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State v Wesley [2012] PGNC 335; N5183 (24 October 2012)

N5183

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 475 OF 2010

THE STATE

V

DOMA WESLEY

Alotau: Toliken, AJ
2012: 24th October

CRIMINAL LAW – Particular offence - Manslaughter – Accused assaulted deceased – Minor assaults – Restrained before he could assault deceased further – Co-accused springs suddenly out of bush – Delivers fatal crushing blow to deceased's head – No pre-concert, counsel, abetting or encouragement by accused – Cannot be held responsible under Section 7 of the Criminal Code for death of deceased – Accused acquitted – Criminal Code Act Ch. 262, s 302, s 7.

Cases Cited;

R –v- Sapulo Masure (1973) N732

Counsel:

D. Kuvi, for the State
D. Sopane, for the accused

VERDICT

24th October, 2012

1. TOLIKEN, AJ: The accused pleaded not guilty to an indictment charging him jointly with John Wesley and Howard Kiriri for the unlawful killing of one Rupert Alipi on 1st day of January 201 at Awaiama Village contrary to Section 302 of the Criminal Code Act Ch. 262. This is the offence generally referred to as manslaughter.
   
2. This is my short judgment on the matter.
   

ISSUES

3. The issues for my determination are:
   
   1. whether the accused caused the death of the deceased in circumstances that did not involve wilful murder, murder or infanticide.
   2. Whether the accused can be captured by the operation of Section 7 of the Criminal Code as an accomplice.
      

THE FACTS

4. The facts seem to me to be not too disputed. In fact, there is much agreement on important aspects of the evidence by State as well as the accused own sworn testimony.
   
5. The relevant facts as I find them are these. On New Year's Day, 1st January 2010, the deceased had been drinking with other boys from the village. A fight broke out between the deceased and Howard Kiriri. The accused who was at his house saw them fighting and went up to stop them.
   
6. The deceased, however, ran across to Miriam's Iraesa's house, chased the family away and destroyed two saucepans full of food. He then moved to the accused's house and chased the accused's wife and children into the bush. He then destroyed two saucepans full of food. At that moment, the accused went over and asked him to leave.
   
7. The deceased turned on the accused instead and swung an axe at him three times at the accused as he chased him around a post under the house. The accused ran off and got a stone about the size of a mobile phone to defend himself from the deceased. He threw the stone at the deceased hitting him on his arms.
   
8. The deceased ran away but tripped on a bush vine and fell down. The accused, obviously by now angry, ran to the fallen deceased and punched him twice. At that time, State witness Eunice Haure came and grabbed hold of the accused preventing him from further hitting the deceased.
   
9. As Eunice Haure was restraining the accused Howard Kiriri re-appeared from the bush, picked up a stone weighing about 1kg and hit the deceased on his head as he was lying defenceless on the ground.
   
10. The Medical (Post Mortem) Report revealed that the deceased died from a crushing fracture to his skull. It is obvious that the fracture was from the stone that Kiriri hit the deceased with and in fact Kiriri was convicted on his admission for that.
    
11. The State conceded that the accused did in fact die from the injury inflicted upon him by the convict Howard Kiriri.
    

SUBMISSIONS

12. The defence submitted that the accused was not responsible for the deceased's death because he did not die from assaults occasioned on him by the accused but from the act of Howard Kiriri. The accused was not at the relevant time abetting or aiding Howard Kiriri nor were they acting in concert.
    
13. The State on the other hand submitted that the accused is caught by the operations of Section 7 of the Criminal Code and it is immaterial whether he was the one whose assault caused the death of the deceased as long as it can be shown – and it was shown – that he and Howard Kiriri had each and severally assaulted the deceased.
    
14. The State argued that the accused did not desist voluntarily from further assaulting the deceased. Rather he was stopped by Eunice Haure otherwise he could have continued to hit the deceased.
    
15. The State submitted therefore that the deceased is guilty by operation of Section 7.
    

THE LAW

16. The crime of manslaughter is provided by Section 302 in following terms:-
    

"302 – Manslaughter.

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 l

DELIBERATIONS ON THE ISSUES

Issue 1: Whether the accused caused the deceased's death

17. The first issue that I need to determine is whether the deceased's death was caused by the accused or whether he contributed or accelerated the death by his action.
    
18. The facts clearly show and it was in fact conceded that the death was caused by the stone that Howard Kiriri threw on the deceased's head.
    
19. It is also clear that the accused did assault the deceased by firstly throwing a stone at him and secondly by hitting him twice when he was laying on the ground. It can be reasonably said, though, that these assaults were not the cause of death and that they did not contributed to or accelerated the deceased's demise.
    
20. The accused therefore did not directly cause the death of the deceased.
    

Issue 2: Whether he can be caught by Section 7 of the Code

21. But could the accused be still held responsible for the death by the application of Section 7 of the Code?
    
22. For him to be captured by the provision, it must be shown that he aided counselled, procured or encouraged Howard Kiriri.
    
23. Now there is no question that where several persons together attack the same man at the same time using similar weapons or directing similar blows with the common intention to injure and death ensures, resulting from injuries so sustained that each attacker would be criminally responsible for that death. However, if it is shown that there was no pre-concert or that the deceased died from a later assault by another person or persons then persons who were responsible for that assault cannot be held responsible for the death (R –v- Sapulo Masure (1973) N732).
    
24. The State vigorously argued that the accused acted in concert with Howard Kiriri. The evidence, however, clearly shows the contrary. Howard Kiriri acted alone – springing suddenly out of the bushes to deliver the fatal blow to the deceased's head. There was no evidence that the accused abetted, counselled or procured him to do what he did nor did the accused know what his intentions were.
    
25. While it is true that the accused still wanted to assault the deceased he was essentially and physically restrained by Eunice Haure and it was at that critical moment that Howard Kiriri came in and hit the deceased resulting directly in his death. Now it does not matter to me if the accused voluntarily desisted from further assaulting the deceased or was restrained by someone else. What is important is that at that critical moment, he was a 'spent force' so to speak.
    
26. I am not satisfied, therefore, that on the evidence before me that the accused can be held responsible with Howard Kiriri by the application of Section 7.
    
27. Ultimately, I find that he was not responsible for the death of Rupert Alipi and I accordingly acquit him of the charge.
    
28. I therefore order that:
    

1. The accused is acquitted of the charge of the manslaughter of Rupert Alipi.

2. Accused is discharged forthwith.

______________________________________________________
The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the accused