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State v Linas [2008] PGNC 164; N3520 (29 October 2008)

N3520

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 273 OF 2007

THE STATE

V

MICHEAL LINAS

Waigani: Paliau, AJ
2008: 7th, 11th, 14th, 15th, 16th, 18th & 22nd July;
:9th, 25th & 26th September;
:29th October

CRIMINAL LAW – Murder – Charge of – Plea of Not Guilty – Criminal Code s. 300(1).

CRIMINAL LAW – Self Defence – Whether prisoner established Self defence – Whether prosecution has negatived self defence – Criminal Code s. 269 (1) and (2).

Cases cited:

Papua New Guinea Cases
Mecklina Kar Poning v. The State; (2005) SC814 (7th December 2005)
Tapea Kwapena v. The State [1978] PNGLR 316
The State v. Takip Palne [1976] PNGLR 90
The State v. Leonard Masiap [1997] PNGLR 610
The Queen v. Nikola Kristeff; (1961) unreported, No. 445 at p. 23
Regina v. Korongin; (1961) unreported, No. 206 at p. 8

Overseas Cases
R v. Muratovic; [1967] Qd. R. 15

Counsels:
Mr. T. Ai & Mr. G. Konda, for the State
Mr. J. Mesa & Mr. F. Kirriwom, for the Accused

29th October, 2008

1. PALIAU, AJ.: The accused pleaded not guilty to one count of murder. The matter proceeded to trial. After the close of the State’s case, the Defence made a submission of no case to answer. I ruled that the accused had a case to answer. Defence called and led evidence raising the defence of self-defence. This is a decision on verdict.
   

Undisputed Facts

2. On the 6th August 2006, at about 3:30 pm the accused was at Wama Catholic Mission Station market with his relatives. There was an argument between the deceased relatives and the accused relatives. The argument was about a pig that was trapped in a trap set by the accused relatives. There was a fight but it stopped shortly after, but people were still gathered around. The deceased who was not involved in the fight arrived later and walked towards the group of people who were gathered there. The accused who was with the group of people got a piece of wood and hit the deceased on the left side of the head. The deceased died on the 7th August 2006.
   

Disputed Facts

3. The deceased was armed with a bush knife when he walked towards the group of people who were gathered. He charged at the accused and the accused in self-defence hit the deceased with a piece of wood.
   

Issues

4. The issues to be determined by this Court are:
   
   • (a) whether the accused has established self-defence? and
   • (b) whether the prosecutions has negatived self-defence?
     

Evidence

5. As noted from the undisputed facts, it is not disputed that the deceased died as a result of the accused hitting him with a piece of wood. What is in dispute is that the accused hit the deceased when he defended himself. The State alleges that the deceased was not armed with a bush knife when he approached the accused. The accused on the other hand says that the deceased was armed with a bush knife when he approached him.
   
6. By consent these documents were tendered as evidence:
   

(1) Statement of Francis Kaita – Community Leader - Exhibit "A"

(2) Statement of Peter Koare – Police Officer - Exhibit "B"

(3) Statement of Michael Aubo – Corroborator - Exhibit "C"

(4) Statement of James Henry – Investigating Officer - Exhibit "D"

(5) Affidavit of Dr. P. Golpak - Exhibit "E"

(6) Autopsy Report of Dr. P. Golpak - Exhibit "F"

(7) Record of Interview (Pidgin) - Exhibit "G"

(8) Record of Interview (English) - Exhibit "H"

7. The State called four (4) witnesses. They are John Nama Solien, Titus Ameua, Samuel Nama and Gloria Ameau. They testified to the effect that the deceased when he walked towards the group was never armed with a bush knife, the deceased did not attack the accused with the bush knife, they saw the accused hit the deceased with a piece of timber and not a stick and they identified the piece of timber as the murder weapon. The deceased fell to the ground unconscious when hit by the accused.
   
8. The accused testified on his behalf together with Lucian Aya. Their evidence was basically that when the deceased approached the group of people who were gathered around after the fight, he charged at the accused with a bush knife. The accused in fear of his life or injury to himself picked a stick and hit the deceased. The stick broke and the deceased ran away towards the crowd. The accused hit the deceased on the left side of his head. The accused and Lucian Aya say that the accused did what he did in self-defence. The accused says also that he did not do anything to the deceased that warranted the deceased to charge at him with a bush knife.
   

The Law

9. As it is not disputed that the deceased died as a result of the accused hitting him with a piece of wood, the State is not required to prove that the accused murdered the deceased. It is also immaterial whether a piece of timber or apiece of wood was the murder weapon. However, as the accused is raising the defence of self-defence, he has to prove on the balance of probabilities. The prosecution has to negative that defence beyond reasonable doubt.
   
10. The Criminal Code Act, under section 269 provides for self-defence against unprovoked assault as follows:
    

"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 –

1. the nature of the assault is such as to cause reasonable apprehension 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 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.

11. The principles of law relating to self-defence is discussed in the Supreme Court case of Mecklina Kar Poning v. The State (2005) SC 814 (7 December 2005), wherein it adopted and followed the principles pronounced in the Queensland case of R. v. Muratovic [1967] Qd R 15 which was also followed by the Supreme Court in Tapea Kwapena v. The State [1978] PNGLR 316. The Supreme Court in Tapea Kwapena held that: -
    

"Where a defence of self-defence to murder is raised...........the questions to be determined beyond reasonable doubt are: (a) Whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm, (b) whether the accused believed that he could not preserved himself from death or grievous bodily harm otherwise than by using the force that he in fact used; and (c) whether the accused’s belief was based on reasonable grounds; or rather whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds."

12. In order for the accused to successfully raise a plea of self-defence under s.269 he must adduce evidence showing that:
    
    3. He was unlawfully assaulted;
    4. He had not provoked the assault;
    5. The nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; and
    6. He believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.
       
13. The above test was also followed in Poining v. The State (supra) and adopted, applied and established in these National Court cases: The State v. Takip Palne [1976] PNGLR 90, The State v. Leonard Masiap [1997] PNGLR 610, at 617, The Queen v. Nikola Kristeff (1967), unreported No. 445 per Frost, J at p. 23 and Regina v. Korongin (1961) unreported, No. 204 per Mann, CJ at p. 8.
    

Analysis of evidence and the Law

14. As I alluded to above, it is not disputed that the deceased died as a result of being hit on the left side of his head by the accused. Furthermore, it is immaterial whether a piece of timber or a piece of wood was used as the murder weapon. The issue really is when the accused hit the deceased, whether he did so to defend himself from possible death or grievous bodily harm to himself. If so whether the accused has established self-defence by meeting the test as laid down in the above cases.
    
15. The standard of proof in establishing self-defence is on the balance of probability. It is the civil standard of proof. In order for the state to negative self-defence, it has to do so beyond reasonable doubt.
    
16. The accused stated in court that the deceased charged at him with a bush knife. He told the Court that he did not do anything to the deceased to warrant the deceased from charging at him with a bush knife. The accused did not provoke the deceased to act the way he did.
    
17. The fight that resulted from a dispute about a pig being trapped was over before the deceased entered the scene. Although it was between the deceased relatives and the accused relatives, it was not between the deceased and the accused. The deceased did not take part in the fight and he would not have known if the accused fought any of his relatives.
    
18. The accused gave evidence that the deceased was holding and wielding a bush knife and charging at him. It was a dangerous weapon. Much more dangerous than the piece of wood that the accused used to defend himself with. Because of this, the accused held a reasonable apprehension of death or grievous bodily harm. He expressed in Court that he was frightened. The accused held a bush knife and was coming at him and relied on reasonable grounds that he could not preserve or save himself from death or grievous bodily harm except to strike back at the deceased with a piece of wood.
    
19. Lucian Aya who testified also supported the accused evidence. The deceased held a bush knife and was directly aiming at the accused. The accused got the piece of wood and struck the deceased on the left side of his head. The deceased did not fall down, but ran away towards the crowd. The accused got the piece of wood and hit the deceased to defend himself. This witness also believed that had the accused not used the stick, the deceased would have cut the accused and caused grievous bodily harm or even killed the accused.
    
20. The State’s evidence is that the deceased was not holding a bush knife when he approached the accused. The accused hit the deceased without the deceased assaulting or threatening to cut the accused with the knife. The accused hit the deceased and the deceased fell down unconscious.
    
21. The accused and Lucian Aya maintained their story during examination in chief and cross-examination. Their evidence was tested during cross-examination and they maintained that the deceased held a bush knife and ran towards the accused to cut him. I find no inconsistencies in their evidence for me not to believe them.
    
22. The initial fight between the old man John Aiya, Gabriel Tamutai and the relatives of John Aiya and Gabriel Tamutai was over and people gathered around. Suddenly the deceased appeared after the fight. He was not involved in the fight. In my mind, the accused had no reason to hit the deceased, unless of course the deceased did something to him. I conclude that the deceased held a bush knife and was threatening to cut the accused. That was when the accused hit him with the piece of wood that he took from the market shed. The accused was not armed before that.
    
23. I find the evidence adduced by the State not to be believed as the witnesses gave inconsistent statements. First, witness Titus Imaeua, the State’s second witness. His evidence in Court was inconsistent with his statement he gave to the Police. In answer to a question put to him during cross-examination in relation to which is true, his statement to the Police or what he is telling the Court, he said his evidence in Court is true. Certainly the witness has changed his version of the story. He is not a witness of truth.
    
24. The State’s first witness, John Nama Solien. In answer to a question put to him during cross-examination about whether he did see Gabriel Tamutai and his brother Brendan Tamutai running away after the fight, and then Gabriel Tamutai came back with a knife, his answer was he did not see it. Yet he was supposed to be an eye witness just like other State witnesses.
    

If the two defence witnesses saw Gabriel Tamutai coming back with a knife, surely he would have seen that as well, because people were still gathered around and in broad-day light.

25. Again this witness, Nama Samuel, the State’s third witness, does not seem to know or see Gabriel Tamutai going away and coming back with a knife. Yet he is also supposed to be an eye witness. Why he did not see that, only he knows the answer. Secondly, he told the Court that John Aiya fought with Andrew over a trapped pig. He did not say Gabriel. He corrected this after he was re-examined.
    
26. Witness, Nama Samuel, also testified that when the deceased was hit by the accused, he fell down and then ran away. This is consistent with the statement by the accused and Lucian Aia, but inconsistent with the other State’s witnesses, who said that after the deceased was hit he fell unconscious and was carried to the hospital.
    
27. The State’s last witness, Gloria Ameau, to say the least, was too pre-occupied with her children who were with her to know what was actually happening. She said she was frightened. What she said in Court cannot be believed.
    
28. I find that the State has not negatived beyond reasonable doubt the defence of self-defence raised by the accused. In my opinion the accused was unlawfully assaulted, he did not provoke the assault. The nature of the assault was such that he held a reasonable apprehension of death or grievous bodily harm and that he relied on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by striking back at the deceased.
    
29. I am satisfied that the test on self-defence has been satisfied. The defence of self-defence has been established by the accused and I return a verdict of not guilty and acquit the accused. The accused’s bail money of K 300.00 is to be refunded to him forthwith upon presentation of receipt.
    

Ordered accordingly,

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused