N5763

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.180 OF 2014

THE STATE

-V-

ROBERT TOURAN PAIVU

Kokopo: Lenalia, J.
2014: 18th 19th & 24th September

CRIMINAL LAW – Wilful Murder – Plea of not guilty – Trial – Evidence on trial - Criminal Code s.299

CRIMINAL LAW – Unlawful wounding – Guilty plea – Adjournment until trial one count of willful murder has been completed – Criminal Code s.322.

Cases cited

State v Takip Palne of Dumbol [1976] PNGLR 90
Tapea Kwapena v The State [1978] PNGLR 316
State v Saiko Norman [1979] PNGLR 599
State v Angela Colis Towavik [1981] PNGLR 140
Ombusu v The State (1996) SC 502

Counsel:

L. Rangan, for State.
P. Kaluwin, for the Accused.

September 24th, 2014

1. 	LENALIA, J: The accused is indicted with two charges on two separate indictments pursuant to the principle in Ombusu v The State (1996) SC 502 as reported in Ombusu v The State [1996] PNGLR 335. The first indictment contains a charge of wilful murder laid pursuant to s.299 and the second indictment is one for unlawful wounding under s.322 of the Criminal Code. 

2.	On arraignment, the accused pleaded not guilty to the charge of wilful murder. He entered a guilty plea to the charge of unlawful wounding. The unlawful wounding case was adjourned until completion of trial on the wilful murder charge.

Prosecution Evidence

3.	On this trial no witnesses were called to testify. The evidence came in the form of tendered statements of witnesses. They are marked as follows:

•	Ex. '1' statement of witness William Sunaim dated 25.11.2013, 
•	Ex. '2' statement by Mary Vanga dated 25.11.2013.
•	Ex. '3' statement by Betha Victor of 28.11.2013.
•	Ex. '4' statement by Murliu Makat of 27.12.2013.
•	Ex. '5' & '5A' the medical report accompanying affidavit of 27.11.2013.
•	Ex. '6' statement by interviewing officer Policewoman Mary Tobing of 6.12.2013.
•	Ex. '7' statement by First Constable Roger Tarataon of 6.12.2013.
•	Ex. '8' '8A' '8A1', '8A2', statement by Senior Sgt. Luke Maibogu of 19.12.2013. (See also statement by policeman Robert Tobung of 23.1.2014.)
•	 Ex. '9' and '9B1' & '9B2' sets of photos 4 in a page of the victim's mutilated body.
•	Ex. '10' and '10A' record of interview with accused of 6.12.2013. 

4.	After tendering all the above documents, the prosecution closed its case. The State evidence came from a number of witnesses. To start with, the defence does not dispute the issue of the death that occurred on the night of 23.11.2013 and early hours of 24th November 2013. The State's evidence is that about 11pm and 12 midnight, Mary Vanga was uneasy because her daughter Betha Victor had not been with her and her family in their house at Giregire plantation (Estates). Betha had been away from their home for about four months and was living with the accused in his house. She took her daughter in law Sunaim William to accompany her on that walk at night. Sunaim William was then married to Francis Lamin. Francis was the son of Mary Vanga. 

5.	As they were walking along the road, they saw Betha serving food from a saucepan onto plates and took the plates of food into the house where the accused and Betha were staying in. While on the road, the victim of this case Francis Lamin came around and asked them why they were around in the odd hours of the night. Mary answered and told Francis that, she was looking for Betha because her little grandchild, Betha's child was sick. She also told him that, Betha had been away from their house for four months. 

6.	Mary Vanga started calling out for Betha. There was no response from anyone in that house or from Betha. She continued to call and since Betha did not come out, the victim, Francis Lamin started to call for Betha to come out from the house but there was no response. Since there was no response, Francis Lamin took a piece of stick and hit the gutter of a drum at the bottom of that house causing it to fall making a loud noise. Hearing such noise, Betha came out from the house and while she was on the verandah holding on to the fly wire door, the main door was locked from inside by the accused. 

7.	Seeing that Betha could not quickly come down, Francis went up to the verandah and started to pull on to Betha's hand trying to pull her down. When Sunaim (Francis' wife) saw that Francis was about to assault Betha, she came on to the verandah and blocked off Francis from Betha. Francis pushed the door trying to open it. He could not get it opened so he kicked it and so it got open. 

8.	In the course of their struggle, the accused came with a long bush knife and started to cut Francis. Witnesses' statements show that the accused administered more than one cut on the body of late Francis Lamin. (See Exhibits '1', '2' and '3' – statements of William Sunaim, Vanga Mary and Victor Betha, see also the medical report to the Coroner Exhibits '5' and '5A' and the sets of photos in Exhibits '9', '9B1' and '9B2'). The photos show that extensive injuries were inflicted on the body of the deceased. 

9.	After the prosecution case was closed, the accused elected to give evidence from the witness stand. The defence evidence is similar to that of the prosecution. The accused case is that he was provoked and he raised the defence of self defence pursuant to s.269 of the Criminal Code. The accused evidence is that, on that night Betha was with him in his house when the victim and his mother came calling out outside his house. When he heard those calling for Betha outside his house, he was frightened and did not want to release Betha in fear for her life and he himself. 

10.	He said, while those outside were calling out, he heard the victim uttered words like "if you come out, I will fight you," or will kill you. He said, the victim had a bush knife so he picked up a bush knife which he said in his evidence was left on the floor by carpenters and used it to cut the victim. In chief and cross-examination, the accused admitted to also using the same knife to cut the victim's mother Mary Vanga. No further witnesses were called and the defence closed their case.

Addresses on Verdict

11.	On the defence counsel's address on verdict, Mr. Kaluwin submitted that, the defence does not deny the fact that the accused murdered Francis Lamin. He argued that, because his client was provoked, he then acted in self defence under s.269 of the Code because he was in fear that if he did not take steps to protect himself, the victim would cut him. 

12.	Mr. Rangan of counsel for the prosecution argued that, there is no logic in the defence raised by the accused that, because he was provoked, he acted in self defence. He asked the court to look at the wounds inflicted on the body of the deceased on the photos in the above exhibits and find out what was the mens rea of the accused at the time he administered the cuts on the victim's body. 

Applicable Law

13.	On provocation, s.267 of the Criminal Code says that a person is not criminally responsible for an assault committed against the one who gives him provocation for the assault. The above section states:

"267. Defence of provocation.

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a) is deprived by the provocation of the power of self-control; and
(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not—

(a) any particular act or insult is likely to deprive an 	ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or

(b) in any particular case, the person provoked was 	actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact."

14.	Both counsels referred to s.269 which defines what it means to be self-defence against unprovoked assault. This provisions states:	

"269.	Self-defence against unprovoked assault.

(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."

15.	In order for the defence to successfully raise the defence of self-defence under s.269 or even s.267 of the Criminal Code, the defence must establish that the force applied was not disproportionate to the provocation and was not intended to cause death or grievous bodily harm. Where a person is in fear of some future assault, such fear does not constitute lawful justification by way of self-defence on the person feared: State v Angela Colis Towavik [1981] PNGLR 140.

16.	The absolute defence, of provocation under s.267 is appropriate in circumstances where there is a charge of manslaughter and charges less serious than manslaughter: State v Saiko Norman [1979] PNGLR 599. 

17.	The evidence by the defendant that, the victim used a knife to cut objects under the house where he and Betha were hiding is discredited by the evidence of Betha and that of Mary and Sunaim that, when the victim came up to the verandah of the house, he did not have any weapons on this hands except for a piece of stick. The accused used a long bush knife to attack the deceased at the door of that house then he fell down, the accused continued to cut him. 

18.	On the injuries inflicted on the victim in Exhibits '9' '9B1' '9B2' and '9B3' can the court safely conclude that the accused was under reasonable apprehension of death or grievous bodily harm when he used such force against the deceased?: State v Takip Palne of Dumbol [1976] PNGLR 90. As on this trial where the defence raises the defence of self-defence, the prosecution bares the onus of disproving such defence.

19.	It was said in Tapea Kwapena v The State [1978] PNGLR 316 that a person in such a situation like in the instant case, cannot weigh the exact measure of whatever necessary defensive action taken by the accused if the assault on the accused was such as to cause reasonable apprehension of death or grievous bodily harm. The second aspect of this issue is, did the accused on this case believed on reasonable grounds that he could not defend himself by applying the force he used against Francis Lamin? 

20.	The above question boils down to another issue of whether the force used by the accused against the victim was in fact necessary for his defence? There is evidence by the prosecution that the victim held onto a piece of stick and according to Betha, the victim hit the accused hand with that stick but it is not clear from such evidence at what stage of the process of assault it took place. The accused used a long bush knife to repeatedly cut the victim causing very serious injuries. 

21.	By looking at the Exhibits on the eight sets of photos, and according to the medical report to the Coroner dated 27th November 2013 on external findings on the deceased body, the doctor made the following findings; 

Head – 3 scalp lacerations,
 -28 cm long around his occiput region extending to his brain,
 -8 cm x 2 cm laceration in the frontal area,
 -18 cm x 3 on the left parietal area extending from the occiput down to his left ear with a missing piece of pinna.

Shoulder – 2 lacerations on his left shoulder measuring 10 cm x 3 cm, and 
- 12cm x 4 cm respectively.

Lower Extremities – 14 cm x 7 cm laceration on his right  forearm with partial amputation.
 -11cm x 7cm laceration on his right hand  (degloving wound).

 -4 cm x 3cm laceration on his 3rd right  finger, partial amputation.

 - amputated 4th right phalange.

22.	In all, there were nine (9) cuts discovered on the body of late Francis Lamin. According to Doctor Wauleau, the victim was brought to Nonga Base Hospital when he was dead already and the victim died of loss of blood. I reach the conclusion that the nine (9) vicious wounds inflicted on the body of the deceased, the accused proceeded far beyond the force which was necessary for self-defence and thus there was intention on the part of the accused to cause the death of late Francis Lamin. 

23.	The court returns a verdict of guilty to the charge of willful murder. The accused is now found guilty and convicted for the crime of wilful murder pursuant to s.299 of the Criminal Code. 

________________________________________________________________
 
The Public Prosecutor: Lawyer for the State.
The Public Solicitor: Lawyer for the Accused.