N5588

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.791 of 2012

THE STATE

V

ENNI POK
Accused

Mt. Hagen: David, J
2013: 17, 18 & 19 June
2014: 23 April

CRIMINAL LAW – verdict – trial – elements of wilful murder – credibility of witnesses - accused killed the deceased with a knife – killing was unlawful - no intention to kill – verdict of not guilty returned for wilful murder – alternative verdict of guilty for manslaughter returned - Criminal Code, Sections 243, 266, 289, 291, 299(1) and 359(1). 

CRIMINAL LAW – self-defence – Criminal Code, Sections 269 and 270 – defence to be established on balance of probabilities – elements of defence under Sections 269 and 270 - once defence established, onus on prosecution to negative defence.

PNG cases cited:

R v Palwaskit (1949) No35
R v Korongia (1961) No.204
R v Nikola Kristeff (1967) No.445
R v Kaiwor Ba [1975] PNGLR 90
R v David Daure [1967-68] PNGLR 19
Tapea Kwapena v The State [1978] PNGLR 316
The State v Angela Colis Towavik [1981] PNGLR 140
Rex Lialu v The State [1997] PNGLR 487
The State v Leonard Masiap [1997] PNGLR 610
Garitau Bonu and Rosanna Bonu v The State (1997) SC528
The State v Martin Maso Naipo, CR No 92 of 2004, Unreported & Unnumbered Judgment delivered by Kirriwom J in Lae on 21st of June 2005
The State v Ali Kei Paiya, CR No 478 of 2004, Unreported & Unnumbered Judgment delivered by Sawong, J in Lae on 9th August 2005
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980

Overseas case cited:

R v Muratovic [1967] Qd R 15

Counsel:

Messrs Joe Kesan & Philip Tengdui, for the prosecution
Mr. Philip L.Kapi, for the defence

VERDICT

1. DAVID, J: INTRODUCTION: This is the decision on verdict of the trial of the accused, Enni Pok appearing before me from custody who pleaded not guilty to one count of unlawfully and wilfully murdering Betty Pok on 14th of June 2012 at Minjim village, South Waghi, Jiwaka Province in Papua New Guinea contrary to Section 299(1) of the Criminal Code. 

2. The accused raised the defence of self-defence. 

BRIEF ALLEGATIONS

3.	For the purpose of arraignment, State Prosecutor, Mr. Tengdui presented the following short facts of the case to the Court. On 14th of June 2012 between 9:00 am and 10:00 am, the accused was at Minjim village, Aviamp in the Jiwaka Province. At the time, the accused was following her husband, Joseph Pok (the common husband) to the deceased's house, the deceased being the common husband's first wife. The common husband entered the deceased's house and slept on the bed. Whilst sleeping, the deceased sat near the doorway nursing a sore on her leg with a bandage. Whilst nursing her leg, the accused went from behind and stabbed the deceased on her throat with a kitchen knife which penetrated her neck. When the knife was pulled out, blood shot out. The deceased called out for help and the common husband went to her aid. The accused fled from the scene of the crime and into the nearby coffee garden. The deceased died shortly thereafter from the knife wound and loss of blood. The accused later surrendered to the police in Mt. Hagen where she was arrested and charged. 

PROSECUTION EVIDENCE

4.	The prosecution evidence consists of oral and documentary evidence. The prosecution called only one of the five witnesses listed at the back of the indictment namely the common husband and he gave sworn oral evidence. The documentary evidence relied on by the prosecution is constituted by six documents which were tendered by consent of the defence and these are:

1.	Affidavit of Dr. Michael Dokup, Acting Director, Curative Health Services, Mt. Hagen Provincial Hospital dated 16th of August 2012 (Exhibit "A1");

2.	Post Mortem Report of Dr. Michael Dokup, Acting Director, Curative Health Services, Mt. Hagen Provincial Hospital dated 26th of June 2012 (Exhibit "A2");

3.	Medical Certificate of Death issued by Dr. Michael Dokup, Acting Director, Curative Health Services, Mt. Hagen Provincial Hospital dated 16th of June 2012 (Exhibit "B");

4.	Record of Interview (hand-written) for Enni Pok conducted in Tok Pisin on 21st of June 2012 (Exhibit "C1");

5.	Record of Interview (typed) for Enni Pok (Tok Pisin) (Exhibit "C2");

6.	Record of Interview for Enni Pok (English translation) (Exhibit "C3").

5.	I summarise the prosecution evidence below.

Affidavit of Dr. Michael Dokup of Mt. Hagen Provincial Hospital sworn on 16th of August 2012 (Exhibit "A1")

6.	He is a medical practitioner attached to the Mt. Hagen Provincial Hospital. On 19th of June 2012, he conducted the post mortem examination of the deceased and compiled a report in relation to the examination which contains the conclusions he arrived at as a result of the examination, a copy of which was annexed to the affidavit as annexure "A". 

Post Mortem Report of Dr. Michael Dokup, Acting Director, Curative Health Services, Mt. Hagen Provincial Hospital dated 16th of June 2012 (Exhibit "A2")

7.	The post mortem of the body of the deceased aged 28 years of Minjim village, Minj in the Jiwaka Province was conducted by Dr. Michael Dokup, A/Director, Curative Health Services at the Mt. Hagen Provincial Hospital mortuary on 19th of June 2012 at 1:00 pm. The Post Mortem Report reports that the deceased died on 14th of June 2012. General physical examination revealed a wound to the left side of the neck. External examination revealed a wound to the left side of the neck above the left clavicle measuring 2 x 3 cm. Internal findings revealed; a deep wound to the left neck extending 8 x 12 cm deep into the neck and diagonally into the mediastinum (chest cavity);the large neck vessels and trachea (windpipe) were severed; and there was bleeding in the mediastinum. It was reported that the cause of death was by acute hypovolaemic shock from loss of blood with a punctured trachea. The findings were consistent with the use of a sharp 10-12 cm kitchen knife.

Medical Certificate of Death issued by Dr. Michael Dokup, Acting Director, Curative Health Services, Mt. Hagen Provincial Hospital dated 19th of June 2013 (Exhibit "B")

8.	The medical certificate was issued by Dr. Michael Dokup on 19th of June 2012. The learned medical doctor certifies that the death of the deceased was instant as a consequence of hypovolaemic shock due to a severed trachea and large vessels of the neck caused by a knife.

Record of Interview (Exhibits "C1" TO "C3")

9.	The Record of Interview was conducted on 21st of June 2012 at the Banz Traffic Office, Banz Police Station between the interviewer, Sen.Sgt. Paul Iwaga and the accused corroborated by A/Constable David Donu. The accused was aged 25 years, illiterate, married for 7 years as the third wife of a common husband and had no children from the relationship. 

10.	On Wednesday, the common husband and the deceased went to campaign, but she stayed at the house as her uncle had died. On the morning of Thursday, 14th of June 2012, she was at her house at Rumar and was about to go to the mourning place when the deceased and the common husband arrived and told her not to go. He told her to cook some kaukaus for him instead, but she responded by telling him to tell the deceased to cook for him. The deceased was angered by her response and an argument developed. The common husband then went into the deceased's house and slept. Whilst the common husband was sleeping, the deceased armed herself with a small brown-handled knife and approached her as she was peeling kaukaus. The deceased asked her about what she had stated earlier and swung the knife at her simultaneously. She caught the deceased's arm and a struggle ensued. She managed to pull the knife off the deceased's hand. She then swung the knife intending to injure the deceased on her right eye, but the deceased moved and the knife landed on her throat. When the deceased cried out, she was afraid of her husband so ran away to her block. She threw the knife into the right hand side of a coffee garden which is situated close to the house.

11.	The fight occurred inside her house. Her house and the deceased's are close by.

12.	She heard about the death of the deceased whilst she was at her brother's house and she then asked her relatives to take her to the Police Station.

13.	The common husband has not paid her bride price. He gives her a lot of work and mistreats her a lot. He beats her up and threatens her with a bush knife regularly. 

Joseph Pok
Examination in Chief

14.	He is from Minjim village in the Jiwaka Province. On the morning of 14th of June 2012, he returned home with the accused from a campaign house which is situated on the other side of the river. They had been out campaigning until dawn. They left the campaign house at about 8:00 am. They went to the deceased's house. He told the deceased to boil tea and rested in a bed which was next to the doorway and facing the doorway whilst waiting for tea to boil. The deceased sat at the doorway close to the verandah nursing a boil on her leg with a bandage. He saw the accused stab the deceased with a knife and ran away. He tried to save the deceased, but could not as blood was pouring out. He did not know where the accused spent the night, but she surrendered to the police the next morning. 

Cross-examination

15.	He had two wives namely the deceased and the accused. They lived in separate houses which are about 15 to 20 metres apart. 

16.	His first wife was the deceased. She was from the Orange Market area. He paid her bride price and he has a son from her. 

17.	His second wife is the accused. She is from the Kinjika tribe of Mt. Hagen. He has not paid her bride price. The incident occurred after five years of marriage with the accused. The accused has not borne him a child. He spends much of his time with the accused.

18.	He was with the accused at the campaign house. He had about an hour's sleep there. The deceased was at her house sleeping. The distance between the campaign house and the deceased's house was about 1 ½ to 2km. Early in the morning, they went home. The accused went to her house whilst he went to the deceased's house. He saw the accused enter her house and he then proceeded to the deceased's house. He then asked the deceased to boil tea. When pressed that whilst he was sleeping, the accused and the deceased argued, he said he was not sleeping, rather he was leaning against the bed waiting for the tea to boil. When it was put to him that whilst he was sleeping, the deceased took a kitchen knife and charged at the accused, he said that was not true. When it was put to him that a struggle ensued during which the accused removed the knife from the deceased and stabbed her, he maintained that there was no argument, but it was the accused who armed herself with a knife, approached the deceased and stabbed her. 

19.	When it was put to her that he asked the accused to cook some food for him after returning from the campaign house, he said no. When it was put to him that the accused would give evidence that he requested her to cook food for her, but she refused and told him to ask the deceased as he was going to her house, he said that would be a lie. When it was put to him that the deceased told the accused to cook his food, he said the deceased boil tea.

20.	He and the deceased were alone as his son who was in Grade 5 went to school. He did not think there was anyone with the accused at her house at the time.

21.	He did not have any disagreement with the deceased. The deceased and the accused did not have any disagreement prior to the date of the incident, but when he initially brought the accused to the village five years back, there were disagreements. Moments before the stabbing, there was no argument between the deceased and the accused.

22.	He was not sleeping as he was waiting for tea to boil. He was resting at the back of the deceased who was seated at the doorway. The deceased was looking downwards at the time nursing a boil and did not see the accused approaching her. When asked whether the accused approached the deceased from the side or front, he said he did not know, but he saw the accused stab the deceased with a knife. When asked whether before the accused stabbed the deceased, he heard the deceased and the accused arguing, he said no. The accused got the knife and ran away from the crime scene. He was surprised and shocked by the accused's action. He said he was telling the truth. 

23.	He has not spoken to the accused since the incident even after her surrender to the police. When put to him that he had actually visited the accused whilst in custody at Baisu Correctional Institution to find out about her motive behind the killing, he said no and reasoned that he did not know where Baisu Correctional Institution was situated and how to get there. When asked if he recalled doing something that might have frustrated the accused, he said no. He said he was a good husband. He stayed with the accused, but took care of both of his wives. 

24.	When it was put to him that the incident actually occurred in the accused's house, he said it was in the deceased's house. 

25.	Belkol comprising K11,000.00 cash and 13 pigs was paid. The accused's relatives also contributed to the payment. 

Re-examination

26.	When asked at what time they arrived at the house, he said it was around 8:30 am.

DEFENCE EVIDENCE

27.	The defence evidence consists only of the oral evidence of the accused given under oath in her defence. 

The accused
Examination in chief

28.	She is from Minjim village in the Jiwaka Province. She has been married to the common husband for about 6 to 7 years and they have no children. She is the third wife. She got married to the common husband after the first wife left him. So before the incident, the common husband actually had only two wives, the deceased and herself. The deceased was originally from the Simbu Province. The common husband has a child from the deceased.

29.	She admitted killing the deceased in 2012 after the deceased first attacked her and she killed her when she retaliated.

30.	She and the common husband were at the campaign house and went home together. Her uncle (her mother's brother) had died so she wanted to attend his funeral, but the common husband did not allow her to go. Instead, he asked her to make his tea although she was tired. After boiling tea, he asked her to boil some kaukaus. She told him to tell the deceased to boil kaukaus as she was tired. The deceased overheard what she said and asked her why she did not listen to the common husband and an argument started between the two of them. She was peeling kaukaus on the verandah of her house at the time. The common husband was inside the deceased's house at the time. The deceased went to her house, returned with a knife and attacked her. It did not take long after the argument for the deceased to go to her house and return because their houses were not far apart. Her house faces the main road and the deceased's house faces the coffee garden. She did not see the deceased walking up to her, but she had her hands at her back so she had a feeling that she was holding a knife. The deceased was not big in size. When she approached her, she did not say anything, took out a knife and attacked her with it intending to stab her. She had seen the deceased using that knife before. During the struggle that ensued, she removed the knife from the deceased and stabbed her with it. She did not mean to kill the deceased. She moved sideways and she stabbed her. When she screamed, she got scared of the common husband and fled the scene.

31.	The common husband was lying when he asserted that she walked across to the deceased's house and attacked the deceased there deliberately on her neck without any warning. Rather, she stabbed the deceased in her house. 

32.	After the incident, she called her brother and informed him about the incident. When she heard that the deceased had died, she went to the Mt. Hagen Police Station and surrendered. She was arrested, charged and later taken to the Baisu Correctional Institution where she is remanded. The common husband has not visited her at the Baisu Correctional Institution. He however visited her twice whilst she was held in custody at the cell at the Mt. Hagen Police Station. 

33.	She and the deceased confronted each other on a regular basis before the incident all because she was the third wife. Some of these confrontations ended up in fights and injuries sustained. 

Cross-examination

34.	She was at the campaign house on the morning of 14th June 2012. She returned home together with the common husband. When they came to her house, the common husband requested her to boil tea. 

35.	She recalled being interviewed by the investigating officer in relation to the incident and signing the Record of Interview after it was read back to her. When asked if she recalled making a statement that it was the deceased who accompanied the husband to the campaign house, she said yes. When it was put to the accused that it was in fact the deceased who returned with the common husband from the campaign house, she said the three of them returned home together.

36.	After she refused the common husband's request to boil tea, an argument developed between her and the deceased. When the common husband went to the deceased's house, she remained at her house. Following the argument, the deceased went to her house, got a knife, returned and attacked her. That happened within a matter of seconds. The distance between her house and the deceased's is about 15 to 20 metres.

37. When it was suggested to her that in the few seconds that the deceased had gone to her house and returned, she had gone into her house, got some kaukaus out and started peeling them, she said the deceased went to her house, saw the common husband sleeping, returned with a knife and attacked her with it. When it was put to her that the incident occurred more than a few seconds after her argument with the deceased, she said that was true. She said, the deceased stayed for a while in her house and returned to attack her at her house. Whilst struggling with the deceased, she managed to remove the deceased's knife from her and stabbed her with it. When she removed the deceased's knife from her, she did not have any other knife. When it was put to her that the deceased posed no threat to her after the removal of the knife, she said she did not know. 

38.	She did not go to the deceased's house and attack her there.

39.	She denied that she followed the common husband to the deceased's house. She said she had no reason to kill the deceased. 

Re-examination

40.	No re-examination was conducted. 

SUBMISSIONS OF PARTIES
Submissions of the defence

41.	Mr. Kapi of counsel for the defence submitted that the accused concedes that she killed the deceased, but raises the statutory defence of self-defence found in Sections 269(2) and 270(1) of the Code which must be negatived by the prosecution in order to sustain a conviction. It was submitted that the cause of death was from a knife wound to the deceased's neck which was consistent with the medical evidence tendered by consent. Counsel contended that the present case rested on whose evidence the Court will believe.

42.	Counsel submitted that there were inconsistencies in the accused's evidence particularly in the Record of Interview, but they were trivial. One reason behind that submission was that there were two versions as to where the killing actually occurred. Counsel further submitted that documentary evidence was not of equal weight to oral evidence which was far more reliable and credible and the Court should believe the accused's oral evidence. On the other hand, counsel argued that the prosecution witness may have some truth in his evidence, but not entirely and he could have a motive to lie given he was the central figure in the killing. Counsel also said that if the deceased sat at the doorway according to the prosecution version of events, it was impossible for the accused to stab the deceased from the side. 

