N5149

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 574 OF 2009

THE STATE

V

PETER KARIK

Madang: Kawi, J
2010:10th September
2011: 5th July

CRIMINAL LAW - PRACTICE AND PROCEDURE- Juvenile Courts Act- Accused a juvenile- proceedings held in camera-other procedural requirements of the legislation observed- Accused charged with an indictable offence of murder under the Criminal Code- fighting amongst classmates in school- Accused used kitchen knife to stab deceased- plea of self defence raised by the accused- whether self defence as a defence is available to the accused- prosecution bears the onus of negating self defence- accused used a kitchen knife to stab the deceased- Force used was highly disproportionate to the attack upon the accused- Self defence as a defence is not available to the accused.

Facts

The accused was indicted with one count of murder pursuant to section 300(1)(a) of the Criminal Code. The accused was seventeen years old and was therefore a Juvenile within the meaning of the Juvenile Courts Act. He was involved in a school fight in school amongst classmates. He used a kitchen knife to wave at and frighten those who fought him so he could escape. He alleged that he used a kitchen knife to frighten those who attacked him so he could escape. In the process he accidentally stabbed the deceased. 

Held: 

(1) It is to be noted that under the Juvenile Courts Act, where a juvenile is arrested and charged for committing an indictable offence, then the National Court assumes jurisdiction over the Juvenile Court and will follow the practice and procedure of the National Court.
 
On a plea of self defence to justify the Killing:

(2) In determining whether the defence of self defence applies, if the accused adduces evidence to legitimately raise the defence, the prosecution has the onus of proving beyond reasonable doubt, that at least one of the elements of the defence did not exist. R-v-Nikola Kristeff (1967) N445 applied. 

(3) The essence of self defence is that violence is presently being offered. An actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – The State –v- Angela Colis Towavik [1981] PNGLR 140 applied.

(4)	 Where a defence of self- defence is raised, the questions to be determined beyond reasonable doubt are: 

(a)	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 preserve 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 negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds
Tapea Kwapena –v- The State [1978] PNGLR 316 applied

(5) In order for the accused to successfully raise the plea of self defence under section 269 of the Criminal Code the court needs to be satisfied that the following elements of the defence exist:

(a)	the accused was unlawfully assaulted; and 

(b)	 the accused did not provoke the assault;

(c)	 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;

(d)	 the accused believed on reasonable grounds that he could not preserve himself from being killed or suffer grievous bodily harm; and

(e)	 the accused used such force as was necessary for his defence. 

(f)	 Here the force used was highly disproportionate to the attack. Consequently the defence of self defence fails.

Cases cited:

The State –v- Angela Colis Towavik [1981] PNGLR 140
Mecklina Kar Poning –v – The State (2005) SC 814
R-v-Muratovic [1967] Qd R 15
Tapea Kwapena –v- The State [1978] PNGLR 316
The State –v- Takip Palne [1976] PNGLR 90 
The State –v- Leonard Masiap[1997] PNGLR 610 at page 617 
R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23. 
R-v- Korongin [1961] N204 at page 8 per Mann CJ
The State –v- Leah Tununto (1990) N947 per Brunton AJ, 
The State –v- Rose Yapihra (1997) N1741 per Bidar AJ,
 The State –v- Michael Nema Melpa (2003) N2450, per Jalina J, 
The State –v- Mathilda Edward (2004) N2726 per Davani J, and 
The State –v- Albert Gias (2005) N2812 per Cannings J 
The State –v- Lenny Banabu [2005] PNGLR N2871per Cannings J 
The State –v- Michael Linas [2008] Unreported and Unnumbered Judgment of Paliau AJ dated 29th October 2008
 
 Counsel:

Mr. N. Goodenough, for the State
Mr. D. Joseph, for the Accused

DECISION ON VERDICT

5th July, 2011

1. KAWI J: Introduction: Seventeen (17) year old Peter Karik of Gial village, KarKar Island, Madang Province, stands charged that he on the 12th day of March 2008 at Beon Primary School, murdered one, Max Charlie thereby contravening Section 300(1)(a) of the Criminal Code.

Arraignment

2. When the charge was put to him on arraignment, he pleaded not guilty to the charge. He said that he was attacked by a group of boys which included the deceased, Max Charlie. 
He pulled out a knife from his schoolbag and tried to scare the boys so he could run away. In the process of waving the knife, he accidently stabbed Max Charlie on his left abdomen. Max Charlie died as a result of the stab wounds.

State Allegations

3. The State alleges that on the 12th of March 2008 at the Beon Primary School, a fight broke out between Ronnie Basul - a Grade 7 student and another Grade 7 student, Mr Michael Okomase. The deceased, Max Charlie, another Grade 7 student attempted to stop the fight by separating the two. The accused upon seeing his friend Michael Okomase being pushed, approached Max Charlie with a knife and stabbed him on his left abdomen. Max Charlie died a few days later as a result of the stab wounds.

Juvenile Act

4. Where a Juvenile is charged with an indictable offence, then both procedural and substantive matters provided under the Juvenile Court Act must be observed and followed. Under the relevant provision of the Juvenile Court Act, a juvenile is defined as a person under the age of 18 years. The accused in this case is 17 years of age and so is a juvenile for purposes of the Juvenile Courts Act.

5. In accordance with the requirements of this Act, the following procedural and substantive legal requirements were taken into consideration and followed:

 (a) The entire proceeding were held in camera.

 (b) The people allowed in Court were:

 (i) Mr Steven Banari – Senior Probation Officer and Juvenile Officer.

 (ii) The parents of the accused.

 (iii) State Prosecutor – Mr Nicholas Goodenough

 (iv) Defence Counsel – Mr Donald Joseph

 (v) A CIS Officer

 (vi) A Court Interpreter

 (vii) Associate to the Judge- Mr Mark Sel.

 (viii) A Court Attendant

 (ix) The Court Reporting Officer, Ms Eurista Mase.

6. After this procedural requirements were observed, the trial commenced in camera. I then enquired with defence counsel as to whether or not the accused understands:

(a) Why he is in court.

(b) His fitness to formally enter a plea on arraignment.

(c) His understanding of the implications of giving evidence on Oath and the consequences of giving false evidence.

(d) His general understanding of the court process and the general rules of evidence and procedure.

7. Counsel indicated to me that these matters were not generally explained to the accused. I granted a 15 minute adjournment to the counsel for him to explain to the accused the matters outlined above. 

Upon resumption, counsel explained that the general matters raised above were explained in detail to the accused and he understands and appreciates them. Upon being satisfied myself, the trial then commenced.

8. It is to be noted that under the Juvenile Courts Act, where a juvenile is arrested and charged for committing an indictable offence, then the National Court assumes jurisdiction over the Juvenile Court and will follow the practice and procedure of the National Court.

9. The State called a total of three witness, all of whom were once classmates of both the deceased and the accused.

STATE WITNESS # 1 – RONNIE BASUL

10. Ronnie was at the relevant time, a classmate of both the accused and the deceased person. On the 12th of March 2008, he entered his Grade 7 classroom accompanied by his friends, Godfried Tabi, John Bernard and Max Charlie. They went straight to their respective desks and commenced their morning devotion. 

11. The morning devotion had started at about 8:00 a.m., but the class teacher had not arrived as yet. Whilst waiting for the class teacher to arrive Ronnie Basul then walked over to the desk of another student, Michael Okomase. Michael Okomase had wanted to see Ronnie Basul the previous day. When Ronnie Basul approached Michael Okomase, the two of them started arguing. Apparently the argument was over a female classmate. The argument turned rowdy and a fight erupted. Ronnie Basul and Michael Okomase began fighting each other. While they were fighting the deceased Max Charlie came up to them to stop them. He manage to physically separate them. 

12. While he was physically separating the two fighters, the accused Peter Karik walked up to Max Charlie and stabbed him on his left abdomen. 

He states that Peter Karik was only assaulted by Godfried Tabi after he (Godfried) saw that he had stabbed Max Charlie and not before the stabbing.

STATE WITNESS # 2 – JOHN BERNARD

13. The second State witness was another former classmate of both the accused and the deceased, John Bernard. He confirmed coming to school that morning and by 8:00 a.m. he was already in class for the morning devotion. 

14. He confirmed that immediately after the devotion, as the class teacher was not yet at class, Ronnie Basul walked over to Michael Okomase and the two of them had an argument. He says that it was Michael Okomase who provoked the argument and therefore the fight by shouting to Ronnie Basul words to the effect, "yu kaikai kan" and immediately swung a punch at Ronnie Basul. 

15. This punch prompted Ronnie Basul to strike back at Michael Okomase and a fight started. While the two of them were fighting, the deceased, Max Charlie approached them and stopped them. He managed to separate them by pushing Michael Okomase to one side and Ronnie Basul to the other side.The accused, Peter Karik who was sitting on his desk saw his friend Michael Okomase being pushed to one side. He got up from his desk and ran to where the deceased stood and stabbed him on the left side of his abdomen. 

16. When Max Charlie was stabbed with the knife, he just stood there with blood oozing from his abdomen. The knife also had blood on it and Peter Karik threw the knife out of the window. Upon seeing this Godfried Tabi then ran to where Peter Karik was and punched him to the floor. Godfried Tabi was still fighting Peter Karik when the teachers from the school came and stopped the fight. This witness says that Peter Karik was assaulted by Godfried Tabi only after he had stabbed Max Charlie with a knife and not before the stabbing.

STATE WITNESS # 4 – GODFRIED TABI 

17. Like the other State witnesses, Godfried Tabi is another former classmate of both the accused, Peter Karik and the deceased, Max Charlie.

18. He gave evidence that he came into the classroom before 8:00 a.m. on Wednesday 12th March 2008. At 8:00a.m. on that day, that Grade 7 class had the likes of the accused Peter Karik, the deceased, Max Charlie, Ronnie Basul, John Bernard, Godfried Tabi and Michael Okomase. The class commenced their daily devotion without the class teacher. Immediately after the morning devotion, Ronnie Basul walked over to where Michael Okomase was seated. 

19. He had intended to ask Michael Okomase as to why he (Michael Okomase) had sent word to see him (Ronnie Basul) the previous day. When Ronnie Basul approached Michael Okomase, he (Michael Okamase) shouted at Ronnie Basul using the words:"Kaikai kan", and at the same time swinging a punch at Ronnie Basul, which landed on the latter's face. This prompted Ronnie Basul to fight back. A fight broke out between the two, Michael Okomase and Ronnie Basul. As they were fighting, the deceased Max Charlie, came to stop them. He did so by physically separating and then pushing Ronnie Basul to one side and Michael Okomase to the other side. When Michael Okomase was pushed to one side, his friend Peter Karik who was sitting on his desk rushed to his aid with a kitchen knife and stabbed Max Charlie on the left side of his abdomen. As blood was oozing from the wound, Godfried Tabi ran and punched Peter Karik and the two started their own fight. Peter Karik upon being punched by Godfried Tabi threw the knife outside through the window and he followed suit by jumping out through the window. 

20. A common fact which all three State witnesses spoke of was: 

(a) 	All the State witnesses including the accused and the deceased were all Grade 7 students attending the Beon Primary School.

(b) 	There was a fight between Ronnie Basul and Michael Okomase. 

Michael Okomase had provoked this fight by swearing at Ronnie Basul and then throwing a punch at him first.

(d)	The deceased, Max Charlie, was in no way involved in the fight. All he did was to come up and stop the fight.

 (d) 	He stopped the fight by physically separating the two. In that regard, he pushed Ronnie Basul to one side and Michael Okomase to the other side. 

The accused Peter Karik was sitting on his desk. When he saw his friend being pushed to one side, he left his desk and walked across to where Michael Okomase and Ronnie Basul were. 

 (e) 	He saw the deceased Max Charlie stopping the fight and physically separating Ronnie Basul and Michael Okomase. As the deceased was stopping this two boys, the accused Peter Karik walked up to the deceased and stabbed him with a kitchen knife on the left side of his abdomen.

(f) 	After stabbing Max he (ie Peter Karik) threw the knife outside through the window. Godfried Tabi upon seeing Max Charlie bleed then came and assaulted the accused Peter Karik.

(g) 	Peter Karik was only assaulted after he stabbed Max Charlie. He was never assaulted before the stabbing incident.

 (h) 	All State witnesses positively identified that a kitchen knife was used by Peter Karik to stab the deceased, Max Charlie.

21. After calling these three (3) witnesses the State closed its case. At this stage I explained to the accused that he had several options. These options were:

(a)	Change his not guilty plea to a plea of guilty.

(b)	Make a No Case to Answer submission.

(c)	Exercise his Constitutional Right to remain silent.

(d)	Make a Statement from the dock.

(e)	give Sworn evidence on Oath.

22. The accused was given a 10 minute adjournment to consult his lawyer to decide which option to take. When the court resumed, counsel advised the court that the accused had elected to give sworn evidence.

DEFENCE WITNESS # 1 – PETER KARIK ( the accused)

23. The accused Peter Karik gave evidence of having an argument with one John Bernard on Monday 8th March 2010. This argument ended up with John Bernard and the accused fighting. 

24. The argument was over a girl attending the same class as the accused and John Bernard. The next day Tuesday 9th March 2008, the accused says that he made an attempt to settle this dispute by asking Godfried Tabi, John Bernard and Ronnie Basul to come and meet with himself, Michael Okomase and another student. This meeting never eventuated as the others feared that instead of settling the dispute there would be a fight. The next morning Wednesday 12th March 2008, the accused like all his classmates went to school in the morning. Around 8:00 a.m. they started their class devotions. By this time the class teacher had not yet arrived in the classroom. Immediately after the devotions, Ronnie Basul is alleged to have walked over to Michael Okomase's desk and picked up an argument with him. Both Ronnie Basul and Michael Okomase began trading punches at one another. The deceased Max Charlie and Godfried Tabi came and stood behind Ronnie and started punching Michael Okomase.

25. This fight forced Michael Okomase to run out of the classroom. Godfried Tabi, Max Charlie and Ronnie Basul then turned around and saw the accused Peter Karik still on his desk. They shouted, "he is one of them" and started punching the accused. 

26. The three boys, Ronnie Basul, Godfried Tabi and Max Charlie started punching Peter Karik. He says that fearing for his life and of being injured, he pulled out his kitchen knife from his school bag and started to swing the knife to scare the three attackers to make room for him so that he could escape.

27. As he was swinging the knife to scare his attackers, the deceased Max Charlie ran towards him with a timber to attack him. The accused says that the timber was about 80cm long and a width of about 5cm. Max ran to hit the accused with that piece of timber while the other three attackers were all gang fighting him. When Max threw the timber at the accused he blocked the timber which had hit him on his right toe. The accused kept on swinging his knife to scare all of the attackers off, when it accidently struck Max on the left abdomen. The accused says that it was never his intention to stab Max, but only to scare all of them so that they would somehow create a room for him to escape. He says that the stabbing and the death was purely accidental.

DEFENCE WITNESS # 2 HENRY BIDOKO

28. The only other witness called by the defence was a Correctional Service Officer, Mr Henry Bidoko. His evidence only concerned what happened after the stabbing incident at school, and also the kind of medical treatment received by the accused at the Modilon General Hospital. 

29. Although he was allowed to complete his evidence and was cross-examined, I find that his evidence has no relevance at all to establishing the guilt or innocence of the accused. For purposes of determining the guilt or innocence of the accused person, I will rely only on the evidence of the three State witnesses and the accused himself, together with all other evidentiary materials which were tendered in by consent of both parties.

MATERIALS TENDERED IN BY CONSENT

30. The following materials were tendered in by consent and accepted in as Uncontested evidence:

(a) A sharp pointed back handle Kitchen Knife (the alleged murder weapon)– State Exhibit 1.

 (b) Record of Interview – Original Tokpisin version

 – State Exhibit 2(a)
 - English Version (2)(b)

 (c) Medical Certificate of death – State Exhibit 3

 (d) Post Mortem Report – State Exhibit 4.

ASSESSMENT OF EVIDENCE

31. The court makes the following findings of undisputed and disputed facts based on the evidence of the three State witnesses and the accused.

•	There is no dispute that a fight occurred between Ronnie Basul and Michael Okomase between 8:00 a.m. and 8:30 a.m. on the morning of Wednesday 12th March 2008.

•	This was because of an ongoing disputes and jealousy between two groups of students over a school girl. 

The first group comprised of the accused, Peter Karik and Michael Okomase and Lau Polena. The second group compromised of Ronnie Basul, John Bernard, Godfried Tabi and the deceased Max Charlie. The dispute was over a certain school girl who is said to have befriended the accused Peter Karik.

•	The accused Peter Karik stabbed the deceased Max Charlie with a kitchen knife. This knife was tendered into Court and marked as Exhibit 1. Max Charlie died from this stab wound.

DISPUTED FACTS

•	There is some dispute as to who started the fight. Was it Ronnie Basul or Michael Okomase?

The State through its witnesses allege that;

•	Ronnie Basul and Michael Okomase were fighting when Max Charlie came and stopped the fight. Max Charlie stopped the fight by separating Ronnie Basul and Michael Okomase. While he was separating the two, the accused Peter Karik walked up to him and stabbed him with a kitchen knife on his left abdomen. The accused on the other hand says that Ronnie Basul, Godfried Tabi and John Bernard attacked him as he was sitting down on his desk. His friend Michael Okomase was attacked first and then chase out of the classroom. 

•	 The three attackers then turned their attention to him, and began to fight him. He then pulled out his knife from his school bag to scare them so a space could be created for him to run out of the classroom.

The deceased Max Charlie on seeing this ran to attack the accused with a small piece of timber. He hit the accused on his toe when the accused tried to stop him. As the accused was swinging the knife to scare his attackers he accidently stabbed Max on his left abdomen.

•	The State alleges that the accused Peter Karik was assaulted after the stabbing incident by Godfried Tabi. The accused on the other hand says that Godfried Tabi was part of the three men gang who attacked him when he was sitting down on his desk. It was this gang attack and fight that led to him stabbing Max Charlie.

FINDING OF FACTS BY THE COURT

32. Based on the evidence by the three (3) State witnesses and the accused together with the evidentiary materials tendered in by consent of both parties, I make the following finding of fact:

(a) There was an ongoing and existing dispute between these two groups of classmates over a certain girl in class.

(b) On Wednesday the 8th of March 2008 apart from all the other students, these boys were in class on that fateful morning. Michael Okomase, Peter Karik, Ronnie Basul, John Bernard, Godfried Tabi and Max Charlie.

(c) At 8:00 a.m. the Grade 7 class teacher was not yet in the classroom. The students then had the morning devotion themselves and immediately after the morning devotion, the student, Ronnie Basul walked across to Michael Okomase's desk to ask him as to why Michael Okomase had wanted to see Ronnie Basul the previous day. 

33. As soon as Ronnie Basul approached Michael Okomase, he (Michael Okomase) swore at Ronnie Basul with words to the effect, "yu kaikai kan". This swearing sparked off a fight between Michael Okomase and Ronnie Basul.

d) The court finds that Michael Okomase started the fight. He was the aggressor.

(e) Ronnie Basul's other friends, John Bernard, Godfried Tabi and Max Charlie came to Ronnie Basul's aid and together they chased Michael Okomase away outside of the classroom. When Michael Okomase ran out of the classroom, they turned their attention to his friend Peter Karik who was standing at his desk in a corner of the classroom.

(f)	The court finds that Michael Okomase was not stopped by Max Charlie, rather he was attacked and chased away by Ronnie Basul's friends consisting, John Bernard, Godfried Tabi and Max Charlie.

(g)	After chasing Michael Okomase out of the classroom, this group of boys then attacked Peter Karik. Max Charlie was armed with a small piece of timber which he did not use to harm anyone one let alone inflict serious bodily injuries on anyone including Peter Karik.

(h)	In an effort to defend himself, Peter Karik pulled out his small knife from his bag and began deliberately swinging the knife at his attackers. In the process of swinging his knife he stabbed Max Charlie on the left abdomen which eventually led to the death of Max Charlie.

(i)	It is the judgement of this Court that the death of Max Charlie was caused by a knife swung by Peter Karik. Peter Karik says that he stabbed Max Charlie in self-defence.

(j)	This raises the question of whether or not Peter Karik was acting in self defence when he stabbed Max Charlie on that fateful Wednesday morning. The State evidence as it stands shows that the stabbing was down right cold blood murder. The accused on the other hand raised self defence to justify his stabbing of Max Charlie. I will therefore examine this defence and determine whether it applies here or not.

THE DEFENCE OF SELF DEFENCEND ITS APPLICATION
THE LAW

Did the accused Kill the deceased?

34. There is absolutely no doubt in my mind and the court so finds that the accused killed the deceased by stabbing him with a kitchen knife. I refer here to section 291 of the Criminal Code which states:

"Subject to the succeeding provisions of the code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed that other persons."

Section 300(1)(a) of the Criminal Code states:

300. Murder

(1)	Subject to the succeeding provision of this Code, a person who kills another person, under any of the following circumstances is guilty of murder,

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person; 
 
35. The Criminal Code has several provisions which may also apply in this case.

•	Sections 269 and 270 deal with circumstances in which a killing in self defence is lawful.

•	Section 302 creates the offence of manslaughter

•	Section 539(1) provides that on an indictment charging a person with murder, he may be convicted of the crime of manslaughter or some other offence, as prescribed. 

Elements of the offence under section 300(1)(a)

36. The accused in this case is charged with murder and so the onus is on the prosecution to prove beyond reasonable doubt that:

(a)	The accused killed the deceased;

(b)	The offender intended to do grievous bodily harm to the person killed; 

37. The above two elements of the offence prescribed under section 300(1)(a) are however subject to two things:

(a)	 The first is the defence of self defence which exists under section 269 of the criminal code; and

(b)	Secondly if the court is not satisfied that the two elements of murder being relied upon are proven, an alternative verdict of manslaughter can be entered under section 539 if elements of any of the four prescribed offences are present.

THE LEGAL ISSUES

38. There are a number of legal issues which arise for consideration here.

(1)	The first is Did the Accused Kill the deceased?

If yes, the first element of murder is established. If no then he must not be found guilty of murder.

(2)	Does the defence of self defence apply here.

If yes the accused is entitled to an acquittal, as the killing will be rendered lawful. If no the court should consider whether other elements of murder are established.

(3)	Was the accused criminally negligent as defined by section 287 of the Criminal Code or was his killing of the deceased not authorized or justified or excused by law? If yes, the act of killing the deceased will be unlawful and the second element of murder will be satisfied. If no, the accused is entitled to an acquittal, as the killing will be rendered lawful.

Section 289 provides that "the killing of another person is unlawful if it is not authorized or justified or excused by law".

(4)	Did the accused intend to cause grievous bodily harm of the deceased or some other person? If yes, the second element of murder will be established and the court will enter a conviction. 

(5)	If no the Court should consider whether an alternative verdict of manslaughter should be entered.

(6)	Have the elements of murder or manslaughter been established? If yes then I should proceed to record a conviction. If no, then I order an acquittal

The issue in This Case

Since it is not disputed that the deceased died from the stab wounds to abdomen with a kitchen knife, the issue is really when the accused stabbed the deceased, whether he did so to defend himself from possible death or grievous bodily harm to himself. If so whether the accused acted in self defence and whether he has established self defence by satisfying the test laid down for establishing this defence.

39. In his Record of Interview which was tendered into evidence by consent, the accused states that he acted in self defence. In question 36, he was asked: 

Q36: How did you end up stabbing Max Charlie with the knife?

ANS: I was standing at my desk when many of them came to fight me so in order to make them stay away from me while I escape, I used the knife and accidently stab him.

The pidgin version of the same question 36 is expressed as follows: 

Q36: How yu en up na sutim Max Charlie long knife?

ANS: Mi sanap long desk blong mi na ol kam bung pait long mi na mi laik poretim ol na ol suruk na bai mi ronawe na mi aburis na sutim em. 

No other explanations or answers are given by the accused right throughout his record of interview. In his evidence in court, the accused maintained this same line of defence.
Since the accused is raising self defence, he must satisfy the elements of this defence on a balance of probabilities. The prosecution on the other hand has to negative that defence beyond reasonable doubt.

Self defence as a defence is prescribed under section 269 of the Criminal Code. 
Section 269 of the Criminal Code 'Self Defence against Unprovoked Assault' states:

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm

(2)	If – a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

 (b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, 

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm. 

The essence of self defence is that violence is presently being offered. An actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – See the State –v- Angela Colis Towavik [ 1981] PNGLR 140.

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 wherein the Supreme Court adopted and followed the principles of law pronounced in the Queensland case of R-v-Muratovic [1967] Qd R 15 which was followed by an earlier Supreme Court in Tapea Kwapena –v- The State [1978] PNGLR 316.

The Supreme Courts made the following comments:

 "Where a defence of self- defence is raised under section 267 of the Criminal Code. The questions to be determined beyond reasonable doubt are: (a) 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 preserve 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 negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds".

ELEMENTS OF SELF DEFENCE

40. In order for the accused to successfully raise the plea of self defence under section 269 the court needs to be satisfied that the following elements of the defence have been established.

(a)	the accused was unlawfully assaulted; and

(b)	 the accused did not provoke the assault. and 

(c)	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 believe on reasonable grounds that he could not preserve himself from being killed or suffering grievous bodily harm; and

(d)	 the accused used such force as was necessary for his defence. 

The National Court has held that if all these elements exists, the force used by the accused is lawful even if it causes the death of the assailant; - See The State-v Lenny Banabu, [2005] N2871], The State –v- Takip Palne [1976] PNGLR 90 Tapea Kwapena –v- The State [1978] PNGLR 316 The State –v- Leonard Masiap[1997] PNGLR 610 at page 617. R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23. R-v- Korongin [1961]N204 at page 8 per Mann CJ.

41. Is there evidence before the Court for the accused to legitimately raise this defence? The court finds that the only relevant reference to this is Question and Answer No 36 in his Record of Interview which was referred to earlier. 

42. As I indicated above the only evidence of self defence raised by the accused was in response to question 36 and the thrust of this evidence is that he was gang attacked by the other three students, and he used a knife to scare them so he could escape and thereby accidently stabbed the deceased.

Clearly the accused is raising self defence here. But whether it is a valid defence or not depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exists. 

ONUS OF PROOF

43. Once an accused raises self – defence in his evidence, the onus rests on the prosecution to negative the elements of that defence. The leading case on this issue is the case of R –v- Nikola Kristeff [1967] N445. This was a decision of the pre-Independence Supreme Court, in which Frost, J made the following comments regarding the burden of proof: 

" 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 defense, 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 the ultimate facts which establish these pleas are not present."

What is important to note here is that the accused bears the burden to establish self defence as a defence on a balance of probabilities, but the prosecution has to negative the existence of the elements of this defence beyond reasonable doubt. The principle pronounced in R –v- Nikola Kristoff has been applied in many subsequent National Courts decision such as The State –v- Angela Colis Towa Viic [1981] PNGLR 140, per Miles J, The State –v- Misari Warum [1989] N753 per Brunton AJ, The State –v- Leah Tununto (1990) N947 per Brunton AJ, The State –v- Leonard Masiap [1997] PNGLR 610 per Sevua J, The State –v- Rose Yapihra (1997) N1741 per Bidar AJ, The State –v- Michael Nema Melpa (2003) N2450, per Jalina J, The State –v- Mathilda Edward (2004) N2726 per Davani J, and the State –v- Albert Gias (2005) N2812 per Cannings J. 

The State –v- Lenny Banabu [2005] N2871 per Cannings J and The State –v- Michael Linas [2008] Unreported and Unnumbered Judgement of Paliau AJ dated 29th October 2008.The State –v- Alex Gasi Unreported judgement of Kawi J dated 19th March 2010.

44. I will examine the elements of self defence and assess whether the accused has established them from his evidence and whether the prosecution has negatived these elements. 

45. I will restate the elements of this defence by taking the same approach I took in The State –v- Alex Gasi which in turn followed the approach taken by taken by his Honour Cannings J in the State –v- Lenny Banabu [2005] N2871. In Alex Gasi I followed Lenny Banabu and had asked a number of questions to establish each of the elements of the defence of self defence which I will adopt and ask here myself.

1.	Was the accused unlawfully assaulted? 

46. I will look at the whole circumstances of this case to answer this question. The evidence which the court has already accepted is this: The accused was gang attacked by three other boys comprising Ronnie Basul, John Bernard and the deceased Max Charlie. He pulled out a kitchen knife from his school bag and waved it around to scare them so they would make room for him to escape.

47. In the State –v- Angela Colis Towavik [1981] PNGLR 140 it was held that there must be prior assault by the victim for the defence of self defence to become available. See also R-v- Korongia [1961]No. 204. The court finds that there was an actual prior assault by the assailants, which included the deceased on the accused. So question one is answered yes.

2.	Did the Accused not provoke the Assault? 

Again looking at the whole circumstances of this case, this court is satisfied that the accused did not provoke this assault. In other words the prosecution has not been able to prove beyond reasonable doubt that the accused provoked the assault on him by the deceased and his friends. 

Question 2 is again answered Yes. 

3.	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.

This fight took place inside a classroom. The accused says he was cornered into the corner of the classroom where the gang attack on him was taking place. He could not escape the gang attack. 

He says that as the attack and the gang fight upon him was being perpetrated he found himself cornered and boxed in one corner of the classroom where he could not easily escape to safety. 

So he pulled out his knife from his school bag and was waving his knife around to scare his attackers to make room for him to escape to safety. In the process of waving his knife around he accidentally stabbed Max Charlie who died from massive loss of blood from the stab wounds. 

The accused says he feared that he would suffer from some grievous bodily harm from the gang fight if he did not react in the way he did.

The court finds that although the accused was boxed in a corner of the classroom and assaulted, the nature of the attack from the three boys could not have inflicted grievous bodily harm or even death upon him.

 Even the use of a piece of wood to hit him on the leg was not sufficient to cause reasonable apprehension of grievous bodily harm or death being inflicted upon him. I would answer this question NO

The Accused Believed on Reasonable Grounds that he could not Otherwise Preserve himself from Being Killed or Suffering Grievous Bodily Harm 

Again looking at the whole circumstances, I have already found that it was the three boys who first attacked the accused. These three boys were the initial aggressors. The accused found himself in a tight corner where he says he had no way to escape. I ask the question. Was this the only way the accused would have preserved himself? Could he have retreated or run away to preserve himself? 

In the case of R-v- Kambe Pare[1965] PNGLR 321 it was held that retreating before employing a force is not an independent and imperative condition when self defence is raised as a defence. Whether he should have retreated or run away is a matter for the court to consider in deciding on the reasonableness of the conduct of the accused. 

In fact the court finds that in the kind unfriendly environment the accused found himself in, in the classroom, retreating and running away to preserve himself was not an option which the accused could exercise. Even if the accused tried to retreat or escape he could have found himself in a position where he could still be assaulted. I would answer question 4 yes.

4.	Did the Accused Used Only Such Force as was Necessary for His Defence? 

This is a very critical question. If the prosecution proves that the answer is no; i.e. the accused used "more force than necessary" than self defence as a defence cannot be established. 
The accused gave evidence of being boxed in a corner of the classroom and had to use a knife as a means of scaring his attackers away in order for him to escape to safety. 

The Medical evidence of Dr B. Dagam who conducted the autopsy on the body of the deceased states the cause of death as being a stab wound to the left back. Which entered the 12th rib and pierced the whole width of the left kidney from the cortex to the hilum. 

This caused massive hemorrhage resulting in the deceased losing some 6-7 liters of blood. It was also revealed that the length of the knife wound was approximately 10 centimeters extending through the left kidney. According to the Medical evidence, the massive blood loss made the accused looked very pale at the time of the autopsy. 

48. The accused on the other hand says that the stabbing of the deceased was purely accidental. The accused states the same thing to the Police in his Record of Interview: He says this in response to Question and Answer 36: 

Q36: How did you end up stabbing Max Charlie with the knife?

ANS: I was standing at my desk when many of them came to fight me so in order to make them stay away from me while I escape, I used the knife and accidently to stab him.

The pidgin version of the same question 36 is expressed as follows: 

Q36: How yu en up na sutim Max Charlie long knife?

ANS: Mi sanap long desk blong mi na ol kam bung pait long mi na mi laik poretim ol na ol suruk na bai mi ronawe na mi aburis na sutim em. 

Did the accused use more force than necessary? Going by the medical evidence alone it is the judgement of this court that the force used by the accused to scare away his attackers is not proportionate to the degree of attack with a sharp pointed kitchen knife. It is the further judgement of this court that the accused was intentionally waving his kitchen knife at his attackers to scare them away. 

This cannot be described as accidental as the accused tried to paint to the court. It is also the further judgement of the court that the stabbing of Max Charlie was intentional and deliberate. The court finds that as a result of the gang attack, the accused pulled out his kitchen knife from his school bag and was deliberately waving it in front of his attackers and daring them to come and fight him and in the process stabbed Max Charlie. 

This cannot be described as an accidental stabbing, rather it was a deliberate and intentional stabbing. Medical evidence describing the stab wound as a 10 centimeter wound extending through the left kidney confirms this finding. 

Furthermore to use a sharp pointed kitchen knife against three attacking students is highly disproportionate to any assaults inflicted upon him.

This finding is made in view of the fact that the accused did not give any evidence of the nature of the assault upon him. In addition the accused has always carried the kitchen knife with him in his school bag. The most logical inference to be drawn here is that where he encounters any form of an assault or an attack upon him, he would resort to his knife to aid him in his defence. In other words the accused always had a premeditated intention of the use of a weapon (a knife in this case) in his defence whenever the need for it arises.

By saying that the stabbing was "accidental", the accused was in effect saying that the force he used was not intended to kill the deceased though mistakenly it did happen that way. This court rejects such an argument in light of the medical evidence of the autopsy. 

The fifth element in my view requires the court to apply both a subjective and an objective test. That is to say that the question to ask is whether the accused had a honest and a reasonable, though mistaken belief that the force, he used was necessary for his defence- 
See R-v- Kaiwor Ba [1976] PNGLR 90. 

From the medical evidence, I am able to conclude that the accused used more force than was necessary. I am not satisfied that he had a honest and reasonable belief that he had to use such considerable force to defend himself. 

It is the judgement of this court that the prosecution has discharged the onus of disproving the final element of the defence. 

I would answer No to question five.

VERDICT

The court finds that the accused has not established the defence of self defence as a defence to his charge under section 300(1)(a). The court finds that the State has successfully negatived beyond reasonable doubt the defence of self defence raised by the accused. The consequences of a finding that the defence of self defence is not established is this:

(a)	The State has successfully established all elements of the crime of murder under section 3 (1)(a) of the Criminal Code.

(b)	The accused is accordingly found guilty of murder.

(c)	The use of force by the accused was unlawful, by virtue of section 269 (2) of the criminal code. 

(d)	As the accused used more force than necessary he is guilty of murder and an alternative verdict of manslaughter is not available to him under section 539.

(e)	The accused is found guilty and convicted accordingly of the crime of murder pursuant to section 300(1)(a) of the criminal code. 

Verdict - Guilty and convicted of murder under section 300(1)(a)
 ____________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused