The State v Steven Donia (2010) N4536

• Jurisdiction: Papua New Guinea
• Judge: Kawi J
• Judgment Date: 14 October 2010
• Citation: (2010) N4536
• Docket Number: CR NO.1226 of 2006
• Court: National Court
• Year: 2010
• Judgement Number: N4536

Full Title: CR NO.1226 of 2006; The State v Steven Donia (2010) N4536

National Court: Kawi J

Judgment Delivered: 14 October 2010

N4536

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1226 OF 2006

THE STATE

V

STEVEN DONIA

Bialla: Kawi J

2010: 17th, 19th, 21st July and 14th October

CRIMINAL LAW – practice and procedure – homicide – murder – caused by the prosecution of an unlawful purpose – Criminal Code Section 300 (1)(b)(i)ii) – Evidence – dying declaration – whether admissible in evidence- weight given to dying declaration – Section 20 of the Evidence Act – whether statement of deceased amounted to dying declaration. Causation in homicide cases – accused’s conduct – substantial cause of death – Sexually transmitted Infection in deceased – not a supervening act – whether the conduct and expressions of the deceased before and after time of the declaration are relevant in a consideration of the state of mind of the deceased – significance of a dying declaration – homicide – murder – death caused by an act done in the prosecution of an unlawful purpose - likely to endanger human life – Sexual penetration of a 12 year old girl – penetration of vagina constitutes an unlawful act – sexual penetration of a 12 year old girl likely to endanger her life- Accused guilty of murder under section 300(1)(b)(i)(ii) and is accordingly convicted.

Facts

The accused was indicted with one count of murder under section 300(1)(b)(i)(ii) of the Criminal Code. The State led evidence to show that the accused met the deceased, young 12 year old girl by herself at the Barema River and taking advantage of her lone presence, he took her over to the river bank and sexually penetrated her. For the next three days the deceased did not move around but stayed in her house bleeding. On the night of the third day, in front of her relatives as well as the accused, his wife, and brother in law, the deceased uttered the following statement: “Steven (the accused) kisim mi go long Wara Hemendi and em holim mi. Mi singaut na em holim mi na passim maus blong mi na em rapim mi”. After uttering this statement the deceased never said anything else until her death the next morning. Her post mortem Report revealed that she died from hypovoelemic shock due to heavy loss of blood which triggered off a cardiac arrest in her leading to her death. The medical Report also revealed that at the time of her death the deceased was also suffering from a sexually transmitted infection. On the issue of whether the statement of the deceased is admissible evidence as a dying declaration:

Held: (1) In order to qualify as a dying declaration under section 20 of the Evidence Act, the Statement of the deceased:

(a) must be made orally

(b) that the deceased believed that her death was imminent.

(c) that the deceased would have been a competent witness in a criminal proceedings constituting the subject matter of her statement

d) that direct oral evidence of the matter declared was admissible.

(2) The statement attributed to the deceased satisfied the criteria for dying declarations and consequently it is admitted as admissible evidence under section 20 of the Evidence Act.

(3) The effect of a dying declaration once it is admitted into evidence is that in much the same way as circumstantial evidence accumulates and strengthens, so it is in the present case, the evidence against the accused has accumulated; the dying declaration has added a lot of weight to the prosecution case and in fact gives it an important strength.

(4) On the question of the presence of the sexually transmitted infection in the deceased and whether that fact constituted a supervening factor:

Further held:

(5) Essentially causation arises when there is an intervening act or event in the cause of the death. The question therefore is whether the accused’s conduct was so connected with the deceased’s death that it must be said to be a substantial cause of the death.

(6) In relation to the sexually transmitted infection as being the intervening or supervening act:

Held:

(7) The major precipitating cause of the death and which was also a substantial cause of the death was massive loss of blood, caused by the sexual penetration of the deceased by the accused.

(8) The massive loss of blood triggered a hypovoelemic shock leading to cardiac arrest in the deceased. The sexually transmitted infection detected in the deceased is a treatable disease and could not have been the substantial cause of the death of the deceased or a major supervening act.

