State v Mesulam [2014] PGNC 300; N5713 (6 August 2014)

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CRIMINAL LAW- Defendants each and severally charged with murder under s. 300 of the Code –Pleaded not guilty – State evidence tendered into Court by consent - Trial proceed defendants rely on the legal defence of self-defence –

PRACTICE & PROCEDURES- Whether the defendants established legal self-defence – If so whether prosecution negatived self-defence pleaded by the defendants - Standard of proof in establishing self-defence – Standard of proof for negativing self-defence – Proper test – Consideration of evidence before the court.

CRIMINAL LAW- Prosecution failed to discharge onus of proof beyond reasonable doubt – Case dismissed defendants each and severally discharged forthwith – Defendants bail be refunded.

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No 2) [1993] PNGLR 287
The State v John Wanjil (1997) N1516
The State v John Wanjil (1997)
Meckline Poning v The State (2005) SC814
The State v Max Sande Pyasala (June 2010)
The State v Albert Pwame (unnumbered of 14 & 15 February 2013)

Mr. Kupmain & Mr. Rangan, for the State
Mr. Philip Kaluwin, for the Defendants

2. The State Prosecutor presented a formal indictment charged against the defendants each and severally on one count of murder under s. 300 of the Criminal Code of Papua New Guinea and the Court read the charge to the defendants who heard and understood the charge put to them through the court interpreter in Pidgin. The defendants each and severally upon being arraigned told the Court that they denied committing the offence. The defendants through their Counsel informed Court from the outset that the defendants will rely on the legal defence of self defence under s. 269 (1) & (2) of the Criminal Code of Papua New Guinea.

3. Since the defendants each and severally have pleaded not guilty to the charge, I must remind myself as a trial Judge at this stage of the trial proceedings of the fact that, the burden of proof of guilt of the accused is placed upon the State. The onus rests upon the State to prove in respect of every elements of the charge. There is no onus of proof on the accused at all.

4. The brief facts surrounding the circumstances of this case is that on 16th December 2011 at about 7.00 pm, the defendants now before the Court namely; Tolu Mesulam, Anton Papara and Bosco Francis whilst armed with bush knives, walked along their village road at Warangoi No. 1, Laup Ward, Sinivit LLG, Pomio, East New Britain Province.

5. It is alleged that the three (3) defendants were ambushed by the deceased namely; Augustine Kalului Waragu with a bush knife. A fight broke out and finally the deceased sustained knife wounds and fell down to the ground unconscious. Anton Papara also sustained knife wounds and so both were rushed to Warangoi Hospital then all the way to Nonga Base Hospital for further medical attention. The deceased Augustine Kalului Waragu passed away a day later, however, the defendant Anton Papara Turlom was able to pull through his knife wounds and was later discharged.

6. The defendant Anton Papara Turlom admitted having fought with the deceased, however, the defendant claimed that he had done so in self defence whilst his two co-accused neither denied the allegation nor participated in the fight with the deceased when he fought with co-accused Anton Papara Turlom.

7. The issue is whether the evidence before Court support the legal defence pleaded by the defendants on self defence under s. 269 of the Criminal Code Act.

8. The defendants each and severally are charged under s. 300 of the Code and it provides:

(1) Subject to the succeeding provisions 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;

(i) done in the prosecution of an unlawful purpose; and
(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

A person who unlawfully kills another is guilty of the crime of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case.

However, the defendants' in this case plea in their defence, legal self defence under s. 269 of the Code and it provides:

(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.

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

(ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence, the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.

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

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

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

9. The defendants counsel raises a legal Defence in law against their charge of wilful murder and pleads self defence under ss. 269 & 270 of the Criminal Code Act. The counsel submit that defendants rely on legal defence on self-defence provided under s. 269 of the Code that provides Self Defence against unprovoked assault; and s. 270 provides Self Defence against provoked assault as referred to above.

10. The law recognises the right of an accused person to act in self defence from an attack or threatened attack. The right arises where the person believes that the act in self defence was necessary in order to defend them and that what the person did was a reasonable response in the circumstances as the person perceived them.

11. State Prosecutor opened its case and tendered State witnesses' sworn statements through consent by Defence Counsel including the three defendants Record of Interview. The Prosecution's evidence consisted of 12 exhibits which were tendered into court by consent during trial. They are tabulated and provided in the summary of exhibits in Table one (1) below.

12. The Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 provides brief summaries of the evidence.

Exhibit #	Witness	Description of Evidence in brief
1	John Iringa 1st Witness	The witness is the Councillor of Laup village where the murder took place. His evidence is basically revolves around the role he played during the murder. His sworn statement marked Exhibit "1"
2 (a) & (b)	Koni Kukuai 2nd Witness	The witness is a relative of the deceased who drank with him that afternoon and provide evidence of what transpired during the day before the knife fight took place at 7 pm in the evening. He did not witness the fight. His sworn statement marked Exhibit "2 (a) Pidgin & "2 (b)" English.
3 (a) & (b)	Paul Kukuai 3rd Witness	The witness is a relative of the deceased who drank with him in company of Koni Kukuai that afternoon. He provide evidence that deceased was almost attacked by his rivals. But did not articulate who they were. His sworn statement marked Exhibit "3 (a) Pidgin & "3 (b)" English.
4 (a) & (b)	Wilfred Maite 4th Witness	The witness is a student who met the deceased on the road on his way to a fund raising function and saw him on the road before the deceased was involved in a fight that met his fate. His testimony is on what he saw that evening but did not witness the fight. His sworn statement marked Exhibit "4 (a) Pidgin & "4 (b)" English.
5 (a) & (b)	Jerry Waragu 5th Witness	The witness is a relative of the deceased and his evidence is confirming him meeting the suspects along the road prior to the fight. He later found out about his brother's tragedy but did not witness the fight. His sworn statement marked Exhibit "5 (a) Pidgin & "5 (b)" English.
6 (a) & (b)	Steven Pinda 6th Witness	The witness evidence refer to a voluntary admission by defendant Anton Papara Turlom who said to him, that he was the only one who had a bush knife fight with the victim when he pay a visit to see the victim, the next day after the event before his death at Nonga General Hospital. His sworn statement marked Exhibit "6 (a) Pidgin & "6 (b)" English.
7	Johnny Korong (Case Officer) 7th Witness	The witness is the Case Officer who conducted a thorough investigating into the three co-accused over the murder charge and executed arrest and conducted Record of Interviews with the three co-accused. His sworn statement marked Exhibit "7"
8	Mary Tobing (Corroborator) 8th Witness	The witness is the corroborator to the Case Officer Detective Senior Constable Johnny Korong, who was present all throughout the investigation process that results in the subsequent arrest and conducting respective co-accused Record of Interviews. Her sworn statement marked Exhibit "8"
9 (a) & (b)	Tolu Mesulam 1st Co-Accused Record of Interview	The 1st co-accused Tolu Mesulam in his Record of Interview, categorically denied anything to do with the victim's demise that resulted in his death. But do admit that he was with co-accused Francis Bosko, who saw deceased chase co-accused Anton Papara Turlom some distant away from them to a nearby house flower edge and fought with co-accused Anton Papara Turlom where both them receive knife wounds to their head and body. His Record of Interview marked Exhibit "9 (a) Pidgin & "9 (b)" English.
10 (a) & (b)	Anton Papara Turlom 2nd Co-Accused Record of Interview	The 2nd co-accused Anton Papara Turlom in his Record of Interview clearly admit that he had a one to one bush knife fight with the deceased in the absence of his two co-accused. He stated in his Record of Interview that he feared and felt threaten for his life, if he did not defend himself to fight for his life in self-defence. Both of the fought in the dark with very poor lighting. There were no bystanders who would have seen what and how both of them exchanged bush knife at each other. Let alone the defendants Anton Papara Turlom's version of what transpire and happen between both of them and no one else. His Record of Interview marked Exhibit "10 (a) Pidgin & "10 (b)" English.
11 (a) & (b)	Francis Bosko 3rd Co-Accused Record of Interview	The third co-accused Francis Bosko in his Record of Interview, categorically stated that he was with the 1st co-accused and denied anything to do with the victim's demise that resulted in his death. His evidence is same as the 1st c-accused. His Record of Interview marked Exhibit "11 (a) Pidgin & "11 (b)" English.
12	Dr. Osait Baining 12th Witness	The witness is the medical professional, a Doctor at the Nonga General Hospital, who carried an autopsy on the deceased. The Doctor confirms that the wounds on the deceased were inflicted and sustained from sharp edge objects wounds such as knife wounds. This finding is consistent with the history of the bush knife fight between the deceased and the 2nd co-accused.

The State Prosecutor closed its case and Defence Counsel elect not to call on the accused to go into the witness box to give evidence in defence, but elect to remain quiet and did not call any independent witness but informed court to make no case to answer submission.

12. Mr Kaluwin submit on behalf of the defendants and rely on no case to answer submission on the grounds that the defendants pleaded legal defence in self-defence under s. 269 of the Code and further submit that State evidence lacks any thread of material evidence to connect the defendants to the event in question and to prove the elements of the charge beyond reasonable doubt. The defence counsel basically relied on both self-defence as legal defence under the Code and also claims that the reliability and credibility of State witnesses' evidence is such that it is so tainted before the Court that; Mr Kaluwin relied on both limbs of The State v Paul Kundi Rape's case [1976] PNGLR 96. The following cases were also cited in support viz The State v Roka Pep (No 2) [1993] 287; The State v John Wanjil (1997) N1516; The State v Max Sande Pyasala (June 2010) and the most recent case The State v Albert Pwame (unnumbered of 14 & 15 February 2013).

13. Defence counsel also referred the court to the case of The State v John Wanjil (1997) and the English case of Zanett v Hill (1962) 108 CLR 438. The main thrust and the issue highlighted in the mentioned cases is, whether on the evidence as its stands the defendants ought to be convicted, but whether on the evidence as it stands the accused could be lawfully convicted. (Emphasis mine). The defence counsels principal argument advanced was that the evidence did not in any way connect the two co-accused Tolu Mesulam and Francis Bosko to the murder except co-accused Anton Papara Turlom. However, there are some evidence that the three co-accused were together on the road when the deceased ambushed them, but the deceased chased after the co-accused Anton Papara Turlom some distance away from the other two co-accused Tolu Mesulam and Francis Bosko. There is evidence that the knife fight was between the deceased and defendant Anton Papara Turlom, where defence counsel has pleaded self-defence as legal defence on behalf of the defendant Anton Papara Turlom. But there is no evidence to suggest that any one of them or all of them planned and formed an intention to kill Augustine Kalului or any other person, in the execution of the unlawful common purpose to be joined with co-accused Anton Papara Turlom, under ss. 7 & 8 of the Code as principal offender charged under s.300 of the Code.

14. The State Prosecutor, Mr. Kupmain in response to defence counsels no case submission submit that, State evidence before the court tendered through consent by defence counsel that the Prosecution has discharged its duty, that Prosecution has established a prima facie case against the three co-accused. The Prosecutor submit that the Court should ask the three co-accused, that they have a case to answer as charged. The Prosecutor briefly sums up its case by submitting that three defendants were together when ambushed by the deceased. There is evidence that knife fight was between defendant Anton Papara Turlom and the deceased but the two co-accused were present within the close proximity where the deceased sustained bodily injuries to his head and shoulder that resulted in his death. These injuries were inflicted by their co-accused Anton Papara Turlom; however, the two co-accuseds' presence within the close proximity at the crime scene supported the common purpose and intention to kill when co-accused Anton Papara Turlom fought the deceased with the bush knife that resulted in the deceased death from injuries sustained during the knife fight between each other. Hence, the two co-accused Tolu Mesulam and Francis Bosko should be held equally criminally responsible in the execution and prosecution of the common unlawful purpose with co-accused Anton Papara Turlom, as principal offenders charged under s.300 of the Code, for the death of the deceased under ss. 7 & 8 of the Code.

15. The Court in assessing the facts before it finds the following disputed and undisputed facts between the parties and they are:

16. The Court confirms that the following facts are in dispute by the parties and are as follows:

17. The Court confirms that the following facts are not in dispute by the parties and they are as follows:

19. However, the witness is able to recall an incident soon after the above event of 16th December 2011, in the early hours of Sunday 18th December 2011 at about 5.00 am, the deceased brother Bernard Kalului Waragu took revenge on his brother's death and attacked Tolu's brother Ronnie Mesulam by chopping off his left hand and severely wounded him on his head, leg and body. The deceased Ronnie Mesulam was hospitalised and died some few weeks later at Nonga General Hospital. The witness finally states that he was very instrumental in assisting the CID Police personnel in their investigation into these double murders, as well as bringing those responsible suspects to police. But the witness was not able to state that he was anywhere near the crime scene where both deceased and defendant Anton Papara Turlom fought each other with bush knives, in the dark about 7 pm or thereabout.

