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State v Laida [2019] PGNC 144; N7837 (7 May 2019)

N7837

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 859 OF 2016

THE STATE

V

GLEN ILAISA LAIDA

Alotau: Toliken, J.
2018: 4^th, 5^th, 6^th December
2019: 7^th May

CRIMINAL LAW – Particular offence – Wilful murder – Trial – Deceased attacked accused with axe and bush knife – Accused assaults and kills deceased – Criminal Code Ch. 262,ss. 299, 269,270.

CRIMINAL LAW – Evidence – No eye witness evidence from the State – Only evidence from accused – Medical Report and photographs of deceased tendered by consent – Caution in drawing inferences from medical evidence in absence of eye witness evidence.

CRIMINAL LAW – Self defence from unprovoked assault – No intention to cause death or grievous bodily harm – Reasonable apprehension of death or grievous bodily harm – Accused assaults deceased to preserve himself from death or grievous bodily harm – Defence of self defence shown but further assault on victim unnecessary and excessive – Verdict for wilful murder or murder not available – Alternative verdict – Manslaughter – Criminal Code Ch. 262, s 539.

Cases Cited:

Paliau v The State (2016) SC1537
R v Kaiwor Ba [1975] PNGLR 90
R v Paul Maren (1971) N615
The State v Alphonse Dumui (2009) N3686
The State v Kai Joip Dipa (2007) SC 868
The State v Maria Agua CR No 208 of 2007, 16.07.09

Counsel:

C Sambua, for the State
N Wallis, for the Prisoner

JUDGMENT ON VERDICT

7^th May, 2019

1. TOLIKEN J: The accused Glen Ilaisa Laida, was on 04^th December 2018, charged on indictment with the wilful murder of Allan Ningilom on 29^th December 2015 at Alotau Town, thereby contravening Section 299 of the Criminal Code Ch. 262. (the Code)

THE ALLEGATIONS

2. The State’s allegations are that between 8.00 a.m and 10.00 a.m on 29^th December 2015, the accused and the deceased and others were drinking alcohol at the Niugini Compound here in Alotau. An argument arose between the accused and the deceased and a fight ensued. The fight continued for some time. In the course of the fight the accused attacked the deceased with a bush knife, inflicting serious bodily injuries to his back, neck and right leg. The deceased died from loss of blood from the injuries sustained.

3. The State alleged that the accused intended to cause the death of the deceased.

PLEA

4. The accused pleaded Not Guilty and trial was conducted. The accused pleaded self defence from provoked assault under Section 270 of the Code.

ISSUES

5. There is no dispute that the accused caused the death of the deceased. What is disputed though is whether he intended to kill him and whether he had a lawful excuse for doing so.

6. The issues to be determined are:

1. Whether he intended to cause the death of the deceased?
2. Whether he acted in self-defence?
   

THE OFFENCE

7. Section 299 of the Code provides for the offence of wilful murder as follows:

99. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

ELEMENTS OF CHARGE

8. The State must prove the following elements for the crime of wilful murder beyond a reasonable doubt to secure a conviction:

1. The accused
2. Intended to cause the death of the deceased; and
3. Caused the death of the deceased; and
4. He had no lawful excuse for doing so.
   

THE EVIDENCE

9. The State called one witness only (Justin Gilchrist) out of the number of witnesses listed on the indictment. The State also tendered the following:

(1) The accused Original Record of Interview dated 18.01.16) – (Original Pidgin and English translation).
(2) Supplementary Record of Interview dated 11.05.16 – Original Pidgin and English translation).
(3) Statement of Arresting Officer Sergeant Max Irofe dated 11.05.16.
(4) Statement of Corroborator Chief Sergeant Iapeta Natapu dated 18.01.16.
(5) Statement of Policewoman Wendy Amakos dated 18.05.16.
(6) Medical Report by Dr. William Mataio dated 19.05.18.
(7) Eight coloured photograph’s of the deceased showing his wounds.

10. The accused elected to give sworn evidence and did not call any other witnesses.

UNDISPUTED FACTS

11. The undisputed facts from the evidence are these. On the morning of 20^th December 2015 the accused was at his garden hut on the hills above Niugini Compound on the outskirts of Alotau Town when the deceased Allan arrived with a litre of illicit spirit (home brew) and wanted to drink at the accused’s place. The accused protested but the deceased persisted and started drinking. The deceased got the accused’s music box and started meddling with the volume and eventually broke the volume control knob. This angered the accused and an argument ensued resulting in a fist fight between the two of them.

