State v Daniel [2005] PGNC 89; N2869 (15 July 2005)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, homicide etc – Section 299, wilful murder – trial – elements of wilful murder.

CRIMINAL CODE – evidence – voir dire – whether any impropriety in accused being subject to interrogation two days after making confessional statement – onus of proof for purposes of determining admissibility of record of interview – record of interview admitted into evidence – circumstances in which evidence on voir dire becomes evidence in the trial.

CRIMINAL LAW – evidence – examination of dead body by a qualified health extension officer, not a medical practitioner – status of report.

CRIMINAL LAW – defences to wilful murder – self-defence – Criminal Code, Section 267 – elements of the defence of self-defence – prosecution has onus of disproving the defence – prosecution must establish that one or more elements are not present.

CRIMINAL LAW – defences to wilful murder – provocation – Criminal Code, Section 303 – elements of the defence of provocation – prosecution must establish that one or more elements are not present – acting in the heat of passion – distinction between being very angry and losing control over actions – whether a marital partner’s infidelity can constitute circumstances of provocation.

CRIMINAL LAW – wilful murder – prosecution must prove beyond reasonable doubt that the accused intended to kill the deceased or some other person – proof of intention – can be express or inferred from conduct of accused before, during and after the incident leading to death.

CRIMINAL LAW – wilful murder – alternative verdicts – Criminal Code, Section 539 – circumstances in which a conviction for murder can be entered after indictment for wilful murder.

The accused was charged with the wilful murder of his wife at Kandrian, West New Britain. It was alleged that there had been marital disharmony for some months prior to the incident and that the accused believed his wife was being unfaithful; that the incident resulting in her death occurred early in the morning when the accused followed her to the seafront; that he was carrying a knife; and that he stabbed her eight times, resulting in her instant death. The accused admitted stabbing his wife with the knife but claimed that before he stabbed her, she had stabbed herself with the knife; that she had then stabbed him; that he only stabbed her three times; that he was acting in self-defence; and that he acted in the heat of passion and before his passion had time to cool, following the provocation given to him by the unfaithful marital conduct of the deceased. The State’s evidence included a confessional statement and record of interview, a report into cause of death prepared by a health extension officer and the knife used during the altercation between the accused and the deceased. The accused objected to the record of interview being admitted into evidence and a voir dire was conducted, with the court ruling against the objection. The accused gave sworn evidence in his defence.

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260 (L)
R v Moses-Robert [1965-1966] PNGLR 180
R v Nikola Kristeff (1967) No 445
R v Oa [1967-1968] PNGLR 1
Tapea Kwapena v The State [1978] PNGLR 316
The State v Albert Gias (2005) N2812
The State v Angela Colis Towavik [1981] PNGLR 140
The State v Herman Kabai (1997) N1611
The State v Inawai Moroi [1981] PNGLR 132
The State v John Michael Awa and Others (2000) N2012
The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Leah Tununto (1990) N947
The State v Leonard Masiap [1997] PNGLR 610
The State v Matilda Edward (2004) N2726
The State v Michael Nema Melpa (2003) N2450
The State v Misari Warun (1989) N753
The State v Raphael Kuanande [1994] PNGLR 512
The State v Raphael Walimini (2004) N2627
The State v Rose Yapihra (1997) N1741
The State v Takip Palne of Dumbol [1976] PNGLR 90
The State v Tom Morris [1981] PNGLR 493
The State v Tresca Waime (1981) N305
The State v Turi [1986] PNGLR 221
The State v Turik [1986] PNGLR 138

This is a decision on the verdict for a man who pleaded not guilty to a charge of wilful murder.

The incident giving rise to the charge took place at Kandrian, West New Britain, in December 2001. It is alleged that a young woman, Freda Pakilio, was stabbed by the accused and died as a result of the injuries she received.

On 17 May 2005 the accused was brought before the National Court and faced the following indictment:

David Yakuye Daniel of Ilbali, Menyamya, Morobe Province, stands charged that he on the 24th day of December 2001 at Kandrian in Papua New Guinea wilfully murdered Freda Pakilio.

The following allegations were put to the accused for the purposes of obtaining a plea.

The incident happened between 6.00 am and 7.00 am at Kandrian Government Station, near the beach. The accused had a marital problem with his wife, the deceased, Freda Pakilio. She had left him and was staying with other people following allegations that she was having an affair with another man. On this particular morning they were both in the vicinity of the seafront. She had gone to the toilet and the accused was waiting for her. He was armed with a small knife. She sensed he would do something, so she did not come out quickly. Eventually, however, she came out and when she did so he pulled her to a nearby location and stabbed her all over her body, inflicting eight knife wounds. She died instantly. He intended to kill her.

The accused responded that the allegations were not really true and there were reasons for what happened.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

There are several other provisions of the Criminal Code that might apply in this case:

The State tendered nine exhibits by consent. One exhibit – the accused’s record of interview – was objected to. I conducted a voir dire (a hearing within the trial to determine the admissibility of evidence) and ruled that it could be admitted into evidence. Three witnesses gave oral evidence. Two of them were police officers who gave evidence as to the circumstances in which the accused was interviewed. The other was a health extension officer who examined the body of the deceased and prepared a report on her death.

Column 1 of table 1 below gives the exhibit number; column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A1/A2	Confessional statement: David Yakuye Daniel, the accused, 02.01.02	States that when he and his wife first married they were happy but then she had a friendship with another man, Titus – she used to say nasty things to him – so he kept watching her – talked to Titus, who admitted it but said that it was not his fault but the deceased’s fault – Titus gave him shell money plus K50.00 cash – on Saturday 22.12.01 he told her that they must go to the priest so she can confess what she had been doing – but instead she argued with him and he slapped her once – on Sunday 23.12.01 she left the house while he was still sleeping – he later saw her at church and asked her again to confess but she refused again – he told her that they should go to the police station to sort out the problem – but she refused and said that she would go and sleep with Titus who was in love with her and would take her to Kimbe – he ran after her and tried to pull her and in the process tore her top but she went off – the next day, Monday 24.12.01, he woke at about 5.45 am and was preparing himself some betel nut with a small knife – then he walked to the toilet at the seafront – then he went to the health centre to check for two patients – then he saw the deceased walking to the toilet – she saw him but was frightened so he went inside the ladies toilet and told her that he was not angry with her – but she started to argue with him and told him to look for another woman – she then asked him to hand her the small knife so she will tell the truth – so he threw it to her – then she stabbed herself once in the chest – he tried to remove the knife from her but she stabbed him on his chest – ‘I struggled and managed to hold her hand, when I saw blood, I pulled the knife out from her hand and stabbed her in the back, later stabbed her along the side ribs and stabbed her again in her breast’ – then he felt like fainting so he put the knife in his trouser pocket and ran to the house and fell down – his brother, Felix, found him and took him to the heath centre and found out that the deceased had stabbed him. Later, he states: ‘she stabbed herself first once; I only stabbed her three times’.
B	Meri-blouse	Black, yellow and red in colour.
C	Laplap	Purple in colour.
D	Knife	18 cm blade; 10 cm brown handle.
E	Medical report on death of Freda Pakilio: Denis Parisan, area health extension officer, 27.12.01	States that the deceased was stabbed to death by her husband around 5.30 am on Monday 24.12.01 – the deceased was rushed to Kandrian Health Centre at 6.30 am but had already died – dead on arrival – clinically examined the corpse, which revealed that the deceased was wearing a reddish brown blouse with flower patterns (heavily soaked with blood) and a purple laplap. There were eight knife wounds, located on four different parts of the body: Left forearm – sustained three lacerations: ➢ big slash on the anterior part of the arm, 4 cm long, 2 cm wide, 2 cm deep; ➢ palm of hand, 7 cm long, 1 cm deep; ➢ base of pointer finger, 2 cm long, 1 cm deep. ‘These wounds gave impression she was trying to defend herself from the attack with the arm raised’. Breasts – distinct knife wound on each breast tissue, on the upper areas, extending down to the breastbone, each 1.5 cm long. Abdomen – in mid-epigastrium region, 2 cm below the xiphoid process (the lower extremity of the sternum) – this wound was 2 cm long, 9 cm deep, chances of penetrating through the internal structures such as liver, stomach etc, resulting in internal bleeding and distended (swollen) abdomen. Upper lateral trunk of the body – one wound on each side: ➢ right side wound was lateral to the breast at the posterior aspect of the chest, 2 cm long, 4 cm deep, stopping at rib cage and opening between 6th and 7th ribs, causing bleeding and air into the pleural cavity, leading to collapse of lungs; ➢ left side wound was lateral to the breast and directly below the armpit, 4 cm long, 4 cm deep, stopping at rib cage and opening between 7th and 8th ribs, also causing bleeding and air into the pleural cavity, leading to collapse of lungs. There were no signs of mutilation of the genitalia or fractures of bones – other body parts generally intact. Concludes that the deceased died from airway and circulatory collapse because of haemo-pneumothorax and internal and external haemorrhage due to deep multiple penetrating wounds. The deceased was aged about 20 years.
F	Medical certificate of death of Freda Pakilio: Denis Parisan, area health extension officer, 27.12.01	States that he last saw the deceased alive on 23.12.01 – she died at 5.30 am on 24.12.01 at the Kandrian station seafront – he first viewed the deceased after death on 24.12.01 – the body was not the subject of a post-mortem examination – consent of a coroner was not obtained to the issue of the certificate. Certified cause of death as: airway and circulatory collapse; as a consequence of haemo pneumothorax and internal and external haemorrhage; due to deep multiple penetrating wounds. Certified by: Denis Parisan, Diploma in Applied Health Sciences, Health Extension Officer, OIC, Kandrian Health Centre.
G	Witness statement: Constable Petha Yakoyagi, CID, Kimbe Police, 04.01.02	States that he received instructions on 02.01.02 to investigate an alleged murder and interview a suspect – took confessional statement from accused on that day – conducted interview on 04.01.02, in presence of Constable Tau Archie – administered constitutional rights – asked questions of accused, which he freely answered and admitted committing the crime – charged him with wilful murder.
H	Prosecution brief: Constable Petha Yakoyagi, CID, Kimbe Police, undated	Contains allegations as per prosecutor’s opening submission – accused was locked up by local police and later transported to Kimbe – refers to three factual exhibits that were retrieved at the scene.
I	Witness statement: Constable Tau Archie, CID, Kimbe Police, 04.01.02	States that he corroborated the interview of the accused by Constable Yakoyagi at Kimbe on Friday 04.01.02 – accused answered all questions of his own free will.

Denis Parisan was the health extension officer at Kandrian Health Centre from 1999 to 2003. He now holds an office in the West New Britain Provincial Government at Kimbe. He holds a Diploma in Applied Health Sciences, obtained from the College of Applied Health Sciences, Madang, in 1990.

In examination in chief he recalled the early morning incident of 24 December 2001 when a body was rushed to Kandrian health centre by residents of Kandrian Government Station. He received a message to go and attend to the matter at about 6.25 am. By the time he got to the health centre, about five minutes later, Freda Pakilio was dead. He saw her body lying on an outpatients table. He had no idea what had happened but did the necessary examination.

He observed eight wounds. The body was not stiff but floppy. He estimated that she had died 30 to 90 minutes earlier. She was lying face up when he commenced his examination. He first noticed the wounds to the left forearm, being one on the outside aspect and two on the palm of her hand. He then observed a wound on each breast. As she had been wearing a blouse he had to take it off to conduct the examination. The sixth wound was to the abdomen, 2 cm below the chest-bone. He then turned the body over and found another two wounds. One on the right side on the back of the right breast; the other on the left, below the armpit. He adopted his report (exhibit E). He added that on further probing of the wounds, there were bubbles coming out, with blood, indicating that air was coming in and out of the body and that the weapon that was used had penetrated a lung. She had sustained intentional injuries. The points of entry of the serious wounds were near vital organs of the body.

He stated that the accused was brought into the Health Centre about two hours later for the wound he sustained later. He was told that the accused had been taken to the police lock-up after the incident for security reasons. A nurse from the health centre attended to him.

In cross-examination Denis Parisan said that prior to this incident he had prepared six reports for similar incidents but this was the first case that involved knife wounds causing death.

He repeated his opinion that the knife wounds were intentional as they were inflicted on vital parts of the body. The wounds to the palm were not, however, that serious, but of the type that indicated she was in trouble and tried to defend herself. Those wounds were not intentional.

He confirmed that the accused had received treatment at the health centre. He was told that by the duty nurse who treated and then discharged him.

In re-examination he restated his opinion that the three wounds on the forearm were not intentional but the other five major wounds were intentional.

Answering questions from the bench Denis Parisan stated that apart from the wounds to the forearm the other wounds were to parts of the body beneath which were vital organs.

The police investigator, Constable Petha Yakoyagi, gave evidence as to the circumstances in which he obtained a confessional statement from the accused, conducted an interview and prepared a record of interview. When the prosecutor, Mr Rangan, sought to tender the record of interview, the accused’s counsel, Mr Inua, objected, relying on Section 28 of the Evidence Act, which states:

A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.

Constable Yakoyagi was cross-examined as to the propriety of conducting an interview some days after he had obtained a confessional statement. He was also asked about the accused’s wound. Constable Yakoyagi stated that the accused did say something about receiving a wound and it was the deceased who had stabbed him.

Constable Tau Archie also gave evidence and was cross-examined as to his role in the interview. The interview started on 2 January 2002 and was suspended so that the accused could try and make contact with someone in Kandrian. The interview was conducted according to normal procedures. There were no threats or inducements and he gave answers of his free will. He does not recall the accused telling them he sustained a wound.

There was no evidence called for the accused on the voir dire. I heard submissions.

Mr Rangan submitted that the burden of proof lay on the accused on the balance of probabilities to adduce evidence as to the facts relied on. If that burden is discharged the onus shifts to the State to negate the allegations beyond reasonable doubt. Mr Rangan submitted there was no evidence that either of the police officers put undue pressure on the accused or overbore his will. There was no impropriety in obtaining a confessional statement and then some days later completing a record of interview.

Mr Inua stressed that the obtaining of the confessional statement and the completion of the record of interview were spread out over a two-day period. This may or not have been normal procedure but the crucial question is whether the mind of the accused was overborne. It can be inferred from the manner in which the police dealt with the accused that he felt compelled to admit to and confess the offence. He gave the necessary particulars on 2 January 2002. There was no need for him to be re-interrogated two days later on 4 January 2002. That very fact made his mind overborne and means that he gave his confession involuntarily.

I delivered a ruling, refusing the objection to the tender of the record of interview. I applied the principles set out by the National Court (Injia J) in the voir dire ruling in The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00, referred to in The State v John Michael Awa and Others (2000) N2012. That is, the burden of proof is on the accused on the balance of probabilities to adduce evidence as to the facts relied on in support of a claim that a confession has been provided involuntarily. If that burden is discharged the onus shifts to the State to negate the allegations beyond reasonable doubt. The accused presented no evidence and I was satisfied that the burden of adducing evidence of the matters referred to in Section 28 was not discharged. As to the alleged overbearing of the will arising from subjecting the accused to a formal interview even after a confessional statement had been given, I acknowledge that the National Court has expressed misgivings about that practice, eg in The State v Turik [1986] PNGLR 138 (Pratt J) and The State v Turi [1986] PNGLR 221 (McDermott J). However there is no general principle emerging from those cases that it is an intrinsically unfair or unconstitutional practice. The most important thing is that the rights of the detained person under Section 42 of the Constitution are administered. I was satisfied that they were in this case.

The record of interview of the accused was therefore admitted into evidence, as exhibit J, and its contents are summarised in table 2 below.

Exhibit	Description	Content
J	Record of interview: David Yakuye Daniel, the accused, 04.01.02	States that he left his home in Morobe in 1980, when he was a small boy – normally stays with Jack Narom in Kandrian – he had been married to Freda for six months, but had yet to pay bride price – between 6.00 and 7.00 am on 24.12.01 he was at the health centre and saw Freda go to the toilet at the seafront – followed her there but there was another lady with her so he waited for her – he wanted her to tell him the truth about her wrongdoings so that they could go to the police station and sort it out – she was frightened about coming out so he went to look for her – she started to argue with him – he told her that he did not come to argue but to compromise – she asked him for the knife and told him that if she told him the truth he might stab her – he gave her the knife – she then said ‘do you want me to tell it out now?’ – she then stabbed herself once in the chest – he then tried to get her to release the knife – but she then stabbed him once in the chest – then he pulled the knife from his chest and stabbed her three times (once on her back; once on her side ribs; once on her breast) – he was then about to faint so he ran to the house where he fell and from there he was taken to the health centre – he pulled her away to a hidden place where nobody would see them – he stabbed her because she had stabbed him and he knew that he was going to die – denied that he was so angry with his wife about their problem that he carried the knife, to stab her – he planned to stab her so that no witnesses would see them – when he stabbed Freda his intention was, he had already been stabbed, so they would just die together – denied stabbing her eight times – he only stabbed her three times and she stabbed herself once – he was shown and he identified the following: small knife with blood stains which he used to stab Freda; Freda’s meri-blouse that she was wearing when he stabbed her, bloodstained; Freda’s pink laplap that she was wearing when he stabbed her.

The evidence of the two police officers that was heard for the purposes of the voir dire also became evidence in the trial proper (The State v Kusap Kei Kuya [1983] PNGLR 263, National Court, Pratt J; The State v Raphael Walimini (2004) N2627, National Court, Sevua J.)

The accused elected to give sworn evidence and subject himself to cross-examination.

In examination-in-chief he stated that his parents died when he was young and he was adopted by people in Kandrian. He married the deceased, who was from Kandrian, in 2000 or 2001. They had no children. Initially it was a good marriage. But then in about July 2001 she started being unfaithful by going out with another man, named Titus. The accused told her that he did not like what she was doing to him. But he did not do anything else about it, as he loved his wife very much. She used to respond by pointing out that the accused had not yet paid bride price for her. Three times he was told by his foster parents about what was going on.

On the fourth occasion, on 23 December 2001, he saw it with his own eyes when he broke down the door of Titus’ house where his wife and Titus had gone to have sex, and they both ran out naked. He did nothing else other than going to see a police officer to tell him that his wife was having an affair and that he wanted to go to the police station to sort it out. The police officer said to wait until Monday. So he went home and told his wife that they should go to the church so that she could confess and God could forgive them. She started arguing. Then later he went to church. She came too but did not come inside. He confessed to the priest himself over what had happened. That night, Sunday 23 December 2001, he saw her at their house and she again argued with him so he slapped her and she ran away to her uncle’s house.

The next morning he got his small knife and was preparing some betel nuts and lime. He went to the toilet and was thinking about visiting a sick uncle at the hospital. He went there, found his uncle and aunty, and shared some betel nut with them. His aunty told him that his wife had gone down to the toilet. So he told his aunty to wait and boil some tea and he would go and tell his wife that they must get to the police station to sort out their problem.

He was standing on the main road, waiting for his wife to come out of the toilet. She saw him but was afraid. She walked back down to the beach. He followed her and told her he was not angry with her and she should not be afraid; he just wanted them to sort out the problem that day as she had been unfaithful too many times. She argued with him again, telling him to look for another wife. He said Titus had already admitted their affair and given him shell money and K50.00. He said they must go to the police station. She said that she would tell him everything that she and Titus had been doing if he gave her the knife. So he threw her the knife. She asked him if he wanted her to tell him everything. He said yes. Then she suddenly stabbed herself in the chest. He then ran to her to get the knife from her but she pulled it out and he ran straight into it.

The accused, in the course of giving his evidence, opened his shirtfront and displayed a scar in the middle-lower chest, which he said was where he had been stabbed.

He continued his evidence by stating that he struggled with his wife to get the knife away from her, thinking that if she twisted it she might injure his internal organs and he might die. He got the knife from her but does not know what happened next. He was not thinking straight and does not know exactly where he stabbed her. But he stabbed her three times.

He was losing blood and feeling dizzy. He tried to run to the hospital but could not make it so he ran to his house, about 150 metres from the hospital, and fell down unconscious. He has since been told that the police vehicle came and took him to the hospital where he stayed for about three hours and was put on a drip. He was also told that the health extension officer came to check him and took the drip out and told the police to take him to the police station. He was locked up in the police cell for a week before being transferred to Kimbe. The tip of the knife had penetrated through the front of his body and touched his backbone and all the fat had come out.

In cross-examination the accused stated that on the morning of Monday 24 December 2001 he had not gone looking for his wife but his aunty had told him that she was down at the beach. He went to the main road to wait for her. She saw him standing there, then walked down to the beach and that is where he met her. He walked about five metres away from her and was talking to her. He was that distance away from her when he threw her the knife. It landed on the ground and she picked it up.

He is sure that she stabbed herself. Then when he ran to her to get the knife from her, to save her, she pulled it out from her body and stabbed him and the knife went through to his backbone. He held her and then she let go of the knife and he pulled it out of his chest by himself. He does not feel too much pain with this injury now. He has no medical report and he does not know why the health extension officer did not prepare one. He does not know exactly what he did to her. He went to his house because he was thinking about saving himself. He was losing a lot of blood.

The prosecutor asked the accused to show his wound again, so he again lifted his shirtfront. It was agreed that the scar was to the left of the centre-line between the stomach and the chest, about two centimetres in length.

The accused stated that nobody else was present when the incident happened. The people who arrived later and took his wife’s body to the hospital do not know what happened. He loved his wife very much and he did not mean to kill her.

Mr Inua stated that the following facts were not disputed: the accused stabbed the deceased; she died as a result of the knife wounds inflicted by the accused; and the accused caused the death of the deceased. However, the accused is not criminally liable for her death as he acted in self-defence or he was provoked.

The court should consider the evidence carefully. The record of interview should be given little weight. Although it was admitted into evidence against objection, there is still some suspicion attached to it. The confessional statement should be preferred as it is generally consistent with the accused’s sworn evidence.

The basic evidence in the health extension officer’s report – that there were eight wounds inflicted – is not contested. The report can be interpreted in a way that is consistent with the accused’s sworn evidence, that he only stabbed the deceased three times. The court should find that:

However, if the court considers interpreting the report in a way contrary to the accused’s version of events it should be cautious. It would be unfair to give the report too much weight for the purposes of concluding how the deceased was stabbed as the post mortem examination of which it purports to be a record was carried out by a person who is not a qualified medical practitioner. Furthermore it was the health extension officer’s first post-mortem, so he was inexperienced.

The court should prefer the evidence of the accused for two reasons. First there are no eyewitnesses and, as the accused is charged with the most serious of all crimes, the State should have produced eyewitnesses. It has not done that. There is no primary evidence. The evidence is not sufficient to sustain such a serious charge. Secondly the accused’s demeanour was that of a credible witness. He was calm and composed in the witness box and his story was not too incredible to believe.

As the accused has given evidence of self-defence the onus is on the prosecution to disprove the elements of the defence beyond reasonable doubt. However that has not been done. The evidence is that the accused was unlawfully assaulted; he did not provoke the assault; the assault caused him to reasonably apprehend that he would die or suffer grievous bodily harm; he believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; he only used such force as was necessary for his defence. At the time that he committed the acts that caused the death of the deceased he was as harmless as a dove. He realised that it was the deceased who had the power to kill him, so he did what he did to preserve himself from being killed. He removed the knife from the grasp of the deceased and applied it to her. He did not have time to think what was reasonable, necessary, and appropriate. The court should consider the accused’s actions from the point of view of someone who was placed in a very difficult situation. He had to act quickly in a space of a few seconds and did not have the luxury of time to analyse what was reasonable and necessary. If he did not act in the way that he did, he would have been killed or suffered grievous bodily harm.

If the court rejects self-defence, the alternative submission is that the defence of provocation applies. Again the prosecution has to disprove the elements of the defence. Again, that onus has not been discharged by the prosecution. The accused acted in the heat of passion in the relevant sense referred to in Section 303 of the Criminal Code. There was an accumulation of passion arising from the deceased having had a long-running affair with another man; the deceased resisting the accused’s attempts to have their marital problems sorted out by peaceful means; the accused catching the deceased red-handed with the other man; and the deceased arguing with the accused immediately before the incident, culminating with the deceased stabbing the accused. The accused was not acting out of mere anger, he was out of control. The court should apply the test of provocation in the leading cases, R v Moses-Robert [1965-1966] PNGLR 180 and The State v Tresca Waime (1981) N305, National Court, Kidu CJ.

Mr Rangan submitted that the elements of wilful murder were present. This was a case of killing, not by accident but by intention. It was a vicious attack, resulting in eight distinct wounds. It was no accident and there was a motive, as the deceased had befriended another man.

The record of interview contains admissions on which the court can place weight. It was put to the accused that he had pulled the deceased away and stabbed her. He replied: ‘yes I pulled her to a hidden place where nobody would be able to see us’ and ‘yes I planned to stab her so that no witnesses would be able to see us’ (exhibit J, question-and-answer Nos 21 and 25). The record of interview is in evidence and the defence has established no good reason for it to be treated with suspicion.

Though the accused has maintained in his confessional statement, record of interview and sworn evidence that he was stabbed first, the court should not believe that he was stabbed by the deceased. First, he has been vague about where he was stabbed (whether it was the chest or the stomach). Secondly, his claim that the knife went through to the backbone is medically unacceptable as if that were true he would be a dead man. Thirdly, the accused’s evidence that he ran straight into the knife is impossible to believe. Fourthly the health extension officer’s report and oral evidence clearly distinguished between intentional wounds and those that may have been sustained by the accused when trying to defend herself and did not leave open the possibility that any of the deceased’s wounds were self-inflicted. Fifthly the accused was selective in his recall of what happened. On the one hand he says that he only stabbed the deceased three times. On the other hand he says that he was virtually unconscious and cannot remember clearly what happened. But then he can remember going to his house afterwards.

As to the accused’s evidence that when he was at the hospital the health extension officer removed the intravenous drip and the police then took him away, it is all hearsay and ought not to be given any weight.

Mr Inua submitted in reply that if the accused had stabbed the deceased more than three times the case would be different. However the evidence is that he only stabbed her three times. The accused was clearly wounded. He displayed the wound to the court. There is an explanation for the lack of a medical report on his wound: he was brought to Kimbe soon after the incident and he was in custody and he did not have relatives and friends who were able to help him obtain a report.

Mr Inua reiterated that the court should be very cautious in making findings on the basis of some of the admissions in the record of interview as it is too incredible for someone to admit those sorts of things.

The accused has been charged with wilful murder. The prosecution therefore has the onus of proving beyond reasonable doubt that:

They are the three elements of the offence. They are subject in this case to three other things. First, the defence of self-defence, which exists under Section 269 of the Criminal Code. Secondly, the defence of provocation, which exists under Section 303 of the Criminal Code. Thirdly if the court is not satisfied that all elements of wilful murder are proven, an alternative verdict of murder or manslaughter can be entered under Section 539.

In assessing the evidence the first thing I will do is comment on the credibility of the main items of evidence.

It was tendered by consent. The accused’s counsel did not submit that it contained any errors. It contains some admissions but also contains a version of events that the accused has stuck to: that the deceased stabbed him first and that he only stabbed her three times. I am satisfied that this is an accurate account of statements made by the accused to the police. The truth of those statements still has to, however, be carefully considered.

It was admitted into evidence against the objection of counsel for the accused. It contains incriminating statements over and above those contained in the confessional statement. Counsel for the accused submits that there is still some suspicion to be attached to this document. I think suspicion is not the right word to be used to convey the submission that he made. I think what he meant to submit was that the court should exercise some caution in attaching weight to what seem to be damming admissions recorded in the document. I accept that that is the case. Clearly the contents of the record of interview need to be carefully considered.

These documents, prepared by health extension officer Denis Parisan, give the appearance of being comprehensive and competent accounts of the death of the deceased. The author of those documents gave oral evidence in chief and was subject to cross-examination. The credibility of the documents was undiminished by his oral evidence. Indeed I consider that he gave his evidence with clarity and authority. It was not suggested that he prepared the documents through any improper motive. Nor was it put to him in any effective way that he lacked the competence to prepare the documents.

Mr Inua suggested, somewhat abstrusely, that if the court were minded to interpret the medical report in a way that did not support the accused’s version of events, it should be careful and take into account that Mr Parisan was not a qualified medical practitioner and by his own admission was not experienced in post-mortem examinations. I do not consider that that is a good way for the court to approach the issue of assessing the credibility of evidence. The court must take into account the factors highlighted by Mr Inua irrespective of whether it is favourable to one side or the other. The question is whether the medical report and certificate of death appear to be credible documents, given that they have been prepared by someone who is not a medical practitioner and not experienced in conducting post-mortem examinations.

The answer in my assessment is ‘yes, they are credible documents’. Their credibility was enhanced by the oral evidence of their author. In my view it is inconsequential that Mr Parisan is not a medical practitioner. He is a qualified heath extension officer. There are many parts of Papua New Guinea where the local public health system depends on people like him for effective operation. Doctors are not accessible. It is reasonably to be expected that health extension officers will by necessity perform what are, in effect, post-mortem examinations. The report of a health extension officer as to the examination of a dead body and containing an opinion as to the cause of death can be good evidence, notwithstanding that the person is not a qualified medical practitioner. The court must be cognisant of the circumstances of rural Papua New Guinea where doctors are often not available.

The health extension officer gave evidence in chief and was cross-examined and gave evidence confidently in a way that suggested he was a competent and experienced officer. I therefore attached considerable weight to the medical report, the medical certificate of death and the oral evidence of Denis Parisan.

Assessment of the credibility of a witness, especially an accused person, is an intuitive process. The accused gave his evidence calmly. He did not hesitate or pause unduly when asked penetrating questions in cross-examination. His credibility was not instantly destroyed by cross-examination. His demeanour was not that of someone who was an out-and-out liar. However a number of the answers that he gave, particularly to questions about his claims that the deceased stabbed herself first and then stabbed him, extended so far beyond the limits of believability that ultimately they undermined his credibility as a witness of truth to the point that on the contentious and material issues of fact I did not believe him.

There was an incident near the seafront at Kandrian Government Station on the morning of Monday 24 December 2001, between 6.00 am and 6.30 am. A young woman, Freda Pakilio, died following an altercation with her husband, the accused David Yakuye Daniel.

Prior to the incident the accused and the deceased had been married for about a year. They had no children. Half way through 2001 tension developed in the marriage. The accused was told that the deceased was having a relationship with another man. This tension resulted in arguments between the accused and the deceased.

On 23 December 2001 the accused followed the deceased and her friend to the friend’s house and then interrupted them while they were allegedly having sexual intercourse. This led to a further argument between the accused and the deceased. The deceased repelled the accused’s attempts to have their marital problems and her alleged unfaithfulness sorted out by the church or the police. On the night of 23 December 2001 the accused and the deceased argued again at their house. He slapped her on the face and she fled. He did not see her again until early the next morning. I point out that there was no corroboration of this part of the evidence. But it is something that has been consistently maintained by the accused in his confessional statement, record of interview and oral evidence. It has not been challenged by the prosecution. Therefore it is regarded as undisputed.

On 24 December 2001 the accused woke at his house about 5.45 am, went to the Kandrian Health Centre where his uncle was a patient and met his uncle and his aunty. His aunty told him that his wife was down at the beach. So he went to the seafront to find her and talk again about sorting out their problems.

The deceased went inside a toilet. He waited outside. She saw him, was afraid, and did not come out immediately. Eventually she came out and that is when the altercation occurred, resulting in the death of the deceased.

At least seven of the wounds (all except the wound to the abdomen) were inflicted by the accused, using a wooden-handled knife with an 18-centimetre blade. There is a dispute about the wound to the abdomen. The prosecution asserts it was also inflicted by the accused. The defence asserts that it was self-inflicted prior to the other wounds being inflicted. There is also a dispute about the force used by the accused. These issues are addressed later.

The deceased tried to defend herself and at least three of the wounds – those to the left forearm – were inflicted in that way.

The deceased died within a matter of minutes after being stabbed. She was rushed, by persons unknown, to Kandrian Health Centre but was dead on arrival at about 6.30 am.

It was the stab wounds that caused her death. In particular, relying on the medical report and death certificate, the cause of death was airway and circulatory collapse as a consequence of haemo pneumothorax and internal and external haemorrhage, due to deep multiple penetrating wounds. That is, she died of collapse of the lungs and bleeding into the chest, and loss of blood at other sites.

The wounds that directly led to death were those to the abdomen (a single wound, 2 cm long, 9 cm deep) and to the upper lateral trunk of the body (right side, 2 cm long, 4 cm deep; left side, 4 cm long, 4 cm deep).

I will now address the contentious material issues of fact and make findings of fact. In doing so I have placed the onus on the prosecution to prove these facts beyond reasonable doubt. I make observations on the credibility of the defence evidence, cognisant at all times that the fundamental responsibility of proving facts relevant to the elements of the offence is never removed from the prosecution. The onus never shifts to the accused to prove his innocence (The State v Herman Kabai (1997) N1611, National Court, Batari AJ).

I accept Mr Inua’s submission that the court must insist on a very high standard of proof, as the accused is charged with the most serious offence in the criminal law of Papua New Guinea. I quizzed Mr Inua when he put that proposition in a way that may have indicated that I did not accept it. I have since considered and researched the issue and I am satisfied that it is correct. In all criminal cases the required standard of proof is beyond reasonable doubt. However there are degrees of proof within that standard. The more serious the charge, the higher the degree of proof required (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L), National Court, Wilson J).

Wilful murder is the most serious offence a person can be charged with in Papua New Guinea as conviction makes the person liable to be sentenced to death. Therefore the court must insist on the highest degree of proof, within the standard of beyond reasonable doubt, that is known to the law. That does not, however, entail an obligation that the State prove its case beyond a shadow of a doubt. Nor does it mean that eyewitness evidence is necessary. I reject Mr Inua’s submission on that particular point.

I have paid close regard to the fact that the case against the accused relies to some extent on circumstantial evidence, he being the only eyewitness to the incident who gave evidence. I accordingly make findings of fact adverse to the accused only where such findings are the only rational inference that the circumstances would enable me to draw (The State v Tom Morris [1981] PNGLR 493, National Court, Miles J).

The record of interview states that the accused admitted this, in his answers to questions 1 and 2. However there is a paucity of evidence as to the exact place at which the altercation between the accused and the deceased took place. No sketch plan of the site of the incident has been provided. No evidence on this factual issue has been presented. There is no evidence of who found the deceased, where she was found, whether any screams or other sounds were heard, whether anybody witnessed the altercation or whether she was still alive when found (the only evidence is that she was dead on arrival at the health centre). In these circumstances I am persuaded by Mr Inua’s submission that the court should exercise caution in accepting the veracity of this particular admission.

The answer to the question posed is ‘no, there is insufficient evidence that the accused pulled the deceased to a hidden place where he would not be seen’.

The accused has maintained that he threw the knife to the deceased, as she was afraid of telling him the truth about her affair with the other man while he was holding it. She asked to be given the knife, so he threw it to her. Then she stabbed herself with it in the chest. Mr Inua asserts that this explains the single wound to the abdomen. When the accused referred to the chest, he was using the general meaning of that word. I accept Mr Inua’s submission on that point.

However I do not accept the evidence that the deceased stabbed herself in the abdomen, or anywhere else. The abdomen wound, at 9 cm, was the deepest of the eight. I consider that it is a physical improbability for a person to be able to inflict such a deep and fatal wound to themselves.

Besides that I do not think the accused gave a convincing account of how this happened. He testified that she was afraid of him and asked to be given the knife for that reason. He did not say that she was in a state of anguish, that she was crying or in any way disturbed to the point where she was out of control. In the evidence he gave about their unhappy marital relationship, consistently with his confessional statement and record of interview, he gave no account of the deceased being unbalanced or emotionally unstable or ashamed of her conduct. Quite the opposite, in fact. The impression given by his evidence is that she had no shame, she was defiant, she did not want to resolve their problems, she was in love with somebody else and she told him to find another woman. Those are not the actions of a woman who would suddenly engage in self-mutilation or suicide.

In rejecting the accused’s evidence I have also taken into account the medical report and oral evidence of Denis Parisan, which did not canvass the deceased stabbing herself as a possibility.

The answer to the question posed is ‘no, the deceased did not stab herself’.

The accused says that when he saw the deceased stab herself, he ran to her aid only to have her hold out the knife she had just stabbed herself with and he ran into it.

I have just rejected the evidence that she stabbed herself and I reject the accused’s evidence that he was stabbed by the deceased for similar reasons. Assuming for the moment that the deceased did stab herself, it is very difficult to believe that immediately after having done that and inflicted a 9 cm deep wound into her abdomen she would have the strength to extract the blade of the knife from her body, turn it around and point it at the accused and do that so quickly that when coming to her assistance he would not be able to avoid it. It is so improbable as to be unbelievable.

The accused testified that when she stabbed him the knife went through to his backbone. I am persuaded by Mr Rangan’s submission that that evidence is also not believable. If it were true, the accused would surely have died instantly or required major surgery or other medical treatment to remedy the wound.

There is no other evidence to corroborate this part of the accused’s evidence. It is not in dispute that he was admitted to the health clinic on the morning of the incident. But there is no evidence as to the reason for his admission. No admission notes or medical reports are in evidence. Mr Inua submitted that there were reasons for that: the accused had none of his own people in Kandrian who could arrange to get those things and he was in custody and taken to Kimbe shortly after the incident. These are not proper reasons. The accused gave evidence that on the morning of the incident he was visiting his sick uncle at the hospital where he also saw his aunty. So he does have relatives in Kandrian.

Mr Inua also said that arrangements had been made for the nurse who treated the accused to give evidence, but she was unavailable at the last minute. I accept that to be the case and the trial was adjourned for that reason. But the evidence was not forthcoming.

This lack of evidence strengthens the conclusion that the deceased did not stab the accused and that the wound he appears to have sustained was self-inflicted.

Assuming for the moment, however, that the deceased did stab the accused it is evident that it was not, in comparison to the wounds suffered by the deceased, a serious wound. He was in the health centre, according to his evidence, for a few hours, before being transferred to the police lock-up. He appears to have made a speedy recovery, in spite of the stoppage of the treatment. Four years later he has a small scar on his abdomen.

I conclude that the answer to the question posed is ‘no, the deceased did not stab the accused, but if she did, she did not inflict a serious wound’.

The accused maintains that he stabbed the deceased only three times. By that it appears he means that he only forcibly stabbed her three times and this accounts for the two wounds to the upper lateral trunk. His evidence appears to be, as submitted by Mr Inua, that he stabbed the deceased twice on the left side, causing a longer wound of 4 cm, compared to the right side where the wound was only 2 cm long. The submission is that the other wounds were either self-inflicted (the wound to the abdomen) or sustained by the deceased moving about to defend herself (the three lacerations to the left forearm and the two wounds to the breasts).

I have already rejected the contention that the deceased stabbed herself. As to the other seven wounds I find that only the three wounds to the left forearm were caused by the deceased moving about to defend herself. There is no evidence to support the conclusion that the breast wounds were not forcibly inflicted. Each wound was 1.5 cm long and extended down to the breastbone and it is therefore reasonably to be inferred that they were inflicted with considerable force. Denis Parisan’s medical report refers only to the lacerations to the left forearm when it indicates that some wounds were apparently caused by the deceased trying to defend herself.

I conclude that the accused forcibly and intentionally stabbed the deceased five times.

It is necessary to consider this as a disputed issue of fact in view of Mr Inua’s submission that when the accused stabbed the deceased, it was immediately after he had been stabbed by her, he was in fear of his life and ‘as harmless as a dove’.

The accused in evidence stated that he was thinking that if the deceased twisted the knife that was inside him he might die. So he got the knife from her and does not know what happened next. He felt dizzy. In his confessional statement and record of interview he said he felt like fainting. The submission therefore appears to be that he, in effect, lost consciousness or control over his actions.

I reject that submission. I have already rejected key aspects of the accused’s evidence – that the deceased stabbed herself first and then stabbed him. I cannot believe key parts of his evidence.

I conclude as a fact that the accused at the material time was conscious of and in control of his actions.

I pose this question as a determination of it will assist in determining whether the third element of the crime of wilful murder is present.

I consider that there is insufficient evidence to conclude that the accused deliberately followed or stalked the deceased with the intention of attacking and killing her. So the answer is no.

I refer here to Section 391 (definition of killing) of the Criminal Code which states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

This issue has been conceded by the defence. I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by stabbing her. The medical evidence supports this finding.

The accused states that he acted in self-defence. Mr Inua argues that it is a complete defence under Section 269(2) of the Criminal Code.

(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.

(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.

The court needs to be satisfied that the following elements of the defence exist:

If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant. (See The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316.)

Once the accused puts evidence of self-defence the onus rests on the prosecution to disprove the defence. The leading case is R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, in which Frost J stated:

As to onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present.

That principle has been applied in many subsequent National Court cases, including The State v Angela Colis Towavik [1981] PNGLR 140, Miles J; The State v Misari Warun (1989) N753, Brunton AJ; The State v Leah Tununto (1990) N947, Brunton AJ; The State v Leonard Masiap [1997] PNGLR 610, Sevua J; The State v Rose Yapihra (1997) N1741,, Bidar AJ; The State v Michael Nema Melpa (2003) N2450, Jalina J; The State v Matilda Edward (2004) N2726, Davani J; and The State v Albert Gias (2005) N2812, Cannings J.

There is sufficient evidence before the court for the accused to legitimately raise it as a defence. Whether it is a valid defence depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exist.

The prosecution must prove that the answer to one or more of these questions is ‘no’. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

As to question 1 Mr Rangan submitted that the accused was not unlawfully assaulted. The court should not believe that the accused was stabbed by the deceased. I accept that submission for the reasons stated above in relation to the first and second disputed issues of fact. Question 1 is answered no. The defence of self-defence therefore does not operate. However for the sake of completeness I will address the other issues.

As to question 2 I am satisfied that there was no assault by the deceased upon the accused. Assuming, however, that she did assault him, I would have found that he had provoked the assault by the manner in which he was following her. Question 2 is answered no.

As to question 3 I have concluded that the deceased did not assault the accused. Assuming, however that she did, it was not a serious wound. Question 3 is answered no.

As to question 4, assuming that the deceased stabbed the accused, which would also entail the assumption that she had stabbed herself first, the accused could not reasonably believe that there was no other way to preserve himself. He could have simply walked away and gone for help. Question 4 is answered no.

As to question 5, and again assuming that the deceased stabbed the accused first, his response was entirely out of proportion to what had happened to him. Question 5 is answered no.

The result is that the prosecution has disproved to the required standard of proof all elements of the defence of self-defence. The prosecution did not have to disprove all elements. One was sufficient. The prosecution, in particular, disproved the first one beyond reasonable doubt. Therefore the defence of self-defence does not apply.

WAS THE ACCUSED’S KILLING OF THE DECEASED AUTHORISED, JUSTIFIED OR EXCUSED BY LAW?

This is the second element of the crime of wilful murder. I am satisfied that the prosecution has proven beyond reasonable doubt that the accused’s act of killing the deceased was not authorised, justified or excused by law. This element of the crime has been established.

As the accused’s primary defence of self-defence has been rejected I will now consider the alternative defence that has been moved, provocation.

Mr Inua argues that the accused was provoked into doing what he did by the conduct of the deceased over a long period. He rightly points out if the elements of provocation exist, it is a partial defence under Section 303 of the Criminal Code in that the accused will be convicted of manslaughter, not wilful murder.

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only.

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

In the present case the court needs to be satisfied that the following elements of the defence of provocation exist:

If all those elements exist the accused will be guilty of manslaughter only, not wilful murder. As to the meaning of sudden provocation, the following requirements apply:

Once the accused puts evidence of provocation then, as in the case of self-defence, the onus rests on the prosecution to disprove the elements of that defence.

As with the defence of self-defence the prosecution must prove that the answer to one or more of these questions is ‘no’. If it cannot do this, all elements are presumed proven and the defence of provocation will operate (R v Nikola Kristeff (1967) No 445).

As to question 1 the test is whether the accused had ceased to be the master of his or her understanding. It is not enough that the accused was very angry. It must be a case of passion replacing reason (R v Oa [1967-1968] PNGLR 1). I consider that the prosecution has proven, to the required standard, that the necessary conditions did not exist. Though I have concluded that this was not a premeditated attack on the deceased, the prosecution has proven that the accused was conscious of and in control of his actions (see contentious factual issue No 5, above). I conclude that the accused did not stab the deceased in the heat of passion. Question 1 is answered no. The defence of provocation therefore does not operate. However for the sake of completeness I will address the other issues.

As to question 2(a) the prosecution has not proven that the deceased did not do a wrongful act. The evidence that the deceased was having an affair was provided by the accused and it was not controverted. Mr Rangan conceded that there was a motive for the accused’s actions as the deceased had befriended another man. Question 2(a) is therefore answered yes.

Questions 2(b) and 2(c) introduce requirements of objectivity into the defence of provocation. The issue is not simply whether the deceased’s wrongful act caused the accused to lose self-control, but whether her act was of such a nature as to cause an ordinary person – an ordinary Morobean living in Kandrian and married to a local woman – to lose his self-control and stab her in the way that he did (The State v Inawai Moroi [1981] PNGLR 132, National Court, Kearney DCJ). I accept Mr Inua’s submission that the court should, applying Tresca Waime, look at the entire sequence of events leading up to the acts causing death when adjudging how an ordinary person would have reacted. I have done that and I am satisfied that the prosecution has proven beyond reasonable doubt that an ordinary person would not have reacted in the way that the accused did. An ordinary person faced with the difficult marital situation that the accused was in, would not have reacted in the violent and savage way that he did. I am satisfied that there was no assault by the deceased upon the accused. Questions 2(b) and (c) are answered no. That means the prosecution has proven that there was no sudden provocation. This is another reason that the defence of provocation cannot succeed.

As to question 3 I consider that the prosecution has proven that the accused stabbed the deceased after there was time for his passion to cool. Question 3 is answered no.

The result is that the prosecution has disproved to the required standard of proof all elements of the defence of provocation. The prosecution did not have to disprove all elements. One was sufficient. The prosecution, in particular, disproved the first one beyond reasonable doubt. Therefore the defence of provocation does not apply.

DID THE ACCUSED INTEND TO CAUSE THE DEATH OF THE DECEASED OR SOME OTHER PERSON?

This is the third and final element of wilful murder. There is no issue about whether the accused intended to kill some person other than the deceased. The only question is whether he intended to kill the deceased. I will apply the principles set out by Injia AJ, as he then was, in the National Court in The State v Raphael Kuanande [1994] PNGLR 512:

Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence. [Emphasis added]

Having examined the course of conduct of the accused before, when and after he stabbed the deceased, I am not satisfied that the prosecution has proven beyond reasonable doubt that he intended to kill her. Although that inference is capable of being drawn having regard to the evident ferocity of the attack and the depth and number of stab wounds inflicted by the accused, the prosecution has fallen short of establishing that inference to the required standard of proof.

The prosecution should have paid more attention, in particular, to the knife that was used by the accused. It was admitted into evidence. It was repeatedly referred to by the accused in his confessional statement, his record of interview and his sworn evidence, as a small knife that he was using to prepare betel nut. That description of it was not tested by the prosecution. The knife was not subjected to any rigorous forensic examination. Perhaps that should have been done as it may have revealed that the knife was not small and not of a type ordinarily expected to be used for preparing betel nut. However it was not done and therefore I will not have regard to the qualities of the knife as tending to show that the accused had an intention to kill the deceased with it.

I have already found that the accused had no premeditated plan to kill the deceased (see contentious factual issue No 6 above). He gave evidence of his attempts to sort out the marital problems he and the deceased were having and that evidence was not contradicted.

I answer the question posed ‘no, the accused did not intend to kill the deceased’. He is therefore not guilty of wilful murder. I must now consider whether an alternative verdict should be entered.

This is the only issue of law remaining. I will address it by applying two provisions of the Criminal Code: Sections 539(1) and 300(1)(a).

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: ...

if the offender intended to do grievous bodily harm to the person killed or to some other person.

I am satisfied that the prosecution has proven beyond reasonable doubt that the accused intended to, at least, cause grievous bodily harm to the deceased. This means due to the combined effect of Sections 300(1)(a) and 539(1) of the Criminal Code that the accused is guilty of murder.

The order of the National Court is that David Yakuye Daniel is convicted of the murder of Freda Pakilio.

Lawyer for the State : Public Prosecutor
Lawyer for the accused : Paul Paraka Lawyers

National Court of Papua New Guinea

State v Daniel [2005] PGNC 89; N2869 (15 July 2005)