20. The witness Koni Kukuai's sworn statement dated 21st December 2011, states that he comes from Bitakapuk No. 3 village, but now lives with his family at Warangoi No. 1 Block. He made some profound revelation that he can recall November 2011, that Augustine Kalului, was his small father (uncle), younger brother of his father. He said that deceased did cut another person namely Tinakap Lani Gregory with a knife at their Block during the month of November 2011. He was reported to the Police but he never went to sort out his problem with the police, so people were not very happy with him.

21. However, on Friday 16th December 2011, he recall that he was in the company of his father, brother Paul Kukuai, William Pidik and another and had some drink in town and went back to their Warangoi Block No 1 late in the afternoon. Upon their arrival at their house he noticed Augustine Kalului (deceased) drinking at their house. The deceased joined their group but he was going here and there in search for a music boom box at Bernardick's house close to Tinakap Lani Gregory's area and he saw Alois Kilang, who is the elder brother of Tinakap Lani Gregory who was trying to attack Augustine Kalului (deceased) with a bush knife. But William Pidik intervened and stopped him and pulled the bush knife from him and took it away with his friends. However, Kilang was upset with Augustine Kalului (deceased) and shouted and said "you are the one who cut my brother with a bush knife" and try to cut him but he was stopped and his friends took him away. The witness said he saw another person namely Simon Paran come along and tried to attack Augustine Kalului (deceased) with a piece of stick, but he stopped him and took the stick off him. After the short brawl they left William Pidik at the church area and they returned to their house. But at the house Augustine Kalului (deceased) was not satisfied and wanted to go after those who tried to fight him. He took his bush knife again and vented his frustration out on the flowers around the house by cutting them down. He feared for his life, however, Augustine Kalului (deceased) was cooled off and was taken by Paul Kukuai in a vehicle to his house.

22. At about 6.30 pm the witness and Jerry Waragu accompanied their three sisters to leave them at the Kadaulung Block. On their way they met four men armed with bush knives and Jerry recognised one of them. After leaving their three sisters at Kadaulung Block they returned, however, since meeting those four armed men earlier, they decided to separate at Gary's house whilst on their way back.

23. At about 7.30 pm the witness was walking back to his house when he caught up with the four men again at the place call Bitagalip. He was scared because they had bush knives in their hands so he made a noise to attract their attention to give him a passage to pass by them. And he greeted them by saying "goodnight" and they responded by saying "goodnight" to him and he was able to figure out one of them as Tolu Mesulam who is a cousin brother to him. As he walked on he met Augustine Kalului (deceased) who was drunk and had a long bush knife with him and was walking down the road. The witness recognised him but Augustine Kalului (deceased) did not recognise him so he called out to him and said "it's me Koni" and sounded a caution to him that there were some men behind him and both of them should return to his house as he was suspecting something might happen.

24. But these words of caution did not go down well with Augustine Kalului (deceased) and he held him by his shirt collar and told him: "my problem is mine and you should not get involved in it". He noticed that Tolu Mesulam and his friends were coming closer so he told Augustine Kalului (deceased) to go and hide under the cocoa tree nearby to which he did. But the witness left him there and went to his house and told his father that he saw Tolu Mesulam with his three friends armed with bush knives, but Augustine Kalului (deceased) did not want to follow him so told him to hide under the cocoa tree nearby. The witness doubt that Augustine Kalului (deceased) would hide from the four arm men. However, there is no evidence to suggest that he witnessed the alleged knife fight between Augustine Kalului (deceased) and the defendants. He learnt of the victim's demise on the next day 17th December 2011 that Augustine Kalului was dead at Nonga General Hospital.

25. The witness Paul Kukuai's sworn statement dated 21st December 2011 stated that on the afternoon of Friday 16th December 2011, he drove his car and went to visit his family at Warangoi Block No. 1. There he met Augustine Kalului (deceased) and joined them had some drink and shouted them with few drinks as well. His version of his story covers the event that transpired at 6.30 pm and he was surprised to witness that there were some people who came to fight him but were dispersed. However, Augustine Kalului (deceased) was so insistence to have a music boom box but to no avail and he behaved so disorderly under influence of liquor. He was not so happy with the behaviour of Augustine Kalului (deceased) and gave him a lift to his house and left. However, he testified that he did not witness what happened to him at 7 pm or thereabout when he got involved in the fight with the defendants. But did assist the victim's family with transport the next day to Nonga to visit the victim when he learnt that he was dead.

26. The witness Wilfred Maite's sworn statement dated 18th December 2011 state that he is a student attending Kokopo Secondary School. He can recall the evening of 16th December 2011 at about 7 pm, he was on his way to join his parents who had gone to Varagu's residence to attend to a fund raising function. Whilst on his way he meet Augustine Kalului (deceased) come out from the side of the road trying to identify who he was by flashing his mobile torch at him. He felt uneasy and asked Augustine Kalului as to what he was doing there? He answered and said that he was on the lookout for someone in the name of Kilang who fought him earlier in the afternoon and he wanted to see him. The witness said that he had a bush knife in his hand and he knew that if he hung around at the road side he might get into trouble so kindly asked him to follow him to his aunty May's residence where fundraising function was going on.

27. The victim Augustine Kalului did not agree with his idea so he left him and he went to Aunty May's residence. At Aunty May's residence he could hear a shout sounding like "POOH" coming from the direction where he left Augustine Kalului (deceased), and he recognised that it was the deceased who was calling him so he responded "POOH" back at him. The witness then attempted to advance to where he heard the deceased asking, "Who are you? Who are you?", but hesitated to get near because it was dark. Not long after this the witness said he could hear noise of knives clashing in the darkness at the crime scene. The witness said that the three suspects were attacking the victim Augustine Kalului and he could not get closer to where the fight was going on as one of them was throwing stones at him at the same time stoning the deceased as well. However, the knife fight subsided and the victim and defendant Tolu came to the light and the victim fell down sustained injuries to his head and right arm. The witness ask Tolu who were the other two suspects, he remain quite. The witness then alerted the victim's parents of what had happened to him and rushed him to Warangoi Hospital for medical assistance.

28. The witness Jerry Waragu's sworn statement dated 21st December 2011 stated that he is originally from Paparatava village in Toma area, however, he has moved with his family and now lives at Warangoi Block No. 1. The witness statement basically revolves around the version similar to witness Paul Kukuai and further confirms that the deceased was drunk on the evening of 16th December 2011, but he said he could only witness what had happened before 6.30 pm but not the incident happened at about 7.30 pm and thereafter. He could recall that he went with Paul Kukuai at about 6.00 pm to leave their three sisters at Kadaulung Block and return. Paul Kukuai went to his house and he went to his house as well. However, he only witnessed what had happened to victim after the knife fight between the deceased and the suspects, the three co-accused. But he was never at the crime scene where deceased had a knife fight with one of the three co-accused Anton Papara Turlom as asserted by defence.

29. The witness Steven Panda's sworn statement dated 21st December 2011, state that he lives with his family at Warangoi Block No. 1 with his brother-in-law Augustine Kalului. He said that he learnt of his brother-in-law was admitted at Nonga General Hospital and he paid a visit to see him the next day. At Nonga General Hospital he saw another patient Anton Papara Turlom who was also admitted. He saw that Anton Papara Turlom had received injuries to his head, hands and on his shoulder from the same event. The witness said, suspect Anton Papara Turlom voluntarily made an open confession and admission to him that he was the only one who fought with Augustine Kalului (deceased) in the evening of 16th December 2011. The witness, however, had no knowledge of what had happen on the evening of 16th December 2011 at about 7.30 pm between the deceased and the defendant Anton Papara Turlom.

30. The witness Johnny Korong sworn statement dated 9th March 2012; state that he was the Case Officer in these three co-accused matters and conducted three separate Record of Interviews with the three co-accused in the presence of the corroborator Mary Tobing. During the Record of Interview the two defendants Tolu Mesulam and Francis Bosko maintained that both of them were never involved in fighting the deceased with the bush knife. The Case Officer confirms that defendants Anton Papara Turlom was the only one the deceased picked a fight with and chased after him away from both Tolu Mesulam and Francis Bosko to a nearby house and both of them fought each other there. The Case Officer, however, charged both Tolu Mesulam and Francis Bosko because they were together with Anton Papara Turlom at the material time when the alleged serious offence of wilful murder was committed. The defendant Anton Papara Turlom admitted in his Record of Interview that he was the only one that fought with the deceased with the bush knife at the flower edge fence of a house and both of them exchange knife wounds and he fought back to save himself.

