N4963
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1483 0F 2006

THE STATE

V

SAILAS AITA ANJIPI

Bialla: Cannings J
2007: 14, 16 March

CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, homicide etc – Section 300, murder – trial – elements of murder.

CRIMINAL LAW – defences to 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.

The accused was charged with the murder of his son-in-law. It was alleged that the deceased came to the accused's house late at night to pay a visit, the accused heard a noise, went outside to investigate and upon seeing it was his son-in-law slashed him on his forearm with a bushknife. The son-in-law died of blood loss early the next morning. The accused admitted slashing his son-in-law but claimed that he was acting in self-defence.

Held:

(1)	The State proved beyond reasonable doubt that the accused caused the death of the deceased. The first element of murder was proven.

(2)	When determining whether the defence of self-defence applies, if the defence adduces sufficient evidence to legitimately raise the defence the prosecution has the onus of proving beyond reasonable doubt that at least one of the elements of the defence did not apply. R v Nikola Kristeff (1967) No 445 applied.

(3)	The onus was not discharged as the accused's evidence that the deceased attacked him first was plausible and none of the elements of the defence was disproven. Self-defence therefore applied.

(4)	The accused was found not guilty of murder. Self-defence is a complete defence and by virtue of Section 270(1) of the Criminal Code the accused was not criminally responsible.

Cases cited

The following cases are cited in the judgment:

R v Nikola Kristeff (1967) No 445
Tapea Kwapena v The State [1978] PNGLR 316
The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

This was the trial of an accused charged with murder.

Counsel

F Popeu, for the State
O Oiveka, for the accused

16 March, 2007 

1. CANNINGS J: This is the verdict for a man who pleaded not guilty to murder under Section 300(1)(a) of the Criminal Code. The incident giving rise to the charge took place at Barema, near Bialla, West New Britain, in August 2006. It is alleged that the deceased, Peter Steven Paitakai, came to the accused's house late at night to pay a visit, the accused heard a noise, went outside to investigate and upon seeing it was his son-in-law slashed him on his forearm with a bushknife. The son-in-law died of blood loss early the next morning. The accused admitted slashing the deceased but claimed that he was acting in self-defence.

THE LAW

2. Section 300(1)(a) (murder) states: 

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.

THE STATE'S CASE

3. The State tendered 13 exhibits by consent. No oral evidence was called. Column 1 of table 1 below gives the exhibit number; column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS

Exhibit	Description	Content 	
A	Witness statement: Diana Sailas	Deceased's widow/accused's daughter – saw the deceased earlier in the day and told him to come to the house in the afternoon – but he did not come in the afternoon – after dinner, stayed awake, listening to the radio – heard the deceased, Peter, come, late at night – a few moments later the accused told her that Peter had cut him with a bushknife – the accused would not let her go and check up on her husband's condition – her uncle later came and told her to go and check up on Peter – she saw him: his right hand was almost chopped off – no transport available.

She had been married to the deceased for one year – no problems except her mother (the accused's wife) used to get angry with the deceased over bride price and call him lazy – her mother chased Peter from the block where she lived with her parents.	
B	Witness statement: Luke Simon	Difficulties in getting transport.	
C	Witness statement:
Jacksy Mas	Difficulties in getting transport.	
D	Witness statement:
Manuel Keisu	The deceased was staying with him at Section 20 – after the family went to sleep Peter left and came back later with a badly wounded right arm – transport difficulties.	
E	Affidavit:
Sgt Lawrence Raka	Deposes to police investigation.	
F	Bush knife	70 cm, wooden handle tied with black tyre tube.	
G	Affidavit:
Const Vincent Patemio	Deposes to police investigation.	
H	Affidavit: Dr Stephen Topaleku	Post-mortem: cause of death: blood loss due to knife wound to right forearm.	
I	Statement: 
Det Const 
Benson Gope	Interviewed accused.	
J	Statement:
Const Michael Nawi 	Corroborated interview.	
K1, K2	Record of interview: 
21.08.07	Conducted three days after the incident – 50-year old blockholder, married with two children – lives at Barema Section 20 – incident happened at 10.00 pm on Friday – heard noise outside, thought it might be thief, armed himself with bow and arrow and bushknife, went outside to investigate – deceased charged at him with a bushknife in his hand – swung it at his face – he blocked it with his bow – he immediately responded by swinging his bushknife at him – deceased swore at him – called his wife and daughter and told them that Peter had attacked him with a bushknife and ran away – later Peter's relatives came and started destroying house and properties – he fled into the bush and waited until daybreak, then reported the incident to the police.

Asked further, he said he did not know why the deceased came to his house that night – did not have time to ask because as soon as he went outside he was attacked – he was not angry when he came out of the house nor was he angry about the bride price – gave his bushknife to the police.	
L	Sketch map	2 pages, hand-drawn showing crime scene.	
M	Confessional statement: 19.08.07	When he came outside he sat down near the flowers – otherwise same story as in ROI.	

THE DEFENCE CASE

4. The accused elected to remain silent. No evidence was called.

SUBMISSIONS FOR THE STATE

5. Mr Popeu submitted that it was not in dispute that the deceased went to the accused's house and that the accused came out of the house armed. The deceased died due to the injuries inflicted by the accused. The deceased was not living with his wife who had remained living with her parents as there had been a dispute about bride-price. The State disputes that the deceased started an altercation with the accused and therefore that the accused acted in self-defence. There is no evidence that the accused was wounded. There is no evidence apart from what the accused said himself that he acted in self-defence. Also there is no evidence that deceased had a reason to attack the accused. The age difference between them (the accused was aged 50 and the deceased 22) makes it unlikely that the deceased was the aggressor, ie if the deceased really was intent on attacking the accused he could have easily done so as he would have been stronger. It is clear that the accused did not want the deceased to come and take his daughter. There was an inconsistency between the ROI and the confessional statement. In the ROI the accused said that he came outside and saw the deceased. In the confessional statement he said he came outside and sat down and then saw the deceased. Given the nature of the weapons he took with him when he went outside and the weapon he actually used there was a clear intention to do grievous bodily harm.

SUBMISSIONS FOR THE DEFENCE

6. Mr Oiveka submitted that it is very difficult to enter a conviction as no one saw what happened except for the accused and the deceased. The accused gave a clear account to the police of what happened. He retaliated without thinking. The evidence of the accused should be preferred: that his daughter, Diana, was asleep. The real reason that the deceased was chased off the block is in the record of interview, question 36: he had an argument with his mother-in-law over garden work on the oil palm block. The point about bride-price is mere conjecture. The accused's explanation of what happened is consistent and plausible and the State has not down otherwise. The defence of self-defence stands.

ISSUES OF LAW

7. The accused has been charged with murder under Section 300(1)(a) of the Criminal Code. The prosecution therefore has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased; and
•	the accused intended to do grievous bodily harm to the deceased.

8. They are the two 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 both elements of murder are proven, an alternative verdict of manslaughter can be entered under Section 539. The issues therefore are:

1	Did the accused kill the deceased? If yes, the first element of murder is established. If no, he must be found not guilty of murder.

2	Does the defence of self-defence apply in this case? If yes, the accused is entitled to an acquittal as the killing will be rendered lawful. If no, the court should consider whether the other element of murder is established.

3	Was the accused's killing of the deceased authorised, justified or excused by law? If yes, the accused is entitled to an acquittal, as the killing will be rendered lawful. (Section 289 provides that the killing of a person is unlawful if it is not authorised, justified, or excused by law.) If no, the court will need to consider the defence of provocation.

4	Does the defence of provocation apply? If yes, the accused will be guilty of manslaughter only, perforce of Section 303 of the Criminal Code. If no, the act of killing the deceased will remain unlawful.

5	Did the accused intend to cause grievous bodily harm to the deceased? If yes, the second element of murder will be established and the court will enter a conviction for wilful murder. If no, the court will consider whether an alternative verdict of manslaughter should be entered under Section 539(1) of the Criminal Code.

UNDISPUTED FACTS

9. The accused was in his house. He heard a noise, went outside and slashed the deceased, causing him to die a few hours later. The deceased had been living on the accused's block but left due to a problem of some sort: he was forced to leave. The deceased suffered only one knife wound, to the lower left forearm. It was the stab wound that caused blood loss, which caused his death.

DID THE ACCUSED KILL THE DECEASED?

10. Yes. 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.

11. This issue has been conceded by the defence. I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by slashing him with a bush knife. The medical evidence supports this finding.

DOES THE DEFENCE OF SELF-DEFENCE APPLY IN THIS CASE?

12. The accused states that he acted in self-defence. Mr Oiveka argues that it is a complete defence under Section 269(2) of the Criminal Code. Section 269 (self-defence against unprovoked assault) states:

(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.

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

•	the accused was unlawfully assaulted; and

•	the accused did not provoke the assault; and

•	the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and

•	the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

•	the accused used such force as was necessary for his defence.

14. If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant (The State v Takip Palne of Dumbol [1976] PNGLR 90, 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.

15. 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. I will restate the elements of the defence by posing five questions:

1	was the accused unlawfully assaulted?

2	did the accused not provoke the assault?

3	was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

4	did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

5	did the accused use only such force as was necessary for his defence?

16. 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.

17. As to question 1 Mr Popeu submitted that the accused was not unlawfully assaulted. The court should not believe that the accused was assaulted by the deceased as there is no evidence that he was wounded. However, I reject that submission as it portrays a misconception of the burden of proof on this issue. There is evidence – in what the accused said to the police and what he said to his daughter – that he was assaulted. It is not up to the defence to prove that he was assaulted. It is up to the prosecution to prove that he was not assaulted. There is no evidence before the court that the accused was not wounded. What the prosecution should have had was evidence from the investigating police officers that the accused had no injuries when he was interviewed. Even that would not have been enough, however, as the accused did not have to be wounded to be assaulted. In his record of interview the accused says that he blocked the deceased's swipe with his bow. What the prosecution needed to show was that the accused's story was too incredible or implausible to believe. They have not done that. To argue that a 22-year-old man would have it all over the 50-year-old accused carries little weight. That is purely speculative. To argue that the deceased had no reason to attack the accused defies the evidence: he had been chased off the block, leaving his wife behind. The inference that could be drawn is that he bore a grudge against the accused. Question 1 is answered yes.

18. As to question 2, I conclude that, yes, the accused did not provoke the assault.

19. As to question 3, yes, the nature of the deceased's assault on the accused was such that the accused reasonably apprehended (believed) that he could be killed or suffer grievous bodily harm.

20. As to question 4, I conclude that the accused reasonably believed that there was no other way to preserve himself. Question 4 is answered yes.

21. As to question 5, the accused used only such force as was necessary for his defence. His response was not entirely out of proportion to what had happened to him. Question 5 is answered yes.

22. The result is that the prosecution has failed to disprove to the required standard of proof any of the elements of the defence of self-defence. The prosecution did not have to disprove all elements. One was sufficient. The prosecution however failed to disprove any. Therefore the defence of self-defence applies. Self-defence is a complete defence and by virtue of Section 270(1) of the Criminal Code the accused is not criminally responsible for the death of his son-in-law. The accused's act of killing the deceased was authorised, justified and excused by law.

VERDICT

23. Sailas Atia Anjipi is not guilty of the murder of Peter Steven Paitakai and is not criminally responsible for his death.
 
Verdict accordingly.
________________________________________
Public Prosecutor: Lawyer for the State
Public Prosecutor: Lawyer for the accused