N8012

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.  796 OF 2019

THE STATE

V

FELIX BEN

Kerema: Koeget, J
2019: 22nd, 24th July.

CRIMINAL LAW-   Indictable offence – murder pursuant to section 300 (1) (a) of the Code – Convicted after a trial – Exercise of Court’s Discretionary Powers under section 19 of the Code.

CRIMINAL LAW – EVIDENCE - The prisoner had no reasonable apprehension of death when he disarmed the deceased and she retreated into the house so the defence of self-defence and provocation is unavailable to him – The only reasonable hypothesis is that the prisoner hit the deceased on the head with the axe he carried because there was no one else in the house with the deceased.  The prisoner intended to cause grievous bodily harm to her.

FACT

On 23rd December 2018, between seven o’clock and eight o’clock at night the accused and deceased wife where in their house at Ova’a village, Ihu in the Gulf Province.

It is alleged that the accused consumed alcohol that day and the deceased accused him of removing cash of K20-00 from her string bag (bilum).  The argument between them became heated up resulting in the accused arming himself with a small axe (tama hawk) and the deceased armed herself with a bush knife.  The accused swung the axe at the deceased and it struck her on the head and she fell to the floor and bled profusely.  The parents and relatives took her by dinghy to the Kerema General Hospital where she died on arrival.  The medical report dated 24th December, 2018 attributed death to severe head injury sustained and severe loss of blood. 

Held:

(1)	When the accused disarmed the deceased and she retreated into the room in the house, accused had no reasonable apprehension of death.

(2)	There was no one else in the house except the deceased and the accused and the only hypothesis in the circumstances is that the accused inflicted the injury on the deceased with the axe he carried.

(3)	When the accused went into the room in pursuit of the deceased and struck her on the head with the axe, he intended to cause grievous bodily harm to her.

Case Cited:		

Nil

Counsel:

D. Mark, for the State
I. Pelaea, for the Accused.

24th July, 2019

1.	KOEGET J:   INTRODUCTION:  The accused is charged with one count of Murder pursuant to Section 300 (1)(a) of the Criminal Code Act.

TRIAL
	
2.	The accused pleaded not guilty to the charge and raised the defence of self-defence and provocation pursuant to Section 270 of the Criminal Code Act.

3.	Both counsel consented to conduct the trial by tender into the court committal depositions.

Evidence for the State

4.	The learned State prosecutor tendered into Court the following documents for the State:-

•	Statement of Steven La’a dated 24th January 2019 (Marked “Exhibit 1”)

•	Statement of Morgan Kukube dated 24th January 2019 (Marked “Exhibit 2”)

•	Statement of Nigel Steven dated 24th January 2019 (Marked “Exhibit 3”)

•	Record of Interview dated 14th March 2019 in pidgin (Marked “Exhibit 4A”)

•	Record of Interview – English translation (Marked “Exhibit 4B”)

•	Medical Certificated of Death dated 24th December 2018 (Marked “Exhibit 5”)

Evidence for Defence

•	Section 96 Statement dated 17th July 2019 (marked “Exhibit A”).

Evidence for the State

1.	Witness

5.	Morgan Kukube stated that he is from Ova’a village, Kerema, Ihu sub-district in the Gulf Province and he resides in the village with his family. 

6.	On 23rd December 2018, he walked from his house in the village to Allan Kivai’s house to buy tobacco (“spear”). When at Allan Kivai’s house he could see the accused in company of Henao Kivai, Tasi Mark and Manu Joel sitting under Steven Kivai’s house drinking home-brew (“steam”).  Steven Kivai’s house is several meters away from Allan Kivai’s house so he was able to see them clearly.  He purchased the tobacco (“spear”) and returned to his house.

7.	The accused and others continued to consume home-brew (“steam”) and made lots of noise in the village.  Between 3 o’clock and 4 o’clock in the afternoon, the deceased, Mary Steven walked to his house and asked for the where about of the accused.  He informed her that the accused is in company of other men drinking home-brew under Steven Kivai’s house.  The deceased said; “uncle my money went missing from my bag in the house”.  She proceeded on foot to Steven Kivai’s house to see the accused.  It did not take long when he heard the couple arguing and as he stood in front of his house, he saw the accused chase Mary Steven onto the main walk way in the village.  He stood and watched Mary Steven walk to her house with bamboo in her hand.

8.	Between eight o’clock and nine o’clock at night whilst in his house, he heard from fellow villagers that “Felix killed his wife in the house”.

2.	Witness - Steven Nigel

9.	He is from Ova’a, Keuru, Ihu sub-district of the Gulf Province.  He is the younger brother of the deceased Mary Steven. On the afternoon of 23rd December 2018, he left his parent’s house and walked to the deceased’s house as he usually does each day.  When he arrived at the sister’s house, he saw her arguing with the accused.  They grabbed and pushed each other so he asked them why they were arguing.  The deceased said:  “No, Felix stole my K20.00 and that is why we are arguing”.

10.	He noticed that Felix was under influence of intoxicating liquor.  So he intervened and separated both of them and disarmed them as well.  He took the toma hawk (small axe) and bush knife and hid them under the house.

11.	The accused said: “Nigel, it’s not your business, you go home”.  He was embarrassed and return to his parent’s house.

12.	He was in the house and about seven o’clock at night, an aunty went crying to the house and said:  “Mary was killed by her husband Felix in the house”.  He was shocked to hear the news of the death of his sister so he ran to her house and saw her lying on the floor.

Record of Interview

13.	The relevant extracts are questions and answers 31, and 32 respectively:

“Q.31:	If so, what kind of injury did your wife sustain that cause her death?

A:	I removed the bush knife from her hand and threw it away and said to her, enough of fighting, but she refused, she evaded my hands and got another bush knife.  Time was about 7:00pm when I saw this I looked around on the verandah and picked up a small axe which was blunt and waited on the verandah.

	A while later I decided to check her inside the room.  Just as I turn into the door, I noticed a timber coming down to me so I lifted the hand in which I held the axe but it was too late.  The timber hit me on the forehead and I fell.  From there I got up and jump down to the ground.”

“Q.32:	What happen when you jump down to the ground?

A:	I stood for 30 seconds on the step area and heard her say:  “Aio’o! mi yet”.  I thought she was pretending for me to go closer to her and she will injure, so I walk slowly up the steps and walk on the verandah.  When I reach the door way, I saw Mary on the floor and blood was pouring.”

Evidence for the Defence

Section 96 statement of the Accused.

14.	 The relevant extract of evidence commences from paragraph 9 to paragraph 13 which reads:

“Paragraph 9:	She had a knife when she demanded the money.  I said both of us did the hard work to make the sago so I have your share.  She did not accept it.  She was angry because I went for long hours.  She wanted me to stay with her all the time.

“Paragraph 10:	She was on the verandah when I went up and she swung at me.  I told her to leave the knife.  I walk down and sat on the steps.  I felt that she was swinging the knife at my backside and I turned and saw and I told her to leave the knife.

“Paragraph 11:	Then my wife cut me on the back of my neck and I jump to the ground.  I walk up the steps to remove the knife but she was swinging at me when she put the knife down, I grabbed it and got rid of it.

“Paragraph 12:	I told her since we got married, I did not assault you.  It was only you who gave me marks on my body.  Then she struggled free from me and went into the room.  I was at the verandah and thought she would commit suicide in the room.  I wanted to go inside to see her when I saw a small axe, took it to defend myself.

“Paragraph 13:	I turn from the corridor, she was ready and struck me with a timber.  I wanted to defend myself and lifted the hand with the axe.  I was hit on the forehead so I jumped to the ground.  I heard her say:  “Aio’o mi yet”, so I climbed up and saw her in a pool of blood.  I held her and cried.”

Analysis of the Evidence

15.	On 23rd December 2018, the accused was under the house of Steven Kivai in company of Henao Kivai, Tasi Mark and Manu Joel, all drinking home-brew (“steam”).  They drank whole day and made lots of noise in the community.

16.	Between 3 o’clock and 4 o’clock in the afternoon the deceased Mary Steven went to Morgan Kukube’s house enquired of the where about of the accused.  She was informed that the accused was sitting under Steven Kivai’s house in company of other men consuming home-brew (“steam”).  She left and went to Steven Kivai’s house where she argued with the acussed.  The deceased Mary Steven was chased to the main walk way with bamboo in her hand and she returned to her house.

17.	The evidence of witness Nigel Steven is that the accused and deceased were arguing and both grabbed each other armed with weapons.  The deceased Mary Steven held a bush knife in her hand and the accused held an axe in his hand.  So he intervened and disarmed both of them.  He hid the bush knife and axe under the accused’s house.  He then left both in their premises.

18.	I accept the evidence of the State witnesses as truthful and accurate.  There is no inconsistency between the witnesses’ accounts.

19.	The accused states that he was armed with an axe and the deceased armed herself with a bush knife.  He took the bush knife and disposed it so the deceased retreated into the room inside the house.

20.	He took the small axe from the verandah and armed himself as he followed the deceased into the room.  As he approached the door way, he saw a timber pointed at his forehead and he lifted the hand with the axe to prevent the timber from hitting him, but it was too late.  The timber struck him on the forehead and he jumped to the ground and was dizzed for 30 seconds.  As he walked up the steps to the verandah, he heard her said:  “Aio’o, mi yet”.  As he went into the room, the deceased was lying on the floor in the room and blood was flowing from her body.

21.	This account is incredible and cannot be relied upon as credible evidence.  The accused gave an account that some intervening force struck the deceased on the head and inflicted the injury from which she died.
	
22.	The contents of the Section 96 differ in substance from the answers to questions in the record of interview, particularly questions and answers 32, 39 respectively so in my view three important questions arise:

(a)	When the accused disarmed the deceased and she retreated into the house, why did he follow her into the room armed with an axe?

(b)	Did the accused have reasonable apprehension of death when he disarmed the deceased and she retreated into the room in the house?

(c)	If the accused denies striking the deceased on the head with the axe, then who inflicted the injury on the deceased resulting in her death?

Findings on facts

(1)	I find that when the accused disarmed the deceased and she retreated into the room, there was no more a danger.  She was unarmed so the accused had no reasonable apprehension of death.  I conclude that the accused did not act in self defence when he followed her into the room with the axe and struck a blow to the head.  The State successfully discharged the onus.

(2)	I also find that there was no other persons in that house except the deceased and the accused.  The accused was armed with an axe and it is highly possible that he inflicted the injury on the deceased with the axe he carried in his hand.  

(3)	I find further on evidence that when the accused went into the room with an axe in pursuit of the deceased, he intended to cause grievous bodily harm to her.  The deceased died due to the injury she received from axe blow to the head.
LAW

“Section 300.   Murder

(1)	Subject to the succeeding provision of the code, a person who kills another person under any of the following circumstances is guilty of Murder – 

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person, ......

Penalty:   subject to section 19, imprisonment for life.”

All the element of the offence of Murder are established and so the State has proved its case against the accused beyond reasonable doubt.

Verdict

23.	The accused is found guilty as charged.

ISSUE

24.	What is the appropriate sentence for the court to impose upon the prisoner?

PERSONAL PARTICULARS

25.	The prisoner is 26 years of age and is a subsistence gardener.  He killed his wife in this instance and has no children.

AGGRAVATING FACTORS

26.	This is an alcohol related case and an axe (weapon) was used in the commission of the offence.  The injury sustained was severe and the deceased had very slim chance of survival.

27.	Such offence is prevalent in the country and a young life is prematurely terminated by the actions of the prisoner. 

MITIGATING FACTORS

28.	The prisoner is a first time offender and has expressed remorse.  His family has paid compensation of K2,500.00 to the deceased’s relatives.  He intends to paid additional compensation after service of his term in jail.  So he pleads for leniency of the court.

SENTENCE

29.	The prisoner and the deceased are young couples married recently and both began their life journey as husband and wife when she was tragically killed.  I accept that the deceased was angry over disappearance of cash of K20.00 from her bilum inside the house.  That cash was given to her by the mother.  Although the amount is not large, such amount meant a lot to those including herself living in the rural villages.  This is because money is scarce and any amount is put to best use where benefit is received.  She needed the money for the immediate family as she was excepting their first child.

30.	However, the cash of K20.00 mysteriously disappeared from her bilum in the house and I accept that the only person who had knowledge of the existence of the K20.00 was the prisoner.  The prisoner admits he had K20.00 in his possession.  This sum was from sale of a sago along the highway.  He used his share of the cash and had the deceased’s share in his trousers pocket.  This was a deliberate lie by the prisoner to cover his actions of theft of cash from the deceased’s bilum.  The prisoner used the cash to purchase alcohol which he consumed with his friends that tragic day.  So the deceased was killed by the prisoner for no good reason.

31.	The prisoner can see the sun rise in the east and sets in the west each day.  He can breathe fresh air and communicate with his parents and other siblings but the deceased cannot because she is dead.  She was expected to live a full life like everyone else in the country but cannot do so because her life was prematurely terminated by the prisoner for no good reasons.  No one can measure the pain and suffering experienced by the deceased’s parents and siblings after the tragic death.  These factors are very serious in this case, and in my view in the exercise of the court’s discretionary powers under section 19 of the Criminal Code, a higher sentence outside the range as set out in Manu Kovi –v- State is warranted.  The prisoner is sentenced to be imprisoned for a period of 30 years in hard labour.  He has been in custody waiting disposal of the case for seven (7) months.  So the period of seven months is deducted and he is to serve the balance of 29 years and 5 months at Bomana Corrective Institute Services.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused