National Court of Papua New Guinea

A: I feltlyealinfpa. I las yeas yelling and crying. There were people inside thehed ohey dt bothebother to r to stop stop him from hitting me. [Misari Warun: 41]

Previously she had testified:-

Q: ;ټ Tell thll the cour court how he used the handle of the axe; were you standing up or sitting down?

A: ټ&#I60; swas sg dow dow he came out he hit me with the handle of the axee axe; and; and kicked me first, and then he hit me with the handle of the axe so mames. eoplede they rushed out [Misari Warun: 40].<40].

Thip>This evidence casts some doubt on the State case that the deceased hit the accused only once, and then moderately. If the deceased was only hit once, moderately - one good smack - as the State Prosecutor put it on his address, why did everybody rush out? The doubt that this raises in my mind is such as to lead to a belief that there was not just one moderate blow, but there was probably more, sufficient at least to cause a near total evacuation of the room.

If the State’s version of the evidence is accepted that upon being bashed, the accused went out of the room, “in a fury” and came back with a knife and stabbed her husband, then provocation is still open. There was no time for her passion to cool.

There is a further aspect. The spectre of a man bashing his wife with an axe-handle, in their own home, in the middle of a crowded ceremony, is a degrading and humiliating spectacle. I can properly infer that from the facts.

I have also seen the accused as a witness. She is not a submissive women. I saw her as a resolute person who was not easily cowed. Towards the end of his cross-examination of her, the State Prosecutor became frustrated with what he thought was her prevarication with his questioning. He raised his voice to her; indeed he shouted at her. I noted her demeanour under this pressure. She was not shaken - indeed she came straight back at him. I infer that the accused is not a woman who can be pushed around, and that she probably has a short-fuse to her temperament.

There was evidence before me from which I was able to infer that it was likely that the accused was humilated by the assault on her, and that she was the type of person who could loose her control and retaliate to an assault.

As a matter of onus, I am not satisfied that the State discharge the burden of showing beyond reasonable doubt that the accused was not provoked into stabbing her husband.

If this were the only issue, I would convict her of manslaughter by virtue of s 303 of the Criminal Code.

OTHER ASPECTS OF THE EVIDENCE

Neither of the two state witnesses who gave evidence before me impressed me as capable of convincing me beyond reasonable doubt. There were some inconsistencies between them, such as has been shown over whether or not people rushed out of room, and I have accepted their evidence only to the extent that it is corroborated or supported objectively.

The accused only has to prove her innocence on the balance of probabilities. Again I did not feel confident about her version of events.

When one is faced with two diametrically opposite accounts of an historical event three findings are open. One can find for one or the other of the versions, or one can say “I do not know which version is true.”

I am not able to find on the balance of probabilities that the accused was severely beaten for five minutes and killed the deceased while she was on the ground by a backward and upward stab. That does not appear to me to be very likely.

But I do not believe beyond reasonable doubt that she was only struck once with a moderate blow. That too seems most unlikely in the circumstances of an Engan husband who had formed the view that his wife had just re-entered his house after having sex with another man, and as a result the house had suddenly emptied of party-goers.

There are other problems I have with the evidence.

· ҈ Both statnessesesses descrdescribed the Knife used by accused as being about 20 cm (8 “inches) long. The ed deed thfe sh peelhe cokaukau with as “a small knife”#8221;. Th;. The knie knife wafe was nots not prod produced as an exhibit in court. While I may be prepared to find the knife was 20 cm long on the balance of probabilities - in a murder trial when the accused may face a long prison sentence, without the production of the weapon, I am not prepared to so find beyond reasonable doubt.

· &##60;&<; A60hougt both both state witnesses testified that the accused had left the house shortly after James Ambong was told to leave by the deceased, and they inferred that the accused had had sexual intercourse with Ambong, or at least that the deceased believed she had had sexual intercourse with Ambong, this was not put to the accused in cross-examination. In her evidence-in-chief she did not mention these allegations. Accordingly, I am not prepared to find beyond reasonable doubt that she went outside the house; or that she was out of the house for about fifteen minutes; nor am I prepared to infer she had sexual intercourse with James Ambong, beyond reasonable doubt. It may be probable that she did go out. But that is not enough.

· &<;ɘ T6e medical rcal report submitted by the State under s 102 of the District Courts Act leaves me with some doubts. It is clear that the doctor did not perform a post-mortem examination - he merely carried out an external physical examination. The body was not opened up and the interal organs and the tissues were not taken out and examined. The doctor found a two inch laceration in the chest. He put his finger in the wound and felt that the pericardium was palpable and tensed with blood. While this may satisfactorily establish that the stab wound went into the body some way, it does not establish that the stab wound went into the body some way, it does not establish beyond reasonable doubt the full pentetration of the wound. That could only be established beyond reasonable doubt before me, either if the doctor had been called and gave additional evidence, or if the report itself had shown that the body had been opened up and the organs and tissues examined to establish the actual penetration of the knife.

Because I do not have evidence beyond reasonable doubt as to the length of the knife, and because I do not have evidence beyond reasonable doubt as to the depth of the wounds, or what organs and tissues were penetrated, I cannot infer the strength or the determination, or the force behind the fatal blow, which in other circumstances can assist in determining the accused’s state of mind when the blow was struck.

Accordingly, taking all these matters into account I would convict the accused of manslaughter.

But that is not the end of the matter.

Defence Counsel in his address relied on s 270(1) of the Criminal Code which provides for self-defence. That provision reads:-

“270(1) &##160; <
u0; St jecSubo ction (2)n (2), when-

(a) a person has fully assaulted another person, or has provoked an assault from another person; and

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(b) ҈& the othe other perr person assaulm with vio as -

(i0; &#100 t60; t60; to cato cauo cause apprehension of death or grievous bodily harm; and

(ii)ټ&##160;; to induce himelieve on reasonable grounds that it is necessary for his pres preservaservation tion from from death or grievous bodily harm to use force in self-defence

the first mentioned person is not criminally responsible for using any such force as is necessary for such preservation, even if it causes death or grievous bodily harm.

Subsection two of that provision, as far as it is relevant to this case reads:-

“(2) Theectiov pro ided in Subs Subsection (1) does not apply -

......

(b) s,lesforbethe ecessity arty arose, the person using such force declined further ict, uitteor retr retreatedeated from from it as far as was practicable.

On the defence version of the facts, from the evidence given by the accused there was testimony that could have raised this defence - namely that while being beaten by her husband the accused, while lying face down on the floor lashed back with the knife she was holding in her hand, and stabbed the deceased in the chest.

My impression of this evidence was that it was exaggerated. While I was of the view that the accused had probably been hit more than once, I was not satisfied that the death had been caused by an upward blow, delivered in a backhand fashion, while the accused was lying face-down on the floor.

The more likely explanation of the deceased suddenly dropping dead after the deceased had stabbed him was that she was upright whe she stabbed him.

The problem here, with both these contending versions, is that we are dealing in “likelihoods and probabilities”. Once the defence of self-defence is raised on the facts, as it was, then the State bears the onus of disproving it

“Once a ground is disclosed by the evidence on which a plea of self-defence may arise, it is essential to a conviction of murder that the jury be satisfied beyond reasonable doubt that one or other or all of the ultimate facts which establish those please are not present” see R v Nikola Kristeff [1967] Unreported Judgement No. SC445A

Before applying this test, it should be noted that s 270(1) applies to provoked assaults. The State had contended that the accused by going out of the house for 15 minutes or so about the time that James Ambong went out, had provoked the assault on her, because her husband believed that she had had sexual intercourse with James Ambong.

I have not been prepared to find these facts as proven beyond reasonable doubt. Accordingly, in my view the defence of self-defence more appropriately arises under s 269 of the Criminal Code, unprovoked assault.

That provision reads:-

“269(1) When a personnis uulawfassy 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) ـ If -(a)&#16) ; the nature ofathe assaultsault is such as to cause reasonable apprehension of death or grievous bodily harm; an

(60;&##160;;&#16e persing force by e by way oway of defence believes, on reasonable groe grounds,unds, that that he c 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.”

The problem with the state’s case is this - that I am not prepared to accept the evidence of the two witnesses Oposki Abraham and Kep Nili beyond reasonable doubt. Their version of events may be a more probably account of how the deceased met his fate, than the version of the accused, but that is not enough.

I felt that as both being male Engan witnesses in a killing done by a woman, that their testimony needed to be looked at carefully, given the customary attitudes that I know prevail when women kill their husbands in this province. Oposki Abraham’s demeanour in court did not impress me. At times he was not clear in his testimony. There was too much talk going on between him and the interpreter for me to accept him as a witness who was straight forward. He left me with an uneasy feeling as to his verity, although I was not able to pin-point that he actually lied.

All in all, I would have preferred to have heard from a wider selection of the potential witnesses who were present, including some of the women at the singsing, if I was to find a case beyond reasonable doubt, although from the testimony of Kep Nili that once the assault started, apart from the deceased and the accused, Oposki Abraham and Kep Nili were the only ones left in the room when the killing took place.

Nevertheless, a wider selection of witnesses was necessary, to convince me beyond reasonable doubt that the nature of the deceased’s assault on the accused was not such as to cause reasonable apprehension of death or grievous bodily harm and that the accused did not have reasonable grounds for believing that she could not otherwise preserve the person defended (herself) from death or grievous bodily harm.

This was the onus that the State carried on the law, and it did not discharge it.

Accordingly, the defence of self-defence has not been disaproved, and the accused is entitled to an acquittal.

This case has not been easy for me to decide. Indeed it has given me real difficulty. At times like these the courts in Papua New Guinea become sensative to their role as tribunals of fact. In this country there are no juries, even though the Constitution provides for them in future. Neither are there assessors to help the judges in deciding facts, although there is a statute which provides for assessors in part of the country. Until the law is charged the judges must do the best they can when determining difficult issues of fact, and the credibility of witnesses, even though it is likely that not everybody will be satisfied with the decisions.

Lawyer for the State: Public Prosecutor.

Lawyer for the Accused: Public Solicitor.