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State v Isorombo [2016] PGNC 236; N6437 (19 March 2016)

N6437

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 868 OF 2013

THE STATE

V

AMBROSE ISOROMBO

CR NO. 869 OF 2013

THE STATE

V

LAZARUS ISOROMBO

CR NO. 870 OF 2013

THE STATE

V

GILBERT BEAGA

CR NO. 1227 OF 2013

THE STATE

V

FRANK BONEMA

CR NO. 296 OF 2016

THE STATE

V

MCLAREN BEAGA
Popondetta: Toliken, J.

2016: 10^th, 14^th, 15^th, 16^th, 19^th March

CRIMINAL LAW – Particular offence – Murder – Trial – Group attack on deceased – Four accused took part in kicking deceased – Deceased sustained injuries from which he died – Post mortem report – Deceased sustained laceration to temporal region of head – Broken ribs on both sides of chest – Rib pierces liver causing heavy internal bleeding – Injury Consistent with manner of attack – Insufficient evidence to support intention to cause grievous bodily harm – Accused acted in concert – Alternative verdict – Verdict of manslaughter returned for four accused –Criminal Code Ch. 262, ss 7, 300(1)(a).

CRIMINAL LAW – Evidence – Dying declaration – One accused alleged to have counselled and encouraged co-accused to kill deceased – Elements of dying declaration considered – Test of imminent death is firstly a subjective one but where the belief cannot easily be subjectively attributed to declarant then the court can draw a reasonable inference and the test becomes an objective one – No proof that deceased believed his death was imminent – Evidence insufficient for Court to draw reasonable conclusion that deceased’s death was imminent when he made statement to witness – Court accepts accused’s version of facts – Evidence not sufficient to hold accused as principle offender under section 7 of Code – Verdict of Not Guilty for fifth accused – Criminal Code s. 7, Evidence Act Ch.48, s 20.

Cases Cited:

The State v Enny Bullen [1990] PNGLR 43

Counsel:
J. Done, for the State

L.B. Mamu, for the Accused Persons

VERDICT

19^th March, 2016

1. TOLIKEN, J: The accused Ambrose Isorombo, Lazarus Isorombo, Gilbert Beaga, Frank Bonema and McLaren Beaga were on 10^th March 2016 each and severally indicted with one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act Ch. 262. (the Code)
   
2. They were charged that on the 21^st day of December 2011 at Eroro village, Oro Bay, they murdered Robson Yewa. The State also invoked Section 7 of the Code.
   
3. The facts put to them on arraignment were that on the 21^st day of December 2011 the accused persons were at Eroro village between 10-11.00pm. Earlier that night the deceased and Lazarus Isorombo and Paul Toki had consumed beer at the Oro Bay LLG Chambers where an argument arose between Lazarus and the deceased. They separated and the deceased left for his hamlet. He told his children Andy Yewa, Tony and Bonet Avera about what happened at the Council Chambers and wanted them to accompany him to Lazarus’ place so that they’d enquire why he got cross to him.
   
4. The children told the deceased to remain behind while they will go up to Lazarus’ place and enquire on his behalf. However, the deceased followed them to Lazarus’ house. While there Andy Yewa was trying to stop the deceased from talking and accidentally bumped a pole, erected to support iron roofing. The pole fell crashing to the ground.
   
5. At this point Lazarus Isorombo came out of the house armed with a mirror and hit the deceased on the head and he fell down. Andy Yewa was trying to assist his father the deceased when Dunstan Beaga took him and escorted him out to the road warning him that this was not his problem.
   
6. The other two boys, Tony and Bonnet Avera fled and hid next to a banana garden. From there they observed what was going on. The accused persons hit the deceased with sticks and hands and legs as he lay on the ground. Then Smarty Wawe intervened and the accused ran away. The deceased was taken to Katereda Health Centre where he was treated and discharged two days later. He, however, reported back to the Health Centre complaining of pain from his injuries hence he was referred to the Popondetta General Hospital where he was further treated. He was treated and released but died on the night of 30^th December 2011.
   
7. A Post Mortem report revealed that the deceased had a 4cm abrasion on the right temporal region and bruising on the left and right lower lateral chest. An X-ray conducted on 13/01/12 showed broken 7^th, 8^th and 9^th of both right and left ribs. The deceased died from massive internal bleeding due to rapture liver caused by penetration of a broken rib.
   
8. The State alleged that the accused persons intended to cause grievous bodily harm to the deceased when they assaulted him on the night on December 21, 2011. And in respect of accused McLaren, he was heard shouting “paitim em na kilim em, em painim na kam insait, em bai nogat kot blong em.” The state further invoked Section 7 of the Code.
   
9. The accused persons all pleaded Not Guilty, generally denying the charge.
   
10. The elements of the charge of murder under section 300 (1) (a) of the Code are-
    • (1) the accused
    • (2) intended to cause grievous bodily harm to the victim
    • (3) killed the victim
      
11. The State called a total of four witnesses namely, Tony Avera, Bonnet Avera, Andy Yewa and Grace Yewa. It also tendered the following documents by consent:
    
    1. Record of Interview for McLaren Beaga dated 25/09/15
    2. Record of Interview for Lazarus Isorombo dated 06/03/12
    3. Record of Interview for Gilbert Beaga dated 19/03/12
    4. Record of Interview for Ambrose Isorombo dated 21/03/2012
    5. Record of Interview for Frank Bonema dated 21/03/12
    6. Post Mortem Report by Dr. Akule Dunlop dated 13/01/12
    7. Report to Coroner
    8. Order for Post Mortem
    9. Warrant to Bury
       
12. The defence on the other hand also called four witnesses namely, Honoria Isorombo, Jill Isorombo, Maggie-Gloria Isorombo and Windora Beaga. Accused McLaren elected to give evidence on oath while his co-accused chose to make unsworn statements from the dock.
    
13. The general issues of fact in this case as I understand them are as follows:
    1. Did the deceased, Andy Yewa, Tony and Bonnet Avera go to Lazarus Isorombo’s premises to simply enquire why he had wanted to fight the deceased and were they armed?
    2. What exactly happened when Lazarus came out of his house?
    3. Were the accused Lazarus Isorombo, Ambrose Isorombo, Gilbert Beaga and Frank Bonema present at Lazarus Isorombo’s premises on the night in question?
    4. If so did they assault the deceased?
    5. Did they intend to cause grievous bodily harm to the deceased?
    6. Did McLaren Beaga encourage the other accused persons to assault and kill the deceased?
       
14. On the night in question State witness Andy Yewa, Tony Avera and Bonnet had gone out spear fishing. Earlier that evening the deceased, Ambrose Isorombo Sr. and Paul Toki had consumed some beer at the Oro Bay LLG chambers.
    
15. When Andy, Tony and Bonnet returned home the deceased, who is Andy’s father and grandfather of Tony and Bonnet, told them that Lazarus had wanted to fight him so he wanted them to go and question Lazarus. They then proceeded to Lazarus’ place. They met Lazarus’ sister Honoria and asked her if Lazarus was home and Honoria told them that he was not.
    
16. The deceased was under the influence of liquor and as expected was talkative and agitated. At Lazarus’ premises Andy tried to restrain him but in the process bumped a pole used to prop up a piece of roofing iron sheet that served as a wall to an extension of the house where Lazarus’ grandmother normally sleeps. The roofing iron sheet fell down making a loud enough noise. This shocked the old woman into unconsciousness and had to be revived by Honoria and others who immediately attended to her.
    
17. At that point Tony and Bonnet fled into a banana garden next to the house. An altercation ensued soon after between Andy and deceased and Lazarus, who had been awoken by loud shouting and swearing from the deceased and came out of his house armed with a mirror or a polished piece of metal used as mirror.
    