43.	Counsel referred the Court to the Supreme Court decision of Tapea Kwapena v The State [1978] PNGLR 316 and submitted that the first two principles set out there in the form of questions should be answered in the affirmative in favour of the accused namely; first, the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm; and that second, the accused believed that she could not preserve herself from death or grievous bodily harm otherwise than by using force that she in fact used. His reasons were; first, the deceased went to the accused's house armed with a a knife, a dangerous weapon which she concealed and attacked the accused with it which took her by surprise; and second, after the ensuing struggle the accused overpowered the deceased, took the knife from the deceased and stabbed the deceased with it. Counsel submitted that Tapea Kwapena propounded the principle that where one is attacked with a lethal weapon, the same weapon can be used by the victim against the attacker. The question as to the use of excessive force under the circumstances envisaged by Sections 269(2) and 270(1) of the Code is immaterial it was contended. Counsel argued that the prosecution has failed to negative the defence of self-defence so an acquittal should be entered.

44.	As to the question whether after the accused removed the knife, there was no other threat to cause reasonable apprehension of death and that force used was disproportionate to the threat and therefore excessive, counsel submitted that there was no evidence that the accused retreated from the struggle, but the stabbing occurred during the struggle indicating that the accused had no intention to kill the deceased.

Submissions of the prosecution

45.	Mr. Tengdui for the prosecution submitted that as the accused admitted killing the deceased by stabbing her on the neck which was supported by the medical evidence, the only issue remaining for determination was whether the accused intended to cause the death of the deceased? He said the issue could be resolved by looking at the events leading up to the stabbing and that depends on the Court deciding which of the two versions of events to accept. The prosecution witness gave evidence that the accused stabbed the deceased whilst she was bent over nursing her sore leg and without any provocation from the deceased. Medical evidence disclosed that the knife penetrated 8 to 12 cm deep into the deceased's neck which is a vulnerable part of the body and it indicated that the wound was inflicted with some force. The only inference that could be drawn was that the accused swung the knife with an intention to kill the deceased.

46.	Counsel submitted that the demeanour of the prosecution witness was forthright which demonstrated that he was a truthful witness. He had no reason to lie or take sides as both the deceased and the accused were his wives. During cross-examination, he maintained that it was the accused who struck the deceased from behind whilst she was not looking.

47.	Counsel submitted that the accused was not a witness of truth. The accused lied to the police when she stated in the Record of Interview that on 14th of June 2012, she stayed home whilst the deceased accompanied the common husband to the campaign house. That contradiction was confirmed by the common husband when he confirms in his evidence that the accused was with him at the campaign house. It was on their return home when the accused refused the common husband's request for her to cook some kaukaus for him which resulted in an argument between the two wives. The accused says that; the deceased attacked her with a knife; she then removed the knife from the deceased; and stabbed her in self-defence.

48.	Counsel submitted that Sections 269 and 270 made it lawful for one to use force in his or her own defence. Counsel submitted that the accused admitted in her own evidence that when she removed the knife from the deceased, the deceased had no other knife with her. So there was no other threat to cause reasonable apprehension of death. Force used was disproportionate to the threat therefore excessive.

49.	Counsel submitted that the Court should accept the version of events given by the prosecution witness that demonstrated that the attack was unprovoked, unlawful and done with an intention to kill so a verdict of guilty for the wilful murder of the deceased should be returned. 

50.	Counsel submitted however that should the Court accept the defence evidence, a verdict of guilty should be returned either for murder or manslaughter by virtue of Section 539 of the Code on the basis that when the accused removed the knife from the deceased, there was no real threat of reasonable apprehension of death or grievous bodily harm to the accused, the force used was excessive and the killing was unlawful. 

UNCONTESTED FACTS

51.	From all the evidence before me and submissions of counsel, I consider that the following principal facts are not disputed:

1.	The deceased and the accused were co-wives of the common husband, Joseph Pok from Minjim village in the Jiwaka Province.
2.	The deceased was the senior of the two.
3.	The co-wives lived in separate houses at one location in the village which were about 15 to 20 metres apart. 
4.	The deceased had a child from the common husband whilst she had none.
5.	The accused accompanied the common husband to a campaign house the previous day and they returned to their village after 8:00 o'clock on the morning of 14th of June 2012. 
6.	The deceased was killed by the accused at Minjim village on 14th of June 2012 at about 10:00 am.
7.	The common husband was in the deceased's house when the killing occurred.
8.	The accused did not assault the deceased before the killing.
9.	The murder weapon was a kitchen knife.
10.	The deceased had a knife wound to the left side of her neck which extended 8 to 12 cm deep into the neck and diagonally into the mediastinum which severed large neck vessels and the trachea and there was bleeding in the mediastinum.
11.	Death was caused by acute hypovolaemic shock from loss of blood from a punctured trachea.

