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State v Korogula (No 1) [2009] PGNC 124; N3741 (14 August 2009)

N3741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 59 of 2007

THE STATE

V

YATIME KOROGULA

Goroka: Kirriwom. J
2009: 14 August

(No.1)

CRIMINAL LAW – Unlawfully doing grevious bodily harm – Self defence against provoked assault - Accused punched to the ground by victim’s brother – Accused withdrew to his house and returned with bushknife – Accused cut victim’s thumb when coming to assist his brother – Accused badly assaulted and cut with bush knife in retaliation – Whether use of bush knife was reasonably necessary for the preservation of his life or from grevious bodily harm – Use of bush knife was not reasonable when the accused introduced the bush knife where uncalled for – Self-defence was negatived beyond reasonable doubt – Accused found guilty as charged – Criminal Code, ss. 319 and 270

Cases Cited

The State v Angeline Winara (No.1) [2008] N3345 (4/4/08)

Counsel

Mr Umpake, for the State
Mr Agusave, for the Accused

14 August, 2009

1. KIRRIWOM. J: The accused Yatime Korugula from Donito Village, Lufa, Eastern Highlands Province was charged with one count of unlawfully doing grievous bodily harm to one Don Peter. The charge was brought under section 319 of the Criminal Code which if convicted; the accused is liable to a maximum of seven years imprisonment. The accused denied the charge.

2. It was alleged that about 5pm on Monday 31 July 2006, an argument erupted in the village market place at Donito between Joshua Peter, the victim’s younger brother, and Aneane, daughter in-law of the accused over land. The accused assisted his daughter in-law and argued with Joshua Peter which turned into a fight and Joshua Peter knocked the accused to the ground.

3. The accused got up from the ground and went to his house where he returned with his bush-knife. He tried to retaliate but was restrained by the crowd. There were lots of people at the market place. The accused saw Don Peter standing some 30 meters away. He ran over to where Don Peter was and swung his bush-knife at him but the victim lifted up his coffee stick which caught the impact of the bush-knife and the blade slipped down the stick and cut the victim’s left thumb and pointer. The thumb was almost severed but was held hanging by a strip of the skin. The victim was taken to the local health centre where his thumb was sewed back on, given treatment and sent home. Don Peter’s family went mad with the accused and bashed him up badly too inflicting serious wounds on his body. The accused too went and sought treatment from which he now carries scars. Don Peter’s wound has healed but continues to experience occasional pains and discomfort.

4. The accused was interviewed for this offence by the Police on 3 October 2006 and while he admitted being armed with a bush-knife and being at the market place he denies fighting Joshua Peter. He said only Joshua Peter fought him and thereafter opted to remain silent throughout the interview. At the end of the interview the accused refused to sign or place his mark.

5. The first issue in the case is who is the Court to believe, the victim and his witnesses or the accused? Which version of the facts is the more reliable and probably reflecting the truth of what happened will determine the way the Court can analyse the relevant facts for determining guilt or innocence of the accused.

6. State called three witnesses; they were Don Peter, Eliza Pope and Joshua Peter. Don Peter is the victim of this trouble and Joshua Peter is his younger brother who started the whole thing. Elija Pope is related to both Don and Joshua like cousin brother who was also present on that day.

7. Don Peter is a Public Relations Officer with MMK a road construction company. His house is close to the market place at Donito. There was a commotion at the market place that late afternoon. He saw his small brother fighting with the accused and his daughter in-law Aneane. He was 30 meters away as he watched them. He saw the accused go to his house and returned with a bush knife and wanted to kill his small brother. The crowd however held him tight and he struggled to free himself. The accused saw the way between himself and him was clear so he ran towards him. Seeing the accused heading in his direction, Don Peter’s father threw a coffee stick at him to defend himself with it. By the time Don Peter picked up the stick the accused had swung the bush knife heavily down towards him and he lifted up the stick to block the knife. The knife struck the stick and slid down and cut his thumb.

8. Don Peter would not tell the court what the argument between his small brother and the accused was all about. He said that was for his brother to tell the court, it was his story, not his and he was not part of the argument. He had no idea as to what happened after he got injured as he was taken to the health centre.

