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State v Kerenge [1997] PGNC 108; N1623 (5 September 1997)

Unreported National Court Decisions

N1623

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 609 OF 1997
THE STATE
v
NAOMI KERENGE

Waigani

Batari AJ
1-3 September 1997
5 September 1997

CRIMINAL LAW - Particular Offence - Murder - “Intent to cause Grievous Bodily Harm” - Whether constituted on evidence - No evidence - Medical evidence of wound.

CRIMINAL LAW - Murder - Self Defence - Unprovoked Assault - Conditions to be satisfied - Belief on reasonable grounds that cannot otherwise preserve oneself from death or grievous bodily harm.

Cases Cited:

R v Muratoric (1967) QdR 15

R v Kaiwor Ba [1975] PNGLR 90

The State v Takip Palme [1976] PNGLR 90

This was a trial on a charge of murder. Pleas of self-defence and provocation were made to the charge.

Counsel:

P Kaluwin for the State

P Tusais for the Accused

DECISION

BATARI AJ: The charge against the accused is that she murdered the deceased Saina Kerang Cleophas on the morning of 17 January, 1997 at Morata No. 2 in the National Capital District.

The State’s case was that when the accused stabbed the deceased, she intended to cause grievous bodily harm and as the deceased died due to the stabbing, the accused is guilty of murder pursuant to s. 300 (1) (a) of the Criminal Code.

The accused conceded that she stabbed the deceased with a knife. However, she pleaded that she stabbed the deceased in self-defence under s. 269 of the Criminal Code or alternatively she acted under provocation pursuant to s. 267 of the Code. The issues on trial were thus: whether or not the accused had struck the fatal blow with an intention to cause the deceased harm and whether she struck in self-defence or under provocation. The third issue which in my view, arose directly from the evidence is whether or not the State has proven beyond reasonable doubt the element of “intent to cause grievous bodily harm” under s. 300 (1) (a) of the Criminal Code.

The following facts were uncontested:

1. The accused was the first and the deceased the second wives of one, Cleophas. They all originated from Chimbu Province. In January of 1997 they resided at Morata No. 2 where Cleophas owned a trade-store.

2. The accused bore 3 children from the relationship. The third child was about a month old on 17 January 1997. On the other hand, it seemed the deceased did not have any child from the marriage. The deceased and the accused would have been about the same build. I accept the accused’s version that the deceased was heavier and tougher.

3. On 17 January, 1997 the accused stabbed the deceased with a knife and death followed. The knife had a black handle with stainless steel blade.

4. One Margaret Jimmy was at Cleophas’ store before the stabbing. She was present when the deceased was stabbed.

The circumstances surrounding the stabbing was contested. The State’s case was that at about 8.00am on the morning of 17 January 1997 Margaret Jimmy came to Cleopha’s store. After she had bought her drinks she saw the accused, “gave the knife to Saina”. I infer she meant the accused stabbed the deceased. She was the only person present besides an old man who was inside the store. She carried or moved the deceased to the side of the store and a short while later, the deceased was put in a government vehicle and taken to the hospital.

The defence case was that the accused and the deceased had lived harmoniously as co-wives from January 1996 until 13 January 1997 when they had their first fight. On the morning of that day, the deceased who had slept out the previous night accosted the accused at the family store. Their husband intervened and told the deceased to leave the matrimonial home. On the day in question, the deceased returned with two others and confronted the accused in the kitchen or “ples bilong cook” at the back of the store, while she was preparing her children’s meal. The deceased told the accused her role was to stay home and rear children while she and their husband went out, spent their money and enjoy themselves. The accused felt humiliated by those remarks and retorted. At that point, the deceased struck her on the eye followed by two more punches. I got the impression from her evidence, the deceased struck the accused again once and after the second punch, she stabbed the deceased with the knife she held in her hand.

The burden of proving all the elements of the offence beyond reasonable doubt in a criminal trial is on the State. In this case, it has been proven beyond reasonable doubt, death of the deceased followed the stabbing.

I consider first, whether or not death resulted from the stabbing. Some three days after the incident, a post-mortem was conducted. The report concluded the deceased died from ‘haemorrhage shock’ but did not state the cause of that finding. The report also set out a summary of abnormal findings which revealed a long surgical incision extending from the depression of the sternum down to the pubic bone. There was also evidence of surgical sutures on bowl loops. There was no mention of the knife wound. The statement of Max Umba, attested to presence of blood around the deceased’s abdominal region and protruding intestine. This was consistent with Margaret Jimmy’s evidence that the deceased was stabbed in her stomach. However, what was it that actually caused the “haemorrhagic shock” as noted by Dr. Babona?

The post-mortem report suggested the deceased died sometime after the stabbing. She appeared to have been operated upon to enable stitching of the bowl loops which further suggested the operation was necessary for her survival. What evidence was there to prove beyond reasonable doubt the possibility of “haemorrhagic shock” being connected to the subsequent operation on the deceased, was highly improbable? The possibility of erratic medical operations leading to subsequent deaths is in my view not remote. Dr Babona who conducted the post-mortem was not present to explain his findings. Dr Morewaya who was called on his behalf was also of little assistance.

There were other aspects of the evidence. The alleged murder weapon was described as pointed and sharp on both sides. It was invariably described as a kitchen knife in the record of interview and in the evidence of Margaret Jimmy. None of the witnesses however, described the length of the knife. While I am prepared to find the knife had a black handle with stainless steel blade, on the balance of probabilities in a murder trial where the accused face the prospect of a long sentence, I am not prepared to find beyond reasonable doubt in absence of the production of the knife that it had a pointed end with sharp edges.

Because I do not have the evidence of the length of the knife and because I do not have the evidence beyond reasonable doubt as to the depth of the wound and the extent of penetration to the internal organs and because I am not sure whether the stitches on the bowl loops were connected with the stabbing, I am unable to easily infer the force behind the fatal blow. Both Margaret Jimmy and the accused, however demonstrated moderate blows in their evidence. Margaret Jimmy showed a downward thrust with a twisting action at the end of the thrust. I got the impression the deceased was in a lower position to the accused. The evidence however, was that both were in standing positions. I think the accused’s evidence is more probable on this aspect. I accept her story. I am also unable to find the knife was twisted upward upon impact as the demonstrations differed when the witness was asked to repeat the action. I think she had tried to improve on her evidence.

In the light of those matters I have raised, I would convict the accused of unlawfully causing the deceased grievous bodily harm under s. 539(4) of the Criminal Code.

That is however not the end of the matter. The accused had pleaded the defence of self-defence and in the alternative, provocation. Counsel for the Defence relied first on the defence of self-defence under s. 269 of the Criminal Code. He submits the defence comes fairly within the terms of ss (2) conceding that ss (1) does not apply.

Where a defence of self-defence is raised, the first step that ought to be taken is to inquire whether there is any evidence before the Court on which a jury or other tribunal of fact acting reasonably, would be entitled to find that the killing (if the charge is homicide) was done in self-defence or to entertain a doubt whether it was done in self defence. This guide is contained in the judgment of Gibbs, J in the case of R v Muratovic (1967) QdR 15 at p. 18. The jury or tribunal of fact must decide on all of the evidence if there is evidence of self-defence. Where there is none, then the defence fails and no further consideration is necessary.

Under s. 269 (2), there must be evidence on the following matters:

(1) that the accused was unlawfully assaulted;

(2) that the accused had not provoked the assault;

(3) that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and

(4) that the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.

The formulation of these conditions are adopted from the case of R v Kaiwor Ba [1975] PNGLR 90.

There is in my view some evidence on each of the matters I have set out as will appear from what I say shortly in this case. I must however evaluate the evidence in relation to each of the matters bearing in mind that before I convict, I must be persuaded beyond reasonable doubt that the elements of self-defence as I have outlined, or some of them, did not exist. (See The State v Takip Palne [1967] PNGLR,90 by O’Leary, AJ at p. 93).

The evidence of Margaret Jimmy is the only State evidence of any relevance on the issue of self-defence. It conflicts with that of the accused on the events before and during the stabbing. She denied hearing any commotion or seeing anybody else present prior to or at the time the deceased was stabbed. She gave the impression, the attack on the deceased was sudden and unprovoked. This evidence is inconsistent with her own statement to the police given shortly after the incident and in which it was stated she heard the accused and deceased arguing before the stabbing. I am not impressed with the demeanour of this witness. She seemed to find the proceeding amusing. At times she smiled while giving answers and occasionally spoke inaudibly to herself after answering questions. She did not appear to be an honest witness.

The only evidence on the plea of self-defence is from the accused having rejected Margaret Jimmy as being selective and unreliable in her testimony.

As to the question of whether the accused was the first assaulted, I accept her evidence that this was so. She stated the deceased at the time of the incident was living away from the family home. She had purposely returned to the house and taunted the accused over her relationship with their husband. The remarks she made were inferentially sarcastic, and derogatory. I infer she felt angry and humiliated over this when she spoke back at the deceased. I think any reasonable person in her situation would have reacted the same way. At that point she was assaulted. The assault in my opinion was not provoked. This satisfied the second question of whether or not the accused provoked the assault.

The third question of whether the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm and the fourth question of whether the accused believed on reasonable grounds that she could not preserve herself from death or grievous bodily harm otherwise than by using the force which she in fact used, will be considered together.

The deceased, as I have inferred from the accused’s evidence, was stronger and tougher (“skin-tight”). I note this descriptive Pidgin words, “skin tight” may literally mean tight skinned person or it may refer to persons with strong, masculine physiques. It could also mean a person who is not submissive or easily pushed around and probably with a short-fuse to his temperament. It is appropriate to make the comparison at this point also of the accused. She is slightly built and stands around 150cm. She hardly fits the Pidgin description of ‘skin-tight’ in her physical built and appearance. Neither is she a weakling. She showed a quiet personality with poise not uncommon in most women of her stature.

I conclude from the accused’s evidence she was assaulted from the kitchen to the gate, which I infer to be nearby. There was no evidence whether the accused fought back before the stabbing. I infer the only time she responded was when she stabbed the deceased at or near the gate. I further infer that the deceased was the aggressor all along. She had recently been spurned by their husband and I think that was sufficient motive for reprisal against the accused.

On 17 January, 1997 the accused was one month into her post-natal period. I think at that stage, her physical and mental condition were still fragile and vulnerable. This was because she would still be recuperating from the effects of child birth. It is reasonably expected that a woman in that state would have suffered weight loss, strength and susceptible to trauma or depression. She might be easily irritated or provoked. These observations are made because the accused spoke of her loss of weight after giving birth and gave evidence of feeling weak and “running out of breath” when assaulted. I believed that she had tired easily and quickly from the deceased’s attack due to her condition. State has not proven beyond reasonable doubt the accused’s claim and the possibilities I have mentioned were not highly probable.

The deceased, as I have concluded was stronger than the accused. She attacked the accused in a confined area in the presence of two others, who no doubt provided the deceased support and encouragement. In her evidence, she said she felt weak after being assaulted and when the deceased was about to hit her again, she swung the knife at her. In cross-examination she said she was running out of breath from the assault. I infer that the assault and the accused’s condition put her in immediate and desperate peril so that some defensive action by her was necessary. In the very least, I am not satisfied that the accused did not hold the belief that she could not preserve herself from death or grievous bodily harm otherwise then by using the force she did and that she had reasonable ground for that belief.

I find the accused not guilty of murder. She is acquitted and discharged forthwith. It is not necessary to consider the defence of provocation.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor