N9699

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 615 OF 2019

BETWEEN:
THE STATE

AND:
MALAS WAMI

Vanimo:  Rei, AJ
2021:  8th, 9th & 15th September

CRIMINAL LAW – Charge of Murder – S.300(1) of the Criminal Code – Defence of provocation not available – Penetration of heart by hunting spear – Trial – Guilty verdict. 

Cases Cited:

Regina -v- Oa [1967–68] PNGLR
The State -v- Enoch Maku (2021) N9080
The State -v- Basa [2011] PGNC 212; N4676 
	Regina -v- Oa
Legislations Cited:

Section 266, 267 and 303 of the Criminal Code 

Counsel:	

Ms. D. Ambuk, for the State
Mr. P. Moses, for the Accused

DECISION ON VERDICT

15th September, 2021

1.	REI AJ: BACKGROUND: The State through Ms. Ambuk presented an Indictment on the 8th of September 2021 charging that:

	Malas Wami:  of Ossima Village, Bewani, West Sepik Province stands charged that on the 2nd day of October 2018 at Issi Camp - Ossima Bewani District in West Sepik Province of Papua New Guinea willfully murder one Markus Boloi.

2.	Prior to the trial, the defence Counsel negotiated with the Counsel for the State that the charge of wilful murder be reduced to manslaughter as he contends that the defence of provocation and/or self-defence was available to the accused.

3.	Hence at the commencement of the trial the Defence Counsel submitted that although the accused admits murdering the deceased Markus Boloi, he says he did so under provocation and self defence.

4.	The trial proceeded on the premise that if provocation is satisfactorily proven, the charge of wilful murder be then reduced to murder or manslaughter by operation of Section 266, 267 and 303 of the Criminal Code.

EXHIBITS

5.	At the commencement of the trial, Ms. Ambuk for the State tendered the following exhibits by consent:

			Statement of Maison Boloi				Ex “A”
Dated 20/10/2018
			Statement of James Bupi					Ex “B”
Dated 20/10/2018
			Autopsy Report						Ex “C”
Dated 02/11/2018
			Statement Sgt. Michael Phia (Corroborator)		Ex “D”
Undated
			Statement of Sgt David Akem (Arresting Officer)	Ex “E”
Undated
			Record of Interview of the Accused (English)	Ex “F1”
Dated 24/10/2018
			Record of Interview of the Accused (Pidgin)		Ex “F2”
Dated 24/10/2018
			Four photographs of the deceased (Exhibits -          “G1”
											“G2”
											“G3”
											“G4” respectively
			Defendants Affidavit – Section: 96 Statement
 of the District Court				Ex “DD1”

WITNESSES CALLED

6.	The State did not call any evidence as all the facts were not in dispute except the issue of provocation.

7.	The defence called the accused who gave evidence of what then happened leading to the death of the deceased Markus Boloi.

8.	The accused did concede in cross examination that he did not intend to kill the deceased when he fired the hunting gun as he only intended to cause grievous bodily harm.

9.	He also conceded that the force he used by the use of a hunting gun was disproportionate to the force used by the deceased with a use of a timber.

10.	The evidence is that while the deceased destroyed the half-completed kitchen belonging to the accused and that the deceased did not hurt or aim at hurting the accused or any of his family members as provided for under Section 266 of the Criminal Code, the accused did what he did.

11.	The accused admitted in Court that he was angry with the deceased for destroying his half-completed kitchen therefore he got the hunting spear and fired to scare him off.

12.	Being angry resulting in the death of another person is not the same as provocation as recognized by law.

13.	In the case of Regina -v- Oa [1967 – 68] PNGLR Clarkson J. said:

	“I am satisfied that the accused did not spear the deceased in the heat of passion.  He was angry, indeed, very angry, but he was not overwhelmed suddenly by any transport of passion.  There was no temporary suspension or unseating of reason…  The homicidal act was not the result of a passionate impetus.  He was the angry executioner enforcing his own law”.

ALTERNATIVE VERDICT

14.	When the Court asked the accused a serious of questions whether he had, at any previous occasion, any dispute or quarrels with the deceased Markus Boloi, he said he did not.

15.	These questions and answers were designed to establish whether there was any intention to causing grievous bodily harm resulting in the death of the deceased so that the charge of wilful murder can be sustained.