18. Lazarus assaulted the deceased with the mirror and also kicked him. Andy Yewa said Lazarus hit the deceased with the mirror while Lazarus said in his unsworn statement that he threw the mirror in between at the deceased and Andy Yewa as soon as he jumped down from his house. Lazarus’ statement is corroborated by his sister Jill and mother Maggie-Gloria. Some times at this point Lazarus ran into his mother’s kitchen and picked up cups from her trays and started throwing them at Andy Yewa who ran for his safety towards a mango tree. There he was approached by Dunstan Beaga who took him down to the main road and he went to their hamlet which was some 500 – 700 meters away leaving his injured father behind.
    
19. The deceased collapsed at Lazarus’ premises and was later taken to the Katereda Health Centre by his in-law Smarty Wawe in his vehicle. He was admitted for treatment and was discharged two days later. He, however, continued to feel pain from his injuries so he returned to the Health Centre and was referred to the Popondetta General Hospital. There he was further treated and released back home. He succumbed to his injuries and died on the night of 30^th December 2011.
    
20. A post mortem was later done on the deceased’s body by Dr. Akule Danlop on 13^th January 2012. External examination of the body revealed that the deceased had “a 4cm diameter abrasion on right temporal region, and bruising on both (left and right) lower lateral chest.”
    
21. Internal examination revealed the following:

Skull x-ray was normal

Chest x-ray (#256,13/01/12) showed broken 7th , 8^th and 9^th ribs of both left and right ribs.

Approximately 3 litres of whole blood with clots were evacuated from the abdominal cavity, and a 2cm deep and 2cm penetrating wound was noted on the liver with corresponding wall laceration imprinted by the traversing broken rib piercing the liver. There were also 3 abrasions noted on the liver in close proximity to the penetration suggestive of the broken rib abrasion the liver as a result of mobilization.

22. Dr. Danlop then concluded that the deceased “died of massive internal blood loss from ruptured liver caused by penetration from a broken rib sustained when he was assaulted.”
    
23. It is not disputed that the deceased died as a direct result from the injuries he sustained at Lazarus Isorombo’s premises on the 21^st December 2011. There is therefore a nexus between the assault on the deceased at Lazarus’ premises and the deceased’s death on 30^th December 2011. The ultimate question then is – who inflicted those fatal injuries on the deceased?
    
24. To arrive at a conclusive finding on the point I need to ascertain the factual issues posed above.
    
25. First, did the deceased and his son and grandsons go over to Lazarus’ premises to civilly enquire why he wanted to assault the deceased earlier that night according to State witnesses? I believe that the deceased was intoxicated and may have been “dead drunk” as described by Jill Isorombo when he reported his encounter with Lazarus to his son and grandsons. Why else would he insist on following them and in fact followed them to Lazarus’s house? It can be reasonably inferred that Andy and his nephews would have been naturally concerned if not angered by the deceased’s report. If they were not they would not have gone over to Lazarus’ place. And in those circumstances they would have been armed. I believe the evidence of defence witnesses that Andy Yewa was armed with a 1 meter long Tramontina bush knife while the deceased had a shorter bush knife. So they did not enter Lazarus’ premises with peaceful intentions. So this brings up the second issue; what happened when they entered Lazarus’ premises?
    
26. I believe the defence witnesses’ testimonies that as soon as they entered, the old man (deceased) begun swearing and shouting and calling out to Lazarus. Why would he remain calm now when he had the support of his son and grandsons, not to mention that he was drunk? I believe and do find that Andy Yewa also shouted and swore at Lazarus as he and his father went around his house a couple of times – the deceased cutting down a couple of banana trees in the process - before Andy went up to the house in search of Lazarus. There he met Honoria and asked her for Lazarus. It is obvious that the deceased was with Andy for it is at this point that Andy knocked the pole holding up the roofing iron sheet resulting in the iron sheet crashing down. Sometime at this point Lazarus came out of the house and assaulted the deceased on the head with the mirror as he jumped down from his house. The deceased and Andy would have been on the ground already by then.
    
27. There is some dispute whether Lazarus threw the mirror in between Andy and the deceased as he and his witnesses testified or whether he hit the deceased with it at close range as the testimonies of State witnesses seem to suggest. Either way, the fact of the matter is that Lazarus assaulted the deceased with the mirror irrespective of whether he threw it at him from a distance or hit him with it at close range. I believe and find that the deceased was hit on the head with the mirror and he fell to the ground as a result. The hit on the head is consistent with the post mortem finding that the deceased had sustained a 4cm diameter abrasion on the right temporal region of his head.
    
28. There is evidence from State witnesses that Lazarus was armed with a bush knife also when he came out of the house. And of course the deceased and Andy were also armed as I have already found. So in those circumstances would it be reasonable to expect Lazarus to simply come out with a mirror and thus expose himself to imminent danger from armed men who had obviously come looking for him with bad intentions? Any reasonable man in that situation would have armed himself similarly to counter any attack on him if a bush knife was handy.
    
29. Lazarus said in his unsworn statement that Andy attacked him with a bush knife and that he sustained injury to his hand. His mother corroborated him on this point. The fact that Lazarus ran into his mother’s kitchen and picked up cups which hurled at Andy – a fact admitted by Andy himself - shows that he was in fact also attacked by Andy. Why would Lazarus do that? Would he have not stood his ground if he had a knife too? I think he would have. In these circumstances, I cannot find therefore that Lazarus was also armed with a knife. He may have been but I am not satisfied on the required standard that he in fact was.
    
30. Lazarus admitted that he kicked the deceased once and I would hold that this was when the deceased fell to the ground after he was hit by the mirror. It is obvious that Lazarus was drawn away from the deceased obviously by Andy.
    
31. So what happened at that point? Did the accused Ambrose Isorombo, Gilbert Beaga and Frank Bonema join in and start kicking and assaulting the deceased with their hands and sticks? Were they present at the scene in the first place?
    
32. State witnesses Tony and Bonnet Avera testified that after the deceased fell down after he was hit by the mirror they fled the immediate scene but went and stood behind some banana trees approximately 7 – 8 meters from where the old man fell down. From there they observed - under light from a solar lamp that was hanging in front of Lazarus’ house - Lazarus, Ambrose, Gilbert and Frank assaulting the deceased as he lay on the ground. They said Gilbert Beaga also hit the deceased with a stick. And as these men were attacking the deceased McLaren encouraged them along saying “Kilim em, Kilim em! Nogat kot long en!” As the deceased lay unconscious on the ground Smarty Wawe arrived in his vehicle. He came in shouting and at that time the accused persons all fled the scene. Bonnet Avera testified that he and his brother then came out and helped to carry the deceased to the vehicle. He was then taken to the Health Centre.
    
33. The accused persons all deny having any involvement in the assault on the deceased. Ambrose said that he was asleep some 30 meters in Pastor Meakoro’s house when he was awaken by the commotion in Lazarus’ house. When he went over he found that his grandmother was unconscious and that his brother Lazarus was injured. On enquiry his mother told him that there had been an incident.
    
34. Gilbert Beaga said in his unsworn statement that he was asleep with his wife and daughter at their house when his wife woke him after she heard people crying at Lazarus’ house. Thinking that the old woman had died they went down to Lazarus’ place where they found the old woman unconscious and her grandchildren were trying to revive her. This he said was after the fight. His evidence is corroborated by his wife Windora.
    
35. Frank Bonema said that between 10 – 11.00p.m that night he had crossed over the highway on his bicycle looking for Flex Card. On his return he saw a vehicle parked at the junction into the place. The deceased was in the vehicle. The deceased got out and tried to remove Frank’s torch from him. The deceased then tried to pull the bicycle from him and they struggled over it. During the struggle Frank said he went off balance and fell down. When he got up he picked up the bicycle, called for help and ran into the house.
    
