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State v Apa [2020] PGNC 440; N8566 (25 September 2020)

N8566

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 752 OF 2020


THE STATE


V


EKI APA


Kimbe: Batari, J
2020: 25th September


CRIMINAL LAW - Evidence - admission of depositions by consent – manslaughter – trial of - prosecution case by depositions only – considerations for admitting depositions by consent - sufficiency of – Accused attacked the deceased in an unprovoked assault by the deceased - Self-defence – Principles of - Whether accused acted in self-defence – Whether the accused believed it was necessary for him to strike the deceased with the knife to preserve his own life - Objective test of – Onus to disprove defence of self-defence – discharged.


Held:


  1. In a criminal trial, the judge should not permit evidence to be admitted by consent in a way which would deprive the accused of the right to cross-examine, if that evidence will affect the issue of guilt or innocence. The trial judge has an overall duty to ensure that only legally admissible evidence goes into the record of the trial and should always consider carefully whether there can be any prejudice to a fair trial by the admission of such evidence.
  2. The “trial by paper” in this case is consented to by the accused person and the court is satisfied there is no prejudice to a fair trial.
  3. On a defence of self-defence, the accused person must establish such a defence affirmatively by pointing to aspects of the evidence which could induce reasonable doubt before the onus shifts to the prosecution to negative that defense beyond reasonable doubt.
  4. Where the act of the deceased in attempting to strike the accused with a bush-knife would cause the accused reasonable fear of death or grievous bodily harm, the element of reasonable apprehension of death or grievous bodily harm had ceased after the accused disarmed the deceased. Hence, the defence of self-defence was no longer available to the accused and the State has disproved the defence of self–defence beyond reasonable doubt.
  5. Accused is guilty and convicted of manslaughter as charged on the indictment.

Case Cited:
Papua New Guinea Cases


Epeli Davinga v The State [1995] PNGLR 263
State v John Bill White (No 1) Ruling on Interim Matter of Procedure [1996] PNGLR 262
Fred Bukoya v The State (2007) SC887
R v. Kristeff [1967] No. 445
R v. Korongia [1961] No. 204
R v Kaiwor Ba [1975] PNGLR 90
Awoda v The State [1984] 165


Overseas Cases


R v Muratovic [1967] Qd R 15
R v Kerr [1976] 1 NZLR 335
Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266


Counsel:


Mr. R Luman, for the State
Mr.G.Linge, for the Accused


VERDICT

25th September 2020

  1. BATARI J: The accused, Eki Apa stands indicted that on 4th January 2017 at Kavui Land Settlement Scheme (LSS) Section 6 Block 1735, Talasea WNB Province unlawfully killed one, Paulus Augustine (deceased) pursuant to s. 302 of the Criminal Code. Eki Apa pleaded “not guilty”.
  2. State alleged that Eki Apa cut the deceased twice on the lower part of the left leg and twice on the right leg – one on the foot and one on the mid lower back leg with a bush-knife,in excess of the force at hand and because Paulus Augustine died, Eki Apa is guilty of manslaughter. The accused concedes the killing but raises the defence of self-defence.

