N3436
PAPUA NEW GUINEA
 [IN THE NATIONAL COURT OF JUSTICE]

CR NO 112 OF 2007

THE STATE

V

EPHRAIM RIA BOA

Kimbe: Cannings J

2008: 21, 22, 24 July,
 22 August

VERDICT

CRIMINAL LAW – trial – wilful murder – defence of self-defence – elements of defence – whether accused intended to kill deceased – whether the accused intended to do grievous bodily harm.

The accused was indicted for the wilful murder of a fellow villager, the State’s case being that the accused staged an unprovoked attack on the deceased and cut him with a bushknife. The accused admitted cutting the deceased, thereby killing him, but says he acted in self-defence. There were no eyewitnesses to the incident, other than the accused, who gave sworn evidence.

Held:

(1)	The medical evidence showed that the deceased suffered two separate and serious injuries and the reasonable inference is that each one was, by itself, sufficient to disable a person and prevent a further attack by him.

(2)	The State proved beyond reasonable doubt that the accused did not believe on reasonable grounds that he could not otherwise defend himself and that he used more force than was necessary. Therefore the defence of self-defence was not available.

(3)	There was no other defence available to the accused. Therefore his killing of the deceased was unlawful.

(4)	The State failed to prove that the accused intended to kill the deceased but proved that he intended to cause him grievous bodily harm.

(5)	Accordingly the accused was convicted of murder. 

Cases cited

The following cases are cited in the judgment:

R v Kaiwor Ba [1976] PNGLR 90
R v Kambe Pare [1965] PNGLR 321
The State v Albert Gias (2005) N2812
The State v David Yakuye Daniel (2005) N2869
The State v Lenny Banabu (2005) N2871 
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07 

Abbreviations

The following abbreviations appear in the judgment:

cm – centimetres 
CR – criminal case
J – Justice
K – Kina
N – National Court judgment
No – number
PMV – Passenger Motor Vehicle
PNGLR – Papua New Guinea Law Reports
v – versus

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

F Popeu, for the State
R Awalua, for the accused

22 August, 2008 

1.          CANNINGS J:     Ephraim Ria Boa, the accused, from Garille village in the Talasea area of West New Britain, is charged with the wilful murder of a fellow villager, Ben Hole, at Garille, on the afternoon of Wednesday 16 November 2006.  The State’s case is that the accused, aged in his 20s, staged an unprovoked attack on the 40-year-old deceased man.

2.          The accused admits to cutting the deceased with a bushknife but says that he was acting in self-defence as Ben Hole was attacking him. There was no eyewitness to the incident other than the accused, who gave sworn evidence. 

ISSUES

3.          The offence of wilful murder is created by Section 299 of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

•	the accused killed the deceased;
•	the killing was unlawful; and
•	the accused intended to cause the death of the deceased.

4.          There was no suggestion that Ben Hole died from any cause other than the bushknife wounds inflicted on him by Ephraim Boa. The first element of the offence has been proven: Ephraim Boa killed Ben Hole.

5.          It is the second and third elements that are contentious. The defence case is that the killing was lawful as Ephraim acted in self-defence, as prescribed by Section 269(2) of the Criminal Code, so the second element is not satisfied. If that defence is rejected and, as it is the only defence put forward, the killing will be regarded as unlawful and the second element will be proven.  

6.          The court would then proceed to the third element. If the State proves beyond reasonable doubt that Ephraim intended to kill Ben Hole, Ephraim will be convicted of wilful murder. If that is not proven, an alternative verdict of murder or manslaughter can be entered.

7.          The three principal issues before the court therefore are:

•	Did Ephraim Boa act in self-defence?

•	If not, did he intend to kill Ben Hole?

•	If he did not intend to kill him, should Ephraim Boa be convicted of some other offence? 

DID EPHRAIM BOA ACT IN SELF-DEFENCE?

The accused’s evidence

8.          Ephraim Boa gave sworn evidence that he went to his block to collect coconuts and was about to climb a tree. He was caught by surprise when Ben Hole came from behind, swore at him (saying bad things about his mother) and said that he was going to kill him. Ben ran towards him with a knife, to cut him, and was aiming at his neck. Ben was a big man, physically. Ephraim said he tried his best to run away but Ben was rushing at him and was only five or six metres away. He realised at that moment that if he kept on running it would be easy for Ben to cut him on his back and kill him, so he turned around and faced him.

9.          He moved to Ben’s side and cut him on the back of his neck. That did not stop Ben who swung his knife again, this time at his head. He (Ephraim) avoided the bushknife again and then cut Ben again, this time on the face. Ben fell and he (Ephraim) ran away. 

10.          It was put to Ephraim in cross-examination that he could have easily run away as Ben Hole is a big man. He replied that if he ran away it would have been easy for Ben to cut him on his back as Ben was very close to him. That is why he turned around to fight. 

11.          Asked how Ben could have possibly come at him again after copping a serious cut to the back of the neck, Ephraim was adamant that Ben had fought back. It all happened in the space of 10 or 20 seconds. Ephraim denied that Ben died instantly after copping the first cut. 

12.          Ephraim said that Ben Hole was a well known bighead, a violent man, who had caused a lot of problems in the village over many years. People were afraid of him. Ben had moved on to land that he did not own and grown coconuts on it. There was a long running dispute between Ephraim’s lain and Ben’s lain about who owned the land. The village people had complained to the police about Ben Hole’s violent conduct but nothing had been done. The disputed land was next to a block that Ephraim owned, which was not in dispute. To get to his own block, Ephraim had to walk through the disputed land. The coconut tree that he was about to climb is on the disputed land. 

13.          Ephraim denied when it was put to him in cross-examination that he had gone to the scene, specifically to wait for Ben Hole to come along so that he could kill him. 

Elements of the defence

14.          As the accused has given evidence in support of self-defence, the onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being that:

•	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.

15.          If the State cannot disprove at least one of those elements – ie where all of them exist – the defence of self-defence will succeed. The force used by the accused will be regarded as lawful, even if it caused the death of the assailant. (Authorities for these principles are in my decisions in The State v Albert Gias (2005) N2812, The State v Lenny Banabu (2005) N2871 and The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07 (where the defence of self-defence succeeded) and The State v David Yakuye Daniel (2005) N2869 (where the defence failed).)

Questions to be answered

16.          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?

17.          The State 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.

18.          I will now address each question in turn.

1	Was the accused unlawfully assaulted?

19.          This cannot be ruled out as a possibility. There was long running animosity between Ephraim’s lain and Ben Hole, which would explain Ben being angered when he saw Ephraim about to collect coconuts from the disputed land – coconuts that Ben believed, rightly or wrongly, were his own. There was also evidence from Ben’s widow, Placidia Meta, of an incident the day before Ben died in which she caught Ephraim trying to get an oil palm harvesting pole from their oil palm block. She told Ephraim to leave it there and he did that and went away. However, that incident could well have made Ben Hole angry and precipitated the incident the next day.

20.          The State has been unable to prove that Ephraim was not unlawfully assaulted. 

2	Did the accused not provoke the assault?

21.           For the same reasons set out in question 1, this cannot be ruled out as a possibility. That is, it is quite possible that Ephraim did not provoke the assault. It is possible that he was going about his own business, preparing to collect coconuts, and did nothing to provoke the assault by Ben Hole.

22.          It is part of the State’s case that Ephraim was waiting for Ben to come along and ambushed him. But there is insufficient evidence in support of that proposition. The circumstantial evidence (provided by the long running animosity towards Ben Hole and evidence that Ephraim’s father had said threatening words on a PMV on the day of the incident) does not lead only to the conclusion that Ephraim staged an unprovoked attack on Ben Hole.

23.          The State has been unable to prove that Ephraim provoked 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?

24.          Yes. I think if a person is running towards you, swearing and saying that he is going to kill you, an ordinary person will fear that he is going to die or suffer serious harm.

25.          This question is answered yes. 

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

26.          Mr Popeu submitted that the accused could have defused the situation by running away. Cutting the deceased with his bushknife was not the only way the accused could preserve himself from being killed or suffering grievous bodily harm. 

27.          On this point I refer to R v Kambe Pare [1965] PNGLR 321. Retreating before employing force is not an independent and imperative condition when self-defence is raised as a defence. Whether a retreat should have been made is a matter for the court to consider in deciding on the reasonableness of the accused’s conduct. What the court has to decide is what a reasonable person in the position of the accused would have done in the circumstances. 

28.          I see considerable merit in Mr Popeu’s submission that a reasonable person would have run away and kept running, rather than turning around to fight. Ephraim was a younger man than Ben. Ephraim has described Ben as a ‘big man’, while the court has observed that Ephraim is of medium build. There is no evidence that Ephraim was sick or injured at the time so the reasonable inference is that he would be more nimble and agile than Ben and would have been able to make a quick getaway. 

29.          I conclude that the accused did not believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm than by cutting the deceased with his bushknife. 

30.         Question 4 is answered no.

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

31.          This is where the medical evidence is critical. Dr Peter Yama of Kimbe General Hospital examined the body one day after the death occurred. His post-mortem report reads:

On examining the body there was a gaping hole into the left orbital fosa extending to the nose and upper tooth. The wound extended deep into the bone smashing the orbital bone, the nasal bone and smashed upper tooth (maxilla bone) and lower tooth mandible. The bone was exposed and some brain matter was coming out of the wound. 

