State v Paina [2014] PGNC 182; N5819 (21 November 2014)

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CRIMINAL LAW – murder – Criminal Code, Section 300(1) (murder) – elements of the offence – whether the accused killed the deceased – whether the accused intended to do grievous bodily harm

CRIMINAL DEFENCES – defence of self-defence: Criminal Code, Section 269 (self-defence against unprovoked assault) – partial defence of provocation; Criminal Code, Section 303 (killing on provocation)

The accused was charged with murder under Section 300(1)(a) of the Criminal Code. The deceased was a man who the accused alleged had stolen betel nut from him. The accused admitted cutting him with a bushknife and causing his death but raised the defences of self-defence and provocation.

1. CANNINGS J: This is the verdict in the case of the accused, Junior Paul Paina, who has been indicted for the murder of Daniel Salawai. The accused pleaded not guilty so a trial was held.

2. The State alleges that the accused cut the deceased with a bushknife, intending to do him grievous bodily harm and causing his instant death, at Arra in the Transgogol area of Madang Province, on Friday 15 November 2013. The State's case is based on the eyewitness evidence of the deceased's wife and on the evidence of the Police officer who arrested the accused soon after the incident and interviewed him.

3. The accused gave sworn evidence. He did not dispute that he cut the deceased but denied that it was his intention to kill him or do him grievous bodily harm. He said that earlier that day the deceased had trespassed on to his land, cut down trees and stolen betel nut. He raised defences of self-defence and provocation.

UNDISPUTED FACTS

5. The accused has been charged with murder under Section 300(1)(a) of the Criminal Code, which 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.

7. If the court is not satisfied that the first element is proven, an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is proven but not the second, an alternative verdict of manslaughter can be considered under Section 539(2). If the Court is satisfied that both elements have been proven it will then consider whether either of the defences raised by the accused apply. The primary issues are:

9. Two witnesses gave oral evidence for the State, as summarised in the following table, and various exhibits were admitted into evidence by consent.

No	Witness	Description
1	Angela Pundi	Wife of deceased
Evidence: On the afternoon of 15 November 2013 she was standing on the roadside waiting for her husband to return from his village, Kagi. She was holding their baby and spoke to her mother, then her husband approached. She then saw the accused come from behind her husband and cut him with a bushknife. She was standing only about ten metres away. She ran over to her husband but he was badly wounded on the back, the ribs and the side of his body, and dying. The accused told her that he had cut her husband as he had stolen his betel nut, but she saw no evidence of that. She knows the accused and was able to identify him easily. She had been with her husband until midday, then they went their separate ways, then he came back and this incident happened at about 3.00 pm. He had told her that he was going to his village to visit his family. She did not have an argument with him. She did not see him holding a bushknife. She saw clearly what happened. She did not observe any argument between the accused and her husband. The accused just came from behind and cut him. The accused swung the bushknife once. Her husband was not running away from the accused at the time he was cut. He ran a short distance after he was cut but collapsed and died.
2	Constable Nelson Salingana	Police investigating officer, Bawan Police Station
Evidence: He was on duty on the afternoon of 15 November 2013 – he received a phone call from the Local-level Government President who said that there had been a death at Arra – he went to the scene of the incident, arriving at 4.00 pm – stayed for a couple of hours and told the deceased's relatives not to retaliate – located the accused, who had been identified as the only suspect, at his village at 6.30 pm – the accused told him that he had been waiting for the Police to come and get him – the accused gave up his bushknife and said that 'this is the bushknife I used to cut the victim' – he cooperated – took him to Jomba Police Station and locked him up there – he took photos of the deceased's body with his personal camera as there were no other facilities available. He later conducted the interview of the accused, in which the accused made admissions and explained that the deceased had earlier that day gone to his area and stolen betel nuts.

No	Witness	Description
1	Junior Paul Paina	The accused
Evidence: The deceased (who he consistently referred to as 'the thief') went into his (the accused's) garden at 6.00 am and cut his betel nut trees and stole betel nut – this was the third time the deceased had done this – when the deceased noticed that the accused had spotted him, he ran away – the accused told his wife about what the deceased had done – his wife cooked breakfast – he later waited for him on the roadside and confronted him and they argued (he accused the deceased of stealing betel nut from him since 2008) – the deceased offered him a betel nut but he (the accused) noticed that the nut was from his garden – during the course of the argument the deceased swung his bushknife at him, attempting to cut him – he help up his arm to protect himself and in doing so pushed the bushknife back against the deceased and it cut him – he did not mean to cut him but soon realised that he had been wounded. In cross-examination he said that he had seen the deceased stealing his betel nut but had not shouted at him – he denied chasing the deceased with a bushknife, he was not armed – he repeated that he did not mean to cut him, he was just trying to remove the bushknife from him, trying to defend himself. He denied that he was angry.

11. I refer here to Section 391 (definition of killing) of the Criminal Code which states:

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

12. It is clear that the accused directly caused the death of the deceased by cutting him with the bushknife, inflicting a deep and long wound to the back. This issue has in effect been conceded by the defence. The State has discharged the burden of proving beyond reasonable doubt that the accused killed the deceased. The first element of the offence of murder has been proven.

13. Putting aside for a moment the issue of whether the accused acted in self-defence, the question is whether he intended to do grievous bodily harm. What was his state of mind when he inflicted the wound on the deceased? The medical evidence is crucial at this point. The post-mortem report shows that there was only one wound, but it was very severe, measuring 32 cm in length, with a width of 9 cm and a depth of 15 cm. Considerable force would have been required to inflict such a wound. The only reasonable inference to draw from this is that the accused intended to do grievous bodily harm. This means that the second element of murder has been proven. The accused will be convicted of murder subject to a consideration of the two defences he has raised.

14. The accused states that he acted in self-defence. Mrs Meten argues that it is a complete defence under Section 269 of the Criminal Code (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.

(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.

15. Section 269 actually creates two defences: under Section 269(1) or Section 269(2). The defence under Section 269(1) is not available in this case as it has been found that the force used by the accused was intended to cause grievous bodily harm. The accused must rely on Section 269(2). The following elements of the defence must exist:

16. 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, Tapea Kwapena v The State [1978] PNGLR 316). I restate the elements of the defence by posing five questions:

17. The prosecution must prove beyond reasonable doubt 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 (The State v David Yakuye Daniel (2005) N2869, The State v Silas Anjipi (2007) N4963).

18. As to question 1, I find that the accused was not unlawfully assaulted by the deceased. The accused's evidence that the deceased swung at him with a bushknife is uncorroborated and was not raised until the trial. Likewise with his evidence that the bushknife was not his, it was the deceased's. These are not matters raised in his police interview. These are not things that the accused said when Const Salingana went to the village to arrest him. Const Salingana's evidence was that the accused was calm and said that he was waiting for the Police to come and pick him up. The accused was not a convincing witness. By contrast the deceased's wife was quite convincing. She saw nothing to suggest that her husband assaulted the accused first. The medical evidence is also significant. I uphold Mr Pil's submission that the medical evidence shows no signs of a struggle. If there had been a struggle, it is reasonably expected that the deceased would have suffered more than one wound and that they would not have been of the severity of the single wound he suffered. Considerable force was required to inflict a wound measuring 32 cm x 9 cm x 15 cm. This is not the sort of wound that would follow a struggle. The first question is answered no, the accused was not unlawfully assaulted. That is a sufficient finding to result in the defence of self-defence being ruled out. However I indicate that the prosecution has proven that the other questions should be answered the same way. That is:

(4) No, the accused could not on reasonable grounds believe that there was nothing else he could do.

19. The result is that the prosecution has disproved to the required standard of proof all elements of the defence of self-defence. One was sufficient. The defence of self-defence does not apply.

20. Mrs Meten argues that the accused was provoked into doing what he did by the conduct of the deceased in the early morning when he raided the accused's betel nut garden. She rightly points out that provocation is a partial defence under Section 303 of the Criminal Code in that the accused will be convicted of manslaughter, not wilful murder. Section 303 (killing on provocation) states:

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only.

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

22. The court needs to be satisfied that the following elements of the defence of provocation exist:

24. Once the accused puts evidence of provocation then, as in the case of self-defence, the onus is on the prosecution to disprove an element of that defence. I restate the elements by posing these questions:

25. As with the defence of self-defence 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 provocation will apply (R v Nikola Kristeff (1967) No 445).

26. As to question 1 the test is whether the accused had ceased to be the master of his understanding. It is not enough that he was very angry. It must be a case of passion replacing reason (R v Oa [1967-1968] PNGLR 1). I consider that the prosecution has proven, to the required standard, that the necessary conditions did not exist. Having said that, I am not convinced that this was, as Mr Pil asserted, a case of the accused stalking the deceased as if the deceased were his prey and cutting him in a pre-meditated way. I do not think that this was a premeditated attack. However, I consider that the prosecution has proven that the accused was conscious of and in control of his actions. I conclude that the accused did not cut the deceased in the heat of passion. Question 1 is answered no. The defence of provocation therefore does not operate. However for the sake of completeness I will address the other issues.

27. As to question 2(a) the prosecution has not proven that the deceased did not do a wrongful act. The accused's evidence that the deceased was stealing betel nut in the morning, and that he had done it before, was credible. There was a clear motive for the accused's actions. Question 2(a) is answered yes.

28. Questions 2(b) and 2(c) introduce requirements of objectivity into the defence of provocation. The issue is not simply whether the deceased's wrongful act caused the accused to lose self-control, but whether his act was of such a nature as to cause an ordinary person to lose his self-control and cut him in the way that he did (The State v Inawai Moroi [1981] PNGLR 132). The court should look at the entire sequence of events leading up to the acts causing death when adjudging how an ordinary person would have reacted. I have done that and I am satisfied that the prosecution has proven beyond reasonable doubt that an ordinary person would not have reacted in the way that the accused did. The accused went entirely beyond what was reasonable. He took the law into his own hands. He made no attempt to sort out the problem by peaceful means. An ordinary person faced with the situation that the accused was in, would not have reacted in the violent and savage way that he did. Questions 2(b) and (c) are answered no. That means the prosecution has proven that there was no sudden provocation.

29. As to question 3 I consider that the prosecution has proven that the accused cut the deceased after there was time for his passion to cool. The theft of the betel nut occurred at 6.00 am. The accused cut the deceased nine hours later. Question 3 is answered no.

30. The result is that the prosecution has disproved to the required standard of proof all except one of the elements of the defence of provocation. The prosecution did not have to disprove all elements. One was sufficient. The defence of provocation does not apply.

31. The State has proven the two elements of murder and disproven the two defences raised by the accused. The accused is found guilty as charged.

32. Junior Paul Paina, having been indicted on a charge of murder under Section 300(1) of the Criminal Code, is found guilty of murder, as charged.

Verdict accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Paina [2014] PGNC 182; N5819 (21 November 2014)