13. One Nason Kasore heard them fighting and ran up and tried to stop the fight. He came just in time to stop the deceased from cutting the accused by tackling him to the ground. They both fell to the ground. Nason was on top of the deceased trying to wrestle the knife from the deceased’s hands. Seeing this, the accused joined in to assist Nason to remove the knife from the deceased. During the struggle Nason somehow managed to remove the bush knife from the deceased and threw it down the gulley.

14. That morning between 7.00a.m – 8.00a.m Justin Gilchrist and his wife Thelma and their children were at their garden further uphill when they heard loud music and drunkards singing and shouting from the other side of the mountain. Sometime around 11.00a.m they heard fighting and screaming so Gilhrist and his wife went down to investigate. Gilchrist had his bush knife with him. They arrived in time to see the accused, Nason and the deceased wrestling each other in a pile on the ground with the deceased at the bottom, Nason on top of him and the accused on top of Nason.

15. Gilchrist shouted at them to stop, but Nason replied that this was their fight. Leaving the other two Nason ran to Gilchrist and grabbed him by the shoulders. He removed Gilchrist’s bush knife and then ran down to a creek. After Gilchrist stopped the fight between the accused and the deceased, he and his wife followed Nason down, but could not find him. However, they came upon a lady by the name of Meisy Suau. Meisy had Gilchrist’s bush knife which she said was given to her by Nason. They then left for the Compound following the creek. The accused also left the scene and went to Musa Compound.

16. After sometime the accused came running back up. He met Gilchrist and his wife and wrestled the bush knife from Gilchrist and ran up hill. They followed him up and met a young boy by the name of Dougie just as they were about to reach the top of the hill. They told Dougie to follow the accused. Gilchrist and his wife continued on and when they came to a junction they heard a man screaming, which Gilchrist described as that of someone dying. Leaving his wife there, Gilchrist continued on and heard Dougie call out “Hidomo, haweni!” (“Friend that is enough!”)

17. When Gilchrist reached the top he saw someone dragging another person downhill. His view was obstructed by bushes and betel nut trees so he was not able to see the man properly. The accused admitted that there was no one else around hence the person Gilchrist saw was of course the accused.

18. Gilchrist also observed that some betel nut trees were chopped down and that the accused’s garden house was partly destroyed. Gilchrist did not proceed any further but instead left with his wife to pick up his children from the garden. They later reported the matter to the Compound Chairman. The destruction described by Gilchrist was confirmed by the accused in Q & A 25 of his initial Record of Interview where he said that the deceased had chopped down his betel nut trees and damaged his house which was what brought him back to the scene.

19. The Post Mortem Report by Dr. Mataio shows that the deceased had deep wounds or lacerations on various parts of his body. These were:

Head and Neck

The head and neck region had deep wounds both anteriorly and posteriorly. On the anterior aspect:

- The Rt side of the base of the neck had a 15cm wound extending medially passed the Rt clavicle (shoulder bone) and deep into the muscle of the neck
- The Lt temporal scalp had a deep curving wound from the scalp down to the anterior part of the ear. The wound was degloving extending into the temporalis muscle and exposing the skull. There was no fracture of the skull.
- There were minor lacerations (superficial) on the anterior face ( x 1 at anterior nasal bridge ~ 3cm continuing to the Rt lateral eye ~ 2cm) and x 1 at the frontal face (~2cm)

The posterior aspect of the head and neck showed three major lacerations:

- The first laceration was at the base of the scalp measuring 16cm by 5cm deep, extending to the angle of the mandibles bilaterally. The vertebrae of the cervical spine could be seen.
- The 2^nd laceration was just a centimetre below the first and was of the same magnitude (16cm x 5cm)
- The 3^rd laceration was 16cm x 3cm at the level of C3 and C4 also extending into the muscles of the neck and the vertebrae.

...

Musculoskeletal System

Including lacerations to the head and neck, other lacerations are as follows

- Rt Shoulder – circumferential wound to the shoulder measuring about 13cm and extending deep into the humeral bone with a complete fracture of humeral head.
- Rt Upper arm - a laceration at the medial aspect of the upper arm extending into the biceps muscles and superiorly into the deltoid muscle.
- Rt Hand – compound fracture to the 3^rd digit at the 2^nd interphalangeal joint, compound fracture to the 4^th digit at the 2^nd interphalangeal joint and laceration to the 5^th digit at the distal phalange.
- Upper back – laceration measuring 32cm long by 5cm deep extending from Rt shoulder blade to the left shoulder blade with fractures of both shoulder blades.
- Upper back – laceration just below the scapular at the level of T6 vertebrae measuring 12cm x 3cm extending deep into the muscles.
- Rt Lumber region – laceration measuring 22cm interrupted at 3 points and extending into the lower Rt chest.
- Lt Leg – Right Calf laceration from the distal end of the Gastrocnemius muscle extending to the lateral aspect of the Rt ankle measuring 21cms. (sic)

....
20. A total of 18 wounds were inflicted on the deceased. The photographs tendered into evidence showed some of the wounds in graphic detail. Dr. Mataio was of the opinion that the deceased died from haemorrhagic shock as a result of multiple knife wounds.

DISPUTED FACTS

21. Now, the most critical part of this case is what exactly happened at the accused’s garden house when he confronted the deceased. The only evidence is the sworn testimony of the accused. That being the case I am left with his testimony only.

22. The accused said that when he left the scene after the first fight he ran down to Musa Compound and spent about 2 hours there playing cards. He then left unarmed for his house. When he arrived there the deceased attacked him with an axe and bush knife without warning. The deceased swung the axe at the accused and the accused avoided the axe and it fell down.

23. He then ran towards the accused with the bush knife to cut him. The accused ran into his garden hut and picked up his bush knife. He then ran out of the hut and run up the hill as the deceased pursued him missing him five times with the bush knife. The accused said he avoided being cut by jumping up the hill every time the deceased swung the knife at him. When he swung the knife the 4^th time the accused jumped again to avoid the knife. He noticed a flat surface on the side of the hill and when the deceased pulled the knife back for the 5^th swing, the accused quickly step to the side and cut the deceased on the left shoulder to stop him.

24. The deceased slid down and the accused told him not to face him, but the deceased got up and attacked the accused again. When he did that the accused said he lost control and cut him several times. The accused said he attacked the deceased to defend himself.

25. In his ROI the accused said in answer to Q25 that he killed the deceased because he had destroyed his house and cut down his betel nut trees. Then at Q&A 27 when asked why the deceased destroyed his house and cut down his betel nut trees the accused said the deceased caused those damages after he (accused) fled after the first fight and when he returned the deceased attacked him so he cut him. In Q & A 28 the accused was asked why he returned and he said the deceased was shouting “where are you, where are you” and breaking the house and cutting betel nut trees and so I came back and cut him. He was also holding bush knife and an axe but I avoided him and chopped him.”

26. In cross-examination the accused said that he was nipped slightly on the elbow by the axe but he did not sustain any other injuries. He admitted cutting the deceased on the left shoulder, arms and neck and then left him. He, however, denied cutting him on the back and leg. The accused said that there was no one around when he killed the deceased.

FINDINGS

27. Despite the accused’s denial of inflicting the wounds to the deceased’s leg and back, it cannot be doubted that he inflicted those wounds together with all other lacerations noted in the Post Mortem by Dr. Mataio. Nobody else attacked the deceased and there can be no doubt therefore that the accused inflicted those injuries on the deceased.

28. And so left with no other evidence, but that of the accused the Court cannot help but accept the unfolding of events as described by him.

29. I must accept therefore that the deceased attacked the accused with an axe and bush knife when the accused arrived back at the scene from Musa Compound. I accept that the accused ran up the hill to avoid being cut by the deceased as he pursued him with a bush knife after missing him with the axe. Whether he was armed with Gilchrist’s knife or his own knife is immaterial because the fact of the matter is that the accused was also armed with a bush knife.

30. I accept, without evidence to the contrary, that the deceased swung his bush knife no less than four times before the accused retaliated. And that on each swing the accused avoided the knife by jumping a step up the hill and that when the deceased attempted to swing the fifth time, the accused stepped aside to a flat area and cut the deceased, not on the left shoulder but on the right shoulder as shown by the post mortem report. I accept that the deceased slid down, but did not desist from further attack despite the accused plea for him not to face him, so the accused cut him again and then “lost control” and repeatedly cut him.

31. There were deep frontal and posterior injuries as evident from both the post mortem report and the photographs. This indicates that the accused delivered those blows to the deceased both when the deceased was facing him and while on his back.

SELF DEFENCE

32. So did the accused kill the deceased in self defence against a provoked assault under Section 270 of the Code? This defence applies to situations where the accused provoked the assault to which he had to defend himself from. The evidence here, however, suggest otherwise. It appears to me that the deceased was the initial aggressor. He first attacked the accused and the accused responded to that assault. The appropriate defence ought then to be self defence from unprovoked assault under Section 269 of the Code.