36. So whose version of the evidence should I believe? Tony and Bonnet seemed positive about what they saw. They were able to clearly see what was happening from where they stood behind the banana garden. There was sufficient lighting from the lamp that was hanging in front of Lazarus’ house. The accused persons were known to them. Bonnet Avera said when the old man fell down after he was hit with the mirror Gilbert Beaga shouted and the rest of the accused came out. At that time McLaren also came out and started telling the accused to kill the deceased.
    
37. It was not suggested to them in cross-examination that they could have mistaken the identities of the accused, Ambrose, Lazarus, Frank and Gilbert. Ambrose and Gilbert said they came to the scene after the incident had happened. Frank did not say where he was after he ran for help into their house and I am led to believe that the incident he related happened earlier that evening and was probably the one that provoked the situation in the first place.
    
38. Their witnesses, Honoria, Jill and Maggie-Gloria, all made reference to the confrontation between the deceased, Andy and Lazarus. Honoria admitted seeing the deceased on the ground but did not see who attacked him nor did she see him taken away. Jill said she did not see the deceased laying on the ground. In cross-examination she said she did not know who assaulted the deceased or seeing him lying on the ground because she was busy attending to her unconscious grandmother. She said her view was blocked by another iron roofing sheet in front of Lazarus’ house. She denied that the accused persons were there that night and when asked whether anyone else came she answered in the negative.
    
39. Maggie-Gloria also denied the presence of other accused persons. She admitted seeing Lazarus throwing the mirror between Andy and the deceased and that Andy attacked him with a knife cutting him when he fell down. In cross examination she denied that the deceased fell to the ground when hit with the mirror and suggested that the deceased was attacked elsewhere. She denied when it was put to her that McLaren Beago was heard encouraging the other accused to fight and kill the old man.
    
40. The accused persons and their witnesses seemed to have carefully tailored their testimonies. All accused persons deny any involvement whatsoever in the attack on the deceased. The deceased and his son and grandsons came angry and shouting into Lazarus’ place. That would have attracted other family members as always is the case in incidents of this kind in the village. I do believe that Jill, at least, would have not seen everything that happened after her grandmother went into shock and fell unconscious because she was busy tending to her. All the other defence witnesses, though, including the accused persons, for what their unsworn statements were worth, were only telling half the truth. They conveniently left out of their evidence anything that would attach the accused persons to the attack on the deceased.
    
41. It is against common sense and logic that none of the defence witnesses saw what happened to the deceased and how he came about his injuries. This incident happened in front their house. There was sufficient lighting from the lamp that was hanging in the house so they, save for Jill, obviously could have seen that the old man had been rendered unconscious and they could have seen who did it.
    
42. The witnesses are pretty much partisan as they were related either to the deceased or to the accused persons. There is therefore a degree of loyalty involved here.
    
43. Despite my finding that there was sufficient light under which the State witnesses recognised the accused persons, I nevertheless warn myself of the dangers inherent in recognizing known persons under these circumstances and further acknowledge and warn myself that witnesses can be honestly mistaken in recognizing persons whom they know.
    
44. In this case State witnesses Tony and Bonnet Avera were not mistaken and their recognition of the accused persons was reliable and not challenged or refuted in any way. I believe the evidence of these State witnesses because they seemed to me to be telling the truth more than the witnesses for the accused and the accused themselves who I find to be selective as well as evasive in their answers to simple questions such as whether they knew that the accused sustained injuries let alone attacked in Lazarus’ premises.
    
45. Therefore I find that Lazarus Isorombo (by his own admission), Ambrose Isorombo, Gilbert Beaga and Frank Bonema were present at scene of the crime and jointly attacked the deceased by kicking him as he lay defenceless on the ground, thus, occasioning him grievous bodily harm from which he later died.
    
46. The post mortem report showed external bruising on both the right and left lateral chest area which directly corresponded to broken 7^th, 08^th, and 9^th ribs on both sides of the chest area. This is consistent with the manner in which the accused assaulted the deceased as described by Tony and Bonnet Avera.
    
47. The only thing I cannot return a conclusive finding on is the State’s evidence is that Gilbert Beaga assaulted the deceased with a stick. He shall therefore have the benefit of a doubt in that regard but he is guilty of kicking the deceased as his co-accused are, save for McLaren Beaga.
    
48. The accused Lazarus Isorombo, Ambrose Isorombo, Gilbert Beaga and Frank Bonema acted in concert - assaulting the deceased and are therefore principal offenders within the meaning of Section 7 of the Code.
    
49. But what about McLaren Beaga? Did he encourage his co-accused to kill the deceased? State witnesses testified hearing him encourage the others telling them when they came out to the scene saying “Kilim em, kilim em, nogat kot long em!” or words to that effect in vernacular.
    
50. The State also called Grace Yewa, the deceased’s sister. She testified that on the 26^th December 2011 (four days before he died) she had gone to visit the deceased after learning that he had been injured. She asked him what she had been drinking when sale of liquor was closed for the festive season. He told her that Ambrose Isorombo Sr. and Paul Toki had given him alcohol drink. Paul and Ambrose later drove him to his hamlet but on the way a young man shone a torch into his eyes. He got off to question him but as he did so, Paul and Ambrose Sr. drove off. At that point Lazarus tried to fight him. Since he was alone he went to his hamlet at Jimbada and took his son and two grandsons down to Lazarus’ place to find out why he had tried to fight him. While there a fight broke out and he was knocked down. Before he fell completely unconscious he said that he felt like he was being beaten like snake and that he could hear someone call “Kilim em!” She could not question him anymore because he was feeling pain and holding his sides. She also noticed some bruises on his abdomen. When asked what else the deceased told her she said he was uncomfortable and had sharp pains coming from his sides. He then stopped talking. This evidence was adduced purportedly as a dying declaration.
    
51. McLaren Beaga testified on oath that between 1.00a.m. and 3.00a.m. on the 22/12/11 he was asleep when his wife heard roofing iron being hit so she woke him up . She told him that there was crying coming from Isorombo’s house which was situated about 100 meters in front of his. He took his mobile phone and walked down to old Joyce’s house to see what was happening. When he arrived he was told by Jill Isorombo that Robson Yewa (deceased) had come back a second time into their area swearing and destroyed their property. She then pointed to where the deceased was laying on the ground. He took his torch and walked over to where the deceased lay. As he approached he could smell alcohol around where the deceased was. He said he became very angry because the old man should not have come alone to the area. When he heard that he had come with his son and others he yelled out saying “Get rid of the boys who brought the drunken man into our area!” He said he was angry with these boys because they let him return a second time knowing full well that he was drunk and worse still leaving him unconscious there. He then spoke again saying; “They came to fight, kill and destroy us!” and that was because they did not come in peace or to reconcile.
    
52. McLaren denied seeing any of his co-accused around at that time but admits that the deceased was later picked up by his son-in-law Smarty Wawe in his vehicle. He vehemently denied encouraging his co-accused to kill the deceased. McLaren was an impressive witness who did not flinch under cross examination. He maintained his denial and his story was much more detailed, coherent and believable.
    
53. But what about Grace Yewa’s evidence which the State relied upon as a dying declaration. A dying declaration, as an exception to the Rule Against Hearsay, is provided for in our jurisdiction by Section 20 of the Evidence Act Ch. 48 in the following terms:
    
    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 made 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.

54. For a statement to qualify as a dying declaration three elements must be satisfied –
    1. The person making the declaration believed that his death was imminent
    2. At the time he made the statement he would have been a competent witness in any legal proceedings
    3. If he had not died he would have given direct oral evidence in court of the subject matter of the statement.

(See The State v Enny Bullen [1990] PNGLR 43 for a useful discussion of the principle by Kidu CJ)

55. Applying these to the case at hand, I have no difficulty accepting that the deceased Robson Yewa would have been a competent witness in these proceedings and that he would have given direct oral evidence of the matter in the statement attributed to him i.e. that in his state of unconsciousness “he felt as if he was being beaten like snake” and heard someone say; “Kill him!”
    
56. However, did he believe that his death was imminent? This is a subjective test, the answer to which must be drawn from the circumstances existing at the time he made the statement. And because it involves the belief in imminent death, the belief and the statement itself must have been made in close proximity to the time of death.
    
57. So returning to our case, the statement was made on the 26^th of December 2011 – 5 days after the assault on him and 4 days or so before his death on 30^th December 2011. Did he believe that his death was imminent or that he was about to die? What made him entertain such a belief? Was he falling in and out of consciousness or was he in such a terrible physical or mental state that he truly believed that he will die, if not immediately, anytime soon thereafter? How did he manifest or show that belief? Did he communicate that to the person testifying to the statement?
    
58. These questions are important because it is important to ascertain the declarant’s subjective belief and not the belief of the person to whom the statement was made which is irrelevant. The test of the declarant’s belief is firstly in my opinion a subjective one as I said. But where the belief cannot easily be subjectively attributed to him then the Court can a draw a reasonable inference and the test then becomes an objective one. That seems to be the import of Section 20 as I understand it.
    
59. Grace Yewa told the Court that she could not question her brother the deceased further because he was feeling pain and holding his sides, that he was uncomfortable and feeling sharp pains from his sides. Nothing can be deduced from these observations – for they are nothing more than the observations of Grace Yewa - that can show us that the deceased believed that he was about to die or to use the words of the Act “that his death was imminent.” No, I am not satisfied that the deceased believed that his death was imminent nor can I draw a reasonable inference from the evidence to that effect.
    
60. The Statement therefore does not qualify to be a dying declaration within the meaning of section 20 of the Evidence Act and Grace Yewa’s evidence does nothing to bolster the State’s case against McLaren Beaga.
    
61. I am led to hold that McLaren Beaga indeed came on to the scene after the deceased had been rendered unconscious by his co-accused. When he saw the deceased laying unconscious on the ground and when told that he had been abandoned by his son and grandsons he expressed his anger and displeasure by yelling out that those boys who brought the deceased to their area should be gotten rid of because they had come to fight, kill and destroy them.
    
62. I am therefore not convinced that McLaren Beaga counselled or encouraged his co-accused to kill the deceased or at the very least cause him grievous bodily harm. I find him not guilty and he should be acquitted of the charge.
    
63. Now the last issue is whether the accused Lazarus Isorombo, Ambrose Isorombo, Gilbert Beaga and Frank Bonema intended to cause grievous bodily harm to the deceased. The onus is on the State to prove on the required criminal standard that they each intended to cause grievous bodily harm directly or by the operation of Section 7 of the Code.
    
64. The requisite intention may be drawn from such things as the ferocity and the frequency of the attack on the deceased or whether weapons or bare hands or legs or boots were used. It may also be drawn from the nature, magnitude and extent of the injuries sustained by the deceased as shown by a post mortem or an ordinary medical report where it is not possible to conduct a post mortem.
    
65. The evidence from the state on this important element of the charge of murder does not show the ferocity and frequency of the attack on the deceased by the accused persons. And even though he sustained broken ribs, one of which penetrated the liver, when the deceased was moving about during the days after the attack, resulting in heavy internal bleeding from which he ultimately died, I am not satisfied beyond reasonable doubt that the accused persons intended to cause him grievous bodily harm.
    
66. The killing was nonetheless unlawful and unjustified and I accordingly return alternative verdicts of GUILTY for manslaughter against Lazarus Isorombo, Ambrose Isorombo, Gilbert Beaga and Frank Bonema and convict them accordingly.
    
67. I order that they shall be remanded in custody awaiting sentence.
    
68. I find McLaren Beaga NOT GUILTY and I order that he be acquitted and discharged forthwith. I further order that bail monies for McLaren Beaga and any sureties paid by his guarantors be refunded to him forthwith.

Ordered accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused Persons