9. Eliza Pope gave similar evidence to Don Peter. He was standing on the road and saw Joshua Peter and the accused fighting. Next he saw Yatime Korugula go to his house and returned with a bush knife. He tried to attack Joshua Peter but was stopped by the crowd. He saw Don Peter standing 30 meters away and ran towards him. He saw the accused lift up his bush knife and swing at Don Peter.

10. The third prosecution witness was Joshua Peter. Defence objected to the State calling this witness because he was not an original witness in the case. The court overruled the objection because Joshua Peter was the most critical witness in the case as the person in the centre of this controversy and it would be most foolish not to call him as a witness. Joshua Peter told the court of what happened and why it happened the way it did. According to Joshua Peter, had the accused, whom he referred to as ‘yasman’, the popular nickname given to the accused which stems from the pidgin word ‘yas’ referring to ‘judge’ because of his official status in the community as the Village Court Magistrate, adjudicated on his complaint to him on that day as he promised, this trouble would not have occurred.

11. Joshua Peter said he cleared a parcel of land where his mother had worked on to plant kaukau. When he went to plant kaukau he found out that Aneane planted kaukau on his cleared patch. He uprooted them. The next time he went to plant his kaukau he saw that Aneane had replanted her kaukau the second time. He complained to ‘yasman’ after the second time and he was told that the complaint will be dealt with on Monday 31 July 2006. He waited all day at the meeting place for this hearing and nothing eventuated till late in the afternoon and he went to the garden patch and checked the third time. Aneane had been there in the morning and replanted her kaukau that day, he uprooted them again the third time and returned home.

12. When he came to the market place he saw Aneane sitting down and chatting with other women. He went straight to her and slapped her and she got up and wanted to fight with him and they both struggled. Yasman who was close by saw them and helped his daughter in-law and got a piece of coffee stick and swung at Joshua Peter several times and on the third swing struck him on his head. Provoked by this Joshua Peter punched the accused once on his head and the accused fell down. He got up and went to his house but only to return with a bush knife and wanted to attack him. He was stopped by the crowd.

13. Joshua also gave the same story as Don Peter and Eliza Pope that accused turned and saw Don Peter standing 30 meters away and there was no one stopping him from going there so he headed for Don and cut him with the bush knife. After seeing his brother bleeding heavily, he too went and got his bush knife and attacked yasman with it. He said nobody else used bush knife except him, but only after the accused wounded his brother who by then had been carried to the health centre.

14. The accused also gave evidence. He was the only defence witness. While he was evasive in answering direct questions about the dispute over the land between Joshua Peter and Aneane, he conceded that there was disagreement that was not resolved. He said the land was his which he gave to Joshua’s mother whom he regarded as his sister as she came from the same clan as his mother. That was the land she often planted her garden but that was not the land in dispute he said. Aneane was planting kaukau in his own land adjacent to the land he gave to Joshua’s mother and he cleared it himself. In other words Joshua was encroaching onto his land where he was not supposed to be and Aneane was right in planting her kaukau there because it was his land.

15. Be that as it may, the accused admitted that had he solved this issue when it arose, this trouble would have been avoided. As far as the incident on 31 July 2006 is concerned he said that Joshua Peter was the one at fault. He attacked Aneane with his folded fist when he punched her on the nose and kicked her on her sides. He saw this was not right so he picked up a young pitpit and simply tapped Joshua with it and said to him: ‘Yu rong, em ino meri bilong yu’. But Joshua turned around and punched him on the nose and his other family members also joined in and attacked him. While he was lying on the ground he heard Don Peter calling out for other family members to bring their weapons so he got up and went to his house and also fetched his bush knife. When he returned, they were all armed, ready and waiting for him. It was him against the whole lot of them.

16. Don Peter was not far away as he claimed he said. He was involved in assaulting him. He saw Don Peter lift up his coffee stick and as he swung it down with his full might, he responded instinctively by swinging the knife in the direction of the blow to intercept the impact when his hand came in to contact with his knife. He said he did not attack Don Peter; he had no quarrel with Don Peter. He saw Don Peter as his eldest son and had no reason to fight him.

17. On the State version of the facts, the victim Don Peter and his witnesses are saying that he was an innocent by-stander who was targeted for no-good reason by the accused when he could not take his revenge on Joshua Peter. The State’s version is that the accused swung his bush-knife at Don Peter standing 30 meters away but the swing of the bush-knife was deflected by the coffee stick that the victim held in his hand and he raised it in defence as the accused swung the knife. The stick caught the impact of the blow but could not stop the momentum of the knife which slid down the stick and cut the victim’s left hand near the base of the thumb and left pointer almost severing the thumb. That is the State’s version. Upon seeing the victim badly injured, the rest of his family members including Joshua Peter, Bobby Peter and his father all charged on the accused and beat him up.

18. But the accused’s version of the facts is the exact opposite. He said he had no quarrel with Don Peter and had no reason to fight him. He said it was Don Peter who lifted up his coffee stick to hit him when he was already bleeding and badly beaten up by him and the rest of his family members. When he saw Don Peter swing the stick, he lifted up his bush-knife to fend off the stick and the momentum from the downward thrust of the stick landed itself on his knife thereby receiving the cut on his thumb. The scenario that the accused is raising here is that of self-defence. It was his life or the victim’s that was at stake.

19. Defence submits that the issue here is whether the accused acted in self defence against a provoked assault pursuant to section 270(1) of the Criminal Code? The defence urges the court to accept the version of the facts put forward by the accused because he is a village leader and village court magistrate for twenty-one years, someone who was bestowed such a status in the village because of his examplenary leadership qualities standing in the community in his day-to-day management of his public affairs and therefore someone who must be believed.

20. State argues to the contrary. It is submitted that the version of facts given by the State witnesses are more probable of belief than those presented by the accused in his own defence. State contends that the accused deliberately armed himself with the bush-knife and returned to the market place to retaliate but when the crowd blocked him from fulfilling his intention he turned to the victim Don Peter standing 30 metres away and went for him with his bush-knife. State wants the court to accept the version given by the State witnesses that it was the accused who attacked Don Peter and not vice versa.

21. It is therefore submitted that the evidence presented in the State case clearly satisfied all the elements of the offence of doing grievous bodily harm in that:-

- Firstly, the Court can be satisfied beyond reasonable doubt that it was the accused, not anyone else, who the perpetrator of this offence who swung the bush-knife at Don Peter.

- Secondly, he was seen no more than 30 metres away swinging the bush-knife onto the victim with such force and determination out of anger when he could not take his revenge on Joshua Peter and cut the victim on his left hand, severing his thumb. Evidence from the medical report confirms such determined act on the part of the accused unlawfully doing grievous bodily harm to Don Peter.

22. I have examined the evidence given by both sides which are before the Court. The State witnesses, all supporting each other, want me to believe that the accused is the trouble-maker who sparked off the whole incident when he went to the house and returned with a bush-knife to attack Joshua Peter. But when he could not attack him because he was stopped from doing so, he took it out on an innocent person Don Peter who was 30 metres away and minding his own business and attacked him with the knife cutting off his left thumb. State witnesses want the court to believe that it was only after the accused inflicted injury on Don Peter that the family retaliated and attacked him.

23. There is no dispute that the trouble started over a plot of land where Joshua Peter claimed to have cleared for gardening. A woman named Aneane, married to a son of the accused without Joshua Peter’s knowledge, planted kaukau in the plot that Joshua Peter had cleared. When she did that, Joshua Peter uprooted the kaukau she planted. But she re-planted them again the second time and he again uprooted them the second time. This is Joshua Peter’s version of what really caused this trouble. After up-rooting the second time, he went and reported to ‘Yasman’ who is none other than the accused. On Monday 31 July 2006, Joshua Peter waited at the market place for the village court to resolve this problem but nothing eventuated. So, late in the afternoon, Joshua Peter returned to the same block and discovered that the kaukau had been replanted again the third time. He again uprooted the third time and returned home. Upon reaching the market place he saw Aneane sitting down and chatting with other women. He could not hold back his anger and frustration and assaulted Aneane by slapping her and she fell down. She got up and wanted to fight with him so they struggled. At this juncture the accused saw them and came with a coffee stick to attack Joshua. He swung the stick two times and Joshua blocked the blows with his hand. But he could not block the third blow which struck him on the head. Joshua then retaliated by punching the accused once on his face and he fell down. The accused got up ran down to his house and returned with a bush-knife and tried to attack Joshua but was stopped. The accused saw Don Peter standing 30 meters away and turned on him and cut him. Don bled heavily and fell unconscious and was rushed to the health centre. Seeing this Joshua also ran to his house and armed himself with a bush-knife and returned to take revenge. Joshua Peter wants the Court to believe that he alone inflicted all the injuries on the accused with his bush-knife, he wants the Court to believe that none of his family members were armed at that time. State counsel wants the court to treat this attack on the accused as justified because the accused brought all these on himself by attacking an innocent person who had nothing to do with the earlier fight between the accused and Joshua Peter.

