N8013

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.  797 OF 2019

THE STATE

V

JOHN OTTO KOMAKAPIO

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

CRIMINAL LAW -   Indictable offence – Manslaughter – section 302 of Criminal Code Act – Accused raises defence of Aiding in Self Defence under section 271 of the Criminal Code Act – the accused might honestly and reasonably have believed that there was real risk that if he did not intervene, the deceased would harm or kill his mother and sister – accused acted in good faith for the purpose of defending his mother and sister – he is entitled to an acquittal.

Fact

On the morning of 25th November 2015, between the hours of six o’clock and eight o’clock the deceased Henry Haveo Tainki went to Tapa village, Kotidanga, Gulf Province in search of his wife.  The wife fled to the mother’s village seeking refugee due to physical assaults and abuses by the deceased husband.

The deceased confronted his wife and her mother in the house after cutting open the door with a bush knife.  The accused heard the commotion at his mother’s house so armed himself with a bow and arrows and went to the aid of his mother and sister.  He shot two arrows at the deceased and missed him.  He shot the third arrow and it struck the deceased’s shoulder region and penetrated into the flesh.  The deceased collapsed, vomited blood and died due to loss of blood oozing through the nose.

Counsel:

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

Cases Cited:

Regina –v- Kaiwor Ba [1975] PNGLR 90
The State –v- Aia Peto (1975) N17

24th July, 2019

1.	KOEGET J:	INTRODUCTION: The accused is charged with one count of Manslaughter pursuant to Section 302 of the Criminal Code Act chapter 262. 

TRIAL

2.	The accused pleaded not guilty to the charge and a trial commenced.  Both counsels consented to trial by tendering into court Committal depositions as there were no witnesses available.  

Evidences for the Stated

3.	The learned State Prosecutor tendered into court the State:

-	Statement of Catharine Kove dated 6th January 2016 (“Exhibit A”).
-	Statement of Jack Yaku dated 6th January 2016 (“Exhibit B”).
-	Statement of Augustine Merepa dated 16th March 2016 (“Exhibit C”).
-	Record of Interview in Pidgin dated 24th February 2016 (“Exhibit D1”).
-	English translation (“Exhibit D2”).

Evidence for the Accused

4.	The learned Defence counsel tendered into court the accused’s section 96 statement dated 17th July, 2019 (marked as “Exhibit A” for the Defence).

Analysis of Evidence

5.	The State witnesses in their respective statements state that the deceased arrived at Tapa village, Kotidanga in the Gulf Province in the morning armed with two bush knives.  The deceased proceeded to his mother in-law’s house and said:  “I will cut you with the bush knife.” The accused saw the deceased armed with bush knife and short grass knife standing in front of the door of his mother’s house.  He heard the deceased say to his mother “I will kill your daughter”.  He saw the mother and sister retreat into the house in fear so he armed himself with bow and arrows and went to his mother’s house.  He fired two arrows missing the deceased but the third arrow struck him on the shoulder region and it penetrated into the flesh.  There was blood oozing out of his nasal cavity and he collapsed and died. The relevant extract of the record of interview are as follows:

“Q 23:

Otto, can you tell us what happen when your brother in-law Henry arrived in your Tapa village?

Ans:

Henry is married to my elder sister.  They got married when I was a small boy.  In 1997 when I was a small boy Henry came with the elder sister and lived with my father and mother at Tapa village.  One day they argued and Henry burn our house.

When he burn our house he ran away to his village at Didikamiga at Mewari.  He went back the next day to Tapa and I got up and asked him, why he burn down our house?  He got up and assaulted me.  At that time I was a small boy so I did not fight with him.  At that same time he got a bush knife and cut all our food crops.  The next day he went to my garden in the night and checked for me but I was not there so he destroyed my garden also.  He cut all the banana in my garden.

After that he went back to his village and some years later I cannot recall the year now.  I was going to Kotidanga station when we met at Mewari and he wanted to assault me but I blocked him and other person namely, Lucas came and held him and I ran away to my village Tapa.
After some years past when him and his wife were living in his village, Henry cut his wife’s hand and my sister ran away and came to live with my father and mother at Tapa village.  The next day Henry got his bow and arrow and arrived in the village early in the morning around 6.00 when my mother was making fire and was sitting down beside the fire.  Henry went and cut the door with his bush knife and kicked the door with his leg and the door broke and he asked my mother for his wife and my mother got up and ran into the house when he went and cut the ground and told my mother that if your daughter is here I will cut her like this.  When the fights with his wife and when she comes and live with us he comes and does the same thing.  It’s an ongoing problem.

In the middle of last year, Henry cut his wife with the bush knife and sister stayed with us and we put his case in the village court.  The village court magistrate made a decision that Henry must compensate his wife.  They had no money so they came down to Anita to do market and Henry will compensate his wife.  When they were doing their market Henry argued with his wife again and cut his wife again with the bush knife on her face.  They brought her to the hospital at Kerema and when she was discharged from the hospital her brother-in-law (Henry’s younger brother) bought plane ticket for her and told my sister not to go and live in her house but to go and live with her relatives in her village.

Q.25:

Otto, do you want us to continue with this record of interview?

Ans:

Yes

When sister arrived at Kaneba she went to our village at Tapa.  When the sister was in the village at Tapa with our mother one morning Henry went and hid at a creek and one of the woman saw him and ran away and the next day he came back and slept in a cave and in the morning he went and cut the banana in another man’s garden and they saw him and sent message for us to be careful.  Then the next day he came and went and hid at my pig’s fence and the pigs saw him were crying and when I went outside and when he saw me he ran away.

On Tuesday he was walking around in his village and he told his brothers and two peace officers, Bernard Luke and Siro Mitapa that he will go to Tapa and fight with his in-laws.  On Wednesday morning he told his daughter to come together to Tapa but his daughter didn’t come with him.  When the daughter heard that her father came to Tapa so she followed him.
On Wednesday morning I got up and was fixing the pig fence when I saw Henry (brother in-law) arriving in the village.  He went and stood on the door of my mother’s house.  His wife was living with our mother in her house.  I saw him holding a long bush knife and one short grass knife like a bayonet which was sharpened on both sides.  I heard him talking to my mother and holding bush knife and he told my mother I will come and cut your daughter.  When they heard this they got scared and were inside.  I was still fixing the pig fence when his daughter that her father wants to fight and he’s standing on the door way of the house.  I left my things and went down to the house and saw Henry standing on the door way of my mother’s house.  When I saw that I recalled every time he come he assaults my sister so I went into my house and got my bow and arrow and came outside and shot an arrow at him.  I shot three arrows.  I aimed two at his leg but it missed him. The third one I aimed it at his body so the spear went and struck him on his hand.  When I shot him he walked up and fell down.  

When he fell down some men came and lifted him up and gave him water and took him to the teacher’s house.  They took there and not long he died.

Q.31:

Otto, do you have anything more to say in relation to your trouble?

Ans:

I don’t have anything to say but its him and his wife’s trouble and when he came to my village and this a continuous thing that he does so I shot my in-law with the spear.”

6.	The section 96 statement of the accused contain admission that he caused the death of his brother-in-law and for that reason he appear in court.  He paid to the deceased’s relatives and family compensation in cash and kind to the value of K7,474.40 that was accepted.

7.	The accused on evidence raised the defence of Aiding in Self Defence under section 271 of the Criminal Code Act.

8.	The accused states that on the date of the offence he was in his village fixing the pig fence.  He saw the deceased arrive at Tapa village and went and stood at the door of his mother-in-law’s house.  The deceased’s wife resided in that house with her mother.

9.	The deceased was armed with a bush knife and a short grass knife sharpened on both sides like a bayonet.  The accused heard the deceased say to his mother “I will come and cut your daughter”. He saw his mother and sister were frightened so retreated into the house.  He recall previous instances where the deceased assaulted the sister, damaged the family house and food gardens so went to his house and armed himself with bow and arrows and went to his mother’s house where the deceased stood.   He fired two arrows at the deceased’s legs and missed but fired the third at the body and it struck him on the collar bone region and it struck into the flesh.  The deceased fell and died.

10.	Such evidence is from the witnesses’ statements tendered for the State so essentially the defence was raised and the State witness’s evidence supported the defence.

11.	The carrying of the bush knife and a short sharpened grass knife in hand and utterance of words “I will kill your daughter” to the mother-in-law in the presence of the wife was sufficient to cause reasonable apprehension of death to induce the mother and daughter to believe on reasonable grounds that it was necessary for preservation to use force in self-defence, and that the wound (inflicted by the arrow shot by accused) was reasonable for their preservation, although it might cause death.

12.	In my opinion the accused John Otto Komakapio might honestly and reasonably have believed that there was real risk that if he did not intervene, the deceased would harm and kill his mother and older sister. Thus, I am not satisfied beyond reasonable doubt on the evidence in this case that the accused did not have reasonable grounds to believe that it was necessary for him to take action that he did, or that the accused was not acting in good faith for the purpose of defending his mother and sister.

13.	The conclusion I reach is that the accused is entitle to an acquittal.  Therefore, the accused is found not guilty on the charge of Manslaughter and is acquitted accordingly.

ORDERS

(1)	The accused is discharged from the indictment and Bomana Corrective Institution Services forthwith.

Accordingly ordered.

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