16.	In all the evidence, it can be concluded that there was no intention on the part of the accused to cause grievous bodily harm resulting in the death of the deceased.  It was not pre-meditated or pre-planned.  But as Clarkson J. said in Regina -v- Oa (supra) “… he was very angry, indeed very angry …” because his half-completed kitchen was destroyed therefore he shot the deceased with the hunting spear causing his death.

17.	But the life of someone had been taken without any proper or legal reason.

18.	The accused himself admitted in Court that the force he used was disproportionate and that whilst the kitchen can be repaired or rebuilt, a life cannot be repaired.

19.	I therefore find that the accused is guilty of murder as provided for under Section 300(1)(a) of the Criminal Code which provides that:

“(1) Subject to the succeeding provisions of this 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 to the person killed or to some other person; or
“(b)	if death was caused by means of an act –
“(i)  done in the prosecution of an unlawful   purpose; and
“(ii)	of such a nature as to be likely to endanger human life…..”  or
 “(c)	if the offender intended to do grievous bodily harm to some other person…..”

20.	My attention was drawn to the provision of S.266 (1), (2) & (3) of the Criminal Code by the State which provision defines “provocation”.  It is in the following terms:

“266.  Provocation
(1)   Subject to this section, “provocation” used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done - 
		(a)  to an ordinary person;  or
  (b) in the presence of an ordinary person to another person – 
  (i)   who is under his immediate care; or
  (ii)  to whom he stands –
(A)	in a conjugal, parental, filial or fraternal  relationship; or
(B)	  in the relation of master or servant,
to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.
(2)	When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.
(3)	 A lawful act is not provocation to any person for an assault.”

21.	In summary S.266 says that provocation is “a wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of another person who is under his immediate care or who stands in a conjugal, parental or filial relationship or who is in a relation of master or servant.”

22.	When given its natural meaning, this provision does not extend to or include provocation arising from damages done to property such that the owner is excused at law to inflict grievous bodily harm resulting in death.

23.	The claim by the accused that he was provoked because his half-completed kitchen was broken down is further negated by the provisions of Section 266(4) of the Criminal Code which provides that:

	“An act that a person does in consequence of an incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault is not provocation to that other person for assault.”

24.	A careful analysis of the above provision shows that the act that provoked the accused must be aimed at a natural person whose life was under imminent danger such that the accused was provoked to committing the assault resulting in death.  The law does not say that the accused was provoked because of damages done to the property such that he is excused under the defence of provocation.

25.	The actions and conduct of the accused person as demonstrated by the evidence in this matter were unlawful considering that he used a dangerous weapon – a hunting spear to shoot the deceased while the deceased used a timber to destroy his kitchen.  The deceased did not aim at any person including the accused when he swung the timber.  He merely caused damages to the kitchen.

26.	The defence of provocation is somewhat analogous to the defence of self- defence provided under S. 270 of the Criminal Code.

27.	When dealing with the defence of self-defence in the case of The State -v- Enoch Maku (2021) N9080, I referred to the case of State -v- Basa [2011] PGNC 212; N4676 (23rd May 2011) and quoted the ratio decidendi thereto.

28.	In summary both the defence of provocation or self-defence must involve the basic element that the life of the accused was in eminent danger at the time of the offence, that a person and not property was involved and force used must be proportionate.

29.	Both in his record of interview and from the evidence he gave from the dock, the accused clearly stated that he shot the deceased at his feet when in fact he shot him on the area of the chest, a vulnerable part of the body.  He did so because he became very angry with the deceased for destroying his kitchen.

30.	How can that be believed when in fact he aimed the hunting spear at the upper part of the body by pointing and aiming the hunting spear at the upper part of the body?

31.	Common sense should prevail here.  He aimed at the upper part of the body and shot him.  He did not aim at the lower part of the body.

32.	I fail to see why the accused says he aimed at the feet when in fact the hunting spear penetrated the chest and pierced a vulnerable part of the body:  the heart, causing instant death.

33.	In the circumstances portrayed herein, I do not think the defence of provocation is available to the accused.  I however find that the actions of the accused person were not pre-meditated or pre-planned.  He did what he did because he was angry that his half-completed kitchen was destroyed by the deceased.

34.	I find that the accused is guilty of the alternative offence of murder under Section 300(1) of the Criminal Code and not wilful murder as indicted.
________________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Defendant