N7329
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 674 OF 2017

THE STATE

V

Juvenile
“S M N”

Kokopo:  Susame, AJ
2018: 19, 20, 22, 25, 29 June

CRIMINAL LAW – Offence – Attempt Murder, S 304 Criminal Code- Elements To Prove -  Alternative Offence- Intent To Cause Grievous Bodily Harm, S 315 – Elements To Prove – 

Cases cited: 
R v Bena Forepe [1965 -1966] PNGLR 329 
 R v Kiki Kau’Au (1970) N557. 
Supreme court in Supreme Court Reservation N0.4 of 1984; The Stat  e v James Pah [1985] PNGLR 188
The State v Wanaepe Warara [1977] PNGLR 458

Counsel:
Mr. Batil, for the State
Miss. Ainui, for the Accused
JUDGMENT ON VERDICT
29 June, 2018
1.      SUSAME, AJ: The Accused stands charge on a charge of attempt murder charge under s 304 (a) of the Criminal Code. On the same indictment prosecution is pursuing an alternative charge of grievous bodily harm with intent under s 315 if the attempt murder charge is not proved. 
BRIEF FACTS ALLEGED
2. 	On 24th December 2016, between 3 am and 3.30 am, at Sonoma in East New Britain Province,  accused and his uncle Lais Napita found out that the accused’s sister had brought her boyfriend Frank Maku (the complainant), into her room, in their family-house. 
3.	Being angry about this, accused’s uncle came into the room, flashed the torchlight at the victim’s face and punched him.  The uncle then told the accused to kill the victim. Accused had a tramontina bush knife and swung it at the complainant, completely amputating his right forearm.
CRIME ATTEMPT MURDER
“304. ATTEMPT MURDER, ETC.
A person who –
(a)	Attempts unlawfully to kill another person; or
(b)	With intent to unlawfully kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being such a nature as to be likely to endanger human life, 
Is guilty of a crime. 
Penalty: Subject to section 19, imprisonment for life.”
4.	The Criminal Code provides some explanation of the terms “attempts to commit offences” in section 4 in these terms:  
“4. ATTEMPTS TO COMMIT OFFENCES
(1) WHEN A PERSON, INTENTING TO COMMIT AN OFFENCE –
(o) begins to put his intention into execution by means adopted to its fulfillment; and
(b) manifests his intention by some overt act;
But does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.”
ELEMENTS TO PROVE
5.	Essential elements of crime State must prove are:
1.	There was prerequisite intention to kill another person,
2.	The accuser puts his/her intention into execution by  means adapted to fulfill the intention to kill
3.	Accuser had manifested his/her intention by some overt act.
6.	To be convicted of the crime accused specifically intended to kill the victim. Accused cannot be convicted if he only maim, frighten, or disfigure the victim. He cannot be convicted because he accidently committed the crime. 
7.	The crime places upon the State the obligation to prove intent to kill and must be proved beyond reasonable doubt: (see R v Bena Forepe [1965 -1966] PNGLR 329 & R v Kiki Kau’Au (1970) N557). 
CRIME OF INTENT TO CAUSE GRIEVOUS BODILY HARM
8.	This particular crime is found in section 315 which reproduced below in part. 
315. ACTS INTENDED TO CAUSE GRIEVOUS BODILY HARM OR PREVENT APPREHENSION.
A person who, with intent –
(a)	To maim, disfigure, or disable any person; or
(b)	To do some grievous bodily harm to any person; or
(c)	To resist or prevent the lawful arrest or detention of any person,
does any of the following things is guilty of a crime –
(d)	unlawfully wounding or doing grievous bodily harm to a person; or.
(e)	………….(j)
Penalty: Subject to Section 19, imprisonment for life.
9.	ELEMENTS TO PROVE
1.	Accused had the intention to cause unlawful wounding or grievous bodily harm to the victim
2.	Accused put his intention into execution
3.	Accused manifested his intention by some overt act
PROSECUTION EVIDENCE
10.	To prove its case the State called two witnesses and tendered several documents by consent.
1.	Statement of Arresting Officer	         				Exhibit A
2.	Statement of Corroborator		            		Exhibit B
3.	Record of Interview – Pidgin & English versions 		Exhibit C1 & C2
4.	Medical Report					          		Exhibit D1
5.	Affidavit of  Medical Officer 					Exhibit D2
Witness Frank Maku
11.	He is the complainant and victim of the alleged crime. He is from Wabag but has been living in Sonoma for the past 4 years. On 25 December 2016, at around 3 am he went with his girlfriend Matikas to her house.  They went and sat in her room when the accused pushed the door into the room and came in.
12.	He slapped Matikas twice with the tramontina bush knife. Matikas felt pain and left leaving Frank in the room.  The accused’s younger father who was a committee came into the house.  He came and stood next to the accused and shone torch into Frank’s eyes.  He then told the accused saying, ‘kilim em, kilim em’.  He put his hands up and the accused cut his hand.
13.	He said the accused wanted to kill him as he aimed at his neck to chop it off.
14.	During cross examination, Frank denied ever sneaking into the house he said he frequents the accused’s family home and the family knew about this.  They were happy with him frequenting the house. He said he was momentarily blinded by the torch shone into his eyes and could not see anything but saw the dark shape of a knife.

Witness Matikas Matalau Sai

15.	She comes from mixed parentage of West New Britain and East New Britain.  She is the adopted sister of the accused but she is actually the accused’s mother’s younger sister. She is currently married to the victim. Before that she was victim’s girlfriend.
16.	She told the court that she was previously married and this is her second marriage to the victim.  Her family was not aware of her taking Frank into the house.  She was drunk and took Frank into her room without the knowledge of her family.
17.	Accused heard voices and entered the room. He slapped her twice with the knife and she went out of the room.  She did not know what happened later.
18.	She used to bring Frank into the house but since he got married she stopped.  Her family had no knowledge of that. They wanted her to complete her school. 
19.	She agreed when it was put to her that accused only cut Frank because he had entered the room without their knowledge.  They did not approve of the relationship as he was a married man.

DEFENCE EVIDENCE 
Accused, SMN

20.	Defence first witness was the accused now aged 19 years old. He is of Enga, West and East New Britain parentage.  In the year the alleged offence was committed he was 17 years old. He is a Grade 10 student at Kambubu Secondary School.
21.	He recalled on 24 December 2016, he was with the boys.  He left them to go and check on his sister’s baby as her sister was drunk. When he entered her room, he saw her sister and Frank sleeping together in the bed. The baby was on the other side of the bed.  They were surprised to see the accused and quickly separated.
22.	Accused saw this and was quite angry because when he was in school he heard Frank sneaking into the house and seeing her sister.  The family did not agree with Frank seeing their sister as he was a married man.
23.	They had on two occasions reported the matter to the community to stop Frank. He had compensated them and had been restrained from entering the family home.
24.	The accused hit his sister twice on the back with the bush knife. Frank ran out and entered the accused younger brother’s room and hid in there.  The accused then woke up her grandmother to witness the intruder. 
25.	Accused tried opening the door leading to his brother’s room but Frank had blocked it.  The accused broke the door down and the committee, accused’s uncle arrived as word had reached him about the intruder.
26.	Accused did not hear his uncle say ‘kilim em.’ He came in and shone torch on Frank, punching him as he had warned him earlier not to enter the house.  He had warned him three (3) times when he was going around with other ladies and that he was a married man.
27.	Accused saw his uncle punch Frank and he stood there watching.  He had a tramontina knife.  He did not swing towards his neck, he saw Frank raise his hand probably angry because he was punched by his uncle.
28.	The accused’s grandmother was standing in front of him when he swung the knife and cut Frank’s hand.  He did not aim at his neck to kill him but to wound him.  He saw the hand fall off and in shock he ran off.
29.	The next morning at 7 am, he got the knife he had used to cut Frank and came to the Police Station and surrendered.
30.	Accused explained Frank was a married man and he would sneak in without their knowledge or approval and when he saw Frank he was angry and cut Frank.
31.     He denied having knowledge of their relationship and bring Frank to his sister. 

Witness Rosemary Akas

32.	This is the grandmother of the accused.  She said Matikas was adopted by her eldest daughter when she got married and when she was 3 years old.
33.	She recalled on 24 December 2016, she was woken up by her grandson to see for herself someone had entered their house.  She woke up and got cross at Frank.  She said she was afraid as she was old and her grandson was young.  She told the Court that accused did not mean to cut Frank.
34.	Frank used to like Matikas but she did not agree.  Frank fought with Rosemary and she brought the matter to the committee.  He was ordered to pay compensation and stopped from going back to the house. 
	ISSUES
(1)	Whether relationship between the complainant and Matikas Sai had the approval of Matikas family?
(2)	Whether accused had consented to Matikas taking the complainant into the family house? 
(3)	Whether or not the accused intended to kill the complainant?

FINDINGS ON ISSUES (1) & (2)

35.	Issue N0. 3 is the principle issue. But first let me decide issues 1 & 2 which came about from conflicting evidence heard from the witnesses. This is important to establish the reason the accused attacked the victim. Some facts are clear from the evidence. Matikas is accused’s aunt. She is the younger sister of accused’s mother. Accused at times calls her as his sister because of her upbringing since her childhood through adoption by the accused’s mother.  She was in school and became pregnant and bore a child from a relationship with a guy from East New Britain. Later she met the victim and they became friends. She is currently living with the victim.
 36.	Matikas stated they met in 2016. Her version conflicts with victim’s evidence, victim stated they have been in a relationship for two years, implying their friendship commenced in 2015. Whichever year it was their friendship became known to the community including accused and his family. 
37.	As to whether there was approval from Matikas family of their relationship again there was competing evidence. The victim gave evidence that accused and his family knew of their relationship. Accused allows him into the house at nights to be with Matikas. They were intending to get married and Matikas family accepted their relationship. Defence evidence is on the contrary. Accused and his family were against their relationship for two reasons. They wanted Matikas to continue with her education and secondly the victim was a married man. To show their disapproval in a certain gathering in which the victim paid K200.00 compensation for assaulting Rosemary (accused’s grandmother) the ward committee had issued instructions stopping the two from continuing with their relationship. 
38.	Court’s observation of the victim’s demeanor is that he was evasive in answering questions that were put to him during examination in chief and cross-examination. He was not direct in answering simple questions that required a simple ‘yes’ or ‘no’ answer. He was not logical and ‘beat around the bush’ in answering questions. In that respect he did not impress me as a credible witness. 
39.	Court accepts defence evidence as true version of facts in answering the issues. The accused and the family never approved of the relationship for the reasons court heard. Accused got reports from others that his ‘sister’ usually takes the victim into the house in secret without the family knowing.  
40.	That was exactly what happened at the early hours of the morning of 24 December 2016. Matikas had left her infant child sleeping alone in the room. She had been up late drinking in the company of the victim and others who were playing cards. Accused was also up awake with the boys. 
41.	Without accused knowing the two left the group and sneaked into the house straight to the bed room. Accused decided to go to the house. He wanted to check on his sister’s baby as his sister was drunk. He opened the door to his sister’s bedroom and saw the complainant and his sister sleeping on the bed while the baby was lying on the side. He never expected to see the victim inside and was naturally angry at the sight of seeing him with his own eyes inside the family house. In his anger accused struck his sister twice with the flat side of the tramontina bushknife he had with him. In pain his sister ran out of the house. The commotion inside no doubt got the attention of others including the accused grandmother and uncle, the ward committee leading to the cutting.  
42.	In summary the answers to issues 1 & 2 are:
1.	Whether relationship between the complainant and Matikas Sai had the approval of Matikas family?
Answer: No
2.	Whether accused had consented to Matikas taking the victim into the family house?
Answer:  No.  

FINDING ON ISSUE N0.3

43.	Court has considered the arguments advanced by the parties. Again evidence adduced had established beyond doubt certain facts of what occurred in the room.  Accused was angry when he found the victim with his aunt in her room. In his anger he struck his aunt twice on her back with the flat side of the bush knife he had with him. In pain his aunt had to flee the room leaving the accused and the victim inside. Obviously, she was not in a position to see what actually happened inside. The commotion inside got the attention of others who were still up and awake outside and had gathered around the house.  
44.	Accused called out waking her grandmother there was a man inside and she should come over and see him. The grandmother woke up and went over to the room. She saw the victim was inside. She was cross and questioned him if it was his house.  By then the uncle had come over on hearing the commotion and joined the accused and his grandmother.
45.	The uncle flashed the touch light directly at the victim’s face. None of the witnesses made mention the uncle punched the complainant upon seeing him except the accused.  
46.	The victim stated uncle uttered the words “kill him, kill him” at the time he flashed the torchlight at his face blinding him.  On hearing that the accused swung the bush knife cutting off his arm he had raised up in his defence. Matikas also confirmed hearing the uncle calling out kill him but from outside. Both the accused and his grandmother denied the uncle uttering those words.  
47.	The court however, accepts that the uncle had uttered the words being angry at seeing the victim inside the house for obvious reasons. The reason is this. Accused decided not to attack the victim with the knife at the earliest available time upon seeing the victim and his aunt together. Instead he struck his aunty with it without cutting her. After his aunt fled the room in pain the accused was still undecided to attack the victim. He was still emotionally angry. The uncle’s utterance encouraged him this time to swing the bush knife at the victim, albeit, the force was quite excessive instantly cutting off victim’s forearm. 
48.	Defence argued there was no intention to cause GBH to Frank. Accused had not pre-planned to attack him. He had the right to protect his home from invaders like Frank. Being angry he reacted in the manner he did and cut Frank. Implication of that argument is his actions were justified and accused be acquitted of both charges.
49.	Court’s response to this argument is this. Everyone as a right to take necessary action within his powers to remove any intruders in protection of his property or home. This was a case two lovers finding a place to make love decided to enter the family house and use the comfort and privacy of the female partner’s room as they had been doing secretly.  This was without the knowledge and expressed permission of the accused and other members of the family, which was of course not a right thing to do.  
50.	But where is the justification of attacking an unarmed person who was  caught in the house, never put up any resistance or fight instead of using reasonable force to remove him out of the house? The person had entered not on his own accord but on invitation of his girlfriend. Playing the blame game the girl friend is equally to be blame for inviting her lover into the house knowing fully well her family were against their relationship.  In the circumstances, the force use was unreasonably excessive. 
51.	On the other hand prosecution advanced these arguments. There is overwhelming evidence that supports the state of the mind of the accused at the time he acted, that he had the intention to kill the victim. It is the course of conduct of the accused prior to the act, at the time, and subsequent to the act that shows the state of mind at the time.  It argued accused knew very well which part of his body to aim with the knife. He aimed the victim’s neck. The victim knew the knife was going to cut his neck so he lifted his right arm to avoid being cut on the neck. In a nut shell prosecution argument as I understand is that there was enough reason and motive established by prosecution’s evidence coupled with accused’s actions prior to and at the time of the act which clearly implies he had an intention to kill the victim.
52.	My assessment of the prosecution’s evidence is that it has not been established by the prosecution if lights were on in the house and in particular the room the victim was in. But there is uncontested evidence which court accepts the accused’s uncle had a torch with him. It has not been established how big and powerful the torch was and the brightness of its light. But the uncle had shone the torch light directly at the victim’s face momentarily blinding him. 
