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State v Tuka [2011] PGNC 307; N4201 (21 January 2011)

N4201

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 64 OF 2009

THE STATE

V

JOE TUKA

Kimbe: Cannings J
2010: 16 June,
2011: 20, 21January

VERDICT

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – elements of the offence – whether the accused killed the deceased – whether intention to do grievous bodily harm.

The accused was alleged to have killed a man by punching him in the head during an altercation between, on the one hand, the accused and his brother-in-law, and, on the other hand the deceased and his nephews. The State's case was that the accused threw the first and lethal punch and that the deceased did nothing to warrant being punched and did not respond to the accused's blows. The defence case was that the accused, though present at the scene, did not throw any punches and that the deceased was punched only by the accused's brother-in-law.

Held:

There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

As to (a), the State witnesses were more impressive than the defence witnesses and gave credible evidence that the accused struck the first and lethal blow, which contributed to the deceased's death. Therefore the accused killed the deceased.

As to (b), the circumstances of the altercation (a spontaneous, not planned, incident arising principally out of an altercation between the accused's brother-in-law and the deceased's lain in which the accused did not use an offensive weapon) meant that an intention on the accused's part to do grievous bodily harm to the deceased was not proven; therefore the accused was not guilty of murder.

However, there was no lawful justification or excuse for the accused killing the deceased. Therefore the accused was guilty of manslaughter.

Cases cited

The State v James Yali (2005) N2988
The State v Jeffery Bijuma (1989) N765,
The State v Justin Komboli (2005) N2891
The State v Raphael Kuanande [1994] PNGLR 512
The State v Ruben Kou Gasawa & Ors (2009) N3800

TRIAL

This was the trial of an accused charged with murder.

Counsel

F Popeu & A Bray, for the State
D Kari & R Beli, for the accused

1. CANNINGS J: The accused, Joe Tuka, is charged with the murder of the deceased, Hali Beki, arising from an altercation between two groups of people at Daliavu Plantation, in the Talasea area of West New Britain, on Tuesday 30 September 2008.

2. Much of what happened is undisputed. Most of the people involved were employees of New Britain Palm Oil Ltd, which owns the plantation, and the incident occurred in the residential compound. Shortly before the incident which led to the death of the deceased there was another incident that occurred in the plantation itself. The accused's brother-in-law, Mark Orio (who was also charged with murder and committed for trial but jumped bail before the present trial started) was operating a backhoe, excavating a drain near a river. Three young Morobe boys were watching the work going on and then started collecting fish and eels from the ground that was dug up. Orio became agitated by that, spoke harsh words to the boys, and told them to go away. The boys did as they were told then ran to their elders and reported what happened and alleged that Orio had sworn at them and chased them with a bushknife.

3. Their elders were angry when they heard the boys' story so after work that day, around 5.30 pm, they marched around to where Orio was living with the accused, confronted Orio and that is when the altercation that led to the death of Hali Beki occurred.

4. The altercation was between –

on the one hand, the accused, Joe Tuka, a local WNB man, aged in his 30s, from Garu village, and his brother-in-law, Mark Orio, of a similar age, also a WNB man, from the Arowe area, who is married to Tuka's sister; and

on the other hand, two brothers, Loggy Bata (age 35) and Gilo Ditno (age 48), and their uncle, Hali Beki, aged about 50, all from the Kabwum area of Morobe Province.

5. The other significant relationship between the protagonists is that Orio is Ditno's son-in-law.

6. The State's case is that Tuka threw the first and lethal punch, and then Orio joined in; the deceased did nothing to warrant being punched and did not respond to the blows. The defence case is that Tuka, though present at the scene, did not throw any punches and that the deceased was punched only by Orio.

7. It is agreed that whoever punched or assaulted the deceased killed him. He vomited blood within a few hours after the incident and was taken to Kimbe General Hospital in the early hours of the following day and stayed there until he died nine days later of the injuries he received in the altercation.

ABSENCE OF ACCUSED

8. This trial commenced on 16 June 2010. The accused appeared from bail and all the evidence was received. The trial was adjourned to the next day for submissions but the accused failed to appear. That went on for several days before a warrant for his arrest was issued. The warrant remains un-executed and the accused has failed to attend court since then.

9. An accused has a right under Section 37(5) (protection of the law) of the Constitution and Section 571 (presence of accused) of the Criminal Code to be present at his trial but has no right to deliberately absent himself from the trial for the purpose of stopping the trial proceeding (The State v Justin Komboli (2005) N2891). Here, the accused's conduct is regarded as implied consent to the trial continuing in his absence. He has conducted himself in a way that renders continuance of proceedings in his presence impracticable. Therefore the trial has proceeded in his absence.

ELEMENTS

10. The accused is charged with murder under Section 300(1)(a) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, 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.

11. The prosecution therefore has the onus of proving beyond reasonable doubt that:

the accused killed the deceased; and

the accused intended to do grievous bodily harm to the deceased.

12. They are the two elements of the offence. If the court is not satisfied that the first element is proven, an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is satisfied but not the second, an alternative verdict of manslaughter can be entered under Section 539(2).

13. The accused denies that he killed the deceased. So the first issue is whether he did so. If no, did he do grievous bodily harm? If he did kill the deceased, was there an intention to do grievous bodily harm? If yes, a conviction for murder will be entered. If no, an alternative conviction for manslaughter will be considered. The primary issues therefore are:

Did the accused kill the deceased?

Did he unlawfully do grievous bodily harm to the deceased or commit any other similar offence?

Was there an intention to do grievous bodily harm?

Should an alternative conviction for manslaughter be entered?

1 DID THE ACCUSED KILL THE DECEASED?

14. Determination of this issue requires:

a summary of evidence for the State;

a summary of evidence for the defence;

a preliminary assessment of the State's case;

a summary of the defence counsel's submissions;

an assessment of the defence counsel's submissions; and then

final determination of whether the accused killed the deceased.

EVIDENCE FOR THE STATE

15. It consisted of:

medical evidence;

record of interview; and

oral evidence by two witnesses.

Medical evidence

16. A post-mortem report by Dr K Samuel of Kimbe General Hospital dated 15 October 2008 shows that the cause of death was a severe subdural haematoma, ie bleeding between the dura, which line the inside of the skull, and the arachnoid layer over the brain. A significant abnormal finding was a nasal bridge fracture.

17. It is well known that a subdural haematoma can cause pressure on the brain some time after the original injury, which can result in death.

Record of interview

18. The accused said that Orio told him that he chased away the Morobe kids from where the backhoe was operating as it might harm them. The kids' fathers should have taken the matter to the security guards but instead they approached Orio aggressively and swore at him, accusing him of different things. That made Orio confused and angry so as the Morobeans moved in to attack him he swung his fists at them to disperse them and connected with the deceased's face. One of the men, Loggy Bata, was so aggressive that he (the accused) had to jump in and assist Orio and he did that by challenging Bata to fight. But Bata fell over and the fight stopped. Orio really only 'stroked' the deceased, who just stood there with his arms folded. The deceased did not appear to be injured so he was surprised when the deceased's relatives woke him (the accused) in the middle of the night to say that he was in a bad way and might die.

Oral evidence of two witnesses

19. (1) Loggy Bata said that when he came home from work at 5.00 pm his 13-year-old son, Eric, told him about the earlier incident involving Orio. Eric and two other boys of similar age (Bata's nephews) went to where the backhoe was digging the drain. The boys were collecting fish and eels when Orio got cross with them, swore at them ('Yu kaikai kan mangi Morobe!'), chased them with a bushknife and took away their bag of fish and eels. The boys got so scared they urinated themselves. When he heard this story he (Bata) was very upset so he went, with his brother, Ditno, and his uncle, Beki, to Orio's house, which is in the same area as his own, to sort out the problem. This was at 5.30 pm.

20. When they got there he (Ditno) swore at his son-in-law, Orio, who was sitting down: 'You fucking idiot! Why are you doing this to your little in-laws?!' He (Bata) told Orio, 'We have nothing against you, you have married our daughter, but you should not do such things to your own in-laws' children'.

21. The accused, Tuka, was sitting there with his wife, watching what was happening and said to Orio, 'Are you their wife? Don't just sit there, get up and fight!' Orio remained seated but Tuka suddenly got up and threw a punch at Beki. Then Orio got up and he threw a punch, also at Beki, who did not fight back. Beki was badly injured, and was bleeding from the nose and mouth.

22. He (Bata), who was only one metre away, and Ditno tried to stop the fight but Tuka and Orio were by then fighting against all of his group. They were encouraged by Tuka's wife, Rose, who said, 'Get a bushknife and cut them!'. When he heard that he got scared and ran to his house. He is not sure what happened to Ditno and Beki after that. Later that evening, Beki was brought to his house, vomiting blood, and they rushed him to hospital where he died on 9 October.

23. In cross-examination Bata said that he and his wantoks did not go to Orio's place to fight. It is true that they were upset and that one of them, Ditno, swore at Orio. But the fight did not start until Tuka intervened. The group that went to Orio's place was not big but the commotion attracted a large gathering. It was Tuka who incited Orio to fight. Orio did not even reply when Ditno swore at him. Tuka was the aggressor. He threw the first punch at Beki, then Orio punched Beki again. A security guard arrived after Tuka had thrown the first punch.

24. (2) Gilo Ditno agreed that he was very upset when he heard what his son-in-law, Orio, had done to the young Morobe boys so he went to Orio's house with his brother, Bata, to ask him why he had done that. The deceased, Beki, followed them, as did another Morobe man, Posing Tomong. They did not go to fight, they just wanted to sort out the problem peacefully.

25. He swore at Orio but Orio did not reply. He just stayed seated, looking guilty. Then Tuka accused Orio of being a woman: 'Get up and fight them, you're not a woman!', he shouted, and then he threw the first punch at Beki, connecting him flush on the nose. Orio saw that and went for Tomong, punched him, and Tomong ran away. Orio turned around and punched Beki and got him on the nose, just as Tuka had. Neither Beki nor Tomong had said anything to Tuka or Orio but they were the ones who got hit first. Tuka and Orio then went after Bata but he was able to defend himself. When Orio's sister (Tuka's wife) saw that Bata was doing OK she told Orio to get a bushknife. When he (Ditno) and Bata heard that, they ran to their houses. It wasn't long before they realised that Beki was in a bad way. They took him to the local clinic and later to the hospital, where he died.

26. In cross-examination Ditno denied that he and the other Morobe men had rushed at Orio to fight him and that it was Orio, not Tuka, who threw the first punch. He denied that Tuka did not land any blows on Beki and that Tuka only hit Bata. He said it all happened in close range and he saw clearly what happened: Tuka threw the first punch at Beki, which started the fight. It was a heavy blow, then Orio also hit Beki.

EVIDENCE FOR THE DEFENCE

27. The accused gave sworn evidence and there were two other defence witnesses.

28. (1) The accused, Joe Tuka, said that he was with Orio, who was telling stories with Patrick Saike when Orio's Morobe in-laws rushed in, without warning, angry, swearing at him and wanting to fight. Orio got up to defend himself, blocked some punches and then threw a punch at Beki, which landed on his face. Saike stood up and stopped the fight and a security guard also intervened to help him stop them fighting. Bata wanted to keep fighting with Orio so he (the accused, Tuka) went to Orio's assistance. But that was not really another fight as Bata fell over and ran away. And that was the end of it.

29. In cross-examination the accused said that there were about six Morobeans, including Beki, in the group that confronted and charged at Orio. They did not come peacefully. They were aggressive and armed with weapons and wanted to fight. They did not get to use their weapons. Orio was retaliating when he punched Beki.

30. (2) Patrick Saike is from Morobe Province, but from the Menyamya area, not Kabwum. He said he was sitting with Orio when the Morobes mobilised and rushed in, swearing. Orio pushed them away and then, to defend himself, punched Beki. The security guard came in and stopped the fight. That was it. Nothing really happened.

31. In cross-examination Saike said that the Kabwums came to fight. Orio had to defend himself and he happened to punch Beki. The Kabwums were not armed.

32. (3) Christopher Taula is the security guard referred to in the evidence of other witnesses. He is from East Sepik Province. He works and lives at the area the incident took place. He saw the Morobes heading towards where Orio was sitting. They went to fight him. Orio pushed them away and then he punched Beki. Then he (Taula) stepped in and stopped them fighting and the Morobes went away. Beki, who had fallen, got up and he went away with the others. The fight only lasted a minute. It stopped straight after Orio punched Beki.

33. In cross-examination Taula said that he knows all the men involved in the fight as most of them were working at the plantation. He was on duty at the time. There were about six Morobes who mobilised and came looking for Orio, to fight him. Tuka was there with his family, holding one of his children. Ditno had a bushknife. Orio was not injured.

PRELIMINARY ASSESSMENT OF THE STATE'S CASE

34. The medical evidence suggests that the deceased died due to a heavy blow to the head. The evidence of the State witnesses, which is that the deceased was punched flush on the nose twice – first by the accused and then by Orio – is consistent with the medical evidence. The evidence of the defence witnesses – that the deceased was punched in the head by Orio, not by the accused – is also consistent with the medical evidence. There is no evidence, or suggestion, that the cause of death was anything other than the blow(s) to the head inflicted in the altercation on 30 September. Whoever punched him in the head, killed him. The question is: Was it Orio? Tuka? Or both?

DEFENCE COUNSEL'S SUBMISSIONS

35. It was submitted that the State had fallen short of proving that the accused punched the deceased as the evidence showed that the Morobes, including the deceased, had mobilised, and were angry with Orio – not Tuka. They went to fight Orio – not Tuka – so it makes sense that it was Orio who threw the heavy punch at the deceased. The fight had nothing to do with the accused. He had done nothing wrong. It was a fight amongst in-laws.

