Unreported National Court Decisions
N1940
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR. 164 OF 1999
BETWEEN: THE STATE
AND: TU’UO IBRU
Goroka
Kirriwom J
12-13 OCTOBER 1999
20 OCTOBER 1999
CRIMINAL LAW – Murder – Self-defence - Provocation – alternative verdict –manslaughter - whether provocation as absolute defence - Criminal Code Act Ch.262, ss. 266 and 267
CRIMINAL LAW – Practice and Procedure – Husband not compellable witness for the prosecution against wife – Evidence Act Ch. 48, s.13.
Cases Cited
PLAR No.1 of 1980 [1980] PNGLR 326
The State v Saikoro Norman [1979] PNGLR 559
Counsel:
Mrs. C. Asthon-Lewis for the State
Mr. M. Apie’e for the accused.
20 October 1999
KIRRIWOM J: The accused pleaded not guilty to a charge of murder under s.300(1)(a) of the Criminal Code. That subsection says that ‘a person who kills another person…’ under the circumstances ‘…where he intended to do grievous bodily harm to the person killed or to some other person is guilty of murder”. The deceased, Serah Tom, was her sister in-law, her husband’s sister. The killing is connected to the accused’s on-going marital discord with her husband, the deceased’s brother. The deceased is an unfortunate victim of another’s unhappy domestic situation. 
The circumstances of the killing as alleged by the prosecution are at variance with the accused’s version of what happened and how it happened. At the end of this trial this is an issue that I will have to resolve to decide this case by eliminating the untruth from the truth.
The prosecution says that this is murder while the defence pleads self-defence and in the alternative, provocation. Thus the main issue in the case is whether the accused acted in self defence or she acted in the heat of sudden provocation before there was time for her passion to cool down. I set out firstly what I perceive to be uncontested or undisputed facts:
1.       The accused is in her fifties and married to her husband Ibru Kare for some 26 years and they have five children and grandchildren.
2.       Some four to six years ago the husband took another woman to be his second wife. This unilateral act had planted a permanent seed of marital disharmony between them for the years that followed as their marriage headed for disaster and the family unit similarly disintegrated.
3.       About two months prior to 2nd January 1999 the accused’s husband took his recreation leave and whilst the accused and the children remained in Goroka town he proceeded to Lae where he spent that entire period with the second wife.
4.       On the 2nd of January 1999 the accused’s husband Ibru Kare was in the village at Barenanka after returning from Lae. The accused learnt of his return through another in-law. 
5.       On that day the accused proceeded to Barenanka village from Banano village where she had been since Christmas to see her husband for some explanation and some assistance.
6.       She went there with a grandchild to Dama’s house, one of her husband’s sisters where she had some feed. After having some food she left the grandchild with the auntie and proceeded to Berris Bayou’s house where her husband was. 
7.       She got to Berris Bayou’s house at about 9pm that night, carrying a small bilum and holding a kitchen knife. The house was about 80 – 100 meters away from Dama’s house.
8.       In Berris Bayou’s house were Berris Bayou himself, his wife Esther Berris, Tom Pampao and his wife Serah Tom (deceased) and Ibru Kare the accused’s husband. Both Esther and Serah were said to be Ibru Kare’s sisters.
9.       When the accused got to the house she knocked on the door and Ibru, her husband answered the knock. They all knew right away who was at the door outside the house and they further knew that this was not a social or friendly visit.
10.     There were verbal abuses and insults directed at Ibru by the accused and the husband asked the accused to go away until tomorrow when they could talk things over.
11.     The deceased Serah exchanged a few words with her sister in-law, the accused, and proceeded to open the door of the house.
What then happened from the time Serah opened the door of the house is where the stories differ substantially between the prosecution and the defence. But there is no dispute that Serah was stabbed with a long kitchen knife with the blade measuring between 8” to 10” long, and the blade made its entry just below her right breast and penetrated the skin deep into her chest fracturing the 5th rib as far as the entire length of the blade puncturing the right lung and causing extensive laceration of the heart. Consequently the deceased died as the result of haemorrhage (laceration of the heart) and collapse of the left and right lungs. It is not contested that the accused stabbed her and she died almost immediately.
The prosecution case is that Serah was the only other person who spoke to the accused besides her brother. She told the accused to calm down and talk to her husband nicely inside the house instead of insulting and abusing him from outside. She then proceeded to the door and opened it with her right hand pulling the door inwards from the left to the right. At that moment when she opened the door, the accused struck with her knife using her right hand with a mighty force and the knife penetrated deep into the body, then she pulled it out. The men inside the house reacted when they saw Serah collapse onto the ground bleeding. Ibru Kare went to disarm his wife while the other two men attended to Serah Tom.
The State called two witnesses. They were Tom Pampao and Berris Bayou. The third witness, who was in fact listed first on the indictment, was Ibru Kare, the husband of the accused. He was not tendered as witness in the prosecution case when the accused objected to her husband giving evidence against her. The accused was entitled to raise that objection under section 13 of the Evidence Act Ch. 48. Subsection (1) provides that a wife or a husband of an accused in a criminal proceeding is a competent witness in any legal proceeding in connexion with the offence and subsection (2) says but only with the consent of the person except where the husband or wife is compellable to give evidence or where the husband or wife is charged with being a party to an offence against the other. The only clear exception where a wife or husband can be a witness for the prosecution or defence without the consent of the person on trial is where the husband or wife is charged with bigamy. The Act does not specify other instances where the husband or wife can be compelled to give evidence against the other. Applying the law as it presently stands in the Act, the State was correct in my view in not compelling the husband to give evidence for the prosecution, although the husband was quite free to give evidence for the accused. 
The combined evidence of Tom Pampao and Berris Bayou generally was that the accused arrived at the house about 9pm at night and knocked on the door. Her husband asked who it was and she demanded that they open the door or she would break down the door and burn the house. Tom Pampao then said that they must not open the door. It was a precaution rather than a direction because he feared for Ibru’s life if they did as they all knew that her visit there meant trouble for the husband. The marital problem between the two couple was a common knowledge to them. After all they all belonged to the same family either filially or conjugally. Thus, in that context Tom advised against opening the door to the accused. However, Serah defied the advice and opened the door resulting in her being attacked by the accused. 
On the other side of the coin the accused says that she went there to see her husband and knocked on the door and her husband answered, asking to know who it was. Recognising her own husband’s voice, she replied “Yu yet nau!” in pidgin. This pidgin expression could mean different things in different contexts and I don’t know in what context it was used here. Counsel did not attempt to have this clarified with the accused. It could, in one colloquial language or sense, mean “I am here, what now?” a challenge to her husband to meet her. Or it could literally mean “it’s your turn”, but that would not fit into the context in which the words were uttered or the expression was used given the whole scenario of this case.
The husband then told her it was late and that she must return home so that they could talk tomorrow. Accused said this is all that the husband said to her when Serah intervened and called her names like “ yu pamuk” or “yu K2 meri” and said words to the effect “where have you been screwing around and neglected your children and your husband”. She said the barrage of insults came from Serah continued where there was mention of bride price and there was even reference to “steel or iron”. Accused says Serah said words to the effect in pidgin “Yu kisim ain ikam?” Colloquially speaking this is a pidgin expression used where a person’s physical make-up or built is likened to that of steel in a sarcastic sense in that the challenger is not made of steel for anyone to be afraid of. The accused says that having said that Serah then said “opim dua na mi go lukim em” (open the door and let me see her or deal with her) and she opened the door herslf. The accused was standing right outside the door and Serah punched her three times, two times on her right eye and once on her left and she fell into a barret. At this time the men came out to stop the fight. She said her husband came to help her and Serah went into the house and returned with a long bush-knife with a black handle. She placed the bushknife at her neck in a threatening manner and wanted to cut her but her husband got in the way. Serah then swung at her lower part of the left side of her body and the accused brought her left arm down to her side to stop the knife and was cut on the lower part of her left palm. She said when she saw that she was cut, that triggered her anger and as Serah turned to go away from her she swung her right hand in which she was holding her kitchen knife to retaliate - pain for pain. It was a wild swing in the dark that was executed in an arc around her husband who was in front of her as Serah turned to go after cutting her. That blind arc swing found its target. She pulled out the knife and as she resisted the husband who tried to disarm her she also received a cut on her right thumb.
Which of the two versions is the true story would depend on the credibility of the witnesses. Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of lying and truthful witnesses. There is no rule of law that says that a party that calls more witnesses and who give consistent and almost identical stories must be believed and a party who calls only one witness must not be believed. There is no rule of law that says that where two or more persons tell the same story, that story is the truth as opposed to a single witness. And in a criminal case where the accused is the only witness in his own trial, that makes his chances of being believed non-existent. However, the authorities say that even ten people giving the same story and are quite convincing, they could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witnesses, yet he could be telling the truth. 
But the truth is always not so easy to find and the court has to do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension and what is illogical or plain fallacy. This is why there is an added safety valve in criminal law, which requires that the court must be satisfied beyond reasonable doubt of the guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused – see Woolmington v DPP.
I have difficulty in comprehending the story advanced by the State witnesses of what happened that night at Berris Bayou’s house. For the start I can’t reason the accused stabbing her own sister-in-law without saying a word as soon as she opens the door to let her in for no apparent reason. There is no suggestion that she was expecting her husband to open the door and she stabbed her sister in-law by mistake or that she was expecting her rival, ie the second wife of her husband, to open the door and she was geared up to attack her but she mistakenly stabbed her sister-in-law instead. This is not the State case. It is not even suggested that she struck without caring who was at the door because it was dark and she could not see. In fact the State went into great detail to show that there was sufficient light inside the house from Tom Pampou’s coleman lamp that was there so there was no visibility problem. That rules out possibility of mistaken identity. The State case is that the accused knew her victim and she deliberately stabbed her with force to cause her grievous bodily harm that consequently led to her death. 
This story, with respect, stands alone. It is not consistent and illogical when the evidence in the State case is viewed in its entirety. The accused had marital problems with her husband and this had been going on for years since he took on another wife. On top of that he left his family for two months after collecting his leave pay and spent that whole period in Lae with the second wife while the accused and the children were left behind in Goroka. Whilst he was away came Christmas and followed by the New Year and there was no sign of their father. Then he suddenly he turns up at the village as the New Year passes. As any wife and mother would do in the circumstances she goes to confront her husband. She would naturally be angry. None of the State witnesses say that the accused had anything against her sister in-law and argued with her. In fact they never heard Serah saying anything to the accused that would provoke her to an extent where she would want to fight her own sister in law or even heard the accused say anything to Serah. They never heard anything. The only evidence of verbal exchanges between the two women is from the accused herself which Tom Pampou and Berris Bayou denied hearing anything of the like being said by Serah Tom to the accused. Both Tom and Berris would like to have this court believe that the accused went to argue with her husband and without any reason whatsoever she stabbed Serah instead as soon as the latter opened the door. I am not convinced at all that the accused was in such a rage that she was there to attack just anybody. Without there being any evidence of such magnitude, I cannot infer that the accused was in the mood to harm and even to the extent of killing anyone other than her own husband.
The accused’s version of what happened is that it was Serah who fought her by punching her three times on the face and she fell into a V-shaped drain. She did not even fight back because she had no quarrel with her sister-in-law. Either she held back her temper to retaliate at the time or she may not have had the chance to fight back because the men inside the house came out and separated them. But not being satisfied with the punches she had landed on the accused, Serah went back into the house and returned with a long black handle bush-knife with which she wanted to attack the accused. She placed the knife at the accused’s neck which I interpret to mean that she only threatened to cut her on the neck and not really intending to carry out that threat and at that time the accused’s husband intervened and tried to prevent any further harm upon the accused from his sister. But Serah was not over with her fury and she again threatened to cut the accused on the left lower part of her body whereupon the knife made contact with the accused’s left hand. It would seem to me that it was not an intended swing to cause any fatal harm but nevertheless there was body contact in which the accused sustained a cut on her left palm and she yelled and cried in pain. At this point Serah realised the gravity of what she had done and she turned to walk away when the accused stabbed her. If I accept the accused’s version of what happened that night, then the truth would be that after Serah had inflicted a cut on her sister-in-law and she heard her cry out in pain, she was no longer in fighting spirit to continue and was in the motion of withdrawing when the accused struck. By now the accused was truly inflamed by the pain and blood and she was ready to draw blood as well. This was the time the accused retaliated and stabbed the deceased. How exactly she executed that blow to the deceased’s right chest below her breast is unclear. The blow was delivered from a very close range within the circumference of one meter where they were bundled together as both Ibru and Tom were also there with Tom trying to stop Serah and Ibru protecting the accused from Serah’s onslaught with her bush-knife. There was moonlight but it was not that bright so indeed it would have been difficult for anyone to see well and say with any degree of certainty as to what exactly happened, if they ever saw anything at all. 
The accused had her knife with her all the time, which she carried for her own personal safety. But she never tried to use it to defend herself when Serah attacked her. However the accused explained that she did not have to use the knife at all because she had no quarrel with her sister-in-law. In any event she was never in any danger to resort to her knife. She was punched and she fell down and she got up and then comes Serah again with a bush-knife but by this time her husband was already between them to defend her. Things happened so quickly. It would seem that the accused did not take Serah seriously that she would use the bush-knife at all and it might well be that Serah never anticipated cutting the accused and she surprised herself when she did.
In all probability I accept the version of events as told by the accused. Her story is consistent with what she told the police only three days after the incident on 5th January 1999. If she had fabricated the story to shift the blame onto the deceased, I would not expect her to remember the events as clearly as she was able to recite in court before me. Compared to the two State witnesses she was demonstrably more credible than them. I doubt whether Tom and Berris really did see anything at all or they were simply lying as the accused said of them. On the other hand they never said that the accused was a liar although she told the court quite boldly that they were lying to the court. And when she was asked as to why they would lie about her she replied “Because I don’t have witnesses”. In other words she was saying that it was convenient for them to concoct a story and outdo her with their lies because of their numerical strength of three to one and the chances are that no one would believe her. It would be one woman’s story against three men. 
I was impressed by the accused as the only witness in her own case. Although she may have got the sequence of events mixed up as she recited her story in answers to questions in cross-examination, she never in my view faltered in any way. She maintained the same line of story consistent with what she for the first time told the police on 5th January, 1999, only three days after the incident and again ten months later in her trial. She may not have been entirely accurate or even truthful in every aspect of her evidence but the general sequence of events appear to be reasonably logical and more probable of belief than what the State witnesses would have me believe. It is unfortunate that we cannot know the whole story of what happened because the only other person besides the accused who knows the truth is Serah. 
There is no doubt that the men had got together after the incident and concocted a story to suit their own convenience following Serah’s death. I was not impressed at all with their demeanour. They gave selected evidence and left out a lot that they did not want this court to know. In most instances they responded to crucial questions in cross-examination with answers like “I did not hear that” or “That did not happen”, etc.
So the end result is that I am not satisfied beyond reasonable doubt that the accused stabbed the deceased in the circumstances described by the State witnesses and I therefore cannot find her guilty of murder under section 300(1)(a) on that evidence.
I am thus left with the accused’s version of what happened after the deceased opened the door. I accept that she came out of the house and there was a physical struggle that ended tragically with the deceased being stabbed by the accused. What I have to decide now is whether the accused acted in self-defence or under provocation. And if she acted under provocation, is she entitled to provocation as an absolute defence under section 276 of the Criminal Code? 
I find that the accused stabbed the deceased with her kitchen knife only after she was injured on her palm by her. She had no intention of hurting anyone other than to go and talk to her husband. The deceased took the fight to the accused. She got worked up when the accused was verbally abusing her brother and she took it upon herself to speak for him and challenged the accused. Nobody denies that she opened the door of the house they were in. After all those abusive exchanges naturally she would not have expected a peaceful and happy reunion inside the house between her already petrified brother and his enraged wife and it was unrealistic to expect a quiet and friendly talk inside the house. There was no time for that, the tension was high and Serah and everyone else there knew that the atmosphere was very volatile for an explosion the moment the accused got there. Although there is no clear evidence on this but there is no question that all those persons gathered there were family members of Ibru Kare, those who probably showed concern for his welfare. Ibru’s dwindling marriage to the accused was a family concern. There was some talk about bride price payment and court hearing. 
Whatever that meeting of the family was that night in Berris Bayou’s house, certainly Serah did not invite the accused into the house to have a friendly chat with her husband. I believe Serah stormed out of the house in anger and confronted the accused. There would not have been any serious fatality had Serah not used a bush-knife. I believe that the accused would not have harmed the deceased in any way serious if there was no bush-knife involved. But the accused only reacted when she received an injury from her own sister-in-law and she retaliated in anger. I do not see the accused as being in any danger at all after she was cut. Serah had by now resiled from further attacking the accused and was in the retreat mode when the accused struck at her and stabbed her. Therefore I am satisfied that the State had negatived self-defence.
The only conclusion open to me now is that the accused acted under provocation. Defence submits that the only appropriate verdict is that of manslaughter under section 303 of the Criminal Code because of provocation. However, the State has submitted that provocation as defence can be available to the accused under section 267 which provides an absolute defence that can lead to an acquittal or provocation under section 303 which means I must find the accused guilty of manslaughter. 
I don’t know whether section 267 would apply in the instant case particularly when the charge against the accused is that of murder and not that of manslaughter. The reason being that the law as established in PLAR No.1 of 1980 [1980] PNGLR 326 which was the Principal Legal Adviser’s Reference originating from the National Court case of The State v Saikoro Norman [1979] PNGLR 599 is that for that defence to be pleaded the charge for which the accused is arraigned must be that of manslaughter and not murder or wilful murder. In other words, provocation as an absolute defence does not apply in an alternative verdict of manslaughter from a charge of either murder or wilful murder; and secondly, it must actually be pleaded as defence to a count of manslaughter. The reason being that provocation is an absolute defence to any form of assault under section 267 so where death occurs from an act which would otherwise have only amounted to an assault at the most, provocation as absolute defence would be available where assault is an element of the offence committed. That was the situation in The State v Saikoro Norman [supra] where the court held that provocation as an absolute defence was available to the accused on a charge of manslaughter where assault was an element of the offence and acquitted the accused. The accused was charged with manslaughter of her aunt. She pleaded provocation as absolute defence under section 272 (now re-numbered as s.267). The facts were pretty straight-forward and not disputed. The deceased was upset with the accused for not looking after the children and she struck the accused on the buttock with a stick. It was a painful blow. The accused immediately tried to return the blow. She swung her stick to the aunt’s bottom but at that moment her aunt turned and the blow landed across her stomach instead. The medical evidence showed that the aunt had an enlarged spleen protruding about four fingers below the protection of the rib cage. The post mortem disclosed that the spleen had ruptured, and the aunt had died from the massive blood loss resulting. There was only one blow by the accused which was quite a hard one. The aunt shortly after that blow collapsed and died. 
Whilst the State raised the possibility of s.267 defence to the accused, it submitted that on the evidence before me that defence cannot stand. The law clearly says that whether or not any particular act or insult is likely to deprive any ordinary person of his power of self-control and to induce him to assault the person by whom the act or insult is done or the person provoked was actually deprived by the provocation of the power of self-control or any force used is disproportionate to the provocation is a question of fact- see s.267(2). Subsection (1) provides:
(1)      A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if he-
(a)      is deprived by the provocation of the power of self-control; and
(b)      acts on it on the sudden and before there is time for his passion to cool,
if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm. (Emphasis is mine)
I agree with the State that provocation as absolute defence under section 267 is not available in this case on the accused’s own evidence. The use of a dangerous weapon described by the State witnesses as measuring almost a foot in length with the blade itself measuring between 8 to 10 inches long cannot by any stretch of imagination be regarded as less harmful or a mere assault. Any person who arms himself with a dangerous weapon and uses it in anger under provocation, even if he did not mean to kill or cause any permanent harm to the person assaulted, cannot in all fairness expect to escape liability, considering of course, the fact that the weapon itself was capable of bringing about a nasty and life-threatening result. There is no doubt that when deliberately mishandled, such weapon like the kitchen knife in this case can cause and is capable of causing death or even grievous bodily harm. It is not as if the accused retaliated with her fist that resulted in death or with a piece of timber or rock. The argument on proportionality of the provocation can have some weight if it was a case of retaliation with an implement less dangerous than a knife. 
The end result is that I am not satisfied beyond reasonable doubt that the accused committed murder under section 300(1)(a) of the Criminal Code. But I am satisfied that there is evidence on which I can return an alternative verdict of manslaughter under section 303 of the Code. Self-defence has been negatived to my entire satisfaction and even provocation, as absolute defence is inapplicable in the circumstances. 
The Court therefore finds the accused not guilty of murder but guilty of manslaughter only and I accordingly return that verdict.
Lawyer for the State: Public Prosecutor
Lawyer for the Defence: Public Solicitor