“Paper Trial” – Procedural proprietary of


  1. At the commencement of trial, State Prosecutor Mr Luman indicated he will not be calling oral evidence but will rely only on documentary evidence that has been consented to by the accused, through his counsel, Mr Linge. The documentary evidence which I set out, are in the form of; witness statements, medical reports, records of interview (English and Pidgin), a sketch plan of the crime scene and a photograph of the murder weapon.
  2. Mr Linge also indicated he will not be requiring any of the State witnesses for cross-examination. And, his client will not be calling any evidence.
  3. I took a tentative view against the proprietary of this procedural “trial by paper” as it may compromise and prejudice the rights of the accused person to a fair trial under Constitution s. 37 (4). At the back of my mind is also a concern for opening a floodgate for complacent and lacklustre prosecutions and abuse of prosecutorial discretions. I invited submissions and adjourned briefly to hear from both counsel.
  4. Mr Luman submitted, with Mr Linge agreeing, the course taken is appropriate in the circumstances of this case where, having interviewed the witnesses, their oral evidence will not improve from their witness statements. And that this procedure will not prejudice the accused in his defence.
  5. Counsel also submitted, this practice has been entertained in the past, it is authorised under s. 589 of the Criminal Code which permits the accused person to admit on trial, any fact alleged against him or her and the admission is sufficient proof of the fact without further evidence. That, Order 4, Division 1, Rules1 and 2 of the Criminal Practice Rules 1987 gives effect to the legislative intention of s. 589 of the Criminal Code.
  6. The discretion, Mr Luman submitted is on the Court to accept the course proposed and relied on the case of State v John Bill White (No 1) Ruling on Interim Matter of Procedure [1996] PNGLR 262. In that case, the prosecution intended to call only one witness and rely on several witness statements on the issue of identification. Her Honour, Doherty J refused the prosecution election and directed that the prosecution call the witnesses, in holding that the Court has a duty to ensure the best evidence available is brought to hear and assess the evidence before making a decision.
  7. In Epeli Davinga v The State [1995] PNGLR,263 (Woods, Andrew, Sevua JJ), the trial judge directed the State to tender the balance of its evidence in the form of “witness statements”. The trial judged reasoned that having raised the defence of alibi, the accused cannot have both ways. He cannot say, “I was not there” and at the same time seek to challenge the State witnesses. The Supreme Court in disapproving of such trial procedure as misconceived, upheld the appeal and declared the trial miscarriaged as the accused was convicted and sentenced to 20 years for wilful murder without a proper trial.
  8. It is instructive to appreciate what the Court in, Epeli Devinga v The State (supra) stated at p. 266:

"There is no doubt that it is open to both prosecution and defence to agree on the admission of certain facts, and this is often done where there is no doubt or no challenge to the facts. And with the cost of justice and the pressure to make trials and the courts more efficient such agreements on the admission of uncontroversial facts should be part of any efficient court system. Those records of interview which contain no admissions are usually tendered by consent, and often it is incumbent on the prosecution to tender such statements where they show consistency in an accused's denials. And often in financial fraud or misappropriation cases documents relating to the movement or use of money are tendered by consent as there usually cannot be any dispute as to what they show on their face, and it is then a matter of the interpretation of the actions of the relevant persons that become critical in the use of such moneys or otherwise. Also, medical reports where there is no challenge or doubt as to the condition of the patient are tendered by consent or by the specific provision of the Evidence Act. And when such matters are tendered it is done by consent as both parties agree that they are relevant and it is then other evidence from the respective parties which affect the issue of guilt or innocence. Of course, a trial judge should always consider carefully whether there can be any prejudice to a fair trial by the admission of such evidence."


  1. In Fred Bukoya v The State (2007) SC887 (Sevua, Mogish & Lay JJ) the Appellant was charged with wilful murder. The trial proceeded with the whole of the evidence for the prosecution being admitted by consent by way of un-sworn statements and several affidavits. The Appellant gave sworn evidence and raised self-defence. The trial judge disbelieved the accused and convicted him of murder and sentenced to 10 years in hard labour. The Court held:
    1. Permitting the State’s case to proceed solely on the tendered statements was a wrong course which tainted the whole trial. The judge should have refused to accept the statements of evidence as it was not in the best interests of justice. The State should have been ordered to produce the witnesses to be called to give the evidence. Admitting the untested witness statements on contested and critical issues made the verdict unsafe and unsatisfactory. Appeal allowed on that ground alone.
    2. A trial based solely on admissions should be avoided;
    3. A trial judge should not, as a general rule, admit affidavits or statements by consent, in the case for the prosecution, if:
      1. The credibility of the witness is in issue;
      2. The accuracy of the witness’s evidence is in issue;
      1. The witness’s evidence conflicts with other evidence in a particular relevant to the guilt or innocence of the accused;
      1. The witness’s evidence bears on a contested fact in the issue of guilt or innocence or upon inferences of such fact to be drawn by the Court in reaching its verdict.
    4. Where a deposition is admitted by consent or pursuant to statute the judge should warn himself of the difficulties posed by accepting evidence from persons whose credibility cannot be tested, in particular with respect to any point where the untested deposition is in conflict with oral evidence tested by cross examination.
    5. A judge proposing to admit a statement into evidence should satisfy himself that there is some evidence that the maker of the statement understood its contents.
  2. In Awoda v The State [1984] 165 (Kapi DCJ, Pratt and Bredmeyer JJ) the Supreme Court considered, it is the duty of the trial judge to ensure that only proper evidence is admitted in the trial and that the conviction cannot be allowed to stand if it is based on improperly admitted evidence. If counsel for the accused has objected to evidence at the trial it is a matter to be taken into account on the question of whether the appellant was really prejudiced in deciding "that the proceedings as a whole had not resulted in a fair trial": Teper v R [1952] 2 All ER 447 at 451. The failure of Counsel to object to the admission of evidence improperly admitted is not a bar to raising on appeal that the accused has been wrongly convicted by reason of its admission.
  3. I have considered and accepted the course taken by the State. The Defence consents to this trial procedure and I do not foresee any likely prejudice to the accused person. The bottom line is this. The trial judge should not permit evidence to be admitted by consent in a way which would deprive the accused of the right to cross-examine, if that evidence will affect the issue of guilt or innocence. The trial judge has an overall duty to ensure, that only legally admissible evidence goes into the record of the trial and in that process, the trial judge should always consider carefully whether there can be any prejudice to a fair trial by the admission of such evidence.
  4. At the end of the prosecution case following tender of witness statements, medical reports and records of interview, the accused elected to exercise his right to remain silent and defence closed its case.

Issue on trial: The only issue is whether Eki killed Paulus in self-defence.


Statutory Defence of Self-Defence


  1. The statutory defences of self-defence are found in s. 269 and s.270 of the Criminal Code. Section 269 authorizes self-defence against unprovoked assault while s. 270 is a defence against provoked assault. The accused relied on self-defence against unprovoked assault.
  2. Section 269 reads:

“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.”


  1. The conditions to be satisfied under this provision are that:

a. the accused was unlawfully assaulted;

b. the accused had not provoked the assault;

c. the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and

d. the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.


  1. The Court must be satisfied that these conditions are present on the facts to establish self-defence on the balance of probability, the accused having the onus of proof. He or she need not establish such a defence affirmatively but must point to aspects of the evidence which could induce reasonable doubt: R v Kerr [1976] 1 NZLR 335. Once the evidence is shown to have raised a possible defense of self-defence, the onus shifts to the prosecution to negative that defense beyond reasonable doubt: Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266.
  2. If that balance of probability is not negatived by the prosecution on the requisite standard, the accused would have then acted lawfully and the force he had used in retaliation caused the death of that other person.

The Evidence


  1. The evidence is substantially admitted on events precipitating the killing. Elly Joseph of Simbu origin was married to Paulus Augustine, (deceased) of Sepik origin. On the evening of Wednesday 4/1/2017 Elly went to the home of her relative, Peter Kerenga at Kavui Section 6 Block No. 1735 for a meeting with her other relatives concerning her domestic issues with the deceased. Eki Apa was amongst those present. Between 7.00pm to 8.00pm Paulus came to Peter’s house. Upon seeing her husband approaching, Elly went into hiding. The deceased shone his flashlight on those present but did not see his wife so, he left. A few minutes later, he returned. Agitated by the absence of his wife, an altercation arose between him and the accused. The deceased raised his bush knife to cut the accused but Philip intervened to deflect the knife. In the struggle that ensued, the accused removed the bush knife from the deceased and attacked the deceased with it. Paulus sustained four knife wounds to his legs and died the next morning at Kimbe General Hospital from acute loss of blood from the multiple knife wounds.
  2. The State alleged that the multiple cuts to the lower limbs of the deceased were acts which went beyond the force which was necessary for self-defence under s. 269 Criminal Code and were unlawful. Too, Paulus posed no imminent threat or danger to Philip and the accused after the accused disarmed him. The State said the actions of the accused violated s. 302 of the Criminal Code.
  3. For the defence of self-defence, the accused relied on his answer to Question 19 of the record of interview. He gave a very long and comprehensive statement on events preceding, during and after his fight with the deceased. The relevant parts of his statement read:

“We thought that he had gone already but when he came back, he came easily without making a noise and when he came close to the house, he turned on his torch and torched around and saw all of us sitting under the house. He saw our faces and he said this, “Ok these are the people?”, when he said this he came close to me and flashed his torch at my face and he took a dry wood and placed it in my hand and said this to me, “you people do not know me well, I am a Sepik man and I am a terrorist in Galai”. At that instant, I saw him lifting a bush knife with one of his hand and his other hand he grabs hold of my hand with the dry wood which he had placed it in my hand. When he was about to cut me, to my surprise Philip came with a timber and struck it twice on his hand with the knife and the timber was soft so it broke. I was confused at that time because I thought Paulus had already cut me. Later I realized that Philip and disturbed him from chopping me, when Philip had hit him with the timber and the timber broke, Philip then wrestled him on the ground but Paulus was struggling to get up and cut us so Philip told me to remove the knife from Paulus’ hand. And so, I struggled with Paulus hand for about 10 minutes to remove the knife from his hand and eventually I removed the knife. As soon as I removed the knife, I then cut his leg to slow him down. When Philip saw that I had removed the knife from Paulus he then told him that we had already removed the knife so he should be quite, so Philip then removed the torch from Paulus’ neck and torch Paulus and he realized that Paulus had already received a cut on his leg.”


  1. The medical evidence from the Report on Post-Mortem Examination recorded four injury locations on the legs of the deceased namely, a left lateral distal leg wound, 4 cm in length; a medial distal 2/3 wound of the left leg, 5cm deep; an 8 cm long laceration over the right dorsal foot; a 6-8cm deep wound over the mid posterior right leg involving the tibia/fibula bones.
  2. Disputed Facts: The only factual issue to resolve on the fact is whether the accused cut the deceased once only or four times. The legal question is whether he acted in self-defence?

Submissions by Counsel


  1. Mr Linge submitted, the accused has raised a defence of self-defence fairly, in his version of facts which the Court should accept as highly probable. Counsel urged the Court to find the accused was unlawfully assaulted, he had not provoked the assault and that when the deceased swung the bush-knife at him, that caused him reasonable appreciation of death or serious bodily harm. So, he had reacted instinctively and in defence of his own life. The accused admitted to cutting the deceased but only once and in self-defence in the face of the imminent threat to preserve himself from death or grievous bodily harm.
  2. Mr Luma submitted that the defence of self-defence fails because, the accused has not shown the elements of self-defence as outlined, or some of them, existed at the time of the assault. He has not pointed to aspects of the evidence which on the balance of probability, point to a possible defence of self-defence. So, the prosecution is not required to negative that defence beyond reasonable doubt. The State’s other contention is that, even if the accused were placed in a situation where he had to fight back, the force applied was disproportionate to the assault by the deceased. Counsel submitted the threat had ceased when he cut the deceased four times with the bush-knife.

Reasons for Decision


  1. In appraising the admitted statements before the court, the question to ask is whether there is any evidence on which the Court acting reasonably, would be entitled to find that the killing was done in self-defence or to entertain a doubt whether it was done in self-defence: R v Muratovic (1967) Qd. R 15 per Gibbs, J at p. 18. This question must be decided on the whole of the admitted facts. If there is no evidence of self-defence, then the defence fails, and no further consideration is necessary.
  2. There is some evidence and I accept, that preceding the attack by the accused, the deceased exhibited extensive aggression towards the accused and others at the home of Peter Kerenga. It was in the night. I think the only source of any lighting was from the torch in the possession of the deceased. To the point where Paulus approached Eki Apa with a bush-knife and a piece of timber, the others fled the scene. The accused was left with the deceased and Philip. I accept the version by the accused that when the deceased raised the bush-knife to cut him, Philip struck the hand of the deceased with a timber and the timber broke. Philip then wrestled the deceased to the ground, at the same time instructing Eki Apa to remove the bush-knife from the deceased. I think, at some point during the struggle over the knife, Paulus was back on his feet when Eki Apa disarmed him and cut him on the leg with the same bush-knife.
  3. I am satisfied, Paulus has unlawfully assaulted Eki Apa in an unprovoked assault. The nature of the assault was such as to cause the accused or any normal being, reasonable apprehension of death or grievous bodily harm. Had Philip, in acting in defence of Eki, attacked and killed Paulus then, he would have acted lawfully in self-defence of a third person under s. 271 of the Criminal Code.
  4. The accused struck the deceased after some 10 minutes struggle and succeeded in disarming the deceased. From his own admissions; he immediately attacked the deceased with the same bush-knife. The reason he did that is crucial to his defence. In pidgin he said, Samtaim mi rausim naif nau em mi kirap tasol katim leg bilong em no slowim em daun. (ROI English translation: As soon as I removed the knife, I then cut his leg to slow him down.).
  5. A crucial element of the statutory defence of self-defence is the belief by the accused that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used. Such belief, whether expressly stated or inferred from the proven facts, must be based on reasonable grounds.
  6. In R v Kaiwor Ba [1975] PNGLR 90 it was held:

"The person using force in self-defence 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."


  1. The test on whether the accused believed it was necessary for him to cut the deceased with the bush-knife to preserve his own life is an objective one. He must show the other person was assaulting or about to assault him with such violence which caused him reasonable apprehension of fear of death or grievous bodily harm. He must show that the violence being offered was current or about to happen and not at some future moment or expectation. He must show that his reaction was to preserve his own life from death or grievous bodily harm; R v. Kristeff [1996] No. 445.
  2. Here, the highest the accused has explained the reason for cutting the deceased with the bush-knife is to slow the deceased down. Even if I were to infer a reasonable believe from that fact, I will have to weigh it against the following admitted facts;
  3. Whilst it is inferred from the statement of the accused that the act of the deceased in attempting to strike him with a bush-knife would cause the accused reasonable fear of death or grievous bodily harm, it did not go far to support the element of reasonable apprehension of death or grievous bodily harm. When the accusedwrestled the bush-knife free, the deceased was no longer armed and hence no longer a threat to him. The condition of reasonable apprehension of death or grievous bodily harm had ceased or was defused when the accused disarmed the deceased.
  4. It is also apparent from the evidence; the force used by the accused was unreasonable. Once the violence or threat of violence was neutralized, the accused was then facing an unarmed assailant. The nature of the threat had been suppressed and no longer present. The accused was no longer placed in any imminent danger. Hence, it was unnecessary for him to use the bush-knife against an unarmed adversary four times.
  5. Furthermore, the fact that the deceased was cut at the back of the leg suggested, he was retreating and had his back turned to the accused.
  6. I find that on the accused’s own admissions, he has not raised the defence of self-defence to the requisite proof on the balance of probability. I accept the State’s case from the admitted facts as highly probable. The State’s case is that the accused cut the deceased not once but several times as per the medical reports after he had disarmed the deceased. Overall, the State has disproven the defence of self-defence beyond reasonable doubt.
  7. The defence does not rely on the defence of provocation. If successfully raised, it can reduce a conviction on manslaughter to unlawfully causing grievous bodily harm under s. 539 of the Criminal Code.

26. I find the accused guilty of manslaughter and convict him as charged.
___________________________________________________________
Public Prosecutor: Lawyers for the State
Gerald Linge Lawyers: Lawyers for the Accused


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