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State v Kowih [2021] PGNC 135; N8885 (25 June 2021)

N8885

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 799 OF 2020 AND CR NO 800 OF 2020

BETWEEN:
THE STATE

AND:
PATRICK PAK KOWIH AND EDDIE DEVLIN

Lorengau: Narokobi J
2021: 15^th February
2021: 25^th June

CRIMINAL LAW – Wilful murder – Criminal Code, Division V.3 – Section 299, – s 7 – aiding and abetting - trial on conviction.

The co-accused Patrick Pak Kowih and Eddie Devlin are charged with wilful murder of Joel Kepiniu under s 299 of the Criminal Code. The wife of the deceased came and complained to Patrick Pak Kowih, who is her cousin, of her husband assaulting her. At that time, he was drinking with some men, which included Eddie Devlin. Patrick took a bush knife and went with the men he was drinking with to confront the deceased. A fight ensued and Joel Kepiniu’s head was pierced from the back by a long strong object, penetrating his skull resulting in his death. The State alleges that the injury causing his death was caused by Patrick and Eddie. The State further alleges that the co-accused aided and abetted each other in the commission of the offence by virtue of s7(1)(a)(b)(c) of the Criminal Code, thereby committing wilful murder contrary to s 299 of the Criminal Code.

Held:

(1) The evidence was such that the case was to be proven by circumstantial evidence.

(2) In a case sought to be proven on circumstantial evidence, the guilt of the accused must be the only rational inference from the evidence considered as a whole (Paulus Pawa v The State [1981] PNGLR 498, followed).

(3) There was no direct reliable evidence of the accused Eddie Devlin killing Joel Kepiniu.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of unlawfully doing grievous bodily harm to another person (Special reference pursuant to Constitution, Section 19(1) (2020) SC2091, followed).

(5) Patrick Pak Kowih is found guilty of unlawful grievous bodily harm as he admitted to hitting the deceased with a knife and this is confirmed by the medical report.

(6) In order for derivative responsibility to be established ie aiding and abetting, there must be both an intention to encourage the commission of an offence and an encouragement in fact to commit an offence (Aieni v Tahain [1978] PNGLR 37, adopted).

(7) The co-accused Eddie Devlin was not a mere bystander, he had with him, what in the circumstances can be considered an offensive weapon and is therefore guilty of aiding and abetting Patrick Pak Kowih.

Cases Cited:
The following cases are cited in the judgment:

Aieni v Tahain [1978] PNGLR 37
Paulus Pawa v The State [1981] PNGLR 498
Special reference pursuant to Constitution, Section 19(1) (2020) SC2091
State v Banabu (2005) N2871
The State v Tom Morris [1981] PNGLR 413

Legislation cited:

Criminal Code Act, Ch 262

Counsel:
Mr. P. Kaluwin, for the State
Mr. K. Pokiton, for the Accused

JUDGMENT ON VERDICT

25^th June, 2021

Introduction

1. NAROKOBI J: INTRODUCTION: This is a decision on verdict on whether Patrick Pak Kowih and Eddie Devlin wilfully murdered Joel Kepiniu contrary to Section 299(1) of the Criminal Code?
   

Background

2. The basic story is that the deceased was married to Patrick Pak Kowih’s cousin sister. On 16 February 2019 the deceased assaulted his wife. She came and complained to Patrick Pak Kowih. At that time, he was drinking with some men, which included Eddie Devlin. Patrick took a bush knife and went with the men he was drinking with to see Joel Kepiniu. A fight ensued and Joel Kepiniu’s head was pierced from the back by a long strong stick-like object, penetrating his skull. The State alleges that Eddie Devlin used a wooden implement for husking coconut to cause these injuries resulting in his death. He was aided and abetted by Patrick Pak Kowih.
   
3. Patrick does not dispute that when the deceased was lying on the ground, he slapped his chest and stomach area with the open face of a bush knife he had with him.
   
