N4231

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 407 OF 2010

THE STATE

V

JENNY DEI

Madang: Cannings J
2011: 7, 8, 11 March

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the accused killed the deceased – whether the killing was unlawful – defences of self defence (Section 269) and accident (Section 24(1)(b) – whether the accused intended to kill the deceased – alternative verdicts, Criminal Code, Section 539(1).

The accused was charged with the wilful murder of her husband. She admitted killing him by stabbing him in the neck with a kitchen knife in the course of a domestic dispute but claimed that she acted in self-defence against an unprovoked assault by him and, further, that her husband's death was an accident.

Held:

(1)	Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

•	the accused killed the deceased;

•	the killing was unlawful; and

•	the accused intended to cause the death of the deceased.

(2)	The State proved that the accused killed the deceased.

(3)	The defence of self-defence under Section 269 of the Criminal Code did not apply as the accused used more force than necessary for her defence. The defence of accident under Section 24(1)(b) of the Criminal Code did not apply as the stabbing of the deceased was a deliberate and intentional act. Therefore the killing was unlawful.

(4)	Given the circumstances in which the deceased was killed (a spur of the moment reaction to provocation on the part of the deceased) the State failed to prove that the accused intended to kill the deceased or that she intended to do him grievous bodily harm.

(5)	The accused was accordingly convicted of manslaughter under Sections 539(1) and 302 of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Kaiwor Ba [1976] PNGLR 90
R v Nikola Kristeff (1967) No 445
Tapea Kwapena v The State [1978] PNGLR 316
The State v Abaya Ulas (2010) N4009
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Jeffery Bijuma (1989) N765
The State v Lenny Banabu (2005) N2871
The State v Melchior Kapus (2010) N4114
The State v Moses Nasres (2008) N3302
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07
The State v Raphael Kuanande [1994] PNGLR 512
The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

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

Counsel

S Collins & M Pil, for the State
E Thomas & M Mwawesi, for the accused

11 March, 2011

1. CANNINGS J: The accused, Jenny Dei, is a 19-year-old Southern Highlands woman. She is charged with the wilful murder of her 28-year-old husband, Bob Wari. She has pleaded not guilty and a trial has been conducted.

2. The State's case is that the accused killed the deceased in the early hours of Sunday 7 February 2010 at Gusap oil palm settlement in the Ramu area of Madang Province by stabbing him in the neck with a kitchen knife. The State argues that she acted unlawfully and deliberately, intending to cause the deceased's death.

3. The accused admits to killing the deceased but says that she did so in self-defence and that it was an accident. She says that he assaulted her first and that while she was struggling to get away from him she flung her arms towards him and the kitchen knife that she happened to be holding when he assaulted her penetrated his neck.

EVIDENCE

4. The State relied entirely on documentary evidence, consisting of:

•	witness statements by four people who were in the vicinity of the incident, none of whom, however, witnessed the incident;

•	a post-mortem report, showing that the deceased died from a pneumothorax (collapsed lung) and hypovolaemic shock (decreased volume of circulating blood) leading to hypoxia (deficiency in oxygen reaching the tissues), caused by a 13 cm deep stab wound to the neck, penetrating to the lung;

•	a record of interview in which the accused admitted to killing the deceased but raised the defences of self-defence and accident.

5. After the court's rejection of a no-case submission the accused gave sworn evidence and was subject to cross-examination. She maintained that though she killed the deceased she was acting in self-defence and that it was an accident. There was no other evidence for the defence.

ELEMENTS

6. The offence of wilful murder is created by Section 299(1) 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.

ISSUES

7. The first element of the offence is non-contentious as the accused admits that she killed the deceased and there is ample evidence on which the court is satisfied beyond reasonable doubt that she directly caused the death of the deceased.

8. The second element is contentious as it is the defence case that the killing was lawful because the defences of self-defence and/or accident apply. If either defence succeeds the killing of the deceased will be justified by law. If both defences fail, the killing will be unlawful and the court will consider the final element: did the accused intend to cause the death of the deceased? If she did not have that intention, an alternative conviction for murder or manslaughter will be considered.

9. The primary issues therefore are:

1	Does the defence of self-defence apply?

2	Does the defence of accident apply?

3	Was the killing unlawful?

4	Did the accused intend to kill the deceased?

5	If she did not intend to kill the deceased, should she be convicted of some other offence?

1 	DOES THE DEFENCE OF SELF-DEFENCE APPLY?

10. To assess whether the accused has a defence, her version of events must be carefully considered. Her oral testimony was that she was forced to marry the deceased against her will and that he was a violent man who failed to provide for her, routinely took her wages and often assaulted her. Two days before the incident, both of them, who were working at Gusap, received their wages but the deceased had incurred debts, so that when they went into town at Ramu on Saturday he had no money. She had K40.00 cash and he asked her for K20.00 and said that he would repay her later. So she gave him K20.00 and spent the other K20.00 on food. That night, on Saturday, she cooked a meal and slept in their house. The deceased went off gambling and did not come home until early Sunday morning.

