption is made in the application of the principle in Australia, but, I have not had occasion to consider its application to the dying declaration of a member of a native community in this Territory. However, I apprehend that it is based upon the Christian belief in a hereafter and that the ‘most powerful considerations to speak the truth’ are those which exercise the mind of a Christian about to meet his Maker. This exception to the hearsay rule evolved under a strong sense of punishment for falsehood and other sins."

In fact, they were rejected by Clarkson J in R v Kipali-Ikarum [1967-68] PNGLR 119 and by Raine J in R v Ambimp [1971-72] PNGLR 258. Section 20 of the Evidence Act makes no mention of the religious belief of the declarant. I see absolutely no reason to bring into the interpretation of s 20 what was said in Woodcock and Madobi.

So in Papua New Guinea a dying declaration may be admitted into evidence only if such declaration comes within the ambit of s 20. Religious belief or conviction has nothing to do with s 20.

That it was an oral statement is not under dispute. This is the first condition.

When the deceased made the statement in question, did she believe or may she have believed that her death was imminent? As she died after she made the statement, I consider that she believed she was dying.

Could she have been a competent witness? The evidence shows that she was "long long" and talked "nonsense". Although there was no medical/psychiatric evidence as to her mental state, the State and defence evidence shows that it would have been difficult to consider her competent to give evidence. This is conceded by the State. On this basis, I cannot say she would have been a competent witness. Therefore I cannot accept the statement she made before she died.

Having discounted the evidence called against the accused by the State, the only evidence which I have is of the defendant, the Manager of Nagada Plantation (Mr Yateng Kawa) and Sepaum Wakaip. Their story is that the deceased went into the manager’s premises pursued by another woman who shouted that the deceased had stolen her towel. The accused had just driven in with the manager’s son, Phillip. They got out of the vehicle and the accused got the towel from the deceased and gave it to the owner. Then he shouted at the deceased to go away. At the first shout, the deceased walked backwards slowly, presumably frightened of the accused. When the accused shouted at her the second time to go away, she turned and ran but tripped on a rise in the ground and fell down. She got up and went away singing. This evidence stands unimpeached.

The result of what I have said is that the State has failed to prove that the accused caused the death of Amo Gui.

I find the accused not guilty and discharge him.

Verdict of not guilty

_______________

Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.