4. The allegations were put to the accused to which they understood, and they both pleaded not guilty.
   

Factual Issue

5. The factual issue I must decide is whether Eddie Devlin on 16 February 2019 at Ward 3 in Lorengau, Manus, Eddie Devlin pierced the back of the head of the deceased with a wooden implement for husking coconut and he was aided and abetted by Patrick Pak Kowih in this act?
   

Legal Issues

6. If as a matter of fact, Eddie Devlin caused the death of Joel Kepiniu then I will have to consider what legal consequences follow as a result of this actions.
   
7. In the event that I acquit Eddie Devlin, can I find Patrick Pak Kowih guilty of the lesser charge of grievous bodily harm under s 340 of the Criminal Code on account of the admission that he slapped the deceased on his chest with the open face of his knife while he was lying on the ground.
   
8. There is of course the case of Special reference pursuant to Constitution, Section 19(1) (2020) SC2091 which allows me to consider finding guilty the accused of a lesser charge under Section 539 of the Criminal Code.
   
9. To establish contravention of Section 299(1) of the Criminal Code, the following elements have to be proven by the State beyond reasonable doubt (State v Banabu (2005) N2871):
   
   • the accused killed the deceased;
   • the killing was unlawful; and
   • the accused intended to cause the death of the deceased.
     
10. The defence that the co-accused raised was that they did not kill the deceased. The State’s case would therefore have to be demonstrated by proving all three elements of the offence beyond reasonable doubt.
    

Evidentiary Question of Law

11. In my view this is a case whose outcome will be determined by circumstantial evidence. This is because there is no direct evidence identifying Eddie Devlin inflicting the fatal blow on the deceased. The issue is therefore:
    
    • Is the guilt of the accused the only reasonable inference from the evidence considered as a whole?
      
12. The way I resolve this issue will enable me to decide both questions of fact and law I have identified.
    

State’s Case

13. The State’s case is that on 16 February 2019 at Ward 3, Lorengau, Manus Province, between 2pm and 3pm the co-accused approached the deceased at his house to question him about an earlier assault on his wife. This led to a fight. The State alleges that one of the accused persons pierced the back of the deceased head with an iron rod. When he fell down, he was further assaulted. The injuries he suffered, particularly to the back of his head, penetrating his skull caused his death. After the evidence came in, the State appeared to change its position to say that the deceased’s head was in fact pierced by a wooden implement for husking coconuts.
    
14. The State alleges that the co-accused Patrick and Eddie intended to cause the death of Joel and they aided and abetted each other to cause his death.
    
15. The State called three witnesses – Junior Pilon, Miriam Ian and Dr Otto Numan.
    

Defence Case

16. The Defence case is that the co-accused did not kill the deceased.
    
17. In respect of Patrick Pak Kowih the Defence further submits that it admits to him slapping the deceased’s stomach with the open face of the bush knife when he was lying on the ground and he did no more.
    
18. The Defence called two witnesses – each of the accused, Patrick Pak Kowih and Eddie Devlin. Both men were informed by the court that they could remain silent, give an unsworn statement or give sworn evidence in which case they would be subject to cross-examination by the State. It was further explained that no adverse inference would be drawn against them, should they choose to remain silent or give an unsworn statement. They understood the choices and opted to give sworn evidence.
    

Documentary Evidence Tendered by Consent

19. The State has tendered a number of documents which the Defence did not object to, and I admitted into evidence:
    

Crime Scene Visitation

20. I also visited the area where the crime was alleged to have occurred at Ward Three (3) Lorengau, Manus, with all the parties under the presence of the police. Generally, the area did not have any permanent houses and would be commonly described as an urban settlement. When I visited the place, it was not bushy. The area where the deceased was found lying on the ground was the flat part of a slope. Junior Pilon, one of the State witness’ house was some 30m from where the deceased lay. Standing from Junior’s house and facing the area where the deceased was found, and to the right is the deceased house. Up on the top of the hill, 20m from where the deceased body was lying was where the second witness, Miriam Ian was standing and looking down, witnessing the incident. The incident happened between Junior Pilom’s house and where Miriam Ian was standing.
    