24. There are inherent difficulties in me accepting and relying on one version of the story without examining the evidence as a whole to get a fair and more sensible understanding of the case. The reason simply is that all State witnesses are related by blood and as blood is thicker than water there is strong possibility that they told the court only what they wanted the court to know. There is a lot more that they did not tell the court and that is why I treat their entire version of the events with caution.

25. Joshua Peter, Don Peter and Eliza Pope want the court to believe that the villain in this case is the accused who started this whole incident when he introduced the bush knife in the fight between him and Joshua Peter. They had no knowledge about the quarrel and the fight between the accused Joshua Peter until Don Peter was needlessly dragged in and attacked.

26. Although no evidence was led in the State case through Don Peter and Eliza Pope regarding the controversial land issue between the accused and Aneane on one side and Joshua Peter on the other, it would be parting company with reality to think that none of Joshua Peter’s family would have been aware of this issue except himself. That would be most unusual in any society for that matter irrespective of which side of the globe such a dispute arises. I have no doubt in my mind that the whole family of Joshua Peter was aware of the on-going conflict between him and Aneane. And if I accept the accused’s story about the ownership and initial bequest of that land or part of it by the accused to Joshua Peter’s mother, the rest of the family would have been well aware of the problem that Joshua Peter was having with Aneane and the accused over that land and the incident that happened at the market place at 5pm on 31 July 2006 was all that was needed for them to show their anger and frustration. I therefore would not see any of them as mere spectators while they watched Joshua Peter alone face the consequences of his irrational action which was the assault of Aneane. Once Joshua Peter assaulted Aneane and the accused intervened to help his daughter in-law, they knew this meant war or fight. They knew that the accused was not just an ordinary person, he was a community leader of long standing who rendered government service as village court magistrate for twenty one years and no doubt commanded respect from the people and fighting him was like involving the entire community who looked upon him as leader. From this perspective the rest of Joshua Peter’s family could not have just stayed back as spectators and watched the spectacle, the family must mobilise to show its strength and support of the family member who took on the villager leader.

27. For this reason, I have difficulty accepting what Don Peter told the court that he was thirty metres away and not involved in the fight. It is probable of belief that when Joshua Peter hit the accused who fell to the ground, this meant serious problem for the family and Don Peter called out summoning all family members to be alert and stand ready for repercussion and they armed themselves because they knew there would be repercussion.

28. The accused on the other hand had tasted his own blood when Joshua punched him on his lips and he fell to the ground and he was out for revenge. So he too proceeded to his house to arm himself which he did but when he returned to the market he fell into their trap. They were all armed and waiting when he got back. I am not prepared to accept that upon his return, he was the only aggressor who wanted to attack Joshua Peter and was blocked by the members of the public who were there. It may well be true that he wanted to attack Joshua Peter but at the same time other members of the family could have joined in Joshua’s defence and attacked the accused. In this respect, I accept the version of the facts given to me by the accused. The family joined in and ganged up on him. It was during this confrontation that Don Peter was armed with a coffee stick.

29. An issue to resolve here is, was Don Peter the aggressor who wanted to strike the accused with his coffee stick when the stick and the bush knife collided and he suffered injury to his left hand? Or, was the accused the aggressor who swung his bush knife down to cut Don Peter and Don lifted up his coffee stick to fend off the blow when the knife cut his left hand?

