Papua New Guinea Law Reports - 1967-68
[1967-68] PNGLR 455
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
LUPALUPA-SISAROWE
Goroka
Frost J
10-11 October 1968
28 October 1968
CRIMINAL LAW - Murder - Self-defence - Distinction from fighting - Provocation for assault - Act not in prosecution of unlawful purpose - Failure of accused to testify - The Criminal Code, ss. 31, 61, 65, 271, 272, 273 and 302.
M, a leader of the N clan, was killed by an arrow fired by the accused, a member of the Y clan, during the course of a tribal fight between the two clans over a piece of disputed land. The N people had erected houses on the disputed land and an armed group of the Y people proceeded to the land where they pulled down the houses. The N people then attacked the Y people and arrows were fired by both sides. There was evidence that M had fired an arrow at the accused and was about to fire another when the accused fired the fatal shot. The accused was charged with the murder of M.
Held:
(1)      Although the Y group were an unlawful assembly under s. 61 of The Criminal Code, in view of their genuine claim to the disputed land their destruction of the houses was not an unlawful act so as to bring them within s. 65 of the Code. The firing of the arrow by the accused was not an act done in the prosecution of an unlawful purpose within s. 302(2) of the Code, so the Crown had the onus of establishing the specific intent required by s. 302(1).
Hughes v. The King (1951), 84 C.L.R. 170, applied.
(2)      As the truth was easily ascertained by the Crown and the accused had given an explanation adduced before the Court no weight could be attached to the failure of the accused to testify.
May v. O’Sullivan (1955), 92 C.L.R. 654, referred to.
(3)      The circumstances in which the houses were destroyed amounted to provocation for an assault by the N group within the meaning of s. 272 of the Code so it was that section rather than s. 271 which was to be applied in considering the question of self-defence.
(4)      The force excused in ss. 271 and 272 of the Code is force used in self-defence and not the force used by a man who has accepted the challenge of another to engage in a fight with that other. When a party of men accepts the challenge of a hostile party the force used by one of the combatants in the ensuing fight is not excused even although, by reason of the immediate tactical situation, that force is directed to one on the other side to prevent the latter from disabling the combatant using force. The provisions of the Code in this respect embody the common law distinction between self-defence and fighting.
R. v. Knock (1877), 14 Cox’s C.C. 1, applied.
(5)      Section 31 of the Code only excuses an act done for the purpose of defence and its provisions cannot derogate from the specific provisions of sections 271, 272 and 273.
(6)      On the evidence the Crown had not negated the possibility that the accused was acting in self-defence.
Additional cases referred to: McBride v. The Queen (1965), 40 A.L.J.R. 57; R. v. Howe (1958), 100 C.L.R. 448.
Trial.
The accused was indicted for the murder on or about 1st July, 1968, of one Missevaro Moru. Ultimately the only defence relied upon was self-defence. The relevant facts and statutory provisions appear in the reasons hereafter.
Counsel:
Gajewicz, for the Crown.
Lindsay, for the accused.
Cur. adv. vult.
28 October 1968
FROST J:  The accused man is charged upon indictment that on or about 1st July, 1968, he murdered one Missevaro Moru. The deceased died as a result of an arrow being fired by the accused into his chest during a tribal fight, and, in the end, the only defence relied on was self-defence.
The fight occurred early in the morning of 1st July 1968, between the men of two villages, Nibiufa and Yagariyayufa, which are in the Ungai area about eight miles south of Goroka in the Eastern Highlands District of the Territory of New Guinea. The land these people occupy is poor, but because it is their only possession, they attach the greatest value to it, and indeed the fight in which the deceased died arose from a dispute over land.
The people know nothing of the law contained in The Criminal Code, nor of the niceties of the crimes of murder or manslaughter or the defences of provocation and self-defence. All that they know, as they have been taught by the Christian missions and the Administration officers, is that to kill is wrong, that those who offend will be brought before a court, and are liable to be punished by sentences in the corrective institutions. They still carry their traditional bows and the various kinds of arrows for the killing of pigs, which may kill a man, and birds. From time to time, despite the civilizing influences I have referred to, fights break out between the clans, when the men prance and posture and fight with bow and arrow. On these occasions they are transported with excitement. There is no police post handy to make possible a swift intervention to stop the fight. The Administration relies in these situations on the subsequent prosecution of the offenders, and if it succeeds, the deterrent effect of conviction and punishment to restore internal order.
Sub-Inspector Thackeray gave evidence, and it was not disputed, that the people in the Ungai area have garden lands, which belong to the family line and by patrilineal descent are the property of the males of the family, and also common lands. The latter are owned by the men of the clan in common and are used for the grazing of pigs, hunting and the collection of building materials. As there are no clear or defined land boundaries, disputes occasionally lead to fighting between the clans.
Mr. Gajewicz submitted to me that, in these days of economic development and increasing pressure on land resources, this was an important case and that it was strongly in the public interest that tribal fighting should cease, but I remind myself that this consideration, as was said in the High Court of Australia by Barwick C.J., of the road toll in relation to driving cases in Australia, “must not be allowed to obscure the particular right of (the accused) to a proper trial of the actual charge that is made against him”: McBride v. The Queen[dlxxv]1.
The piece of land called Kolopan over which the dispute arose is claimed by both the Nibiufa and the Yagariyayufa people. The Nibiufa men spoke of building houses upon it, and despite warnings by the Yagariyayufa men that the land belonged to them, they went ahead and built two houses. So on Monday 1st July, 1968, the Yagariyayufa men went forth, armed with bows and arrows, to pull the houses down, As Sodigotu said, “We took bows and arrows because the people might fight us, when we pulled down the houses”. They did so, and then the Nibiufa men who were assembled nearby, also armed, commenced the fight. Arrows were fired by both sides, the men running from one position of vantage to another, and both sides suffered casualties, five on each side. The deceased man who was the Nibiufa leader, fired several arrows, and was active in the fight. One of his clansmen, called as a witness, tried to restrain him. He was finally shot by the accused, at the head of his line, in the front of the chest, dying almost immediately. His death, the only fatality, seems to have ended the fight.
Later, at the Goroka District Court some men engaged in the fight from both sides were tried summarily and convicted of riotous behaviour. Indeed the native witnesses who appeared in this trial, were all still in custody. Only the accused has been charged with murder.
The evidence in the case is meagre in the extreme, perhaps in some instances because it was difficult to elicit from the native witnesses. No evidence was led as to the ground upon which the fight took place, whether it was confined by ditch or river, or hill, or bounded by public road; as to the duration of the fight, or as to the numbers involved, merely there were “plenty” men from Yagariyayufa, and both sides seem to have been fairly evenly matched. The initial attack, or whether the Nibiufa men surrounded the Yagariyayufa men, was not described. There was no evidence that the accused fired any arrows prior to shooting the deceased. Bald as the accounts of the witnesses were, in the vital respect as to whether deceased was about to shoot the accused, as he claimed, there is a conflict of testimony.
Mr. Lindsay called no evidence, and the accused made no statement. I ruled against his submission that there was no case to answer.
I should first refer to the relevant sections of The Criminal Code. Under s. 291, it is unlawful to kill any person unless such killing is authorized or justified or excused by law. Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person (s. 293). Any person who unlawfully kills another is guilty of a crime, which is called wilful murder, murder, or manslaughter, according to the circumstances of the case (s. 300). The particular provisions of s. 302, which defines murder, upon which Mr. Gajewicz relied in this case are:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say,
(1)      If the offender intends to do to the person killed or to some other person some grievous bodily harm;
(2)      If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
....
is guilty of murder.”
“Grievous bodily harm” is defined to mean “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” (s. 1).
At the outset I propose to deal with Mr. Gajewicz’s submission that the charge was proved under s. 302(2). He submitted that in pulling down the houses, whilst armed, the Yagariyayufa men, including the accused, were guilty of the crime under s. 65 of the Code, whilst riotously assembled, of unlawfully pulling down the houses, and thus were engaged in the prosecution of an unlawful purpose. Further the act of accused in firing his arrow at the deceased, he submitted, was of such a nature as to be likely to endanger life.
Now s. 302(2) “relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful”: Hughes v. The King[dlxxvi]2. The Yagariyayufa men in going armed were an unlawful assembly under s. 61 of the Code, and the state was reached when they were riotously assembled (ibid.), but I am not satisfied that they had any intention other than to pull down the houses or to fight if attacked by the Nibiufa men. In view of the recognition of native rights to land (Land Titles Commission Ordinance 1962, ss. 6(1), 7; Native Customs (Recognition) Ordinance 1963), and the genuine claim of the Yagariyayufa men to the land, I am unable to find that, although riotously assembled, for them to enter on Kolopan and pull down the houses, which they claim were erected in breach of their own rights, was an unlawful act so as to bring the Yagariyayufa men including the accused within the provisions of s. 65 of the Code.