State’s Evidence

21. The State called three witnesses. The first one was Junior Pilon. He says that he was at his house at the time of the incident. He heard a noise outside his house and thought it was a domestic argument between the wife and the deceased, as it often happens between the two couple. Next to his house was the deceased house. The volume of the noise increased, and he became curious and went out to investigate. He saw the deceased lying on ground. Patrick whom he identifies by name and some other men were there. He does not know the names of the men standing with Patrick, but only recognises Eddie. Patrick had a bush knife and was hitting the deceased repeatedly on the stomach with the open face of the knife. Standing some two (2) to three (3) metres from Patrick was Eddie, who was holding on to a stick-like object with a sharp end for husking coconuts. Junior then says that he went and assisted the deceased, who was bleeding from the back of his head. He brought him to a vehicle, who took him to the hospital. After some time, he learns of Joel’s death.
    
22. The next witness was Miriam Ian. She stood on top of the slope and witnessed the incident. From the crime scene investigation, it is estimated that she was 20m from what was happening. She says Patrick hit the deceased several times with a piece of wood. She was asked to identify Patrick from the dock, but could not do so, even after walking right in front of him.
    
23. Dr Otto Numan was the final witness for the State. In his medical opinion, an iron rod or a sharpened piece of wood caused the injuries sustained by the deceased. In his medical report tendered by consent dated 20 February 2019, he says:
    

“In my opinion a post mortem was not necessary as the deceased died from a penetrating brain injury to the occiput from the injury he received. There was evidence of the use of a sharp and blunt objects. It appeared that a bush knife was used toobut the flat surface was used instead of the sharp edge. The occipital injury may have been inflicted by an iron rod.”

Defence Evidence

24. The Defence relied on two witnesses – each of the co-accused. Patrick and Eddie.
    
25. Patrick says that on that day he was drinking with some men. At that time the wife of the deceased approached him. She was his cousin. She complained of being assaulted by the deceased and showed the marks on her body of being assaulted by her husband. He took his bush knife and went with the men he was drinking with to see the deceased. At the deceased house he confronted Joel at his house. Joel then walked up the slope. He did not see what happened after that. The next thing he noticed, he saw the deceased lying on the ground. He approached the deceased and slapped his stomach with the open face of the knife. Eddie then came and removed the knife from him and they left the scene.
    
26. Eddie says that he went to have some alcohol with Patrick at his place at Ward 3, Lorengau town. He was with Namting Smith, Bobby Michael and Romeo Ilan. Patrick’s sister came to his house after he was assaulted by her husband, Joel. He then followed Patrick who had picked up a knife and approached the deceased. An argument followed and the deceased ran at Namting and began attacking him. He threw many punches at Namting before he fell to the ground. Patrick ran towards the deceased and swung the bushknife using the flat surface at the deceased chest. He then pulled Patrick away and stopped him from attacking the deceased.
    

Findings of Facts

27. It is not disputed that Patrick hit the deceased on his chest with the open face of his knife while he was on the ground. He admits to the offence of assault occasioning bodily harm, but not that of wilful murder. This admission is consistent with the evidence of Dr Otto Numan, who reports that the stomach of the deceased bears the outline of the open face of a bush-knife. He must have been hit with some force to leave an impression on his body.
    
28. Although the unfolding events would place Patrick and Eddie as the prime suspects of this killing, the evidence as it stands does not directly identify them killing Joel. Miriam Ian says that Patrick repeatedly assaulted the deceased. Yet she could not identify him. This raises the question of whether it was another person that hit the deceased. Her evidence does not identify who inflicted the fatal blow.
    
29. Junior’s evidence was that he saw the deceased lying on the ground. When he came over, there was blood already on his head. He took him to the car. He did not see who inflicted the injury. The end result of this, is that there is no evidence on who inflicted the deadly blow to Joel’s head. I accept the medical report of Dr Numan that the likely cause of the penetrating brain injury was a metal iron rod. Eddie had a wooden object on him at the time. The circumstances are such that any other person may have inflicted such a blow. There were a number of persons at the scene of the crime.
    

Elements of the Offence

30. I find that the element of killing another person has not been proven beyond reasonable doubt and they should be acquitted of the charge of wilful murder.
    

Alternative Charge

31. The accused has admitted to hitting the deceased on his chest with the open face of the bushknife he was holding. He was not charged with an alternative offence, but I have had regard to Section 539 of the Criminal Code which states:
    

539. CHARGE OF MURDER OR MANSLAUGHTER.

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or 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.

(2) 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.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of–

(a) unlawfully doing grievous bodily harm to such other person; or

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

(c) unlawfully wounding such other person; or

(d) unlawfully assaulting such other person.

32. I have also had regard to the Supreme Court decision in Special reference pursuant to Constitution, Section 19(1) (2020) SC2091 which as I stated above allows me to consider finding guilty the accused of a lesser charge under Section 539 of the Criminal Code. On the basis of this authority, I proceed to consider whether the accused is criminally responsible for a lesser offence.
    
33. The accused Patrick Pak Kowih says that he should be found guilty of assaults occasioning bodily harm under Section 340 of the Criminal Code. That provision states:
    

340. ASSAULTS OCCASIONING BODILY HARM.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

34. After considering the fact that a bush knife was used and the medical report, I am of the view that this is a case which falls within Section 319 of the Criminal Code on unlawfully doing grievous bodily harm. The medical report states:
    

“Macula (sic) [muscular] skin lesions (bruising) of about 4-5cm in width and long in length covering the whole length of the chest. His chest was filled with crepitations bilaterally.”

35. Such injury was occasioned by the use of a bush knife and I am of the view that this is grievous bodily harm, which is defined in Section 1 of the Criminal Code in the following terms:
    

“any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.”

36. In my view, the use of the knife on the chest was with some degree of force indicating fury on the part of the aggressor such as to leave an impression on the chest and skin lesion is likely to endanger life. It cannot be downplayed by a lesser offence. In my view the facts are consistent with a charge of unlawful grievous bodily harm under Section 319 of the Criminal Code. The two elements of the offence in that there was grievous bodily harm and that it was unlawful, given that no lawful defence justified the use of the bushknife are in my respectful view, borne out by the evidence adduced by the State, and I find the accused Patrick Pak Kowih guilty of unlawful grievous bodily harm contrary to Section 319 of the Criminal Code.
    
37. What do I make of Eddie Devlin? To demonstrate that a co-accused aided and abetted the commission of an offence, there must be an intention to encourage the commission of an offence and an encouragement in fact. In the case of Aieni v Tahain [1978] PNGLR 37 it was held:
    

“if it is alleged that the accused was an accessory, proof is required of some conduct in promoting the commission of the crime (the aiding and abetting aspect) and of some behaviour on the part of those encouraged (the behaviour aspect) and that such behaviour falls within the external standard (the external standard aspect).

Proof of mere presence at a place where a number of people are found will not constitute aiding and abetting, sufficient to support a conviction for breach of s. 8 of the Summary Offences Act 1977; there needs to be some proof of promotion or encouragement of the principal offenders.”

38. The evidence from Junior Pilon which I accept as he has no reason to lie, was that Eddie was at the scene of a fight and he was holding what in the circumstances can be considered as an offensive weapon. He had accompanied Patrick from his house and was drinking with him. Although he removed the knife from the hands of Patrick, he had in his possession a stick used for husking coconuts. There is no other reason for him to hold this implement, other than to encourage the commission of an offence. I therefore find him guilty of unlawful grievous bodily harm pursuant to Section 7(1)(c) of the Criminal Code.
    

Verdict

39. Based on the foregoing I find Patrick Pak Kowih and Eddie Devlin guilty of unlawful grievous bodily harm pursuant to Section 319 of the Criminal Code and that Eddie Devlin’s guilt is established by virtue of Section 7(1)(c) of the Criminal Code.
    

Orders accordingly

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused