Unreported National Court Decisions
N1612
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 610 OF 1997
THE STATE
v
PIAM PAUL
Waigani
Batari AJ
25-29 August 1997
CRIMINAL LAW - Wilful Murder - Defence of accident - Onus on accused to prove on balance of probability.
CRIMINAL LAW - Particular Offence - Wilful Murder - Intent - Evidence - Insufficiently of.
Trial
This was a trial of an accused on a charge of wilful murder, to which the defence of accident was raised.  The facts appear in the reasons for judgment.
Counsel:
L Maru for the State
D Kari for the Accused
1 September 1997
BATARI AJ:  An Indictment presented before me against the accused charged that on 15 December, 1996 she wilfully murdered one, Marata Wagim, (“the deceased”) at Boroko in the National Capital District.  The charge was laid under s.299(1) of the Criminal Code Act.
The story led by the State witnesses was that, on the day in question, the accused came upon the deceased at the junction of Okari Street and Hubert Murray Highway, Boroko and assaulted her over the man with whom both were having marital relationship.  The accused stated she was married to the man while it is not known whether the same relationship existed between her husband and the deceased.  There was however evidence that the accused’s husband had been seeing the deceased for four (4) years up to the time of her death.  As a result of the fight, the deceased sustained a stab wound to the ribcase section below the armpit.  The wound pierced the left lung through to the left side of the heart.  State witnesses said the accused inflicted the wound with a knife during the fight.
The accused led evidence on her own behalf that on the day in question, the deceased accosted her with a knife in a sudden attack during an altercation with her husband.  She reacted spontaneously by grabbing the right hand of the deceased which held the knife.  Both struggled over the knife for sometime before they collided against the wire fencing and fell.  At that point, the accused released her hands from the deceased and fled in fear of being attacked by the deceased.  The defence case was that the deceased fell first on her left side and the accused fell after her landing on her right side.  It was suggested the deceased fell on her own knife and was injured.
That being her case, I think the defence of total denial was open.  However, the accused relied on the defence of accident under s. 24 of the Criminal Code.  Her evidence of the deceased’s sudden appearance and conduct on the scene suggested elements of provocation and self-defence.  Defence Counsel also tried to advance this in his final submissions. But I pointed out to Counsel, the accused cannot have it both ways.  She may raise the defence of provocation and self-defence together but she cannot also say, if she did not stab the deceased under self-defence or under provocation then, it was by accident.
The accused has the onus to establish on the balance of probability that the injury caused to the deceased was accidental.  From her version, it is possible that the deceased met her death when she fell onto the knife which she held while struggling with the accused.  However, when I consider the nature of the State’s evidence, the accused’s version in my view is not in the least probable.  There was over-whelming evidence that the accused stabbed the deceased with a knife.  The medical opinion was that a sharp slender instrument was used with a determined and considerable force to propel it into the lung and through to the heart.  The instrument travelled in a medium upward direction and that the wound was a clean cut.  This in my view, supported the proposition that the instrument was guided.
The medical evidence is consistent with the evidence of Paul Maima.  He spoke of seeing the accused stab the deceased within 5 meters from where he stood on the junction of Okari Street and Hubert Murray Highway.  The stabbing he said was in the middle of Okari Street, a few meters away from the junction.  Constable Michael Aubo confirmed that he saw blood in the middle of the road and on the side of the road.  This is consistent with Paul Maima’s evidence at the scene that, the deceased fell and was lying on the side of the road after she was stabbed in the middle of the road.  Paul Maima possibly did not witness the first part of the fight which may explain the inconsistency in his evidence on that aspect.  He was on the other hand unshaken on his evidence that he stood within a short distance and saw the stabbing.  His version was highly  probable as it had support from other independent evidence.
The accused first gave the Police her version of the incident when interviewed.  She repeated that version in Court.  Her statement to the Police was made on 9 February, 1997 some two (2) months after the event.  I think she had had the time to consider her situation and her defence to the allegations.  She did not impress me as a truthful witness.
I find that the accused stabbed the deceased with a knife and that her act led to the demise of the deceased from loss of blood due to a stab wound piercing the left lung and heart.
Whether the accused intended to kill the deceased depends on direct evidence and inferences to be drawn from the evidence of the witnesses on the element of “intent” under s.299(1) of the Criminal Code.  As I indicated earlier, the defences of self-defence and provocation were fairly open on the accused’s evidence but she chose to conduct her case differently.  The evidence suggested she was in a heated argument with her own husband when the deceased intervened. The accused spoke of being told earlier that her husband had slept at the deceased’s home and that the two had left the home in the early morning.  It is reasonably open that she would have beeen incensed by this and by the ongoing problems she spoke of as affecting her marriage.   She would possibly be angry to the extent of harbouring an intention to kill.  She had the opportunity to carry out her intention when she confronted the deceased on the day in question.  The fact that she first used her hands to hit the deceased before stabbing her however do not in my view, sufficiently support an intention to kill.  I find on the other hand the evidence sufficiently supported an intention to cause the deceased, grievous bodily harm from which she died.
I find the accused not guilty of wilful murder.  I find her guilty of murder pursuant to s.300(1)(a) of the Criminal Code.  I have reached this verdict under s.539(1) of the Criminal Code Act.  I convict the accused accordingly.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: A/Public Solicitor