53.	There is no evidence from the prosecution either direct or circumstantial that the accused had been planning to kill the victim or he had been conspiring with the uncle to kill the victim for all the wrongs he had committed.  That accused had put his plan into execution by arming himself with a bush knife and going in search of the victim that particular night. There is no evidence direct or circumstantial on that particular night prior to him going to the house accused had been stalking the victim or made certain representation to cause harm or death upon the victim. 
54.	Accused had a bush knife with him. He was never asked if he had the knife in his possession the whole night and why he had it with him. More so he was never questioned where he had picked up the knife from. 
55.	Accused had given evidence he had gone to check on his aunt’s baby who was left alone sleeping in the house because his mother was out drinking. Again there is no evidence from the prosecution accused had seen the two lovers entering the house that night and arming himself with the bush knife he had gone to fight or attack them amidst the stories he heard.   
56.	If the accused had the intention to kill the victim he would have fulfilled that intention immediately upon catching him in his house with his aunt. Instead he decided to assault his aunt using the knife. Opportunity was not lost and still there for the accused to attack the victim to fulfill his intention. He did not until his grandmother and uncle joined him couple of minutes later. The utterance by the uncle “kill him” was made in the spur of the moment upon seeing the person they had a dislike for.  The utterance no doubt stirred up the angry or emotional state accused was already in and being encouraged by his uncle he swung the bush knife at the victim. 
 57.	In the difficult condition knife was swung it cannot be said with certainty or confidence it was intended at the neck, a vital and delicate part of the body.  Defence had argued victim was momentarily blinded by the bright light of the torch shone on his face and could not have seen where the knife was heading. The court concurs with defence on this point. 
58.	There was never any neck injury. In the nick of time victim saw the knife being swung at him and raised up his right hand to protect himself.  That act of emergency unfortunately did not safe him from receiving the injury. Accused had stated he never intended to kill him. He ran out of the house when he saw victim’s hand fall off.   
59.	For foregoing discussions prosecution’s argument fails. 
60.	Did the accused swing the bush knife at the victim accidentally or unintentionally?  No. It was an intended act. Accused was driven by anger and he swung the bush knife at the victim.  He had reasons for doing that.  Accused knew very well a bush knife is a dangerous or offensive tool capable of causing severe injuries or even death if used indiscriminately.  Sure enough the knife caused a severe permanent injury to the victim’s right forearm chopping it off completely.  
61.	In conclusion the answer to issue N0 3: Whether accused had intended to kill the complainant? Answer. No. 
62.	Hence, the verdict reached is that prosecution has failed to prove the element of intention to kill. Accordingly, accused is found not guilty of the attempt murder charge contrary to s 304.  
63.	State has also on the same indictment preferred an alternative charge of intention to cause grievous bodily harm pursuant to s 315.  Is there authority and the legal basis for the court to enter a verdict on that alternative charge? There was no specific mention or direction from the prosecution on that point. There is no specific provision in the Criminal Code vesting power in the court to enter alternative verdicts upon an indictment alleging attempt murder charge under s 304 similar to ss 539, 540, 541 542 & 547. Supreme court in Supreme Court Reservation N0.4 of 1984; The State v James Pah [1985] PNGLR 188 in interpreting s 542 held that provision is not available. Nonetheless, it has been held in The State v Wanaepe Warara [1977]PNGLR 458 that a verdict of intent to do grievous bodily harm and doing grievous bodily harm in ss 315 & 319 respectively is open upon an indictment alleging attempt murder charge under s 304. 
64.	By the authority of The State v Wanaepe Warara (supra) and consistent with the court’s findings above court returns a guilty verdict on a charge under s 315 for intention to do grievous bodily harm.  
__________________________________________________________________
Public Prosecutor:		Lawyer for the State
Public Solicitor   :		Lawyer for the Accused