The Law

33. Section 269 relevantly provides:

269. Self-defence against unprovoked assault.

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) If—

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

34. Under Subsection (1) the following elements of the defence must exist:

1. The accused;
2. Is unlawfully assaulted;
3. He did not provoke the assault;
4. He used force that was reasonably necessary to make an effectual defence against the assault;
5. The force used is not intended to cause and not likely to cause death or grievous bodily harm.
   

35. Notwithstanding that, an accused person may use force which may result in the death of or cause grievous bodily harm to the other person if the following elements under Subsection (2) are further made out:

1. The deceased unlawfully assaults the accused; and
2. The accused did not provoke the assault; and
3. The nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
4. The accused believed on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm than to use such force as was necessary for his defence; and
5. Killed the deceased.
   

36. The accused need not affirmatively show that he acted in self defence. However, when the defence is fairly raised or the accused leads evidence to that effect, the State must negative the defence beyond a reasonable doubt. The State need not, however, disprove every element of the defence. Disproving or negativing at least one element is sufficient to discharge its duty. (R v Paul Maren (1971) N615, The State v Alphonse Dumui (2009) N3686, The State v Maria Agua CR No 208 of 2007, 16.07.09)

37. The two parts to this provision do not in my opinion create two separate defences. Rather the whole provision is clearly saying that where a person has been unlawfully assaulted without provoking the assault, he can use such force as is necessary to put up an effective defence, providing that the force he uses is not intended to cause death or grievous bodily harm.

38. However, if the assault by his assailant is of such a nature as to cause reasonable apprehension of death or grievous bodily harm, and the accused believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm, he may use such force as is necessary even if it causes death. But where an accused person clearly shows from the evidence that he intended to kill the deceased or cause him grievous bodily harm, he cannot avail himself of the defence.

39. In R v Kaiwor Ba [1975] PNGLR 90, Frost CJ held, inter alia, that:

To establish self-defence against unprovoked assault under s. 271 of the Criminal Code (Queensland adopted) it must be proved beyond reasonable doubt (a) that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; (b) that the person using the force believed that he could not otherwise preserve the person defended from death or grievous bodily harm; and (c) that such a belief was based on reasonable grounds.

40. And the force used to put up an effective defence need not be proportionate to the force used by the other person. As the Supreme Court said in The State v Kai Joip Dipa (2007) SC 868 (Sakora, Kirriwom, Lay JJ):

“It is the reasonableness of the belief and the reasonableness of the grounds for that belief which found the defence and not any proportionality between the assault and the defence.”

41. At this juncture, it must be reiterated again that the defence under Section 269 is not available if the accused intended to cause the death of the deceased or cause him grievous bodily harm.

DELIBERATIONS

42. So let us consider the elements of the defence against the evidence.

Was the accused unlawfully assaulted?

43. There is evidence that the accused left the scene (garden house) after the first fight between him and the deceased ended and went to Musa Compound. He said he was playing cards there for 2 hours before he ran back up to his hut, apparently upon hearing the deceased calling out for him and destroying his hut and cutting down his betel nut trees. The State did not disprove this. This, it could have been done by asking Gilchrist how long it was after the first incident when the accused came running back up, or how long he and his wife had been at the Niugini Compound. The State did not put this to Gilchrist despite the fact that he said the accused ran back up and grabbed his bush knife from him.

44. The State did not also lead any evidence to show that the deceased did not immediately attack the accused with an axe and bush knife when he arrived to find him destroying his properties. I accept the evidence of the accused that, as was the case in the first incident, the deceased was the aggressor and that he first assaulted the accused when he arrived back at the scene.

45. I am satisfied therefore that the deceased unlawfully assaulted the accused by attacking him with an axe and a bush knife.

Did the accused provoke the assault?

46. It is apparent that the deceased was still angry from the first incident. He did not leave the scene, but stayed on and set about to destroying the accused’s properties. The accused on the other hand had left the scene and hence was not around to further provoke the deceased. In respect of this second incident I am also satisfied that the accused did not provoke the assault. May be his reappearance at the scene may have provoked the deceased into anger, but he had a perfectly legitimate reason for returning to his garden hut as we have seen. I am not satisfied, though, in the absence of any evidence from the State, that his reappearance at the scene is sufficient for the purpose of a provocation within the meaning of this provision.

Was the nature of the assault such as to cause reasonable apprehension of death or grievous bodily harm?