(9) The actions of the accused was caused by means of an act done in the prosecution of an unlawful purpose; and the act of the sexual penetration of a young girl under sixteen years was of such a nature as to be likely to endanger human life; The sexual penetration of the deceased directly led to her death. The elements of the charge under section 300(1) (b)(i)(ii)

viz (a) The accused killed another person; and

(b) The circumstances are that the death was caused by means of an act done in the prosecution of an unlawful purpose; and

(c) The sexual penetration of a minor was an act of such a nature as to be likely to endanger human life;

These 3 elements have all been proven beyond reasonable doubt.

Cases cited:

PNG Cases Cited

State –v- Tom Morris, [1981] PNGLR 498

Paulus Pawa –v- The State [2001] SC

Devlyn Donald –v- The State [2006] SC 881

State –v- Enny Bullen [1990] PNGLR 43

State –v- Dr. Moses Manwau [2009] N3797

R –v- Kiandari [1967-68] PNGLR 31

R –v- Koito Kartogati [1974] PNGLR 225

Joseph Maino –v- The State [1977] PNGLR 404

Herman Pasi –v- The State [1991] PNGLR 254

The State –v- Tau Ted Lahui [1992] PNGLR 325

The State –v- Jimmy Bellam [1979] N192

Overseas Cases Cited

R –v- Woodcock [1789]

Hallet –v- R [1969] SASR 141

R-v- Rogers [1950] SASR 102

Counsel:

Mr F. Popeu, for the State

Ms J M Ainui, for the Accused

20th October, 2010

1. KAWI J: Introduction: Steven Donia of Kesa Village, Walium in the Madang Province is accused of the murder of a young 12 year old girl, Monica Joseph at Soi Oil Palm Block Settlement at Bialla, West New Britain Province. He is charged and indicted under Section 300(1)(b)(i)(ii) of the Criminal Code. The offence is alleged to have been committed on the 2nd of March 2006. On arraignment he pleaded not guilty and a trial was conducted.

State Allegations

2. The State alleges that the deceased had accompanied the accused to the local Barema River, where he is alleged to have prosecuted an unlawful purpose that subsequently resulted in the death of the deceased. The unlawful purpose prosecuted by the accused was that he sexually penetrated the vagina of the deceased Monica Joseph with his penis. The deceased Monica Joseph was then a girl under the age of Sixteen (16) years which is a criminal offence under Section 229A of the Criminal Code, Sexual offences and Crimes Against Children’s Act 2002. As a result of this unlawful sexual penetration, Monica Joseph is alleged to have suffered from massive loss of blood through her vagina which eventually led to her death. Hence the charge under Section 300(1)(b)(i)(ii) of the Criminal Code.

State Evidence

3. To sustain its allegations, the State called three witnesses, David Aragel, Gabriel Akue David and Michael Yappa.

4. David Aragel and Gabriel Akue David gave evidence to establish that:

(a) On Sunday 25th February 2006, the accused Steven Donia came and called out the deceased, Monica Joseph to follow him to the Barema river to fish;

(b) Monica Joseph returned to the house about 6:30 that evening and went straight to her room to sleep.

(c) She slept the whole day on Monday and Tuesday. On Tuesday evening she was feeling very hot in her stomach and asked her cousin brother David Aragel, to take her to the river to bath. David put her on a wheelbarrow and pushed her down to the river to bath.

(d) Again on Wednesday she was pushed on a wheelbarrow down to the river to wash after she complained of feeling very hot in her stomach. That night she started bleeding heavily. Seeing this David Aragel went and fetched Monica’s uncle, Gabriel Akue David. In front of her uncle Gabriel Akue David and his cousin brother David Aragel, the deceased who was sleeping on her bed and bleeding profusely through her vagina told the two of them that “Steven took me down to the river Hemendi and tried to rape me. I screamed and he held my mouth and raped me. Now I am bleeding, looks like, I am going to die.”

(e) When the deceased allegedly uttered these words, David Aragel told her not to say anything else, and both David Aragel and Gabriel Akue David went to fetch Steven Donia at his house in the block. Steven Donia, his wife Elina Donia and his brother in law, Martin Linge accompanied the two Davids to their house where the deceased was sleeping. At the house, they all went inside the room, where Monica Joseph was sleeping.

(f) David Aragel then woke up Monica Joseph and held her by her hand and told her to say what she told them earlier. At this the deceased said, “Steven Donia, kisim mi go daun long wara...