36. The credibility of the State witnesses is questionable as they are related to the deceased. Orio, their in-law, was not on trial in this case, so they appear to have manufactured their evidence so they can at least get the satisfaction of seeing someone such as Orio's in-law – the accused – punished for what happened to their relative. The State presented no independent witnesses, unlike the defence, which presented two eyewitnesses who are not aligned to either side. Orio's friend, Saike, though Morobean, is from a different part of the province to the deceased's lain, and Taula, the security guard, is Sepik. The defence evidence is more credible than that of the State witnesses, so the accused must be given the benefit of the doubt, it was submitted.

ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS

37. I agree with the defence proposition that the State has adopted a risky strategy by resting its case on the evidence of two witnesses closely related to the deceased. There were other eyewitnesses present so some additional witnesses, who could more readily be regarded as independent, should perhaps have been called. However, that does not prevent a conviction being entered.

38. Making a decision on whether an accused person is guilty in a case where diametrically different versions of events are presented is not a simple matter of deciding who to believe. The court might tend to believe the version presented by the State witnesses but still find the accused not guilty if it is not convinced beyond reasonable doubt that the State's version of events is the correct one (The State v James Yali (2005) N2988). However, deciding who to believe is a good place to start the decision-making process and, in this case, I must say that I believe the State witnesses much more than the defence witnesses.

39. The defence witnesses gave inconsistent evidence about whether the Morobes were armed. The contention that they were armed and that there were six of them is not believable as neither Orio nor Tuka were injured. The demeanour of all the defence witnesses, particularly the accused, was poor. Considered individually and collectively, they gave the impression that they had colluded (though not entirely successfully, as their accounts of the incident were different) with a view to shifting the blame to Orio and covering up the accused's involvement.

40. The demeanour in the witness box of the two State witnesses was sound. They gave their evidence in a manner that suggested they were telling the truth. Their version of events was believable and credible.

FINAL DETERMINATION OF WHETHER THE ACCUSED KILLED THE DECEASED

41. I accept the evidence of the State witnesses and find as a fact that Tuka struck the first blow on Beki's face, hitting him flush on the nose. Orio followed up with another one, hitting him in the same place. The combined effect of these two heavy blows to the head was that the deceased suffered a subdural haematoma, which was the cause of his death nine days later.

42. There is a definition of killing in Section 291 of the Criminal Code:

43. Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

44. The State has proven beyond reasonable doubt that the accused injured the deceased and that the injury he inflicted led to the death of the deceased. It is not necessary to say – and it cannot be said on the evidence – whether the blow inflicted by the accused was sufficient by itself to cause death. However, that blow, at least, indirectly led to the death. So the conclusion must be that the accused killed the deceased. The first element of murder has been proven.

2 DID THE ACCUSED UNLAWFULLY DO GRIEVOUS BODILY HARM OR COMMIT ANY SIMILAR OFFENCE?

45. It is unnecessary to address this question in view of the finding that the accused killed the deceased.

3 WAS THERE AN INTENTION TO DO GRIEVOUS BODILY HARM?

46. It is at this point of a murder trial that the Court is required to consider an accused's state of mind. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:

47. Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

48. Given all the circumstances in which the altercation took place – especially the lead-up to it – it can be described as a spontaneous incident, which escalated out of control. The incident arose principally out of an altercation between the deceased's lain and another person, Mark Orio. Significantly, the accused did not use an offensive weapon. I distinguish the facts of this case from those in a recent Wewak case, The State v Ruben Kou Gasawa & Ors (2009) N3800, where one of the accused killed the deceased by inflicting a 13 cm deep knife wound, penetrating to the heart. I concluded that the nature of the wound showed that it was a ferocious stabbing, exhibiting an intention to do grievous bodily harm.

49. In the present case, I conclude, as Barnett J did in The State v Jeffery Bijuma (1989) N765, that in view of the nature of the injuries and the spontaneousness of the incident, there was no conscious intention by the accused to cause grievous bodily harm. The second element of the offence of murder has not been proven.

4 SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

50. The court now has to consider whether an alternative verdict of manslaughter should be entered in light of Section 539(2) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime 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.

51. Section 302 (manslaughter) of the Criminal Code states:

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

52. Manslaughter has three elements:

kill another person;

unlawfully;

under such circumstances as not to constitute wilful murder, murder or infanticide.

53. The first element has been proven. As to the second, Section 289 states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

54. No specific defence such as self-defence or accident has been raised, and none is available on the evidence. Therefore the killing of the deceased was not authorised, justified or excused by law, and the second element is proven.

55. The third element is a formality. All elements have been proven beyond reasonable doubt. Therefore the accused will be convicted of manslaughter.

VERDICT

56. Joe Tuka, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of manslaughter under Section 302 of the Criminal Code.

Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused