N2556

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 988, 1184 and 1556 of 2003

THE STATE

-V-

MURRY WILLIAM,
FRANK WILLIAM and
MOSES WILLIAM
(No. 1)

POPONDETTA: KANDAKASI, J.
2004: 23rd, 26th and 28th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Withdrawal of prior indictments – State seeking to present an indictment for a serious offence than one previously proffered - Public prosecutor has power to do so provided no prejudice to the accused – Amendment inappropriate where totally new charge is proffered – Criminal Code ss. 535.

CRIMINAL LAW – PRACTICE & PROCEDURE – Commencement of trial – Presentation of indictment – Indictment before a different Court – Effect of – State Liberty to present same or new indictment – s.557 Criminal Code.

CRIMINAL LAW – Attempted murder or grievous bodily harm – Accused shooting at the victim with a sling shot with intend to kill him – Critical question on intend answered in favour of prosecution – Whether any misunderstanding of relevant question– No basis to infer misunderstanding - Defence of self-defence raised – No direct evidence of accused believing on reasonable grounds of fear for his life or safety – Court cannot infer such believe – Defence not made out – Guilty verdict on attempted murder returned –Criminal Code ss. 304, 319, 269.

Cases cited:
The State v. Micky John Lausi (Unreported judgment delivered on 16/02/01) N2091
Nelson Ngasele v. The State (Unreported judgment delivered on 03/10/03) SCR 17 of 2002
R v. Agana Guguna (Unreported judgment delivered in 1965) N364
The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (Unreported judgment delivered on 15/05/02) N2266
The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
The State v Ben Noel & 2 Ors. (Unreported judgment delivered on 31/05/02) N2253
The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
Garitau Bonu and Rosanna Bonu v The State (1997) SC528.
The State v Edward Toude & Ors (No 1) (16/10/01) N2298.
Rosa Angitai v. The State [1983] PNGLR 185.
The State v. Tu'uo Ibru (20/10/99) N1940.

Articles Cited:
"The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)", Melanesian Law Journal, Vol. 16, 1988, p.115.
SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, Greville Smith J

Counsel:
P. Kaluwin for the State 
P. Kumo for the Accused

DECISION ON VERDICT

28th April, 2004

KANDAKASI J:	Murray and Moses William, both of you pleaded guilty to a charge of attempted murder whilst Frank Johnston denied a similar charge against him and pleaded guilty to the less serious charge of causing grievous bodily harm. 

Your lawyer however applied under s.563 of the Criminal Code for an entry of a not guilty plea for all of you on both the charge of attempted murder and an alternative charge of causing grievous bodily harm. The basis for that application was that all of you acted in self-defence. Going by the established practice, the Court therefore entered a not guilty plea for all of you against the two charges in the alternative.

The State presented these charges after the Court granted an application with your consent for the State to withdraw indictments previously presented but not proceeded against, rather than amend the earlier indictments. The earlier indictments were for the charge of causing grievous bodily harm, to which you pleaded guilty but the Court decided to vacate it as it was of the view that the material on file disclosed a possible legal defence of self-defence. The State sought the leave of the Court to either amend the earlier indictments or present a fresh one. 

In granting the application, I saw no difficulty with a grant of the application. In so doing, I noted that s. 557 (2) of the Code, provides that a trial does not begin until an accused person is called to plead after informing him of the charge against him in a language he understands in an open court. At the same time, I noted that s. 535 (2) of the Code requires, a re-arraignment of an accused person where there is an amendment to the indictment charging him or her. 

I had regard to this procedure in The State v. Micky John Lausi (Unreported judgment delivered on 16/02/01) N2091 and noted that:

"Section 557 of the Criminal Code protects a person charged from being tried without being informed of the charge against him. It also protects him from being tried without being asked to plead to the charge in the indictment. So s. 557 being a law which protects a person charged with an offence must be strictly complied with by the National Court. Also a trial must be conducted according to law."

In this case, the State indicated, a desire to present an indictment charging you three men with a charge of attempted murder and in the alternative, causing grievous bodily harm. The first preferred charge of attempted murder was a totally, new charge. Therefore, it was not a case of amendment because of a variance between the facts and the charge or an error or omission but an introduction of a new charge.

In an article I did entitled "The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)", Melanesian Law Journal, Vol. 16, 1988, p.115, I expressed the view that, the Court has power to allow amendments to an information charging a defendant with an offence. That power is available and is exercisable at any stage of the proceedings but before judgment. I then concluded that, whilst it is within the powers of the Court to allow amendments, it must be exercised at the earliest possible, to avoid prejudice and therefore any injustice to the defendant.

It follows therefore that, if this was merely a case of amendment that could have occurred without any difficulty. This is because, the trial had not yet commenced within the meaning of s. 557 (2) of the Code. Therefore, no issues of prejudice and injustice could have arisen. The decision to vacate your guilty pleas resulted in the order for your trial before a different judge. That different judge turned out to be me. I could not proceed on the basis of what happened before the previous Court in terms of your arraignment and the taking of your plea. I am not aware of any practice or law that says I must proceed on the basis of the previous proceedings. Instead, I am aware that, I must re-arraign you and take your plea. This is because the commencement of the trial on the presentation of the indictment before the earlier judge aborted on his vacation of your guilty plea and ordered your trial to go before a different judge. Therefore, you had to have the whole process of commencing your trial restarted before me and that is what happened. 

In any case, I note that the Public Prosecutor has an absolute discretion to present whatever charges he considers he is able to prove on the required standard and secure a conviction. He is not subject to any direction or control of anybody or authority, including even the Courts. The Supreme Court in Nelson Ngasele v. The State (Unreported judgment delivered on 03/10/03) SCRA 17 of 2002, recently restated this position in these terms:

"It is settled law that the Public Prosecutor as an absolute power to decide and present whatever charge he considers the state will be able to prove against an offender. That power is not subject to any direction or control from or by anybody. Section 525 (1)(a) of the Criminal Code gives him that power. This has been acknowledged and affirmed by a number of judgements such as The State v. Jack Gola and Mopana Aure …and The State v Jason Dongoma…" 

What this meant in your cases was that, the Public Prosecutor was at liberty to present whatever charges he considered he was able to sustain. Since what happened before the earlier judge is not binding on this Court, it makes no sense to take a different view and hold that the public prosecutor is bound by the earlier indictment and the proceedings based on it. I am of the view that, it is within the powers of the Public Prosecutor to either present the same indictment he earlier presented or have it amended and or present a new indictment since the proceedings were starting afresh before me. The public prosecutor chose to present a new indictment, which the Court could not refuse in view of the powers vested in the Public Prosecutor. 

Now following the presentation of the indictment against you and your guilty pleas changed to not guilty pleas, a trial was necessary to determine whether you acted under self-defence. A trial therefore got under way on the 23rd and completed on the 26th of this month with submissions.

Undisputed Facts

Given the nature of your defence, there were no disputes in relation to a number of facts and the elements or the charges brought against you. The facts falling in this category are these. You all come from Ambene village, here in the Oro Province. On 10th September 2001, there was a fight in your village between you men and the victim, Wilkinson Orotu. Murray William, you shot the victim on his right eye with a stone by using a slingshot. This resulted in the total loss of the victim’s right eye. 

Disputed facts: The Evidence

For the disputed facts, the State called two witnesses, Wilkinson Orotu, the victim, and a Hobert Grayson. In your defence both of you, Murray and Moses, gave sworn testimonies after Frank Johnston failed to turn up to complete the trial.

The State applied under s. 571 (1) (b) of the Code without objection from the defence for the trial to proceed in the absence of Frank Johnston. Section 571 (1) provides that a trial of an accused must take place in his presence. It also provides, that if the accused "conducts himself as to render the continuance of the proceedings in his presence impracticable" than the Court: 

"(a)	may order him to be removed; and
(b)	may direct the trial to proceed in his absence."

In this case, your co-accused Frank Johnston decided not to turn up in Court to continue with his and your trial. The Court informed him at the time of adjourning at the end of the prosecution’s case of the need for him to attend the continuation of the hearing. Counsel for the defence indicates that he also spoke to him after the trial and advised him to attend the Court as you two have. Despite that and for reasons only known to him, he failed to attend the Court when the Court hearing resumed for the defence to go into evidence. The Court therefore ordered the trial to proceed in his absence as the Court was of the view that that he conducted himself in such a way to render the continuation of the proceedings in his presence impracticable. At the same time, and in accordance with subsection (3) of the same section, the Court ordered that a warrant of arrest be issued for his arrest because his absence was without the leave of the Court.

A. State’s Evidence

(i) Wilkinson Orotu

The first of the two witnesses called by the State was Wilkinson Orotu. He is the victim of your offence. He said after returning from his garden some time in the afternoon around 3:00p.m. on the day of the incident, he took out his beddings to go and rest and was at the door on the way back from there, he saw the three of you, Frank, Murray and Moses, standing closer to him and said to him, "you got our things". He responded with a no and you started to fight him. Frank had a grass knife with him, while Murray and Moses you respectively had a slingshot and bush knife, all of which you used to attack him. He said Frank tried to cut him with the grass knife. Fortunately, Hobert Grayson, who was there stopped Frank by coming in between Frank and him. 

Meanwhile, Murray, you shot him (the victim) with a stone using the sling shot you had with you. The stone landed on his right eye. That resulted in a serious damage to his eye resulting in its total loss. Before that, he saw Moses at the back of Murray encouraging Murray to fight him (the victim).

During your attack on him, he says he had nothing with him, in terms of any weapons. The suggestion therefore his that, you attacked an unarmed man, who did not fight back. He also says from what you said to him he worked out the reason for your attack on him as over an allegation of him having stolen some things belonging to you. Although not in issue, he identified the all three of you correctly in the accused box.

Under cross-examination, your lawyer suggested to the witness a number of things. These are:

(1)	he used to smoke marijuana and steal from people in the village;
(2)	on the day of the offence some people saw him carrying a radio that belonged to Murray;
(3)	you asked him to return the radio, a trousers and a save card a day before the offence and he asked you to go to his house and take them;
(4)	when you reached his house purposely to retrieve your things, he threw a oil palm harvest hook at Frank Johnston;
(5)	he knew that he was attacked because he broke into Murray’s house and stole, a radio, trouser and a save card.

The witness denied all of these suggestions except for the last suggestion. In respect of that, he denied a line of questions that TRIED to get him to admit that he broke into Murray’s house and stole the properties mentioned and that you were there to retrieve them. He also said in answer to further questions along these lines that, he did not come to learn at any stage before or after the attack on him that, there was a break in and stealing of the items in question from Murray’s house. All he knew was what you put to him at the time of your attack on him.

(ii) Hobert Grayson

The second witness called by the State was Hobert Grayson. He comes from the same village as yourselves and the victim. He says, he was at his house, when the three of you hurriedly pass by with weapons in your hands. He identified the three of you correctly in the accused box. Moses William had a shot grass knife, Frank Johnston had a knife and Murray William had a slingshot. Therefore, he followed you and ended up at the victim’s house.

At the victim’s house, Frank Johnston approached the victim and was close to cutting the victim. Therefore, he intervened and stopped both Frank and the victim. As he was stopping Frank, Murray, you use the sling shot to shoot at the victim with a stone. Under cross-examination however, he denied that Murray’s attack on the victim was after that of Frank’s. The stone landed on the victim’s eye. Soon after that, the three of you left the scene although Frank returned may be to attack the victim again but you stopped him. Meanwhile, the witness reached for the victim, washed his eyes and put him on a wheelbarrow. Then some boys in the village took the victim to the road. 

He did not know the reason for your attacking the victim and is not able to recall whether any words were exchanged before the attack on the victim because he got to the scene as Frank was about to cut the victim. He also says that, during the time of the attack, the victim did not carry any weapon with him. He therefore did not use any weapon against the three of you.

(3) Other Evidence

In addition to the above oral evidence, the State admitted into evidence as part of its case, your records of interview with the police as follows:

1.	Murray William, dated 22nd January 2003 – exhibit "A1" and "A2" respectively, Pidgin and English versions;
2.	Moses William dated 3rd December 2003 - exhibit "B1" and "B2", respectively, Pidgin and English versions;
3.	Frank Johnston dated 22nd April 2003 - exhibit "C1"and "C2", respectively, Pidgin and English versions. 

I will comment on these in the context of your evidence, where necessary.

B. Defence Evidence

(i)	Murray William

You say that the victim came and broke into your house, stole your things, a trouser, a radio and a save card. You said the victim stole your radio the day before the fight, a Thursday. Under cross-examination, you said you were sleeping in a house wind about 100 meters away from your house when the victim broke into your house and stole your things. However, when asked under further cross-examination, you said he was about 5 meters away from you. You saw him hold onto the things he stole from your house and asked him why he was doing that and he responded by saying because you got angry with him and he wanted to fight. Again, under cross-examination you said you fought him then but neither of you received any injuries. You did not tell this story to the police and his reason for breaking into your house and stealing from you.

In your evidence in chief, you said the victim stayed away in the bush for a week. Later you changed this story under cross-examination by answering in the negative a question asking you to confirm that. On his return, he took marijuana and came to your house. At that time, you asked him to return your properties and he said to you in terms of "I as a man came to your house and got them. If you are a man, you go to my house and get them." Therefore, you went to his house to retrieve your properties. You went with Frank only and nobody else, including your brother Moses. Your lawyer asked several questions about Moses’ whereabouts at the time of your going to the victim’s house and you maintained that he did not come with you. He was instead, initially in the front of a store and later, that became in his house.

Upon arrival at the victim’s house, you asked him for your things and he tried to spear you with an oil palm harvesting hook. That was the only thing he had. Hence, after he had thrown it at you, he had no other weapon to use against you. The hook did not reach any part of your body. You did not tell the police but your lawyer this part of your story. You say you forgot that part of the story when police questioned you. 

Continuing with your story, you say you fought the victim back by using your slingshot to shoot him. That was after he had shot you with the oil palm hook. You did that by putting a stone into the slingshot and shot the victim with it. You answered in the affirmative, a question put to you under cross-examination that, when you shot the victim using the sling shot you wanted to kill him. Under re-examination and in a bid to minimize the impact of this question and answer, you said you wanted to stop the victim. When asked to describe the fight, you did not specifically answer the question and said, the victim asked for it by stealing your things.

You go onto say that although, Frank had a knife with him he did not use it. You suggest inferentially therefore that he just stood there watching and did nothing. He was about 2 and half meters away from you.

Finally, you said, you reported the break, enter and stealing from your house by the victim to a village leader prior to the fight. However, he did not solve the problem quickly so you went to the victim’s house to retrieve them, the next after reporting it to the village leader. After the fight, you said Frank took the things stolen from you. However, none of these things is in evidence before this Court. 

(ii)	Moses William

Moses William, you went into a sworn testimony after Murray. You said, you were not involved in the fight as you were in your house about 100 meters away and could not see what was happening, as there were trees in between your house and the place where the fight was. You said also that your bigger brothers went and fought with the victim because he stole things from them. Further, you said, the fight resulted in a damage to the victim’s eye. When asked as to when this happened, you said it was on a Thursday. 

Under cross-examination, you said you did not see either Frank or Murray that day. You also denied that Murray is your brother. Yet in answer to a question by the Court, you said there is only one William. Then in answer to a question from the State arising therefrom, you said that, that one William is you and Murray’s father.

Assessment of the Evidence

The law is clear on who has the burden to establish a charge against an accused person. The defence cannot establish the prosecution’s case. That means the prosecution must first establish a prima facie case against an accused person. This includes an obligation to eliminate a defence claimed by an accused. Once the prosecution has established a prima facie case, only then does the accused have to answer: See R v. Agana Guguna (Unreported judgment delivered in 1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (Unreported judgment delivered on 15/05/02) N2266. Then as I said in The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365, it follows therefore that, if the accused goes into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. 

The burden that State has is to prove the essential elements of the charge against you on the required standard of proof, which is, beyond any reasonable doubt. This is particularly in relation to the essential elements of the offence. The Supreme Court in SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, Greville Smith J made this clear in these terms:

"The general rule is that in criminal cases it is for the prosecution to prove, and to prove beyond reasonable doubt, every element of the alleged offence …. The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly, the Crown must prove every fact, whether affirmative or negative, which forms an ingredient of the offence"

From this, it is clear that where the defence raises a defence such as self-defence as in this case, the prosecution is under an obligation to show that the defence does not exist. See John Jaminan v. The State (N0.2) [1983] PNGLR 318, per Pratt J. and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (supra).

Back to your case, whether the State has discharged its burden is dependent on whether it has produced credible evidence in relation to each of the elements of the offence and the displacement of your defence. This in turn depends on the credibility of the witnesses called.

I will thus address the issue of credibility of the witnesses first. From the above outline of the State’s evidence, it is clear that there are no inconsistencies between the evidence of the victim and his witness, Mr. Grayson. It is also clear however that, there is an inconsistency between the statement Mr. Grayson made to police and his evidence in Court. This relates particularly to the description of the kind of weapons each one of you had with you. He said in the statement to police that Moses William had a big bush knife, while Frank had a long grass knife. In his evidence in Court, he said Moses William had a shot grass knife and Frank Johnston had knife. This obviously gives rise to a number of related questions.

These questions are; (1), are the inconsistencies serious enough to cause a serious doubt in the case against you particularly in relation to your defence of self-defence?; (2), are the State’s witnesses credible? and (3), has the State established its case against you beyond any reasonable doubt?

These are very important questions, which require careful consideration and answers. The first thing that I note once again is that, there are no inconsistencies as between the evidence of the two State witnesses. Secondly, I note that you did not create any serious doubt in relation to the credibility and reliability of their evidence. You raise only two points to argue against an acceptance of their evidence.

The first of these points is that, normally only those who have done something against another gets attacked by the person he had offended, particularly in a village setting. In your case, you attacked the victim because he broke into Murray’s house and stole your things. It was big news in the village and so therefore, the victim had reason to know that. Yet he came into Court and lied to the Court by saying he did not know of the reasons for the attack on him.

A careful consideration of the victim’s evidence clearly reveals that he is not disputing that you men told him of the reasons for your attack on him as you told him what it was. What he denies is the suggestion that, he broke into Murray’s house and stole Murray’s things. I fail to see what is the problem with this. If the victim was not the one who broke into Murray’s house and stole Murray’s things he could not possibly be expected to know that, except as was put to him.

The second point revolves around Mr. Grayson’s evidence in relation to the description of the weapons each of you carried at the time of the offence. I find this is a common problem with most ordinary people in the country. Whilst there is a difference in the description of the weapons, you carried; there is no variation in the weapons. I do not consider this serious enough to cast a serious doubt on the truthfulness and reliability of this witness’s evidence and the overall case for the prosecution. 

I find there is no trace of any illogical or out of touch with common sense account in the whole of the State’s case. I contrast this case to that of The State v. Peter Malihombu (supra). In that case, there were serious inconsistencies and illogical and out of touch with commonsense accounts in the State’s evidence. There, I dismissed a charge of wilful murder and acquitted the accused. For similar reasons, I did likewise in The State v Ben Noel & 2 Ors. (Unreported judgment delivered on 31/05/02) N2253.

I find in the particular circumstances of your case as outlined above, that the State has established a prima-facie case against you. In arriving at that view, I note that issue for trial was one of whether you acted in self-defence. On the evidence produced by the State, there is no evidence that forms the foundation for mounting that defence. Indeed, I note that not one question in cross-examination was put to any of the State’s witnesses that suggests at the least your acting in self-defence. 

I now need to consider whether your evidence casts any serious doubts and therefore, rebuts the case against you. At the same time, I need to consider, whether you established the defence of acting in self-defence. However, before I do that, I consider it appropriate that, we should note from the outset the elements that make out the defence of self-defence.

Section 269 of the Code provides for the defence of self-defence in these terms:

"269.	Self-defence against unprovoked assault.

(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."

It is clear to me that, the defence under this section covers to situations. The first is under the first subsection where an assault is directed at the person acting in alleged self-defence. The second is under the second subsection where death or grievous bodily harm is directed at the person allegedly acting in self-defence. In the first case, the following are the necessary elements:

1.	a person is unlawfully assaulted;
2.	the person assaulted has not provoked the assault;
3.	uses such force as is reasonably necessary to make an effectual defence against the assault; and
4.	the force used is not intended to cause death or bodily harm; 

As for the defence under the second subsection, the following are the elements that make up the defence of self-defence:

1.	there is a threat of death or grievous bodily harm; and 
2.	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,

You raised your defence under the second subsection. Therefore, in order to succeed in that defence, there must be evidence of a threat of death or grievous bodily harm. Additionally, there must also be evidence of you having believed at the relevant time that you could not otherwise preserve your lives or avoid grievous bodily harm other than in the way you have acted.

In considering the questions raised, I note there are number of inconsistencies in your respective evidence as I noted in the course of restating your respective evidence in the foregoing. In material respects, both of you tried to show that, Moses was not involved in the commission of the offence. This is despite having pleaded guilty to the charge of attempted murder immediately after its presentation. It also went against the basis on which the matter became a trial matter. None of you denied your involvement. Instead, you all claimed that you all acted in self-defence.

Following on from the above position you took, Moses initially denied an obvious truth. The truth was, he and Murray are bothers and as brothers you went together, according to the facts put to you in arraignment and your initial admission of the charge but for your lawyer applying for an entry of a not guilty plea because of the possibility of the defence of self-defence.

In addition to this, you did not put the entirety of your case to the prosecution in cross-examination. The law is very clear on this. As I said recently in The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185:

It is also settled law that a party’s case must in fairness be put to the other side’s witnesses in cross-examination. A failure to do so amounts to a conclusion that any evidence introduced which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). For examples of authorities on this see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323."

You did not put amongst others the following facts to the prosecution’s witnesses in accordance with this well-settled principle of law and practice:

1.	Moses was not involved in the fight;
2.	Murray witnessed the victim breaking into your house and stealing your properties on a Thursday;
3.	Murray had a fight with the victim on that Thursday;
4.	The victim staying away in the bush for a week;
5.	Upon the victim’s return to the village, he took marijuana and came to your house and the conversation that took place between Murray and the victim; and 
6.	The victim tried to spear you with an oil palm harvesting hook that failed to hit its target.

In accordance with the law as stated above, I find your evidence in these respects, as recent inventions and are, therefore unreliable. This in turn renders the rest of your evidence incredible. Accordingly, I reject the whole of your evidence.

Assuming however, that I was wrong in coming to the above conclusion, which I say am not, than, I find that your evidence does not establish the defence you claim. This is because, according to your own evidence, after the victim had thrown the oil palm harvesting hook, you do not say what happened next. You do not say for example that, he was trying to pick up the hook again and shoot you with it and if so how. Similarly, you do not say, whether there was any other weapon nearby, which the victim could pick up to attack you. Furthermore, you do not say how was it that the three or two of you were not able to over power one then, unarmed man, with the help of Mr. Grayson who was already on the scene.

In these circumstances, I am simply not satisfied that there is evidence of a threat of death or grievous bodily harm hanging over your lives and that you had no other choice but to act in the way you did. Indeed, you Murray do not give any evidence of what was your feeling or assessment like in terms of any threat or harm or danger to you or your brothers that necessitated you shooting the victim with the sling shoot.

Your lawyer asked this Court to infer such fear and the facts despite the facts clearly failing to provide the basis for it. What believe a person had at the time of allegedly acting in self-defence is a matter that is usually within the mind of that person. Then whether that believe was reasonably held is a question that can be answered by reference to the relevant facts or the circumstances in which the act is executed. In your case, you simply say nothing about what kind of fear, if any, you had particularly when the victim had nothing else to attack you with after he had thrown the oil palm hook at you.

In these circumstances, I am not able to find that you acted in self-defence within the meaning of s. 269 (2) (a) and (b) of the Code. This leaves the State’s prima facie case against you unshaken in any respect. I am thus satisfied that the State established the charge against you beyond any reasonable doubt. I therefore return a verdict of guilty against all of you. I order that the two of you be remanded in custody pending your sentence. I reconfirm the revocation of Murray Williams bail and order a refund of your cash bail, if any, on the production of the relevant receipt.
_______________________________________________________________
Lawyers for the State:		Public Prosecutor
Lawyers for the Accused:	Public Solicitor