The State v Samuel Roth

• Jurisdiction: Papua New Guinea
• Judge: Canning J
• Judgment Date: 20 November 2018
• Citation: (2018) N7591
• Court: National Court
• Year: 2018
• Judgement Number: N7591

Full : CR NO 716 OF 2015; The State v Samuel Roth (2018) N7591

National Court: Canning J

Judgment Delivered: 20 November 2018

N7591

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 716 OF 2015

THE STATE

V

SAMUEL ROTH

Madang: Canning J

2018: 18 June, 9 July, 27 September, 20 November

CRIMINAL LAW – murder – Criminal Code, Section 300(1)(a) – death allegedly resulting from assault in domestic setting – elements of murder – defences of self-defence, provocation – alternative verdicts, Criminal Code, Section 539.

Facts

The accused was charged with murder under Section 300(1)(a) of the Criminal Code. The deceased was his wife. A domestic dispute took place in the family home. The accused struck the deceased, who died about 18 hours after the incident. The accused denied causing the death of the deceased, who he claimed died due to her taking an overdose of medicine. He also raised the defences of self-defence and provocation.

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) If the first element is proven but not the second, the accused will be convicted of manslaughter unless the killing of the deceased is authorised, justified or excused by law.

(3) Killing the deceased will be excused if the defence of self-defence (under Criminal Code, Section 269), or the defence of provocation (under Criminal Code, Section 267) applies.

(4) Here the State proved that the accused killed the deceased, but failed to prove that he intended to do her grievous bodily harm.

(5) As to the defences of self-defence and provocation, the evidence of the accused was not credible and the State disproved both defences.

(6) The accused was accordingly found guilty of manslaughter.

Dates

The events referred to in this judgment occurred in 2015 unless otherwise indicated.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881

Paulus Pawa v The State [1981] PNGLR 498

R v Paul Maren (1971) N615

Tapea Kwapena v The State [1978] PNGLR 316

The State v Alphonse Dumui (2009) N3686

The State v David Yakuye Daniel (2005) N2869

The State v Raphael Kuanande [1994] PNGLR 512

The State v Roland Rebon (2008) N3495

The State v Silas Anjipi (2007) N4963

The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

This was the trial of an accused charged with murder.

Counsel

D Ambuk, for the State

G Pipike, for the accused

20th November, 2018

1. CANNINGS J: Samuel Roth, the accused, is charged with the murder of his wife, Lenneth Rus (the deceased). The State alleges that the accused killed the deceased by assaulting her during a domestic dispute at their house on the campus of Divine Word University, Madang, on the afternoon of Sunday 11 January 2015, and that the injuries he inflicted on her led to her death early the following morning. The State alleges that he intended to cause her grievous bodily harm and should be convicted of murder under Section 300(1)(a) of the Criminal Code.

2. The accused does not deny striking the deceased but denies that he killed her. He claims that her death was caused by her overdosing on medication. He denies intending to do her grievous bodily harm. He raises the defence of self-defence and provocation. He says that he had to strike the deceased to defend himself against an unprovoked assault by her on him, which put him in a life-threatening situation, and that she provoked him to strike her.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

· In January 2015 the accused was a lecturer in the department of PNG Studies and International Relations at DWU, aged 35 years. He was living in staff accommodation on campus with his wife, Lenneth Rus, aged 30 years. They had been married since 2011. They are both from Western Highlands Province. The accused is from Wara-Bukapena village, Mul-Baiyer District. The deceased was from Warakum village, Hagen District.

· Other members of the household on the day of the incident, Sunday 11 January 2015, included the accused’s sister, Priscilla Roth, and the deceased’s cousin-sister, Charmaine George, both of whom gave evidence at the trial.

· Several days before the incident the deceased left Madang with Charmaine and went to Mt Hagen, Western Highlands Province, as she had had a difference of opinion with some of the accused’s male relatives.

· Lenneth and Charmaine arrived back in Madang by bus on the morning of the incident. They went to the DWU house. Samuel was not there. They did other things, including sleeping, until Samuel came home about midday.

· Samuel rebuked Lenneth for going missing and not returning his many mobile phone calls and text messages.

· Samuel and Lenneth went into their bedroom and had an argument. During the course of the argument Samuel struck Lenneth (he says acting in self-defence and under provocation).

· The next morning, Monday 12 January, Samuel rushed Lenneth to the nearby Modilon General Hospital after finding her unconscious, lying on the bedroom floor.

· Lenneth was dead on arrival at the Accident and Emergency Department.

ISSUES

4. The accused has been 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 two elements of the offence are that:

· the accused killed the deceased; and

· he intended to do grievous bodily harm.

6. If the court is not satisfied that the first element is proven, the accused will be not guilty of murder and 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 proven but not the second, an alternative verdict of manslaughter can be considered under Section 539(2). If manslaughter is considered as an alternative or if the Court is satisfied that both elements of murder have been proven it will then consider whether the defence of self-defence and/or the defence of provocation applies. If either of those defences applies, the accused will be not guilty of murder and not guilty of manslaughter. The primary issues are:

1 Did the accused kill the deceased?

2 Was there an intention to do grievous bodily harm?

3 Should an alternative verdict of manslaughter be considered?

4 Does the defence of self-defence apply?

5 Does the defence of provocation apply?

1 DID THE ACCUSED KILL THE DECEASED?

7. Determination of this issue requires a:

· summary of evidence for the State;

· summary of evidence for the defence;

· summary of submissions;

· formal determination of the question whether the accused killed the deceased.

Evidence for the State

8. Four witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Charmaine George	Cousin-sister of deceased
She and Lenneth arrived at the DWU house around 7.00 am on Sunday 11 January – on their way from Mt Hagen to Madang Lenneth told her that she was afraid Samuel would be cross with her and would hit her – Samuel was not home so they did other things until Samuel arrived in the afternoon. As soon as Samuel arrived he showed her (the witness) a piece of paper that contained a list of unanswered calls and text messages and said that’s why he was going to hit Lenneth – Samuel held on to a piece of timber – he took Lenneth into their bedroom and locked the door – there was no one else in the room. Lenneth was at that point in good condition. She (the witness) heard Samuel assaulting Lenneth and heard Lenneth screaming ‘Samuel. Please stop. Enough! Enough!’ She did not like to hear her sister screaming in pain so she left the house, together with Priscilla, who also heard what was happening. Priscilla said ‘it’s beyond our control, we should not do anything’. They went for a stroll around the campus together with another member of the household, a small boy called TJ. After a while they went back to the house and saw Lenneth lying on the ground at the back of the house – Lenneth was in pain and had excreted in her trousers and was struggling to breathe – Samuel was pouring water over her – she and Priscilla washed Lenneth with a hose – Samuel was there, standing and watching them – then Samuel asked them to help him take Lenneth to the hospital – this was still on Sunday afternoon – she and Priscilla helped to get Lenneth to the car as she could not walk by herself – they took Lenneth to the hospital, to the accident and emergency department – Samuel looked after Lenneth there while she (the witness) and Priscilla walked to the nearby Tree Line Store to buy...