30. In my view, either way, the end result would have been the same unless it was stick against stick or bush knife against bush knife. Whether it was the knife that was swung at ferocious speed or it was the coffee stick, as long as the sharp end of the knife made contact with the body, the likelihood of serious injury was always there and cannot be avoided.

31. If I cannot resolve who to believe in this conflicting scenario, the law says that I must give the benefit of my doubt to the accused. So the version that the accused gave must be accepted.

32. Then the next obvious question is was the accused acting in self defence when he swung his bush knife? There is no question that the accused had been badly assaulted and was bleeding from the blow to his head by Joshua Peter and when he returned to take revenge on Joshua, the family ganged up on him and he suffered more injuries. It could well be that no knives were involved at this stage except sticks as far as Joshua and his family were concerned. Accused may have been the only one armed with a knife and that was when Don Peter swung his coffee stick to hit the accused so as to disarm him. The accused however reacted so quickly that resulted in Don Peter suffering severe injury to his left thumb.

33. It was or would have been after this that Joshua Peter went to his house and returned with his bush knife and they attacked the accused with the bush-knife and sticks all over his body.

34. Section 270(1) of the Criminal Code provides:

"270. Self-defence against provoked assault.

(1) Subject to Subsection (2), when—

(a) a person has unlawfully assaulted another person, or has provoked an assault from another person; and

(b) the other person assaults him with such violence as—

(i) to cause reasonable apprehension of death or grievous bodily harm; and

(ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm

(2) The protection provided by Subsection (1) does not apply—

(a) where the person using force that causes death or grievous bodily harm—

(i) first began the assault with intent to kill or to do grievous bodily harm to some person; or

(ii) endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or

(b) unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable."

35. What section 270(1) says is that if A unlawfully assaults B or has provoked an assault from either B or C and with B or C assaults him with such violence as to cause reasonable apprehension of death or grievous bodily harm and to cause him to believe on reasonable grounds, that it is necessary to use force in self-defence to prevent himself from being killed or suffering grievous bodily harm, A is not criminally responsible for using such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm to B or C.

36. Applying this hypothesis to this case, the defence contention would be that the accused assaulted Joshua Peter or was provoked by Joshua Peter to assault him when he hit his daughter in-law in his presence and Joshua Peter retaliated by punching him to the ground. When the accused got up and went away to his house that is the end of that fight. The question of self defence does not arise in this scenario.

37. When the accused returned armed with a bush-knife, this is a completely new incident for purpose of the law. The earlier fight had ended when the accused withdrew to his house. But when he returned with the bush-knife, this time he was the aggressor. When he returned with the bush-knife to retaliate, he provoked the relatives to join in by introducing a lethal weapon such as bush knife to the quarrel which culminated in the family of Joshua Peter ganging up on him. It was during this confrontation that he acted in the way he described when he saw Don Peter swinging his coffee stick at him.

38. The question however is, was the action he took in swinging the bush-knife in the manner he described to deflect the blow from the stick swing by Don Peter at him reasonable? This is particularly so bearing in mind that he had no quarrel with Don Peter and he regarded Don Peter as his first born son, why would he want to see him harmed in any way? It was not a reasonable thing to do, using his bush-knife in such a manner for whatever reason, to defend himself from being hit by the stick or to obstruct the blow from the stick that was aimed at him. In my view, that was sheer negligence. Considering the type of weapon and the manner it was used in the circumstances, it will be stretching the law beyond limits to find that the accused acted in self-defence when his choice of weapon coupled by his reaction to the danger or threat facing him was unreasonable in my view. It was not an act that he intended in order to defend himself, it was a sudden reflex reaction he orchestrated in a spontaneous manner in the sudden when he saw the stick coming down on him. It was an unintended act which unfortunately resulted in the victim suffering the injury he received. But whether or not he intended the act i.e. swing of the knife to find its target and cause bodily harm of any kind is immaterial. Intention is not an element of the offence of doing grievous bodily harm to another, as long as the act that causes the harm is unlawful; he is criminally liable under this section of the Code.

39. The accused’s explanation for the victim’s injury is that the victim cut himself when he swung his stick down to hit him and his hand made contact with the sharp end of the knife that he lifted to block off the stick from hitting him. What the accused was raising here is that the injury was not a willed act on his part, it was an accident. State argued that the extent of the injury suffered showed that the knife blow was delivered by the accused to cause the result it did. Such injury could not have been occasioned upon the victim on the accused’s version of the story.

40. I do not accept the State’s submission on this because it is possible for such injury to result when both parties are simultaneously swinging objects at each other as it happens at times where one or both are armed with dangerous weapons such as bush knives. It is however a most common type of response given when a suspect is confronted with the result of his or her action. An example of this is The State v Angeline Winara (No.1) [2008] N3345 (4/4/08). In a domestic quarrel between husband and wife, the husband had a tanget stick and the wife was armed with a kitchen knife. The wife assaulted the husband first by slapping him for refusing to carry their child. Embarrassed by this the husband picked up a dried tanget stick with which he wanted to hit his wife but before he could execute his move, the wife went up to him and stabbed him on his left chest with her right hand and using her free left hand she pushed or forced the knife in deeper. Her explanation which the court rejected was that the husband swung the tanget stick towards her and she saw it coming and intuitively she reacted by swinging the knife up towards the direction of the stick to block it and did not know or see where the knife landed.

41. When rejecting her defence of self-defence against provoked assault under section 270, the Court said:

"18. ....[T]here can be no dispute that the accused provoked the deceased by assaulting him in the first place which led to him chasing her with a stick, whatever it might have been, a dried tanget stick or branch or a 4 x 4 timber as seen by the accused. The question that remains now is whether the force she used was reasonably necessary for preservation of her own life. Her evidence is supportive of a reckless use or application of a kitchen knife in the darkness and not caring exactly where she was swinging the knife and as the consequence the knife found its mark in the deceased’s body. Of course the knife could not have by itself dropped out of her hand and stabbed the deceased as if by an act of satan or some supernatural being. That is the picture she is painting when she said that all she can remember is lifting both her hands up to block or fend off the blow she saw about to be delivered by the deceased with a 4 x 4 timber. She does not know how the knife penetrated the chest of the deceased although it was always in her possession.

19. ....[T]here must be evidence that the deceased assaulted her with such violence so as to cause her reasonable apprehension of death or grievous bodily harm, and this assault induced her to believe on reasonable grounds that it was necessary for her to preserve her own life from death or grievous bodily harm to use force in self defence and the force she used was reasonably necessary to preserve herself from death or grievous bodily harm. The evidence as to whether her life was in real danger is very shaky as it rests on who the court believes. Even if I accept her story about the 4 x 4 timber, evidence as to what extent that 4 x 4 timber posed serious threat to her life is unclear. There is no question that even threatening words or threat to do harm to someone can amount to assault. However there must be some evidence showing the extent to which that threat was manifested to its fruition to amount to assault of the nature that would induce reasonable apprehension of death or grievous bodily harm is necessary for self-defence to apply in my respectful view. This is not trying to shift the onus of proof to the accused. The least that the accused could show is some evidence of this possibility so as to qualify for this defence and it is for the prosecution to negative that defence beyond reasonable doubt.

20. In this case, the court only has to choose between the evidence given by Rita Greg or the accused. I have examined both witnesses in the witness box and one observation I can make of them is that both are intelligent persons. They are related in some way. Both are educated women and both are no doubt fully conversant in the English language. Witness Rita Greg demonstrated in court that she could speak English although she chose to give her evidence in pidgin. The accused as I noted from the record of interview in Q15 and Q16 that she completed Grade 10 at Maprik High School in 1995. So both witnesses have given their evidence in relation to this trouble fully conscious of the reasons for their attendance in court and testifying before the court. When I examine both their demeanours, I am more impressed by the evidence given by Rita Greg. She did not appear to me as if she was adding on anything extra to make her story stronger against the accused. She gave her evidence in a cool, calm and even manner, trying to be fair as much as possible to both the accused and the deceased. She maintained strongly that the deceased had a tanget stick and before he could use the stick the deceased stabbed him once with her right hand and with her left hand on the right knuckle she pushed the blade in deeper. The impression given in her evidence is that the accused was never under any threat of being killed or seriously injured even with the stick that the deceased had in his hand."

42. The Court when rejecting the defence assertion of unwilled act under section 24 said:

"21. The accused on the other hand gave me an impression that she is a woman of violent temperament. She had no respect for her husband and she could become agitated quite easily. She wanted the court to believe that the knife in her hand acted on its own to penetrate the deceased’s chest cavity and pierced his left lung. On this story she want the court to find that what happened to the deceased was an act that happened independently of the exercise of her will, it was thus an accident. I find this story quite fanciful and I am not impressed by her evidence. Therefore for the purpose of determining where the truth lies, I accept the evidence of Rita Greg. I am satisfied that she told the truth and her story is coherent and capable of belief. It follows therefore that with the rejection of the accused’s story of what happened, the defence of accident under section 24 collapses. Even if that defence were to survive, the accused cannot escape completely of being criminally liable for the deceased’s death.

22. But returning to the evidence before me, I am satisfied that there was sufficient light where this incident happened. If it was pitched dark as the accused wants me to believe, none of them could have seen anything. I find that the deceased grabbed a stick as described by Rita Greg after being provoked by the accused who slapped him. I further find that he did not hit or assault the accused with the stick in his hand. I find that upon seeing him armed with a stick, the accused, using the knife that was in her possession, stabbed him above his left chest in a downward thrust just below the neck in the manner as described by Rita Greg. I find that the accused did that in anger as opposed to acting in her own defence because she was unhappy with him for not helping her to piggy-back their son who wanted to be carried to the house, but instead slapped him which further provoked her. She was still agitated over that even after slapping or assaulting him with her hand but seeing him trying to retaliate with a stick further antagonized her to use the knife on him. She took the knife to the video show for their protection, but she used it against the husband consciously and wilfully to inflict pain and serious harm upon him.

23. The manner in which the accused trusted that knife into the deceased’s body and drove it further and deeper inside with the other hand as she held onto the knife is clearly indicative of deliberate and calculated act to either kill or cause serious bodily harm to the deceased. She was determined to inflict that injury by her action and conduct towards her husband."

43. On the facts of this case there are some similarities in the light of the explanation given as far as possible defences of accident and self defence are concerned. In my view, according to his own evidence, the accused recklessly and in the least caring about the consequences of his action, swung the bush-knife towards the coffee stick that he said, Don Peter swung to hit him with. It was not so much a case of preserving his life, it was a retaliatory action taken simultaneously to score a hit, a case of ‘you hit me, I cut hit you too’. This was all in line with the accused’s intention to take revenge when he returned with the bush-knife from the house.

44. A bush-knife against a stick is not an even match. A defence of self-defence must fail where there is such imbalance in the confrontation where the victim was armed with a stick and the assailant was heavily armed with a lethal weapon and caused injury to the other. The force used is no doubt unreasonable and self-defence must fail. Self-defence must even fail where the fatal blow that caused grievous bodily harm was an unintended spontaneous reaction to a provocative situation without intention to cause a particular result if at the time the blow was delivered the assailant did not believe that his life was in danger and it was reasonably necessary for him to use such force to preserve his own life.

45. In conclusion, I find that the parties involved in this dispute had an underlying conflict over land in the village that was bound to explode anyway. Every one of them was aware of it. Joshua Peter and his family held the accused responsible for not solving this conflict quickly. But unbeknown to them, the accused took steps to do so by communicating with the village court officer to assist him who advised him to refrain from doing anything because it concerned him. Meanwhile the discontentment continued until it blew up in his face that late Monday afternoon at 5pm of 31 July, 2006 at Donito market area where in his presence, Joshua Peter assaulted his daughter in-law, Aneane. That is how this whole problem arose and everyone is in court with only the accused being charged although the situation back in the village has returned to normal after the accused paid compensation.

46. However, as far as this charge is concerned, for the reasons stated in this judgment, I am satisfied that the State has negatived self defence beyond reasonable doubt and I find the accused guilty as charged.

_______________________________________

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