[national court of justice]

the state

v

albert gias

buka: cannings j

9, 10, 22 March 2005

Criminal Law – Indictable offences – Criminal Code, Division V.3, Homicide etc – Section 300, murder – Accused pleaded not guilty – State's case based on documentary evidence, tendered by consent – No oral evidence – Accused made statement from the dock – Self-defence raised – Elements of the offence of murder – Elements of the defence of self-defence – Prosecution has onus of disproving self-defence – Prosecution must establish that one or more elements are not present – State of the evidence unsatisfactory – No medical evidence – Weapon used in attack on deceased not tendered – Prosecution unable to prove that one or more elements of self-defence not present – Defence upheld – Complete defence – No alternative verdict available – Accused entitled to acquittal.

Facts

The accused was charged with murder under s300 of the Criminal Code. The accused, in the course of a fight, cut the deceased with a grassknife causing deep wound to his body resulting in his death. The weapon used in the attack was not tendered. The accused raised self defence and provocation. 

Held

1.	So far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the court should be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present: R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court; applied in The State v Angela Colis Towavik [1981] PNGLR 140, National Court, Miles J; The State v Misari Warun (1989) N753, National Court, Brunton AJ; The State v Leah Tununto (1990) N947, National Court, Brunton AJ; The State v Leonard Masiap [1997] PNGLR 610, National Court, Sevua J; The State v Rose Yapihra (1997) N1741, National Court, Bidar AJ; The State v Michael Nema Melpa (2003) N2450, Jalina J; and The State v Matilda Edward (2004) N2726, Davani J.

2.	The defence of self defence operates since the prosecution has failed to disprove any of its elements. 

3.	The force used by the accused was no more than necessary: The State v Takip Palne of Dumbol [1976] PNGLR 90; Tapea Kwapena v The State [1978] PNGLR 316

4.	The accused is not guilty and is acquitted of the charge of murder.

Papua New Guinea cases cited

R v Nikola Kristeff (1967) SC No 445.
Tapea Kwapena v The State [1978] PNGLR 316.
The State v Angela Colis Towavik [1981] PNGLR 140.
The State v Leah Tununto (1990) N947.
The State v Leonard Masiap [1997] PNGLR 610.
The State v Matilda Edward (2004) N2726.
The State v Michael Nema Melpa (2003) N2450.
The State v Misari Warun (1989) N753.
The State v Rose Yapihra (1997) N1741.
The State v Takip Palne of Dumbol [1976] PNGLR 90.

Counsel

L Rangan, for the State.
L Siminji, for the accused.

22 March 2005

Cannings j. This is a decision on the verdict for a man who pleaded not guilty to a charge of murder. 

Background

Incident

The incident giving rise to the charge took place at Selau, Bougainville, in 2001. It is alleged that the accused, Albert Gias, murdered his brother by cutting him with a grassknife.

Indictment 

On 9 August 2001 the accused was committed for trial. On 8 March 2005 he was brought before the National Court and faced the following indictment:

Albert Gias of Selau, Bougainville, Papua New Guinea, stands charged that he … on the 1 June 2001 at Selau … murdered Bertrand Siunsi.

The indictment was presented under Section 300 of the Criminal Code.

Allegations

The accused is charged with the murder of his brother, Bertrand Siunsi. The prosecution alleges that the accused cut his brother with a grassknife in the course of a fight and his brother consequently died.

The brief facts put to the accused were as follows.

At about 8.00 am on 1 June 2001 the accused was outside his house at Selau village on mainland Bougainville. He was preparing to go to work. At the time he worked for the Cocoa and Coconut Extension Agency. He had a motorbike that was provided to him by his employer. He was in the process of tying a grassknife to the motorbike when his younger brother, Bertrand Siunsi (the deceased), approached him. Bertrand was drunk. Bertrand wanted to use the motorbike. He demanded that the accused give it to him. The accused refused. Bertrand said that if the accused did not give the motorbike to him he would damage the fuel tank with the knife that he was holding, and burn the motorbike. The accused still refused to give in to Bertrand's demands. Bertrand got angry and tried to cut the accused with a knife he was carrying. The accused responding by getting his grassknife and cutting Bertrand on the neck, the face and the leg. Bertrand fell down and lost a lot of blood because of the cuts he had received. He died later that day. The accused intended to cause grievous bodily harm to Bertrand, so he is guilty of murder under s 300(1)(a) of the Criminal Code.

He pleaded not guilty to those facts. He was present throughout the trial. 

THE LAW 

Section 300 creates the offence of murder. It says that a person who kills another person in any one of a number of prescribed circumstances is guilty of murder. Included amongst the prescribed circumstances is where the offender intended to do grievous bodily harm to the person killed or some other person. The maximum penalty is imprisonment for life.

Section 300 states:

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b)	if death was caused by means of an act—

(i)	done in the prosecution of an unlawful purpose; and
(ii)	of such a nature as to be likely to endanger human life; or

(c)	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i)	the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii)	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d)	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e)	if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c). Penalty: Subject to Section 19, imprisonment for life.

(2)	In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4)	In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—

(a)	did not intend to cause death; or
(b)	did not know that death was likely to result.

In this case the State relied on s 300(1)(a).

There are several other provisions of the Criminal Code that might apply in this case:

·	Sections 266, 267 and 303 provide a defence of provocation in some circumstances;
·	Sections 269 and 270 deal with the circumstances in which a killing in self-defence is lawful; 
·	Section 302 creates the offence of manslaughter; 
·	Section 539(2) provides that on an indictment charging a person with murder, he may be convicted of the crime of manslaughter or some other offence, as prescribed. 

THE STATE'S CASE

Outline 

The State called no witnesses to give oral evidence. The prosecutor, Mr Rangan, said this was because there were no eyewitnesses to the incident. He and the defence counsel, Mr Siminji, had agreed that a number of documents would be tendered by consent. 

The prosecution's evidence consisted of eight exhibits. 

xxxxxx
THE DEFENCE CASE
Options

I addressed the accused on the options available to him. First he could change his plea to guilty. Secondly he could exercise his constitutional right to remain silent. Thirdly he could make an unsworn statement from the dock. Fourthly he could give sworn evidence and subject himself to cross-examination. He took the third option.

Statement from dock

A paraphrased summary of his statement follows:

On the day of the incident I was getting ready to go to work. I got out my motorbike and checked the oil. I got my grassknife and tied it to the motorbike. I was about to take off and my brother, Bertrand, approached me. He had a hunting knife in his hand. He told me to give him the motorbike. I told him I could not do that as my boss had told me not to allow anyone else to use it as many bikes and vehicles had been taken by BRAs. He said if I did not give it to him he would kill me. I still stopped him from getting the bike. Then he got his knife and pointed it at me. I held on to his hand and we fought. He still had the knife in his hand. He was beating me so I turned around and got the grassknife and started fighting him. I did not mean to kill him. I just wanted to stop him attacking me. He had been drinking so I was scared of him. I struck him many times and he cried, so I left him and then notified the chief, Michael Helesi. When Michael and I were coming back, Michael asked if he needed to go to the hospital. I told him 'he does not need to go to the hospital'. I only used the blunt side of the grassknife. That is why I thought that he would not die. But when I came back to the village I found out he was dead. My brother was a member of the BRA [Bougainville Revolutionary Army]. He hate me because I was working for a government agency. I knew he could kill me. I felt sorry when he died. I went straight to the police station. I thought the police would protect me but somehow they arrested and charged me. My family knows that I defended my life. They felt sorry for me and never condemned me. If I did not defend myself and my brother killed me, the family would still have to go through this. My mother is old and dying and I must be there to help her out. I have paid some compensation. That is my story.

Case closed

No other evidence was called. The defence case was closed.

SUBMISSIONS FOR THE STATE

Mr Rangan submitted that the elements of the offence of murder under s300(1)(a) were made out. There was a clear intention on the part of the accused to do grievous bodily harm to his brother. 

The accused could not gain the benefit of the defences of either provocation or self-defence. The accused's action, as evidenced by the number of deep cuts he inflicted on the deceased, was disproportionate to the assault that he incurred. Mr Rangan conceded that the accused was first assaulted by the victim (an offence under s.341) when the deceased pointed his knife at the accused. That assault was not provoked by the accused. However the accused went far beyond what was necessary to defend himself. The inference to be drawn from the evidence is that the force the accused used was intended to cause death or bodily harm. The accused was hitting him on the places that he knew would cause grievous bodily harm. The number of cuts received by the deceased can make the court safely infer that the accused intended to cause grievous bodily harm. The accused's statement that he only used the blunt side of the knife is not consistent with the evidence. The fact that the deceased approached the accused with a knife did not mean the accused could do what he liked. 

As to the accused's statement from the dock, it deserves less weight than the other evidence before the court. 

SUBMISSIONS FOR THE ACCUSED

Mr Simingi submitted that the accused was going about his lawful business when this incident happened. He was getting ready to go to work when the deceased came upon him and demanded his motorbike. When the deceased pointed the knife at the accused, he was forced to react in the manner that he did. It is the accused's word that is in evidence. There is no countervailing evidence to his version of events.

The evidence tendered by the State is unreliable. Michael Helesi's description of the wounds is exaggerated and self-serving. There is no other evidence to support what he said. The accused does not dispute that there was a death. But there is no medical report to back up what Mr Helesi says about the number of wounds, how deep they were and what parts of the deceased's body were affected. 

The accused has a complete defence under s269(2) of the Criminal Code. He was acting in self-defence. The deceased, a BRA member, hated the accused for working for the government. Death was not a result anticipated by accused. It just happened. Therefore, there is considerable doubt whether the accused intended to cause death or grievous bodily harm. 

ELEMENTS OF THE OFFENCE 

The accused has been charged with murder under s300(1)(a) of the Criminal Code. The prosecution therefore has the onus of proving beyond reasonable doubt that:

·	the accused killed another person; and 
·	the accused intended to do grievous bodily harm to the person he killed or to some other person. 

They are the two elements of the offence. The first is the actus reus. The second is the mens rea element. 

If the issue of self-defence had not arisen, the key issue would be whether the accused intended to do grievous bodily harm to the deceased. However, self-defence has been raised. If established, it is a complete defence. It needs to be resolved. Before doing that I will mention the availability of alternative verdicts and comment on the general state of the evidence. 

ALTERNATIVE VERDICTS

If self-defence is not successful as a defence and the second element of murder is not proven, but the court is satisfied beyond reasonable doubt that the killing was otherwise unlawful, it can enter a conviction for manslaughter under s539(2) of the Criminal Code. Other options are, if the elements of the relevant offences are proven, to enter a conviction for unlawful grievous bodily harm, bodily harm, wounding, or assault under s539(4).

Section 539 (charge of murder or manslaughter) states:

(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.

THE DEFENCE OF SELF-DEFENCE

The issue

The accused states that he acted in self-defence. Mr Siminji argues that it is a complete defence under s269(2) of the Criminal Code.

Section 269 (self-defence against unprovoked assault) states:

(1)	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 an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	If—

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b)	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 such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

Elements

In the present case the court needs to be satisfied that the following elements of the defence exist: 

·	the accused was unlawfully assaulted; and
·	the accused did not provoke the assault; and 
·	the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and 
·	the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and 
·	the accused used such force as was necessary for his defence.

If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant. (See The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316.)

Onus of proof

Once the accused puts evidence of self-defence the onus rests on the prosecution to disprove the elements of that defence. The leading case is R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, in which Frost J stated:

"As to onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present."

That principle has been applied in many subsequent cases, including The State v Angela Colis Towavik [1981] PNGLR 140, National Court, Miles J; The State v Misari Warun (1989) N753, National Court, Brunton AJ; The State v Leah Tununto (1990) N947, National Court, Brunton AJ; The State v Leonard Masiap [1997] PNGLR 610, National Court, Sevua J; The State v Rose Yapihra (1997) N1741, National Court, Bidar AJ; The State v Michael Nema Melpa (2003) N2450, Jalina J; and The State v Matilda Edward (2004) N2726, Davani J.

ASSESSMENT OF EVIDENCE

Before considering whether the defence of self-defence is available I will comment on the general state of the evidence. Oral evidence has not been called. This is unusual for a murder case. There are eight pieces of documentary evidence on which the court has been asked to make its findings. Four of the exhibits are statements by villagers who saw the accused shortly after the incident. None of them witnessed the incident. Two of the exhibits are statements by police officers who investigated the case. One of them was the officer to whom the accused surrendered himself on the day of the incident. He was able to give evidence as to the demeanour of the accused on that day. One exhibit is the accused's record of interview. The remaining exhibit simply gives the date of the death and the age of the deceased.

The evidence of greatest probative value against the accused is contained in the statements of witnesses A and C. They both refer to "deep" wounds over the deceased's body, which appears inconsistent with the accused's statement in his record of interview, repeated in his statement from the dock, that he only used the blunt side of his grassknife. The evidence of witnesses A and C, like all the other evidence in this case, is unsworn and untested by cross-examination. It is not corroborated by any medical evidence. The two weapons referred to in the evidence – the deceased's bushknife and the accused's grassknife – have not been tendered. There is evidence that the grassknife was given to the police. But the evidence is conflicting. Witness B states he gave it to the police on 8 June 2001. Witness F, a police officer, says the accused gave the grassknife to the police on 1 June 2001. This does not assist the State's case. 

Against the State's evidence is the accused's record of interview and his unsworn statement from the dock. As it is unsworn this evidence does not carry as much weight as sworn evidence and it has not been tested by cross-examination.

HAS SELF-DEFENCE BEEN DISPROVED?

Bearing in mind the state of the evidence I will now address the first major issue: self-defence. There is sufficient evidence before the court for the accused to legitimately raise it as a defence. Whether it is a valid defence depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exist. 

I will restate the elements of the defence by posing five questions:

1	was the accused unlawfully assaulted?
2	did the accused not provoke the assault?
3	was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?
4	did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?
5	did the accused use only such force as was necessary for his defence?

The prosecution must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

The prosecution concedes that the answer to questions 1 and 2 is yes. 

As to question 3, has the prosecution proven that it should be answered no? No. There were no eyewitnesses other than the accused, whose story all along has been that he reasonably apprehended (ie thought or believed) that he would be killed or seriously injured by he deceased. The evidence of other witnesses is consistent with that being the accused's belief.

As to question 4, has the prosecution proven that it should be answered no? No, for the same reasons given in answering question 3. 

Now, to the last question, the critical one. The prosecution must prove that the accused used more force than was necessary for his defence. It must prove that the answer to question 5 is 'no, the accused used more force than necessary'. The prosecution asks the court to draw inferences from the witnesses who gave evidence about the depth and the number of wounds that this was a vicious response by the accused, disproportionate to the risk of harm that he faced. This argument is based on sound logic but the evidence is very weak. In the absence of medical evidence or either of the two knives, I am unable to conclude that this was an overly vicious or opportunistic response. I am unable to conclude that the accused used more force than was necessary. The prosecution cannot discharge the onus of disproving this final element of the defence.

The result is that the prosecution cannot disprove any element of the defence of self-defence. That defence therefore operates. 

OTHER CONSEQUENCES

As the defence of self-defence is made out, this has the following consequences:

·	the second element of the offence of murder cannot be established;
·	the accused is not guilty of murder;
·	the accused's use of force was lawful, by virtue of s269(2); 
·	as he used force lawfully he cannot be guilty of manslaughter (the essence of which is unlawful killing) or any of the offences in s539(4). 

VERDICT

The accused is not guilty and is acquitted of the charge of murder.

Orders accordingly. 

Lawyers for the State: Public Prosecutor.
Lawyers for the accused: Public Solicitor.