The nose and face was severely deformed as a result thus making him unrecognisable on first instance, but when the skin pushed together then only becoming recognisable.

There was also a deep cut at the back of the neck about 30 cm wide, deep down to the cervical bone smashing the spinal cord thereby killing him instantly. There were no other cuts.

In my opinion the murderer may have used a heavy metal [object], eg an axe – must be very sharp and he was pre-determined to finish his life.

32.          The condition directly leading to death was:

Respiratory arrest … brain (instantly) death.

33.           Antecedent causes were:

Severe head injury.
Cervical spine injury. 

34.          To complement the post-mortem report the State adduced two photos of the deceased (exhibits G2 and G3), showing vividly the two separate and serious injuries he received:

•	The severe head injury: gaping hole into the left orbital fosa extending to the nose and upper tooth; the wound extending deep into the bone smashing the orbital bone, the nasal bone and upper tooth (maxilla bone) and lower tooth mandible. 

•	The deep cut at the back of the neck, smashing the spinal cord and causing instant death, according to Dr Yama. 

35.          When the photographic evidence is put alongside the post-mortem report, Ephraim’s evidence that Ben Hole came back at him again after suffering the first cut is not believable. The reasonable inference is that each cut was, by itself, sufficient to disable a person and prevent a further attack by him. That means the first cut (whether it was to the head or the neck) was sufficient to repel Ben’s assault.

36.          Ephraim’s evidence was that he first cut Ben on the neck; and if that was the case it is not credible (in view of Dr Yama’s evidence that that blow would have led to instant death) to believe that Ben would have been able to regain his composure and come back at Ephraim.

37.          If I am wrong in drawing those inferences I nonetheless consider that Ephraim used more force than was necessary for his defence. As I said in Lenny Banabu’s case, this element of the defence requires the court to apply a subjective test as well as an objective one. The question to ask is whether the accused had an honest and reasonable, though mistaken, belief that the force he used was necessary for his defence. See R v Kaiwor Ba [1976] PNGLR 90. I consider that Ephraim’s response to the assault on him was overly vicious and opportunistic. He went way beyond what was required to repel an attack of the sort he described. He clearly used more force than was necessary. 

38.          Perhaps he honestly thought in the heat of the moment that he had to cut Ben Hole savagely to defend himself. But that was not a reasonable belief. I have given Ephraim the benefit of the doubt by being prepared to accept a large part of his evidence. But the bottom line is that the defence of self-defence is only available to those who act reasonably, in all the circumstances. He did not have a reasonable belief that he had to use the degree of force he used. 

39.          Question 5 is answered no.

Conclusion re self-defence

40.          The State has proved beyond reasonable doubt that two of the elements do not exist. It only had to disprove one of them. Therefore the defence fails. As no other defence is available to Ephraim Boa, his killing of Ben Hole was unlawful. The second element of the offence of wilful murder has been proven.

41.          I now move to the next major issue.

DID EPHRAIM BOA INTEND TO KILL BEN HOLE?

42.          It is at this point of a wilful murder trial that the Court is required to consider the accused’s state of mind: 

•	Did he intend to kill the deceased? If yes, the third element of wilful murder is proven and the accused will be guilty, as charged.

•	Did he intend to inflict grievous bodily harm? Or did one of the other circumstances prescribed by Section 300(1) of the Criminal Code apply? If yes, the accused would be convicted of murder, not wilful murder (eg, The State v David Yakuye Daniel (2005) N2869). If no, the accused would be guilty of manslaughter, not wilful murder or murder (eg, The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.05).

43.          As I indicated previously the State has fallen short of proving that Ephraim Boa was waiting to ambush Ben Hole and staged an unprovoked attack on him. I lean towards accepting Ephraim’s evidence that it was Ben who assaulted him first. I am not satisfied beyond reasonable doubt that this was a premeditated killing. I am not satisfied that Ephraim Boa intended to kill Ben Hole. The third element of wilful murder is not proven.

SHOULD AN ALTERNATIVE VERDICT BE ENTERED?

44.          Section 539(1) (charge of murder or manslaughter) of the Criminal Code is the relevant provision. It states:

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.

45.          The nature and extent of the wounds suffered by Ben Hole, show, in my opinion, beyond reasonable doubt, that Ephraim Boa intended to do him grievous bodily harm. The appropriate alternative verdict, which is available under Section 539(1), is therefore that Ephraim Boa is guilty of murder under Section 300(1)(a) of the Criminal Code. 

VERDICT

46.          Ephraim Ria Boa is found not guilty of wilful murder but guilty of the murder of Ben Hole.

Verdict accordingly.
____________________________

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