11. At about 1.00 am he told her to prepare him something to eat. She did as she was told and, amongst other things, peeled some carrots with a small kitchen knife. She asked him about the K20.00 she had lent him the previous day. That is all she did. She just asked. She was not angry. But when she mentioned the money he got cross and struck her over the head and other parts of her body with his hands. The blows did not draw blood but they were hefty blows. She cried. They went outside and he continued to argue with her. They were quarrelling but not shouting. She heard someone sing out and tell them to go back inside.

12. He struck her on the head with a rock, she felt dizzy and fell on to the ground, face down. Then he pinned her down by standing on her legs. She was concerned that he was going to harm her seriously, struggled, as she was trying to run away from him, and was in the process of rising from the ground, trying to remove him, as he was still trying to hit her, when she threw her hands backwards. She accepts that when she threw her hands back, the kitchen knife, which – though she did not realise it at the time – she was still holding, must have penetrated his neck. She did not realise at the time that she had stabbed him. She did not deliberately stab him. It was an accident. It happened as she was trying to stop him from further assaulting her. She still does not understand exactly how it happened. She did not mean to kill him. As soon as she freed herself from him she ran away as she was scared that he would assault her again.

13. The argument therefore is that by attempting to free herself from the deceased and run away the accused – who happened accidentally to stab the deceased – was defending herself against the likelihood of further assaults from the deceased. She was acting in self-defence. Her killing of the deceased was lawful, and it is argued that this provides her with a complete defence under Section 269 (self-defence against unprovoked assault), which 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.

14. As the force used by the accused in the process of defending herself did, as a matter of fact, cause the death of the deceased, she must rely on Section 269(2), which means that the court must be satisfied that the following five elements of the defence exist:

1	the accused was unlawfully assaulted; and

2	the accused did not provoke the assault; and

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

4	the accused believed on reasonable grounds that she could not otherwise preserve herself from being killed or suffering grievous bodily harm; and

5	the accused used such force as was necessary for her defence.

15. 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 and Tapea Kwapena v The State [1978] PNGLR 316).

16. 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, a decision of the 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.

17. That principle has been applied in many subsequent National Court cases. For example in The State v David Yakuye Daniel (2005) N2869 (the killing by a man of his wife at Kandrian, West New Britain) the State disproved all the elements of the defence of self-defence and the accused was convicted of murder. In The State v Lenny Banabu (2005) N2871 (the killing by a man of his neighbour at Buvussi, West New Britain) the State was unable to disprove any of the elements: the defence applied, it was a complete defence and the accused was acquitted of wilful murder.

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

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

1	was the accused unlawfully assaulted?

2	did she not provoke the assault?

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

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

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

20. 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.

21. I consider that the first four questions should be answered yes. I accept her evidence that she was unlawfully assaulted and that she did not provoke the assault. The deceased hit her for no good reason and her enquiry as to the K20.00 that she had lent him the previous day was reasonable and cannot be regarded as provocation of the assault, in the relevant sense. I accept her evidence that the accused struck her twice – first, in the house, by hitting her over the head and other parts of her body, then outside when he struck her head with a rock – and that this would have caused her reasonable apprehension (ie she would have thought on reasonable grounds) that she might be about to suffer grievous bodily harm. I also accept – although this was not actually part of her evidence, as she says she had no intention of stabbing the deceased – that she could not preserve herself from suffering grievous bodily harm other than by using the knife that she was still holding.

22. The critical question therefore becomes whether she 'used only such force as was necessary for her defence'. This, in turn, gives rise to another question: how much force did she, in fact, use? If her evidence is accepted at face value, she used hardly any force. She just threw her hands at her back, vigorously, to try and free herself from the deceased's grasp so she could run away; she did not deliberately use the force of the knife against the deceased. 

23. I do not accept that version of events. I uphold the prosecution's submission that the accused was not telling the truth in her oral testimony. It was quite different to the version of events that she gave the police, which is recorded in the record of interview. Question 22, which asks what happened after he hit her with the rock, she fainted and fell, is answered:

When I fell, my husband came on top of me and wanted to hit me again and I took the knife and tried to push him and run away and I stabbed him. [Emphasis added]

24. In other parts of the interview she refers to "that knife I used" (Q 25) and states that "I stabbed him on his neck" (Q 26). These statements suggest clearly that the accused acted deliberately and that she knew, at the time of the incident, what she had done: she used a knife to stab her husband.

25. The post-mortem report gives lie to her claim that she did not use much force in the process of defending herself. It shows that she inflicted a 13 cm would, penetrating through the neck into the lung, causing the lung to collapse and major blood loss. This is evidence of considerable and deliberate force.

26. The more likely scenario, based on the medical evidence, is that the accused managed to free herself and then lunged at the deceased with the knife and managed to inflict an unhindered wound to the neck with considerable force.

27. She might have had an honest belief that she had to stab the deceased in the neck with that sort of force to defend herself. But that was not a reasonable belief (R v Kaiwor Ba [1976] PNGLR 90). I find that the force used by the accused was much more than necessary for her defence. The prosecution has discharged the onus of disproving this final element of the defence. Question 5 is answered No. Therefore the defence of self-defence does not apply.

2 	DOES THE DEFENCE OF ACCIDENT APPLY?

28. The defence of accident is provided by Section 24(1)(b) of the Criminal Code, which states:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for … an event that occurs by accident.

29. The defence operates in the same way as other excusatory defences such as self-defence. It is a complete defence. Once the accused puts evidence that the 'event' (in this case the killing of the deceased) has 'occurred by accident', the onus rests on the prosecution to disprove the defence.

30. The accused has given evidence that the accused's death was an accident. She just threw her hands at her back and the knife she happened to be carrying connected with the deceased. So the onus is on the prosecution to prove that that was not the case. The prosecution has done that through cross-examination of the accused and through a careful assessment of the post-mortem report. I rejected the accused's version of events in the assessment of the defence of self-defence. She gave evidence that was not credible or believable. It might be that she did not intend to kill the deceased. But the question is not whether the death of the deceased was an accident but whether 'the event', constituted by the acts of the accused, was an accident. Her stabbing of the deceased was not accidental. It was intentional. Therefore the defence of accident does not apply.

3 	WAS THE KILLING UNLAWFUL?

31. Section 289 (homicide) of the Criminal Code states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

32. As neither of the defences put forward by the accused has succeeded, her killing of the deceased is not authorised, justified or excused by law. It was an unlawful killing and the second element of the offence of wilful murder has been satisfied.

4 	DID THE ACCUSED INTEND TO KILL THE DECEASED?

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

•	Did she intend to kill the deceased? If yes, the third element of wilful murder is proven annd the accused will be guilty as charged (eg The State v Moses Nasres (2008) N3302).

•	If she did not intend to kill him did she 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 will be convicted of murder, not wilful murder (eg The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Abaya Ulas (2010) N4009). If no, the accused will be guilty of manslaughter, not wilful murder or murder (eg The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07; The State v Melchior Kapus (2010) N4114).

34. As Injia AJ, as he then was, highlighted in The State v Raphael Kuanande [1994] PNGLR 512 the relevant time at which to assess the accused's state of mind is when he committed the act that constitutes or is an element of the offence:

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]

35. Having examined the course of conduct of the accused before, when and after she stabbed the deceased, I am not satisfied that the prosecution has proven beyond reasonable doubt that she intended to kill him. It was a spur of the moment reaction to provocation on the part of the deceased. The third element of wilful murder is not proven.

5 	SHOULD THE ACCUSED BE CONVICTED OF SOME OTHER OFFENCE?

36. Two provisions of the Criminal Code are relevant here. Section 539(1) (charge of murder or manslaughter) 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.

37. 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.

38. The first question is whether the State has proven beyond reasonable doubt that the accused intended to do grievous bodily harm to the deceased. It is arguable that given the depth of the stab wound, there must have been an intention to do grievous bodily harm. However, given all the circumstances, and again taking into account that it was a spur of the moment reaction to provocation by the deceased, the accused will get the benefit of the doubt on this issue. I conclude, as Barnett J did in The State v Jeffery Bijuma (1989) N765, that there was no conscious intention to cause grievous bodily harm. None of the other circumstances prescribed by Section 300(1) exist. Therefore the accused is not guilty of murder.

39. I now have to consider whether a verdict of guilty of manslaughter should be entered under Section 302 (manslaughter) of the Criminal Code, which states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

40. I am satisfied that the elements of manslaughter have been proven beyond reasonable doubt. For reasons given earlier the accused killed the deceased and killed him unlawfully and in circumstances that do not constitute wilful murder or murder (or infanticide).

VERDICT

41. Jenny Dei, having been indicted on a charge of wilful murder under Section 299(1) of the Criminal Code, is found not guilty of wilful murder but guilty of manslaughter under Section 302 of the Criminal Code.

Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused