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State v Galasboi [2012] PGNC 375; N4629 (11 April 2012)

N4629

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 240 OF 2011

THE STATE

V

PETER GALASBOI

Madang: Cannings J
2012: 7, 9, 15, 16, 17, 20 February, 6, 21 March, 11 April

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

The accused was alleged to have killed his wife by assaulting her in a domestic, village setting. There was no eyewitness evidence and no post-mortem report. The State's case relied entirely on circumstantial evidence, which put the accused and the deceased in the same place by themselves at the same time and the accused behaving aggressively, and a general report by a community health worker recording a mark on the deceased's ribs. The defence case was that the accused, who gave sworn evidence denying his presence and saying that he was in the garden at the critical time, could not have assaulted his wife and that there was another reasonable hypothesis available (that the deceased was assaulted by a man who allegedly was the person who reported the death to other people in the village, but who was not called to give evidence) so the test for entering a conviction on the basis of circumstantial evidence could not be satisfied.

Held:

(1) 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).

(2) As to (a), it is not necessary in a homicide case for there to be direct evidence of an incident leading to death, nor is it necessary for a post-mortem report to be in evidence. Proof that the accused killed the deceased may be based on circumstantial evidence, in which case the test to be applied is that the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt.

(3) Here, the test was satisfied as the proven facts led reasonably to only one conclusion: that the accused killed the deceased.

(4) As to (b), the circumstances of the assault (a spontaneous, not planned, incident arising because the accused was frustrated with his wife) and the general nature of the medical report (which suggested that death was caused by a single blow, without a 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.

(5) However, there was no lawful justification or excuse for the accused killing the deceased, thus the accused was guilty of manslaughter.

Cases cited

The following cases are cited in the judgment:

Browne v Dunn (1893) 6 R 67 (HL)
Devlyn David v The State (2006) SC881
Kongian v The State (2007) SC928
Kutau v The State (2007) SC927
Paulus Pawa v The State [1981] PNGLR 498
The State v Raphael Kuanande [1994] PNGLR 512

TRIAL

This was the trial of an accused charged with murder.

Counsel

J Morog, for the State
A Turi, for the accused

11th April, 2012

1. CANNINGS J: The accused, Peter Galasboi, has been charged with the murder of his wife, Joy Apa. The offence is said to have been committed at Kupi village, where they lived, in the Usino-Bundi District of Madang Province on the morning of Monday 8 November 2010. He pleaded not guilty so a trial has been held.

2. It is undisputed that the deceased died that morning shortly after attending a funeral in the village for the local pastor. The State's case is that the accused called his wife out of the funeral gathering and she walked away with him and shortly afterwards he assaulted her and inflicted injuries that led to her death. It was his intention to cause her grievous bodily harm and the State asks that he be convicted of murder under Section 300(1)(a) of the Criminal Code. There was no direct evidence of what happened and no post-mortem report. The State relied on the evidence of the village peace officer as to the sequence of events. The deceased's father also gave evidence of previous incidents in which the accused had assaulted the deceased. The community health worker who examined the body on the date of death and prepared a report on the death also gave evidence, as did two police officers who were involved in the criminal investigation. A confessional statement by the accused made shortly after death was refused admission into evidence as it was taken unfairly in circumstances in which the accused's constitutional rights were not accorded to him.

3. The defence case was that the accused, who gave sworn evidence denying his presence and saying that he was in the garden at the critical time, could not have assaulted his wife and that there was another reasonable hypothesis available (that the deceased was assaulted by a man who allegedly was the person who reported the death to other people in the village, but who was not called to give evidence) so the test for entering a conviction on the basis of circumstantial evidence could not be satisfied.

ISSUES

4. 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.

5. 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.
  

6. 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).

7. 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 killed 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:

1. Did the accused kill the deceased?
   
2. Did he unlawfully do grievous bodily harm to the deceased or commit any other similar offence?
   
3. Was there an intention to do grievous bodily harm?
   
4. Should an alternative conviction for manslaughter be entered?
   

1 DID THE ACCUSED KILL THE DECEASED?

8. Resolution of this issue requires a:

• summary of evidence for the State;
• summary of evidence for the defence;
• formal determination of the question whether the accused killed the deceased.
  

Evidence for the State

9. The exhibits admitted into evidence were a record of interview (which showed that the accused exercised his right to remain silent) and the medical report of the community health worker, Mr Vincent Lazarus, who also gave oral evidence. Five witnesses gave oral evidence, summarised below.

(1) Danny Singil is the village peace officer. He said that there was a haus krai for the late pastor, which was set up near the church. Many villagers, men, women and children, were present, including the accused's wife. The accused came over from the direction of his house, which is 150 metres away, and called out for his wife, as he wanted her to come with him for some reason. She did as he asked and she followed him in the direction of their house. No one else was with them. He (the witness) remained at the haus krai.

10. A few minutes later a villager, Jeremiah Muknai, came to the haus krai and said 'Peter Galasboi has just killed his wife'. He (the witness) immediately went to the accused's area, along with many other people from the haus krai. Being the peace officer, he was concerned about the wife's relatives and what they might do to the accused. The deceased's body had been taken inside the accused's mother's kitchen. He observed the body and it seemed that the deceased's ribs had been broken. The accused was trying to run away. The accused called out 'Why did I hit my wife like this?' His eyes were red, he was crying and his body was shaking. The deceased's relatives converged on the area but he (the witness) stepped in, assumed the role of peace officer, and saved his life.

11. He (the witness) spoke to the accused, first outside under a betel nut tree and later inside the house of Village Court Magistrate Lucas Yapi. He was the first one to speak to him. Word of the killing had been sent to the police at Aiome Government Station and he heard that the police were on their way so he decided that he should stay with the accused until the police arrived. He saw that that was part of doing his job as village peace officer: he represents the law in the village.

12. In cross-examination it was put to Mr Singil that the accused made no attempt to run away and did not say anything to him. Mr Singil was emphatic that he did have a conversation with the accused over a long period and that he, in fact, saved his life because he intervened as peace officer between the deceased's relatives and the accused. He said that the accused also said 'Maybe there was something wrong with her'.

(2) Mathew Apa is the father of the deceased. He was living in November 2010 at a neighbouring village, Mekom, but on the morning of his daughter's death he went to Kupi as he heard that a cassowary had attacked and killed the SDA pastor and that a haus krai had been set up to mourn the pastor's death. He was with his daughter at the haus krai. Then the accused turned up, called out for his (the witness's) daughter and then she went away with the accused.

13. He remained at the haus krai. He was concerned about the welfare of the late pastor's family and made an announcement that the people from Kupi and surrounding villages should make contributions of money. He was in the process of collecting money when the news came that his daughter had been killed by the accused. He rushed up to where his daughter's body was. He observed that her ribs had been broken and that there was a black spot over her ribs.

14. Asked about the sort of marriage that his daughter had with the accused the witness said that they did not live together properly as the accused used to bash her. He (the witness) had talked to the accused about this problem and the matter had been before the Village Court, but he continued to hit her.

15. In cross-examination Mathew Apa admitted that he did not see the accused kill the deceased; but he said he knew that he (the accused) had done it as he had a history of bashing her. He thought the accused was a 'good man' and that is why he let his daughter marry him. The accused still had some goodness in him but he kept hitting his wife and now he (the witness) is convinced that the accused killed her and that is why he is angry with the accused.

(3) Vincent Lazarus is the community health worker, based at Aiome. He received word of the death on 8 November and left with the policeman from Aiome on that day and examined the body the next day. He observed a black mark, a bruise, from the left ribs to the chest, a distance of about 8 cm. He put his hands on this 'black spot' and observed that the ribs were fractured. He considers that this would have adversely affected the internal organs such as the heart. The ribs were broken into pieces and would have penetrated the heart. Upon turning the body around, he observed no marks on the back or buttocks. He prepared a report, dated 10 November 2010, which was admitted into evidence. It states:

When I viewed the dead body without touching her I noticed an 8 cm bruise above her ribs towards the sternum.

After that I physically touched her body checking other parts of the body to see if there were damages caused. There were no other damages except the 8 cm bruise above her left ribs to the sternum. This very important organ such as the lungs and the heart are all secured under these ribs. Therefore the left rib cage was badly fractured causing the heart to stop, internal bleeding was another cause of her untimely death.

16. In cross-examination Vincent Lazarus was grilled over the length of the black mark on the front of the body. He measured it with a tape-measure. He could not say exactly how many ribs were broken. He just put his fingers on the body and realised that some were broken. It was a remote area and proper medical resources were not available.

(4) Const Matson Matui, a police officer with 17 years experience, based at Aiome, said that upon receiving news of a killing at Kupi on 8 November he got an auxiliary policeman and walked to Kupi, arriving there at 4.00 pm. He went first to the house where the deceased's body was examined by Mr Lazarus and then he spoke to the accused's relatives and the deceased's relatives about what he planned to do. He then went to see the accused, who was with the village peace officer, arrested him and then he and the auxiliary officer escorted him to Aiome and detained him in the police lock-up. At Aiome he recorded a statement that was made by the accused (which was refused admission into evidence following a voir dire). From Aiome the accused was transferred to Madang town.

17. In cross-examination Const Matui said that all his conversations with the accused were conducted in Tok Pisin, a language in which the accused was fluent. The accused did not speak in Tok Ples, so there was no need to use an interpreter.

(5) Snr Const Willie Takowa is attached to the Madang CID. He formally interviewed the accused on 28 December 2010. He said that the interview was conducted in Tok Pisin. The only questions that the accused answered were to do with his personal details: he said that he was 20 years old, he was married in the SDA Church to Joy Apa and they had one child, a boy aged six months. He remained silent in response to other questions.

That was the evidence for the State.

Evidence for the defence

18. The accused, Peter Galasboi, was the only witness for the defence. He said that he does not know how his wife died. He was not present when she died. He was working in the garden on the morning of 8 November 2010 when his brother, Malikus Galasboi, came and told him that his wife had died. He immediately left the garden and went to his house. The first person he saw there was Jeremiah Muknai. He asked Jeremiah what happened but he did not reply. He was very worried about his wife. He cried, lifted her up and took her into the house as he could feel that her heart was still pumping. 19. He went into the bush to find some herbs that might assist her but when he returned to the house his mother told him that his wife had already died. He put his hands on his wife's chest and was able to confirm what his mother had told him. Then his wife's father, Mathew Apa, came to the house with a bow and arrow and accused him of killing his daughter. Mr Apa was putting pressure on him and then he (the accused) was told to go to the councillor's house. He told the councillor and also the Village Court Magistrate that he had been in the garden and he did not know how his wife had died. Then he was taken away to Aiome.

20. In cross-examination the accused maintained that he was in the garden on the morning of his wife's death until his brother alerted him to the problem. He said that he did not know anything about the death of the local pastor or whether his wife was at a haus krai. He denied hitting his wife and denied trying to run away after she died. He admitted that there were some people supporting the accusations being made by his father-in-law Mathew Apa but he just told them that he knew nothing as he had been in the garden. He denied saying anything to the peace officer Danny Singil about not meaning to kill his wife or about there being something wrong with her. He had no prior conflict with Mr Singil but they are from different families (Mr Singil is from the same family as Mr Apa) and perhaps that explains why Mr Singil would give false evidence. He considers that the person who must know how his wife died is Jeremiah Muknai.

That was the close of the defence case.

Did the accused kill the deceased?

21. It is not necessary in a homicide case for there to be direct evidence of an incident leading to death, nor is it necessary for a post-mortem report to be in evidence. Proof that an accused killed the deceased may be based on circumstantial evidence. The State concedes that its case is based entirely on such evidence, in which case there are special principles to be applied. They were set out authoritatively by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
  

22. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

• do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.
  

23. I determine that the proven facts are as follows:

• There was a funeral and haus krai for the local pastor in the morning which was attended by many people, including the deceased and her father Mathew Apa, and the peace officer, Danny Singil.
  
• The accused was not at the haus krai for purposes of mourning but after a while he came over from the direction of his house, which is 150 metres away, and called out for his wife, as he wanted her to come with him for some reason. I reject the accused's evidence that he was in the garden and did not go to or know anything about the haus krai. Evidence of the accused going to the haus krai and calling out for his wife came from both Mr Singil and Mr Apa and they both appeared to be credible witnesses. The accused suggested that Mr Singil has a family relationship with the deceased but this evidence was vague and I place no weight on it; and even if it were proven to be so, this would not neutralise his evidence. The fact is that Mr Singil gave the impression of being a credible witness. His demeanour was sound and he appeared to give a credible account of the actions that he took to defuse the tension created by the death. Mr Apa is the deceased's father and cannot be regarded as an independent witness but neither did his relationship to the deceased disentitle him from giving evidence or require the conclusion that his evidence should be disregarded. His evidence was confined to what he saw and he said that he saw the accused come to the haus krai and call for the deceased to go with him. He admitted to being angry; despite that, he was prepared to let the law take its course. In contrast to the credibility of the State witnesses the accused was not an impressive witness. His demeanour was not sound. Evidence of his inability to speak Tok Pisin was very unconvincing. His denial of knowledge of the death of the pastor or the establishment of the haus krai was incredible. How could a villager be ignorant of such events in his own village? The story that he told of being in the garden at the critical time was not put to the State witnesses, and this was a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), a rule of procedural fairness that applies in all criminal trials: for the defence case to be considered credible, it must be put to the State witnesses in cross-examination. Breach of that rule gives rise to the inference that the story of being in the garden was a concoction, a recent invention (Kutau v The State (2007) SC927, Kongian v The State (2007) SC928). The accused's evidence of being in the garden was actually an alibi (he was saying that he was not present when the offence was committed) but none of the rules about alibi defences (including filing of an alibi notice to allow the State the opportunity to locate evidence to rebut the alibi) were adhered to by the defence. There was no corroboration of the garden story; and this makes it even more difficult to accept the accused's evidence.
  
• The deceased did as she was asked by the accused and followed him in the direction of their house. No one else was with them. Mr Singil and Mr Apa remained at the haus krai.
  
• The accused was the last person to be seen with the deceased.
  
• A few minutes later Jeremiah Muknai came to the haus krai and said 'Peter Galasboi has just killed his wife'.
  
• Many people including Mr Singil and Mr Apa then went from the haus krai to the accused's house about 150 metres away.
  
• When Mr Singil arrived at the accused's house the accused was in an agitated state and trying to run away. The accused said 'Why did I hit my wife like this?' and 'Maybe there was something wrong with her'. His eyes were red, he was crying and his body was shaking. The deceased's relatives converged on the area but Mr Singil did his job as peace officer, stepped in, preserved the peace and counselled the accused and protected him against violence by the deceased's relatives. The defence counsel pointed out that the evidence of what the accused allegedly said is uncorroborated. That is correct, but the evidence came from Mr Singil who has been assessed as a reliable and honest witness and therefore it is a sufficient basis for the findings as to how the accused was behaving: he was regretting what he had done, questioning his actions and attempting to understand how it had happened.
  
• A call was made to the police in Aiome and later on the same day Const Matui and an auxiliary officer arrived and a criminal investigation was commenced, in which the accused was the sole suspect. Jeremiah Muknai was never a suspect.
  
• Community health worker Vincent Lazarus examined the deceased's body the day after her death. Her ribs were broken and there was a dark mark on her skin, over the ribs. Evidence of that sort of injury also came from Mr Singil and Mr Apa. I conclude that she was deliberately assaulted with such force as to cause that injury and that that injury led to her death. The person who assaulted her is the person who killed her. There is no reason to think that she might have fallen or been accidentally injured.
  
• The accused had a history of using physical violence against his wife. Evidence of that aspect of the marital relationship, though general in nature and coming from the deceased's father, was uncontested.
  

24. I consider that according to the principles in Pawa's case those proven facts are inconsistent with any reasonable hypothesis other than that the accused killed his wife; and that hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts lead reasonably to only one conclusion: that the accused killed the deceased.

25. Ms Turi submitted that it was not open to the court to draw such conclusions as there was another hypothesis available: that the person responsible for the death was Jeremiah, who apparently was the first person on the scene and reported the death to the mourners at the haus krai but who was not called to give evidence. Ms Turi submitted that Jeremiah's evidence was critical to finding out what actually happened. He was the missing link and no reason was provided by the State as to why he was not called.

26. I agree that it was desirable for Jeremiah Muknai to be called. His name is on the witness list on the indictment so it appears to have been the State's intention to call him as a witness. However the State's failure to call a witness whose name is on a witness list does not necessarily give rise to any adverse inference against the State or lead to the inference that that witness's evidence would not advance the State's case. The most important question concerning Jeremiah is whether it is reasonable to think that he might be the person who killed the deceased and that he spread a false rumour that the accused killed her in order to cover up his own actions. That is not a reasonable hypothesis as there is no evidence that Jeremiah had any reason to assault the deceased; and nothing at all is known about him other than that he is a villager and that he is the person who came to the haus krai and said that the accused had killed the deceased. He was never a suspect in the criminal investigation and he was not suspected by the villagers as being responsible for the deceased's death. If in fact Jeremiah was the person responsible for the death, surely the accused would have vehemently denied responsibility when he was first accused and attempted to shift the blame to someone else such as Jeremiah. That did not happen, however. The accused acted as if he were guilty and regretful. I therefore reject the hypothesis that Jeremiah was responsible for the death as unreasonable.

27. I conclude that the accused was angry or frustrated with the deceased and that is why he called her out of the haus krai. On the way to their house they argued and he assaulted her with such force that he fractured her ribs, which caused other internal injuries that led to her death. I find that the accused directly caused her death and therefore he killed the deceased. The first element of the offence has been proven beyond reasonable doubt.

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

28. 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?

29. 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:

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]

30. In this case there was no direct evidence of the accused's expression of an intention to do grievous bodily harm. So, what can be inferred from the course of conduct of the accused prior to, at the time of and subsequent to the assault on the deceased?

• Prior to the assault: it seems that the accused spoke firmly, but not violently, when he went to the haus krai and called for his wife. This suggests that the incident that occurred soon afterwards was a spontaneous, not planned, incident because the accused was frustrated with his wife.
  
• At the time of the assault: the medical evidence, constituted by the medical report and the oral evidence of Mr Lazarus (there were no injuries other than the broken ribs) suggests that death was caused by a single blow, without a weapon.
  
• Subsequent to the assault: The conduct of the accused immediately afterwards – he felt guilty and regretful and was questioning how what he had done could have led to the death of his wife – suggests that the injuries he had inflicted were out of proportion to what he intended.
  

31. All of those factors suggest that there was no conscious intention by the accused to cause grievous bodily harm. The second element of the offence of murder has therefore not been proven.

4 SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

32. 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.

33. 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.

34. Manslaughter has three elements:

• kill another person;
• unlawfully;
• under such circumstances as not to constitute wilful murder, murder or infanticide.
  

35. 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.

36. 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.

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

VERDICT

38. Peter Galasboi, 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