31. The witness Mary Tobing's sworn statement dated 9th March 2012 state that she is the corroborator to the Case Officer Johnny Korong in these three co-accused matters Record of Interview and re-echoed the same statement as the Case Officer as referred to above in his statement and brief summary as highlighted by the Court.

32. The accused Tolu Mesulam provided a Record of Interview dated 24th January 2012, state that he was in the company of Anton Papara Turlom and Francis Bosko on the evening of 16th December 2011 at about 7.30 pm they were walking along the road at Warangoi Block No. 1. The answers to Q 18 very much sums up the defendants Tolu Mesulam account of the event that transpired that evening at 7.30 pm or thereabout. I restate question 18 and answer given and subsequent questions and answers thereafter for purposes of completeness for defence to set their side of the story of the alleged event in question.

A. 18. We were walking along the road and someone passed us. I did not recognise him. We walked on and right at the road running into my brother's (Ronnie) house, I saw a man sitting in the middle of the road. The guy who went past us stood by him and later left him and walked away upwards. When the man had gone, this other guy went into Ronnie's residence and hid there. The three of us walked on passing by that guy who was hiding nearby and as we walk on, we heard that guy calling out, "Hoy! Stop!" and at the same time he flashed his mobile phone torch right into my face"

A. 19. He asked twice, "Who are you? Who are you?" And I replied just a brother. I covered the light from my face and saw that he had a long bush knife in his hand. Then he asked again pointing his bush knife to my friends. And he asks "who is that running away?' I answered, "I don't know" This guy left me and went after Anton.

33. I have taken the liberty to make reference to these questions and answers to set the scene of the crime site to demonstrate the main players involved within the vicinity of the crime scene as supported by the evidence now before the Court.

34. The defendant Tolu Mesulam denied categorically that he did not have a bush knife fight with the deceased that night. However, he recalled that the deceased ambush them and flashed a Mobil Phone flash light on them and demanded them to tell him who they were as clearly reflected in the answers to Q 18 in his Record of Interview.

35. The co-accused accused Anton Papara Turlom, in his Record of Interview dated 24th January 2012 did admit that he was in company with the other two co-accused walking along Warangoi road at about 7 pm on the night of the alleged incident on 16th December 2011. The Case Officer asked the defendant question during the Record of Interview at Q 18. "And what happened on the way?"

A 18. "We came along and right at in-law Tolu's road; this man Kalului (deceased) appeared and was drunk at that time flashing light right at in-law Tolu. Bosko and I saw that and I ran away. Then he called out to Tolu, "who is it that ran off?"My in-law did not answer him so he came after us. I ran on and went into another person's residence but bump into the flower patch and had nowhere to go so just stood there. Kalului (deceased) charged straight at me and swung his knife at me. I avoided the first swing. He landed the second swing right on my head. I had no other choice because I knew I was a dead man so to defendant myself. I had to fight back with my bush knife. We fought with our bush knives and I fell down unconscious and do not know about the other wounds I had sustained on my left hand and my right should."

36. The co-accused Anton Papara Turlom categorically disassociates the other two of his colleagues in the knife fight between the deceased and himself. He later found out and confirmed that the deceased was also admitted to Warangoi Health centre including himself as well. However, both of them ended up at Nonga General Hospital and he could recover from his injuries and knife wounds sustained but deceased Augustine Kalului could not recover from his knife wounds inflicted by defendant Anton Papara Turlom.

37. The co-accused Bosko Francis in his Record of Interview dated 24th January 2012, basically outline that though he was with two co-accused but was not involved with the knife fight between deceased and the co-accused Anton Papara Turlom.

38. The witness Dr. Osait Baining of Nonga General Hospital in his sworn Medical Statement dated 17th December 2011, basically confirmed the wounds inflicted from sharp edge object used during the fight consistent with knife wounds the deceased sustained from knife fight he had with the co-accused Anton Papara Turlom on the early evening of 16th December 2011.

39. The defence chose not to go into evidence at the close of Prosecutions case, however, submitted from the outset to rely on the legal defence of self-defence and established principles enunciated under no case to answer submission based under relevant case law precedents as referred to above earlier. The defence counsel on behalf of the defendants basically rely on their respective Record of Interviews conducted by the same Case Officer Johnny Korong and Mary Tobing, as the Corroborator as tendered by State into court through consent by defence counsels as part of State evidence.

40. The defence rely heavily on the Record of Interviews recorded in response by the three co-defendants that defendants Tolu Mesulam and Bosko Francis were never involved with knife fight with the deceased who picked a fight with defendant Anton Papara Turlom, after they were ambushed by the deceased. It is alleged that the deceased chased the accused Anton Papara Turlom along the road to a nearby house where there was a high flower edge and was trapped and fell on the ground and deceased caught up with him and both of them fought each other in the dark with bush knife's they had in their hands. The place both of them fought was dark and the lighting was very poor and deceased came out with serious knife wounds together with defendant Anton Papara Turlom, who also received knife wounds from the accused after the fight. The co-accused Anton Papara Turlom allegedly claims that he reacted in retaliatory assault on him by the deceased of which was unavoidable in the circumstances that he was placed in, and he has no other option but to act accordingly to fight back in self-defence to save himself as obvious outcome was inevitable. The defence called no independent witness in defence.

41. The Medical Certificate of Death issued by Dr Osait Baining at Nonga General Hospital when the deceased was presented at A & E Nonga General Hospital on 17th December 2011 at 11.38pm that Dr Baining did attend to the deceased. It was confirmed upon external examination by Dr Baining that the cause of condition that led to and contributed to the deceased's death was directly due to severe head injury with anaemia medical condition. The Medical Report confirmed that the wound on the deceased head is consistent with the knife wound that the deceased received during the knife fight between deceased and defendant Anton Papara Turlom.

42. In this regard, the question is whether the assault executed by the defendant Anton Papara Turlom, was made in self-defence? The pertinent issue is whether the force used by defendant Anton Papara Turlom; was proportionate to the deceased assault executed on him, if so whether the accused had a reasonable belief that he would die, if he did not act in the way he did to respond in self defence to avoid been killed by the deceased. The reasonable belief in the circumstances of this case is to be tested objectively to ascertain whether a reasonable person put in the same situation would have acted differently in the way the defendant Anton Papara Turlom acted in this case.

43. I have take into account, the fact that the knife fight was between the deceased and the co- accused Anton Papara Turlom and they both had bush knives in their hands. I am of the view that both the deceased and co-accused Anton Papara Turlom have the same risk of being hurt or suffer severe and serious consequences was obvious outcome from their knife fight. Hence, it is safe to conclude that defendant Anton Papara Turlom would have reasonable belief that he would get hurt or be killed, if he didn't act in self-defence to save himself or avoid being seriously wounded. Though, he may not have the intention to kill, however, the knife wound inflicted resulted in the deceased death, is indeed unfortunate and results in the loss of a precious life. But the defendant Anton Papara Turlom has pleaded self-defence as a legal defence under s. 269 of the Code. I am satisfied that defendant Anton Papara Turlom has successfully demonstrated on the balance of probabilities that it was so in this case, and I find in favour of the co-accused Anton Papara Turlom defence pleaded in self defence.

44. I remind myself once again of the fact that the trial conducted in this case was through tendering of State witnesses sworn statements and defendants Record of Interviews into court as evidence through consent by defence counsel and therefore the credibility of the State witnesses statements were never tested during the normal cross examination and re-examination process during the trial. In addition to this, the defendants through their defence counsel elected not to call upon his clients to give evidence in their defence from the witness box and or to elicit evidence by calling independent witnesses to give evidence on their behalf during the trial, this option was not explored.

45. The Court is therefore left with no other better option, but to rely on the evidence before it and to deduct relevant inferences as necessary and appropriate conclusions from the State witness's sworn statements before it plus and including the defendants respective Record of Interviews. I have the benefit to peruse all of the State witnesses evidence before me including the three co-accused respective Record of Interviews, I find the deceased behaviour before the eventful drama on the evening in question was indeed under the influence of liquor before he meet his unfortunate fate. I made reference to his behaviour as referred to by the State witnesses hereunder.

Victim (deceased) Conduct before the alleged knife fights with defendant, Anton Papara Turlom.

46. I have thoroughly assessed and did qualitative analysis of the State witnesses evidence plus including the three defendants Record of Interviews and observed the following phenomenal behaviour and conduct by deceased are as follows:

47. The issue is whether the defendant Anton Papara Turlom can rely under the complete legal defence of self-defence under s. 269 of the Code? The law recognises the right of an accused person to act in self defence from an attack or threatened attack. The right arises where the person believes that the act in self defence was necessary in order to defend them and that what the person did was a reasonable response in the circumstances as the person perceived them.

48. The Self defence is referred to as a complete legal defence if the circumstances used is conducive and use of it was justifiable under s. 269 of the Code. However, the onus is on the State to negate and eliminate its reliance and utility of self-defence by defendants was unreasonable in the circumstances that the actions by the defendants was intentional to hurt or kill the deceased and not acted in self defence. The State may do this by proving beyond reasonable doubt that the accused did not believe at the time of the incident that it was necessary to do what he or she did in order to defend him or herself; if it is reasonably possible that he or she did have such a belief, that nevertheless the act of the accused was not a reasonable response in the circumstances as he or she perceived them to be.

49. As to whether the accused may have personally believed that his or her conduct was necessary for self-defence the court must consider the circumstances as the accused perceived them to be at the time of the conduct. The circumstances should not be looked at with the benefit of hindsight but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself: Meckline Poning v The State (2005) SC814.

50. In this case the two co-accused Tolu Mesulam and Francis Bosko were not with the deceased when he fought with defendant Anton Papara Turlom, when he meet his unfortunate death. However, the deceased was fighting with the third co-accused Anton Papara Turlom when he was struck on the head with a bush knife fight exchanged between each other.

51. I have the opportunity to assess and analysis of the State witnesses' evidence before me, I am satisfied and come to the two profound legal conclusions in favour of the defendants Anton Papara Turlom and they are:

52. I now have come to the conclusion and I am satisfied that defendant Anton Papara Turlom acted on the basis of his reasonable apprehension of death or grievous bodily harm consistent with legal defence provided under s. 269 of the Code, that it is lawful for him to use such force to the assailant as is necessary to defend himself, even if it causes death or grievous bodily harm. The deceased died a day later on the 17th December 2011.

53. However, in respect to defendants Tolu Mesulam and Francis Bosko, I am also satisfied that there is no evidence to connect or suggest that they were involved with the knife fight with the deceased nor there is any evidence to suggest that three defendants did pre-plan and set out to kill the deceased in the execution of the common unlawful purpose under ss. 7 & 8 of the Code. In fact, the defendants whilst walking along the road were ambushed by the deceased who demanded to know who they were and deceased by his own volition picked a fight with defendant Anton Papara Turlom by chasing after him toward a house nearby that had a high flower edge fence boundary that stopped him. He fell and met the deceased head-on that resulted into a fierce exchange of knife fight between both of them. Both of them receive serious knife wounds and were hospitalised at Nonga Base Hospital, however, deceased passed on but defendant Anton Papara Turlom was able to recover from his knife wounds. The only witness who saw the deceased and the defendant Tolu Mesulam come out of the dark after the knife fight was witnessed by Wilfred Maite. However, he did not see the knife fight, but his version of the event lack corroboration and cannot be relied on to connect defendant Tolu Mesulam who was indeed involved with the knife fight with the deceased and co-accused Anton Papara Turlom. I therefore reject this part of his evidence in respect to co-accused Tolu Mesulam.

54. In considering the onus on the State, who has the duty to prove every elements of the charge beyond reasonable doubt, I am satisfied that the State has not proven every elements of the charge beyond reasonable doubt against the defendants Tolu Mesulam and Francis Bosko. In particular, that State did not connect the defendants that they did physically fight with the deceased that resulted in his death nor there was any evidence of pre-planning to execute the common unlawful purpose to kill the deceased that both of them be joined as principal offenders under ss. 7 & 8 of the Code with co-accused Anton Papara Turlom. Therefore, the Court returns a verdict of not guilty against defendants Tolu Mesulam and Francis Bosko as charged under s.300 of the Criminal Code Act and discharge them forthwith.

55. As for the co-accused Anton Papara Turlom, his legal defence based on self-defence, in the circumstances of this case was made out successfully and that the Prosecution did not negate the legal defence on self-defence beyond reasonable doubt that the Court returns a verdict of not guilty as charged, as well under s. 300 of the Criminal Code Act.

The Court orders accordingly.
_______________________________________________________________
State Prosecutors Office: Lawyer for the State
Public Solicitors Office: Lawyer for the Defendants

National Court of Papua New Guinea

State v Mesulam [2014] PGNC 300; N5713 (6 August 2014)