CONTESTED FACTS

52.	From all the evidence before me and submissions of counsel, I consider that the following principal facts are disputed:

1.	The accused stabbed the deceased at the deceased's house.
2.	The killing occurred when the common husband, Joseph Pok was sleeping at the deceased's house.
3.	The killing was unprovoked.
4.	The accused killed the deceased in an act of self- defence.
5.	The killing was unlawful.
6.	The accused intended to kill the deceased. 

THE OFFENCE AND ELEMENTS

53.	Section 299 (1) of the Code creates the offence of wilful murder. The essential elements of the offence are:

1.	the accused killed the deceased; 
2.	the killing was unlawful; and
3.	the accused intended to cause the death of the deceased.

LEGAL ISSUES

54.	The main issue for my determination is whether or not the prosecution has proven all the essential elements of the offence beyond any reasonable doubt to ensure a conviction?

55.	Other collateral issues that arise for determination relate to the defence of self-defence and these are: 

1.	Whether the accused has established the defence of self-defence?
2.	If so, whether the prosecution has negatived the defence?

ANALYSIS OF ISSUES AND EVIDENCE
General remarks

56.	This is a case that rests very much on whom I should believe particularly in relation to the second and third elements of the offence. It is also a case of me weighing up the evidence and drawing inferences where appropriate.

57.	Finding of credibility is usually dependent on matters such as the degree of logic and common sense as well as the demeanour of the witnesses in the witness box and consistencies in their evidence: see Garitau Bonu and Rosanna Bonu v The State (1997) SC528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC980. I have considered these legal principles and I will apply them in arriving at my verdict. 

Did the accused kill the deceased?

58.	 Section 291 defines killing and it 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."

59.	It is not disputed and I am satisfied beyond any reasonable doubt that the accused killed the deceased with a kitchen knife at Minjim village, South Waghi in the Jiwaka Province on 14th of June 2012 at about 10:00 am. 

Was the killing unlawful?

60.	The accused has raised the defence of self-defence. If the defence fails, the killing will be unlawful. 

61.	According to Section 289 of the Code, a killing of a person is unlawful if it is not authorised or justified or excused by law. In R v Palwaskit (1949) No35, it was held:

"An instance of an 'authorised' killing is a judicial hanging; an instance of a 'justified' killing is a killing, in certain exceptional circumstances and provided there is no other reasonable way, done to prevent the escape of an arrested felon; and instance of a killing 'excused' by law, is that of a killing, in certain exceptional circumstances, in legitimate self-defence." 

62.	The relevant question to ask at this juncture is whether the accused has established the defence of self-defence under either of Sections 269(2) or 270(1) of the Code? A killing in self defence in an unprovoked assault is authorised by Section 269. A killing in self defence in a provoked assault is authorised by Section 270. Assault is an essential ingredient under both Sections 269 and 270 and that violence is presently being offered: R v Korongia (1961) No.204; R v Nikola Kristeff (1967) No.445; The State v Angela Colis Towavik [1981] PNGLR 140. An actual assault within the meaning of Section 243 of the Code is required: R v Korongia (1961) No.204. 

63.	The degree of force to be used in self-defence was set out in R v Muratovic [1967] Qd R 15 where it was held:

"The person using force in self-defense is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm." (My emphasis)

64.	The principle in Muratovic was adopted and applied in R v Kaiwor Ba [1975] PNGLR 90.

65.	In Tapea Kwapena, the Supreme Court held that where a defence of self-defence to murder is raised under the Code, the questions to be determined beyond reasonable doubt are:

1.	whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm?

2.	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?

3.	whether the accused's belief was based on reasonable grounds: or rather whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds?

66.	These principles are equally applicable to wilful murder cases.

67.	Section 269 of the Code 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."

68.	For the defence of self-defence to be established under Section 269(2), the following elements of the defence must exist:

1.	the accused was unlawfully assaulted; and
2.	the accused did not provoke the assault; and
3.	the nature of the assault was such as to cause reasonable apprehension on the part of the accused that she would die or suffer grievous bodily harm; and
4.	the accused believed on reasonable grounds that she could not otherwise preserve herself from being killed or suffering grievous bodily harm; and
5.	the accused used such force as was necessary for her defence.

69.	Section 270 of the Code states:

"(1)	Subject to Subsection (2), when—

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

(b)	the other person assaults him with such violence as—

(i)	to cause reasonable apprehension of death or grievous bodily harm; 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.

(2)	The protection provided by Subsection (1) does not apply—

(a)	where the person using force that 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."

70.	For the defence of self-defence to be established under Section 270(1), the following elements of the defence must exist:

1.	That the accused first assaulted the deceased or provoked an assault from her;
2.	The deceased then assaulted the accused with such violence so as to cause her reasonable apprehension of death or grievous bodily harm;
3.	The assault induced the accused to believe on reasonable grounds that it was necessary for her preservation from death or grievous bodily harm to use force in self defence.
4.	The force used was reasonably necessary for the preservation of the accused's own life from death or grievous bodily harm.

71.	The defence under Section 270(1) is not available under Section 270(2) where:

1.	The accused who first started the assault of the victim did so with intent to kill or do grievous bodily harm to the victim.
2.	The accused endeavoured to kill or do grievous bodily harm to the victim before the necessity for preserving herself arose;
3.	Before the necessity to preserve her life arose, the accused declined further conflict and quitted it or retreated from it as far as was practicable.

72.	It is trite law that where self-defence is raised on the evidence by the accused on the balance of probabilities, the onus rests with the prosecution to negative the defence beyond reasonable doubt: R v Nikola Kristeff (1967) No.445; R v David Daure [1967-68] PNGLR 19; The State v Leonard Masiap [1997] PNGLR 610.

73.	There is no evidence before the Court that the accused first assaulted the deceased or provoked an assault from her and that the deceased then assaulted the accused with such violence so as to cause her reasonable apprehension of death or grievous bodily harm to the accused. It is clear from Tapea Kwapena, that Sections 269 and 270 must be governed by the definition of provocation in Section 266 of the Code. For these reasons, I consider that the defence under Section 270(1) is not available to the accused.

74.	I now consider whether the accused has established the defence under Section 269(2)?

75.	There are two versions before the Court as to how and where the killing occurred. The prosecution witness asserts that the killing occurred in the deceased's house whereas the accused states that it occurred at her house.

76.	The prosecution witness, the common husband was summonsed to give evidence for the prosecution after he failed to appear on the first day of trial. I make no adverse inferences in that regard. 

77.	As to whether the common husband had a motive to lie, I would accept the prosecution submission that he had no reason to lie or take sides as both the deceased and the accused were his wives. If however he had a motive to lie, he probably would have given evidence in favour of the accused given under cross-examination, he stated that he spends much of his time with the accused and the accused was the surviving wife. All in all, whether the common husband is a reliable witness depends on my assessment as to his credibility based on the application of legal principles I have adverted to already.

78.	The common husband's version of events leading up to the killing in summary is this. On 14th June 2012 after 8:00 am, he and the accused returned home from a campaign trail. He went to the deceased's house and told her to boil tea. He rested in the house on a bed which was next to the doorway and facing the doorway whilst waiting for tea to boil. The deceased sat at the doorway and was nursing a boil or sore on one of her legs. Her concentration was taken up with the placing of a bandage over the boil or sore and was looking downward. The accused went to the house and approached the deceased either from the front or side and he saw her stab the deceased on her neck with a knife and fled.

79.	Under intense cross-examination, the common husband said he was not sleeping when he saw the accused approaching the deceased, but he could not recall whether the accused approached the deceased from the front or side.

80.	This uncertainty or inconsistency to my mind places a lot of doubt on the reliability of the common husband's evidence as an eye witness to the killing and defies logic and common sense. This raises the question whether or not the common husband was sleeping at the material time? His demeanour under cross-examination suggested that he was not telling the whole truth. I would infer from the common husband's apparent inconsistency in his description of how the deceased was stabbed that it is more probable than not that the common husband was sleeping at the material time due to fatigue as in his examination in chief he said he and the accused had been campaigning until dawn that morning. 

81.	The accused's version of events was that on 14th June 2012, after 8:00 am, she returned home with the common husband from a campaign trail. The common husband went to the deceased's house and she went to hers. The common husband requested her to boil tea and some kaukaus, but she refused and told him to tell the deceased to perform the tasks as he was going to the deceased's house. The common husband went to the deceased's house to sleep. The deceased overheard what she said and berated her for that. An argument followed between the two of them. The deceased then went to her house, picked up a knife which she concealed and returned to the accused's house and attacked her with it. The accused who was bigger than the deceased put up a fight, struggled with the deceased and overpowered her. She removed the knife and tried to "poke" the deceased's face, but during the struggle, she stabbed the deceased on her neck when she moved. Realising that she had stabbed the deceased, she fled the scene and hours later upon hearing that the deceased had died, she surrendered to the police in Mt. Hagen. 

82.	The accused was forthright in giving her version of events leading to the stabbing of the deceased. Her demeanour suggested that of a witness of truth.

83.	The only question that is raised about the reliability of the accused's oral evidence is that in the Record of Interview, she said she remained at home whilst the common husband went with the deceased on a campaign trail the day before the killing. This inconsistency to my mind is not fatal. Otherwise, the accused's oral evidence is generally consistent with the Record of Interview.

84.	It is generally accepted now that the sworn evidence of an accused carries more weight than unsworn statements made outside of Court in a confessional statement or record of interview which are not tested by cross-examination although tendered by consent of the defence: The State v Martin Maso Naipo, CR No 92 of 2004, Unreported & Unnumbered Judgment delivered by Kirriwom J in Lae on 21st of June 2005; The State v Ali Kei Paiya, CR No 478 of 2004, Unreported & Unnumbered Judgment delivered by Sawong, J in Lae on 9th August 2005. For this reason, I will give more weight to the accused's oral evidence over her statements recorded in the Record of Interview.

85.	I would accept the accused's version of events about the events leading up to the stabbing of the deceased. This means that the common husband was not at the crime scene at the material time as he was sleeping at the deceased's house, hence not an eye witness to the killing. I therefore make findings of fact that following an argument between the accused and the deceased over who should boil some kaukaus for the common husband, the deceased went to her house, armed herself with a kitchen knife which she concealed, returned to the accused's house and attacked her with the knife. It was during the struggle that ensued that the accused disarmed the deceased and used the deceased's knife to stab her. 

86.	Of the five elements that must be satisfied on the balance of probabilities for the defence of self-defence to be established under Section 269(2), the accused has only satisfied four of them and these are; she was unlawfully assaulted; she did not provoke the assault; the nature of the assault was such as to cause reasonable apprehension on her that she would die or suffer grievous bodily harm; and that she believed on reasonable grounds that he could not otherwise preserve herself from being killed or suffering grievous bodily harm. The accused has failed to establish the defence of self-defence under Section 269(2). If I am wrong in finding that the defence has failed to establish the defence of self-defence under Section 269(2), then I am satisfied that the prosecution has negatived the defence beyond any reasonable doubt on the accused's own account of the killing.

87.	I accept the prosecution submission and I am satisfied beyond any reasonable doubt that when the accused removed the knife from the deceased during the struggle; there was no real threat of reasonable apprehension of death or grievous bodily harm to the accused; the force used was disproportionate to the threat therefore excessive; and the killing therefore was unlawful as it was not justified or excused by Section 269(2): see also Rex Lialu v The State [1997] PNGLR 487. 

Did the accused intend to cause the death of the deceased?

88.	I adopt my reasons for addressing the second element of the offence and find that the accused did not intend to cause the death of the deceased.

VERDICT

89.	The prosecution has failed to prove all the elements of the offence of wilful murder beyond a reasonable doubt. For all these reasons, I will return a verdict of not guilty against the accused for the offence of wilful murder.

90.	As I have found that the killing was unlawful as it was not justified or excused by Section 269(2), I will enter a conviction for manslaughter under Section 302 exercising my power under Section 539(1).

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Public Prosecutor: Lawyer for the prosecution
Public Solicitor: Lawyer for the defence