47. The test here, I would think, is an objective one - the question being; would the attack on the accused in the manner described by him cause a reasonable man to reasonably believe that he will be killed or suffer grievous bodily harm?

48. The answer seems without doubt in the affirmative. Any reasonable man who is missed with an axe and pursued with a bush knife and repeatedly avoid swings from his attacker with a bush knife would indeed have a reasonable apprehension of death or grievous bodily harm.

Did the accused believe on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm?

49. The test here is subjective. Given the evidence which the State has not negatived in any way, I am of the view that the accused was confronted with a very dangerous and potentially lethal situation. The deceased had just missed him with an axe which fortunately fell to the ground. That, however, did not stop the deceased for he immediately pursued the accused up the hill, delivering no less than 4 swings, obviously aimed at the accused’s legs which the accused avoided by jumping up hill every time the deceased swung at him.

50. The deceased would have been just immediately below the accused and I cannot see how the accused could not have believed on reasonable grounds that he could not otherwise have effectively preserved his own life or prevent grievous bodily harm without assaulting the deceased or going on the defensive. He was in immediate danger of being killed and therefore he did what was the necessary thing to do – he defended himself and delivered that first blow to the deceased’s right shoulder. The deceased slid down. He did not stay down, but rose again to assault the accused again.

51. The accused then cut him again and in his own words he just lost control of himself and repeatedly struck the deceased, inflicting those fatal wounds on the deceased as described by the post mortem and depicted in the photographs.

52. Based on the above and after considering the submissions of the lawyers , I find that there indeed was a situation where the accused had to put up an effectual defence against a reasonably and potentially fatal attack on him by the deceased and he caused the death of the deceased in the process.

Was the killing lawful?

53. And so, the next big question is, was the killing lawful? It would be lawful if (1) the accused did not intend to cause the death of the deceased or cause him grievous bodily harm and (2) the death was caused in the execution of an assault that was aimed at effectively neutralizing or fending off an assault, which was of such a nature so as to cause a reasonable apprehension of death or grievous bodily harm.

54. Despite the serious injuries inflicted on the deceased as clearly borne out in the post mortem report and the photographs depicting the deceased’s wounds, the State has simply failed to prove beyond reasonable doubt that the accused intended to cause the death of deceased.

55. I am wary of the tendency to draw adverse inferences against the deceased’s requisite intention based entirely on the medical report and a Medical Officer’s opinion. In Paliau v The State (2016) SC1537 (Kirriwom, J, Ipang, &Pitpit, JJ) the Supreme Court upheld the appeals by the appellants who were convicted of wilful murder who raised defences under Section 271 (aiding in self defence). Among other things the court was critical of the trial judge’s treatment and acceptance of the medical evidence of the doctor who performed the post mortem on the deceased ahead of the accused’s evidence and in the absence of eye witness evidence from the State. The Court said:

27. He [trial judge] placed too much emphasis on the evidence of the medical doctor ..., and rejected the defence version when there was no eye-witness account contradicting the story given by the accused Emmanuel Paliau. [The Doctor’s] evidence was merely his opinion based on his recollection of the wound he saw on the deceased’s body. His opinion cannot substitute an eye-witness account. If his opinion clashed with defence evidence, and the judge disbelieves the defence story, doctor’s opinion does not take precedence over the explanation given by the accused even if the judge disbelieves the accused. All it does is it creates serious doubts in the story given by the accused but his opinion cannot substitute the witness’s testimony unless there is already evidence consistent with the doctor’s opinion from another source. Otherwise the trial judge cannot be satisfied beyond reasonable doubt on such evidence.
    

VERDICT

56. Hence, in the absence of any direct evidence from the State to prove an intention purely to kill, let alone an intention purely to cause grievous bodily harm, coupled with the fact that the two requirements under Subsection (2) of Section 270 have been shown to have existed, I cannot hold that the killing of the accused was not lawful in the circumstances, but only if the accused immediately desisted from further assault on the deceased after he effectively neutralized him. He, however continued to cut the deceased as he lay helpless on the ground. This was unnecessary and excessive, and to that end, it cannot be said that the killing was lawful. It would have been if the accused had desisted from further cutting the deceased but the deceased died nonetheless from the injuries sustained.

57. In these circumstances I cannot therefore return a verdict of wilful murder or murder. I, however, find the accused guilty of manslaughter instead.

58. I return an alternative verdict of manslaughter pursuant to Section 539 of the Code.

Ordered Accordingly,
_____________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Accused