Accordingly to obtain a conviction for murder the Crown is not relieved of the onus of satisfying me beyond reasonable doubt of the specific intent required by s. 302(1): Hughes v. The King[dlxxvii]3.
This brings me to the defence of self-defence. Mr. Lindsay relied strongly on certain evidence given in chief by Sodigotu, who was on the Yagariyayufa side in the fight.
“Mr. Gajewicz—
Q.       At the time when Missevaro was shot, did Missevaro have an arrow ready in his bow string, and was it pointed at Lupalupa?
A.       Firstly Missevaro fired a shot at Lupalupa but Lupalupa ducked it, and Missevaro was trying to fire another shot at Lupalupa, but Lupalupa fired his arrow and hit Missevaro.”
The following evidence in cross-examination by Mr. Lindsay of Olinamu, a Nibiufa man is also relevant.
“Mr. Lindsay—
Q.       You have demonstrated to the Court that before Missevaro was killed by an arrow, you said he had another arrow aimed?
A.       Yes.
Q.       Was that arrow aimed at the Yagariyayufa people?
A.       Yes.
Q.       Were all the Yagariyayufa grouped together?
A.       Yes.
Q.       Was Lupalupa standing in front of these people?
A.       Yes.”
Now the accused did not give evidence, but as Mr. Lindsay rightly submitted, in the circumstances of this case where the truth was easily ascertainable by the Crown and the accused has given an explanation adduced before the Court, this omission does not strengthen the Crown case nor can any weight be attached to his failure to testify. Mr. Lindsay quoted the gist of an article in (1965) Criminal Law Review, at p. 711 by Mr. R. S. O’Regan. See also May v. O’Sullivan[dlxxviii]4. So he strongly relied on accused’s own statement, the whole of which the accused is entitled to have taken into account as to the circumstances in which he admitted shooting the deceased, and particularly in the following passage:
“We finished breaking up the two houses and the men from Nibiufa started to fire arrows at us. I saw a relation of mine had been hit by an arrow, it was my brother. I saw a man named Missevaro tighten his bow string with an arrow while he was looking in my direction. His arrow was made of bamboo. I was afraid and fired an arrow at him. He was standing near some Kunai and I saw my arrow hit him . . . .”
Now I have been quite unable to make any distinction between the witnesses as to reliability. Accordingly the Crown has not excluded beyond reasonable doubt that, as both Sodigotu and the accused said, the accused fired his arrow, which shot the deceased, to prevent the deceased from shooting him, as deceased was about to do. The question is whether, in spite of these facts, the Crown have excluded that the arrow was shot in self-defence.
The relevant sections of the Code are as follows:
Section 271:  “When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”
Section 272:  “When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.
This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first began the assault with  intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”
In the application of the comprehensive statement of law comprised in these two sections to the facts of this primitive fight, it is not surprising that the framework of the sections should seem rather rigid.
Mr. Lindsay submitted that the second paragraph of s. 271 is applicable, and Mr. Gajewicz submitted it was s. 272. In the view I take of the case it is immaterial to the final result which section applies, but I consider that the circumstance in which the houses were pulled down, that is by a large armed party, was sufficient provocation to provoke an assault from the Nibiufa men, within the meaning of s. 272, and I thus consider that Mr. Gajewicz’s submission is right and s. 272 is the section to be applied.
Now when I ruled on the submission of no case to answer I referred to the position at common law, but, as I said then, the Code alone must be looked at to determine the scope of the defence of self-defence, as it applies in the Territory. However as, in my opinion, the effect of the Code is the same as the common law rule and that rule is lucidly set out in a summing up of Lindley J. in the case of R. v. Knock[dlxxix]5. I propose to set out the relevant passage:
“The prisoner is charged with manslaughter, which means, causing the death of another without lawful excuse. If he did so, he is guilty; if he did not, he is not guilty. What, then, is lawful excuse? The difficulty is in drawing the distinction between self-defence and fighting. If two men fight, and one unfortunately kills another, then, they being engaged in an unlawful occupation or business, the killing of either by the other is manslaughter, even if it be by accident, and is a crime in point of law, although the crime varies in degree of gravity. But, on the other hand, if a man attacks me, I am entitled to defend myself, and the difficulty arises in drawing the line between mere self-defence and fighting. The test is this: a man defending himself does not want to fight, and defends himself solely to avoid fighting. Then, supposing a man attacks me and I defend myself, not intending or desiring to fight, but still fighting—in one sense—to defend myself, and I knock him down and thereby unintentionally kill him, that killing is accidental. It is for you to draw the line.”
Turning to the Code, what is excused under s. 271, first paragraph, is the use of “such force to the assailant as is reasonably necessary to make effectual defence against the assault”. In the second paragraph, it is the person using “force by way of self-defence” who is excused. The later words in that paragraph excusing a person from using “any such force to the assailant as is necessary for self-defence”, refer to the degree of force to be excused but do not otherwise qualify the underlying concept that it is only force used by way of self-defence which is excused. Similarly what is excused in s. 272 is the use of “force in self-defence” (1st paragraph). Indeed the clearest indication that this concept is basic in the defence of self-defence is to be found in s. 273, which refers back to s. 271 and s. 272 as provisions excusing the use by any person of “force of any degree for the purpose of defending himself against an assault”, and also provides for the case of a person using, in aid of another “a like degree of force for the purpose of defending” that other.
Thus I take the law to be that the force excused in ss. 271 and 272 is force used in self-defence, and not, for example, the force used by a man who has accepted the challenge of another to engage in a fight with that other, going beyond self-defence. Similarly when a party of men in company accept the challenge of a hostile party, and again going beyond self-defence fight, the force used by one of the combatants in the course of the fight is not excused even although, by reason of the immediate tactical situation, that force is directed to one on the other side to prevent the latter from disabling the combatant using force. The difficulty in drawing the line may be resolved in the last resort only in the process of determining whether the Crown has fulfilled the criminal onus of proof and shown that the accused went beyond self-defence.
Although s. 31 of the Code was not referred to in argument, I have considered whether it is applicable. The relevant provisions of the section are:
“A person is not criminally responsible for an act or omission, if he does or omits to do the act under any of the following circumstances, that is to say—
....
(3)      When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;”
What operation is to be given to this section is difficult to determine, but, in my opinion, its provisions cannot derogate from the specific provisions of ss. 271, 272 and 273 relating to the defence of self-defence, and if s. 31 does apply, under the express terms of that section, the act excused is an act done in resisting actual and unlawful violence, that is to say, an act done by a person for the purpose of defence, which raises the same question of fact as, in my opinion, arises under ss. 271 and 272.
Mr. Lindsay submitted that I should ignore all that took place before the incident occurred in which the deceased took aim at the accused and the accused shot him to avoid injury. It follows from what I have said that I consider this submission untenable.
The only issue that arises is whether the Crown has shown that the accused did not act for the purposes of self-defence. Otherwise the accused is entitled to the protection of s. 272, for none of the other elements referred to in that section has been excluded by the Crown. I should add that, in my opinion, the Crown has failed to bring the case within the two cases referred to in the second paragraph of s. 272.
On this issue I must say that my mind has wavered. During the trial I did have the impression that the Yagariyayufa men went prepared for a fight and were very ready to accept the challenge of their traditional enemies. On this basis the accused went beyond self-defence; he was fighting because he wanted to fight.
But on reflection it is the meagre nature of the evidence which must determine the case. In the absence of evidence of the terrain or the manner of the initial attack upon them, I cannot say that the Yagariyayufa men had the opportunity to flee or decline combat. I can draw no safe inference of the duration of the fight merely from the number of casualties. Thus the Crown has not excluded the hypothesis that it was necessary for the accused and his line to stand their ground and return the fire to defend themselves until the opportunity occurred for them to retire. In this context the words of Holmes J. are also apposite, “Detached reflection cannot be demanded in the presence of an uplifted knife”: cited by Dixon C.J., in R. v. Howe[dlxxx]6. I consider that the accused’s statement that ‘a lot of men from Nibiufa came up and we ran back to our village’, is not sufficient to exclude this hypothesis.
Accordingly the Crown has failed to satisfy me that the accused was not acting in self-defence and accordingly he is entitled to be acquitted.
Verdict: Accused acquitted.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[dlxxv](1965) 40 A.L.J.R. 57, at p. 59.
[dlxxvi](1951) 84 C.L.R. 170, at pp. 174-175, per Dixon J.
[dlxxvii](1951) 84 C.L.R. 170, at p. 175, per Dixon J.
[dlxxviii](1955) 92 C.L.R. 654, at pp. 658-9.
[dlxxix](1877) 14 C.C. 1, at p. 2.
[dlxxx](1958) 100 C.L.R. 448, at p. 463.