N9928

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 50 0F 2021

THE STATE

V

VICTOR AUSI
Accused
(No 1)

Daru: Sambua, A J
2021:   10th, 11th ,12th 16th & 18th November
CRIMINAL LAW – particular offence – murder – intention to cause grievous bodily harm – not guilty plea –trial- eye witness evidence- evidence of medical expert – cause of death – brain stem injury – due to cervical spine injury cause by blunt injury to base of skull and neck - self defence against unprovoked assault – no immediate threat to life – aassault was intentional – aassault not in self defence – guilty verdict returned .
Cases Cited:

State v James Yali [2005] N2988 (13 December 2005)
State v Angeline Winara (No.1) [2008] N3345 
State v Raphael Kuanande [1994] PNGLR 512

Counsel

Miss H. Roalakona and Mr S. Kuku, for the State
Mr I. Paelaea, for the Accused

DECISION ON VERDICT

18th November, 2021

1.	SAMBUA, AJ:   The State presented an indictment charging the accused Victor Ausi with one count of murder contrary to section 300 (1) (a) of the Criminal Code.

2.	The charge on the indictment read: 

“Victor Ausi of Sepe, South Fly District in Western Province stands charged that he on the 4th day of January 2020 at Gamea Police Barracks in Papua New Guinea murdered Brendon Kou”.

3.	Section 300(1) states:

Subject to 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 intends to do grievous bodily harm to the person killed or to some other person,
(b)	………..
(c)	……….
Penalty: Subject to Section 19, imprisonment for life

The history of the case

4.	The State has alleged that between 9.00 pm and 10.00 pm on the night of the   4th of January 2020 the accused Victor Ausi, was with his friends drinking alcohol. They later ended up at Gamea Police Barracks, where police officers with their families were having a party. After the party was over, the accused was seen assisting one Mrs. Jennifer Kally with the cleaning up and was given a bottle of wine as payment for his assistance. Whilst drinking there, the accused and his friends heard a commotion coming from the field in the direction of Daru Secondary School and heard people calling “stilman, holim em” so the accused and his friends ran towards the direction of commotion.

5.	The accused held a bottle in his hand and ran towards a drain and waited for the person who was chased to come. The accused then smashed the bottle on the head of the person who was from Popondetta. The injured person called out to his relatives whilst lying in the pool of blood. Brandon Kou, the deceased upon seeing his in-law covered with blood resulting from the accused’s assault, took a black long handle bush knife and a stick and chased the accused and his friends. The accused and his friends fled the scene and met up again at one Kally Pamuan’s house.

6.	Brandon Kou approached the accused and his friends at Kally Pamuan’s house and demanded to know who assaulted his in-law. Whilst he was demanding to know who assaulted his in law, he was punched by one Ian Bidogo and was held down on the ground and was disarmed of the knife he was armed with. While still on the ground harmless, the accused came with a thick tree branch and hit the deceased on the back of his head using both hands which caused the injury that resulted in his death.

7.	The State says that when the accused hit the deceased at the back of his head using a thick tree branch and causing the injury that led to his death, his actions contravened section 300 (1) (a) of the Criminal Code Act.

Arraignment

8.	The accused pleaded not guilty to the charge upon arraignment and a trial was convened.
 
Evidence

9.	The State evidence consist of oral, documentary and real (physical exhibits) evidence. The oral evidence was elicited from two (2) state witnesses, who gave sworn oral evidence. They were, Jennifer Kally Pamuan and Dr. Timothy Danaya.

Jennifer Kally Pamuan

10.	She was the first witness called by the State. She told the court that between 11:00pm and 12:00 midnight on the night of the 4th of January 2020 she was at Gamea Police Barracks in Daru town, tidying up the place after the Policemen’s party before going into the house to sleep. She was alone.

11.	After tidying up and was about to walk up the steps of the leader to her house, she heard screaming, and loud noises coming towards her direction. She stood on the second step of the ladder and was looking towards the direction where the screaming and loud noises were coming from.

12.	To her surprise she saw a young boy armed with a bush knife crossing the drain and coming into her yard towards the frangipani flowers and a palm tree in her yard, saying, “who hit my brother, who hit my brother”. She said she also heard a voice from the back saying,” I did not hit your brother”.

13.	She then saw the young boy armed with a bush knife cross the drain again to her lawn and then she saw someone coming out from the frangipani flowers and hit the young boy and the bush knife fell from the young boy’s hand and saw them struggle. She recognised the person who hit and tussled with the small boy as Ian Bidogo.

14.	She told the court that as Ian Bidogo and the small boy were struggling, she observed that they were communicating to each other and not long she saw the accused Victor Ausi coming from under her house armed with a thick y-shaped tree branch and hit the young boy on his backside first and the second time, she said the accused Victor Ausi hit the boy on the back of his neck just under the head which caused the young boy to fall face down.

15.	She then saw Victor Ausi dropped the thick y-shaped tree branch and escape. She went over picked up the thick y-shape tree branch and took it into her house. 

16.	She also told the court that when the accused hit the young boy with the thick y-shaped tree branch, he held it with both hand and hit the young boy with it twice. First on his backside and the second blow was at the back of the deceased’s neck under the base of the skull.

17.	She told the court that she knows Victor Ausi very well because he is a son of her cousin sister and pointed him out in the accused dock.

18.	There was sufficient lighting from the florescent tube from the veranda, kitchen and the laundry. In cross-examination she maintained her evidence of seeing the accused Victor Ausi hitting the deceased with a thick y-shape tree branch, she did not see any other person assaulting the deceased.

19.	When put to her that the policemen sons were there and were involved in attacking the deceased that caused his death and she said that they may have been around, but she did not see them except the accused Victor Ausi and Ian Bidogo and she saw the accused Victor Ausi hit the deceased with a thick y-shaped tree branch .

20.	She denied seeing the deceased chase the accused Victor Ausi into her yard and maintained that the accused hit the deceased twice on his back. The first one was on the lower part of his backside and the second one was the blow to the back of the neck below the skull.

Dr Timothy Danaya

21.	He was the second witness called by the State. He told the court that he is a Medical Doctor by profession. He graduated from the University of Papua New Guinea’s Medical School of Science and Medicine and this is his third year of working with the Daru General Hospital.  

22.	He told the court that he assisted Dr Benny Kombuk to perform an autopsy on a deceased Brendon Kou on the 30th of January 2020 at Daru General Hospital and the findings of the autopsy was recorded in an Autopsy Report, which was shown and identified by him in court and was tendered through him and was marked as Exhibit “E”.

23.	He told the court that there were no other physical injuries to the deceased body except for the back of the neck and the base of the skull. There was no bruising, but the back of the neck was swollen and mobile (loose).

24.	He told the court that, that type of injury noted on the deceased was cause by a blunt object such as a timber, iron, and wood with a significant amount of force.

25.	He also told the court that when the skull was opened, it was noted that there was bleeding in the brain tissues and the neck bones were fractured.

Documentary Evidence

26.	The State documentary evidence consist of the Record of Interview, which was tendered into evidence by consent and marked as Exhibit “A” and the Doctors Report or the Autopsy Report which was tendered through Dr. Timothy Danaya and marked as Exhibit “E”.

27.	In the Record of Interview, which was conducted on the 29th of January 2020 at Daru Police Station, the accused told the Police that his tambu (referring to the deceased, the Popondetta man) ran out from Daru Secondary with a big bush knife and that was when the Popondetta guy punched him (the accused) and he fell into the drain. (Question and Answer 15 to 18)

28.	He felt that he was laying on something and realised that it was a bottle and when the deceased wanted to cut him with a bush knife, he threw the bottle at the deceased but missed and hit the Popondetta man’s head and that was when he realised that he had a cut on his hand. (Questions and Answers 20 & 21)

29.	In question and answer 25 he said he ran under Kally’s house and picked up a stick and ran to the steps of Kally’s house and at question and answer 27 he said he hit the deceased once on the forehead and the deceased dropped the knife and fell backwards. And at question and answer 29 he said, he stood there and watched Jordan, Ian, Nayatal and other boys punching and stepping him (deceased), when he was on the ground facing up.

30.	And at question and answer 45 when asked if the deceased had dropped the bush knife after Ian hit his hand, he said that, that was Ian’s statement.

The Autopsy Report 

31.	An autopsy on the deceased Brendon Kou was conducted by Dr Benny Kombuk who was assisted by Dr Timothy Danaya on the 30th of January 2020 and the report was made available on the even date in which the cause of death was attributed to Brain Stem injury due to cervical spine fracture due to blunt injury to base of the skull and the neck and the cervical spine injury.

32.	In its simplest form, the deceased died as a result of the neck injury, that he suffered during the attack on the night of the 4th of January 2020 at Gamea Police Barracks in Daru town, Daru Island. There was no other injury found on the deceased during the autopsy.

33.	The summary of the autopsy report was that:

“The deceased had no prior medical illness: he was at Daru Secondary compound when he saw his uncle being attacked by a group of boys at the Gamea Police Barracks, Daru Town. He came out to assist his uncle with his young brother. He was attacked by the group and in the process, he fell down and was hit on the head with a piece of blunt object on the back of his head and he collapsed and was unconscious. He was brought to the Emergency room (ER) of the hospital with his heart still beating but he could not be revived and was pronounced dead after a few minutes of resuscitation. He died of neck injury he sustained when he was attacked. He was confirmed dead at 11:00pm and the body was sent to the morgue. Because it was a murder case, the coroner requested for a proper medical examination and autopsy as part of the police investigation file.

An autopsy was conducted on the 30th of January 2020 at 10:30pm at the hospital morgue in the presence of the police and the relatives.

External examination was of the body of a young Melanesian adult male. He had bruises to the back of his neck, with neck deformed, loose and freely mobile especially at the caudal aspect. He was bleeding from both the nose and ears.

X-ray of the skull and neck done and it revealed an intact skull with not fractures. These subluxation, fracture and collapse of the cervical spines 1 and 2 (C1 and C2) is mostly likely the majority injury that may have killed him because C1 and C2 are at close proximity to the brain stem.

The internal examination showed, bruised and bleeding neck muscles, with fracture and crushing of the cervical spinal vertebrate at C1 and C2, with the fracture compressing the spinal cord and most likely the brain stem. There was also widening of the space between C1 and C2.

There was about 300mls of blood in the right chest cavity and 250mls of blood in the left chest cavity which is evidence of minimal bilateral haemothorax”.

Physical Evidence 

34.	The State tendered into evidence two (2) physical evidence. The first physical evidence was a black handle a metre long Tramontina bush knife which was tendered by consent and marked as Exhibit “B”. The other was a thick y-shaped tree branch about half a metre long and about 3 cm in diameter. It was tendered through the first State witness Jennifer Kally Pamuan and was marked as Exhibit “C”.

Defence Case

35.	The accused was the only witness who gave sworn oral evidence in his own defence.

36.	He told the court that on the morning of the 4th of January 2020, he left Gamea Police Barracks and went to Karakara and returned about 3:00pm. When he returned, he saw his friends drinking and he joined them and had five (5) white cans and wine. After that, he and his friends joined the party at the barracks and after the party was over, he assisted the ladies with the cleaning up and moved the tables to Mr. Kally Pamuan’s house.

37.	As they were moving the tables to Kally Pamuan house, he heard screaming and lots of noise coming from the direction of Daru Secondary School and heard someone shouting” stilman, stilman”. He said everyone ran towards the direction where the shouting was coming from.

38.	After helping the ladies, he also ran to the place where the shouting and screaming was coming from. When he arrived there, he was surprised to see the Medical Officer John Imaga from Popondetta. John Imaga had been treating him when he was admitted at the Daru General Hospital for tuberculosis (TB)

39.	He said that John Imaga was being assaulted by the boys and he stopped them. He took him to the main road and sent him away telling him that the boys were drunk.

40.	He walked back to where the boys were and heard John Imaga calling out to his in-laws who were drinking alcohol at Daru Secondary School area, and he (John Imaga) ran back to where the boys were and wanted to fight with them. However, he took him back to where the drain was and told him to walk away.

41.	By that time his in-law Brendan Kou and four (4) other boys came out from Daru Secondary School area and Brendon was holding a big bush knife. Brendon was walking straight to him and was stopping him when John Imaga punched him (accused) and he fell onto a heap of rubbish on the side of the drain.

42.	Then Brendon tried to cut him with the bush knife and he put his left hand up to fend off the bush knife when he was cut on his left small man finger. He then ran across the field to Kally Pamuan’s house and jumped over the flower bed into the yard and took a deep breath before he walked to his house which was just next door.

43.	However, before he could walk to his house, Brendon who was still pursuing him, walked into Kally Pamuan’s yard and asked Ian Bidogo about the person who assaulted his in-law and Ian Bidogo responded that it was not him but those boys and pointed to him (Victor Ausi).

44.	The accused also told the court that he was standing in front of Kally Pamuan’s house where there was a barbeque drum. When the deceased Brendon Kou swung the bush knife to cut him on his head, he reached out to the barbeque drum and took out a firewood and hit the deceased only once on his forehead which resulted in him (deceased) dropping the bush knife and he fell backward.

45.	When the boys, Jordon Tamo, Nayata Ricka, Abraham Pamuan, Poate Ricka and Ian Bidogo  saw the deceased fall, they started attacking him by kicking and punching him whilst he (deceased) was laying on the ground.

46.	He also told the court that Jordon Tamei who was wearing his father’s police issued GP boot kicked the deceased on his neck, causing the deceased to turn over. He demonstrated the kicking in court like a football striker striking the soccer ball. His leg was freely swung when demonstrating the kick which I doubt happened because he said the boys were also attacking the deceased and it was not possible for that kind of kick to be executed. And in order to execute that kind of kick, in my view, Jordon has to be running to execute that kind of kick and the force which I also doubt did happen.

47.	He also told court that when the boys were punching and kicking the deceased, everyone who were watching were calling his name to stop attacking the deceased. 

48.	In cross-examination, he mentioned that he hit the deceased only once on his forehead with a firewood burnt on one end of it in self-defence when he was going to cut him with a bush knife on his head.

49.	He was also asked in cross-examination, when deceased was approaching him, he could have run-away, but he said that he knew the deceased Brendon Kou very well and was telling him to stop but he did not listen and stop.

50.	He also said that when people were shouting and screaming,” stilman, stilman”, Jennifer Kally Pamuan was also there.

51.	He also told the court that Ian Bidogo did not hit him (deceased) and he dropped the bush knife. The deceased was still holding onto the bush knife and approached him to cut him and that was when he (accused) hit him (deceased) with a firewood on his forehead and he dropped the bush knife and fell backwards on his backside.

52.	When asked by the court why he did not run to his house to take cover from the deceased, he said that he knew him well and therefore told him to stop but he did not stop.

53.	When it was suggested by the court that other boys were not there and that was why everyone were calling his name to stop assaulting the deceased Brendon Kou, he said they were there, but they did not call their names but his name only. In my view, the boys were not there and attacking the deceased in the manner he had described but only him and that was why everyone who were watching were calling his name telling him to stop.

Submissions by Counsels

54.	Mr Pailaea on behalf of the accused submitted that the issue before the court is whether the accused acted in self-defence.

55.	He submitted that the crucial or relevant evidence is revolving around the physical confrontation. The accused hit the deceased once on the forehead with the firewood stick. He denies hitting the deceased twice on the back of the head around the neck area. He denies that the ‘Y’ shaped tree branch is the same stick he used to hit the deceased with, that was tendered into evidence by the State. He submitted that the accused used a different stick. It was a half burn firewood stick he used to hit the deceased with on his forehead.

56.	He also submitted that the autopsy report verified that the only injury was to the back of the neck. The force applied must be extreme or very strong to cause the neck to break. In the instant case neck was broken due to extreme force used. It was not ruled out that even a boot like that of police can cause such injuries. It’s the strength of the force applied that can result in injuries of this nature.

57.	He further submitted that this Honourable court should accept the defence contention with regard to its version of evidence that the accused reacted in self-defence when the deceased swung at him with a bush knife. The victim is the initial aggressor and had both verbally confronted and moved forward towards the accused with a bush knife in his hand. The accused acted in self-defence, and he had to hit deceased with a stick to disarm him.

58.	Given the preceding analysis, he submitted that the State has failed to prove beyond reasonable doubt and that the accused actions were intended to cause grievous bodily harm to the deceased and he died as a result. The court must find in the accused’s favour and return a verdict of not guilty.

59.	Mr Kuku on behalf of the State submitted that the accused’s evidence was inconsistent and contradictory. Some answers given in court were not given to the police during the Record of Interview (ROI) and are deemed to be recent inventions. He gave examples of some of these inconsistencies and contradictions as:-

a.	He said he was married in court. In the ROI he stated that he was single. (Q/A,12)
b.	He said he had a cup of wine. In ROI he stated that he had a bottle of wine. (Q/A,14)
c.	He stated that he was cut on his left hand and later chased and was cut on his back by the deceased. In the ROI he stated that the deceased after cutting his hand he went down the drain and chased the boys. The accused then stood up and ran after the boys. (Q/A, 22)
d.	He stated in court that when Ian pointed at him, he couldn’t make it to his house while in fact this house was just near Jennifer Kelly’s house. (Q/A,23)
e.	He stated in court that he was at the yard of the house whilst in the ROI he said he ran under Jennifer’s house and picked up the stick and ran to the steps of the house. (Q/A,24)
f.	He stated in court that he stood there and watched Jordan, Ian and Nayatah kicking and punching the deceased whilst in the ROI he said Jordan, Ian, Nayatah and other boys were assaulting the deceased. (Q/A, 29)
g.	The accused even told the court that he went over and picked up the deceased and the deceased swore at him and told him that they did wrong. It was never in the ROI.

60.	He submitted that these inconsistencies and contradictions goes to show the credibility of the witness in court and that he is not a witness of truth.

61.	In conclusion, he submitted that the two state witnesses’ evidence were never destroyed nor discredited during cross-examination. The court should believe their evidence which is supported by documentary evidence and the real exhibits. The evidence of the accused should not be given any weight as it was marred by inconsistencies and lies. His evidence was discredited during cross-examination and when it was put to him that he did not mean to kill or take the deceased’s life but to cause injury on him, the accused answered yes. That confirms the offence of murder. Hence, submitted that a verdict of guilty be returned.

Analysis of the Evidence

62.	The State says that the accused caused the death of the deceased when he hit the deceased on his neck with a thick y-shaped tree branch which injured his neck bone and the brain injury that led to his death.

63.	The Defence on the other hand submitted that the accused was acting in self-defence when he hit the deceased with a firewood only once on his forehead. It was the other boys that were present that attacked the deceased by kicking and punching him while, laying on the ground and one Jordan Tamei kicked him on his neck with a police force issued GP boot that caused the injury that led to his death.

64.	Hence there are two different stories before this court and the issue is which side or which version of the story the court should belief. The State’s story or the Defence’s story and that is resolved in assessing the credibility of the witnesses.

Credibility of witnesses

65.	   The credibility of witnesses is subjected to the court’s overall assessment of the evidence and the witness’ demeanor whilst giving evidence in the witness box. 

66.	   In the case of the State v James Yali [2005] N2988 (13 December 2005) which is a Madang case, Cannings, J, said in his comments on submissions by counsels especially on submissions by Mr Shepherd on behalf of the accused James Yali that: 

“The court has to assess their demeanour in the box; assess the believability of their stories; examine the degree of consistency in their evidence (both its internal consistency and its consistency with the evidence of other witnesses and examine all the other evidence, which can be described as circumstantial in nature, to determine which version of events is the correct one”. 

67.	In this case I have heard the evidence and observed the demeanour of the witnesses in court from both the State and the defence. The demeanour of the two (2) State witnesses, Jennifer Kally Pamuan, who gave an eyewitness’ account of seeing the accused hit the deceased with a thick, half a metre long y-shaped tree branch and Dr Timothy Danaya who was a Medical Expert, who gave medical expert’s evidence on the findings of the autopsy report,  were good and intact.

68.	The accused was the only witness for the defence. His demeanour in the witness box was wanting. He seemed to be hiding the truth and tried to shift the blame to others whom the Police did not charge, saying that they were all Policemen’s sons and therefore they were not charged except him. However, he forgot the fact that he is a son of a Policeman too. This argument has no basis and is rejected outright.

The issue

69.	The issue is whether, the accused Victor Ausi acted in self defence when he hit the deceased with a firewood once on his forehead or whether it was a deliberate act as described by State witness Jennifer Kally Pamuan in her oral evidence in court which is in a way corroborated by the oral evidence of Dr Timothy Danaya and the autopsy report that was tendered into evidence through him and marked as Exhibit “E”. 

The defence of Self Defence
 
70.	The defence counsel in his submission, did not specify which of the self defence under the Criminal Code, the accused relays on as his defence however in my opinion it is mostly likely the self defence under section 269 which is self defence against unprovoked assault.

71.	 Section 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.

72.	In the case of State v Angeline Winara (No.1) [2008] N3345  a decision by Kirriwom, J. ( as he then was), the accused Angeline Winara pleaded not guilty to one count of murder. The charge against her was brought under s.300(1)(a) of the Criminal Code which states that on 24th December 2005 the accused murdered the deceased, Simon Gura, at Kamkumung Lae. During trial she raised the defence of self defence against provoked assault under section 270 of the Criminal Code

73.	When rejecting her defence of self-defence against provoked assault under section 270, the Court said:

....[T]here must be evidence that the deceased assaulted her with such violence so as to cause her reasonable apprehension of death or grievous bodily harm, and this assault induced her to believe on reasonable grounds that it was necessary for her to preserve her own life from death or grievous bodily harm to use force in self defence and the force she used was reasonably necessary to preserve herself from death or grievous bodily harm. The evidence as to whether her life was in real danger is very shaky as it rests on who the court believes……. 
…..There is no question that even threatening words or threat to do harm to someone can amount to assault. However there must be some evidence showing the extent to which that threat was manifested to its fruition to amount to assault of the nature that would induce reasonable apprehension of death or grievous bodily harm is necessary for self-defence to apply in my respectful view. This is not trying to shift the onus of proof to the accused. The least that the accused could show is some evidence of this possibility so as to qualify for this defence and it is for the prosecution to negative that defence beyond reasonable doubt.
The manner in which the accused trusted that knife into the deceased’s body and drove it further and deeper inside with the other hand as she held onto the knife is clearly indicative of deliberate and calculated act to either kill or cause serious bodily harm to the deceased. She was determined to inflict that injury by her action and conduct towards her husband."

74.	 In this case the evidence generally on what happened on the night of the 4th of January 2020 is straight forward, and it is not disputed that the accused was the person who hit the deceased with a stick at Kally Pamuan’s residential area at Gamea Police barracks, Daru town, Daru Island. However, what is in dispute is whether the accused acted in self-defence when he hit the deceased with a stick on his forehead?

75.	I am inclined to accept the State’s submission that the accused’s evidence was inconsistent and contradictory. Some answers given in court were not given to the police during the Record of Interview (ROI) for example:

a.	He said he was married in court however in the ROI he stated that he was single. (Q/A,12)
b.	He said he had a cup of wine however in the ROI he stated that he had a bottle of wine. (Q/A,14)
c.	He stated that he was cut on his left hand and later chased and cut on his back by the deceased however in the ROI he stated that the deceased after cutting his hand, went down the drain and chased the boys. The accused then stood up and ran after the boys. (Q/A, 22)
d.	He stated in court that when Ian pointed at him, he couldn’t make it to his house while in fact this house was just near Jennifer Kelly’s house. (Q/A,23)
e.	He stated in court that he was at the yard of the house whilst in the ROI he said he ran under Jennifer’s house and picked up the stick and ran to the steps of the house. (Q/A,24 & 25)
f.	He stated in court that he stood there and watched Jordan, Ian and Nayatah kicking and punching the deceased and Jordon was wearing his father’s Police Force issued GP boot to kick the deceased on his head whilst in the ROI he said Jordan, Ian, Nayatah and other boys were assaulting and stepping him (deceased) when he was on the ground facing up (Q & A 29). There was no mention of the kicking or of the Police Force issued GP boot in the ROI. This is clearly a recent fabrication. 
g.	The accused even told the court that he went over and picked up the deceased and the deceased swore at him and asked him what have you and the boys done to me? And he told the court that he did not respond to him (deceased). That was never said in the ROI.

76.	Furthermore, the contention by the defence  that the acted accused  in self-defence when he hit the deceased with a half burnt firewood because the deceased was about to cut him on his head with a 1 metre tramontina bush knife is not supported by the autopsy report of Dr Benny Kombuk tendered into evidence and marked as Exhibit “E” and the oral evidence of Dr Timothy Danaya who assisted Dr Benny Kombuk with the autopsy.

77.	The autopsy report makes no mention of any other finding of injuries either external or internal on the body of the deceased. The only injury found was on the deceased was on the back of his neck. And it’s confirmed by Dr Timothy Danaya in his oral testimony in court.

78.	Dr Timothy Danaya did not rule out the possibility of a Police Force issued GP boot causing such an injury, however he said that for a Police Force issued GP boot to cause such an injury there must be a significant amount of force applied to cause such an injury. He also told the court that a GP boot will leave a mark on the surface of the skin where it landed. In this case there was no other marks found on the deceased’s body except the 

79.	swelling on the back of the neck which he said may have been caused by a blunt object like a timber or iron rod or a stick that was used.
 
80.	The accused in his own evidence said that the when boys, Jordon Tamie, Nayata Ricka, Abraham Pamuan, Poate Ricka and Ian Bidogo  saw the deceased fall down, they started attacking him by kicking and punching him whilst he (deceased) was laying on the ground and he went on to say  that Jordon Tamei who was wearing his father’s police issued GP boot kicked the deceased on his neck, causing the deceased to turn over. He demonstrated the kicking in court like a football striker striking the soccer ball. His leg was freely swung when demonstrating the kick which I doubt happened because he said the boys were also attacking the deceased at the same time and was not possible for that kind of kick to be executed. In my opinion, in order to execute that kind of kick with a significant amount of force to cause such an injury, Jordon has to be running to execute that kind of kick and the force which I also doubted happened.

81.	In the Record of interview, he told the police that:

Q. 28.  “ When you hit  him and he dropped the bush knife, what did you do?
 Ans.   He fell backwards and dropped to the ground.

Q. 29. Then what did you do?
Ans.   I stood there watching the boys Jordan, Ian, Natatah and other boys punching and stepping him, when he was on the ground facing up”.

82.	In my opinion the story he gave to court about Jordan Tamei who was wearing his father’s police issued GP boot, kicking the deceased in the manner he described in court on his neck, causing the deceased to turn over, is a recent invention

83.	Furthermore, when he demonstrated in court the manner in which he hit the deceased with a firewood stick when the deceased tried to cut him with a metre long tramontina bush knife, his reaction in self-defence, in my opinion would have been late and slow and that his head was exposed, and the deceased would have easily cut him on his head. The way he demonstrated was that he was swinging the firewood sideways trying to block the deceased’s hand with the knife when the deceased was already in motion to cut him (accused) on his head. The firewood and the bush knife did not make any contact, but his firewood made contact with the deceased’s forehead. This in my view was an incredible invention.

84.	He was already close to his house which was next door to Kally Pamuan’s house, he could have simply walked over and taken cover at the safety of his house and his life would not have been in immediate danger.

85.	The bush knife is the same bush knife that the deceased used to cut his small man finger. There is no evidence before this court as to the nature and seriousness of the cut on his left small man finger. The manner he described the way the deceased swung the bush knife at his small man finger, the small man finger would have been cut (chopped) off and his entire left hand. However, this did not happen because either the deceased was very drunk as he described him in his oral evidence in court or that the deceased did not use the knife at all to cut him.

86.	I find from the evidence of Jennifer Kally Pamuan that on the  night of the 4th of January 2020, the deceased was already disarmed by Ian Bidogo and were tussling when the accused came out from under her house and hit the deceased first  on his backside and the second one was on the back of the deceased’s neck just below the base of the skull which caused the injury that led to his death. And I also find that the accused used his both hands to hold the thick y-shaped half a metre long tree branch to hit the deceased with.  

87.	I also find that based on the autopsy report and the oral evidence of Dr Timothy Danaya that there were no other injuries found on the deceased during the autopsy except only one injury located at the back of the neck just below the skull would have been caused by one person and in this case that person is the accused Victor Ausi who caused the injury on the deceased that led to his death.

88.	In the circumstance, I find the defence of self defence against unprovoked assault under section 269 of the Criminal Code does is not applicable in this case. The accused had all the chances of running away and seeking cover at his house which was nearby but choose to remain and attack the deceased in a manner describe by State witness Jennifer Kally Pamuan

89.	The next question is whether the accused Victor Ausi had the intention to cause grievous bodily harm to the deceased when he hit the deceased Brendon Kou with a thick y-shaped half a metre long tree branch that caused the injury that caused his death?

90.	In the case of the State v Raphael Kuanande [1994] PNGLR 512 which is a Kundiawa decision by Injia AJ (as he then was). The accused used a .22 rifle to kill the deceased. He was charged with wilful murder pursuant to s 299 of the Criminal Code. The accused pleaded not guilty to a charge that on 13th of March 1993 he wilfully murdered one Mangua Waugo, contrary to s 299 of the Criminal Code. 

91.	The State alleged that on the said date at about 6 - 6.30 pm, the deceased and other friends went to the accused's house to inform him that they would solve certain problems between them the next morning. The problem related to claims made by the accused that the deceased's father was about to die. As the accused was not in his house, the deceased relayed the information by shouting out the message and returned to his house. Between 6.00 pm and 6.30 pm, the accused armed himself with a .22 rifle and followed the deceased to his house. He stood on the main highway and shouted to the deceased, saying that he was ready to fight with him. As the deceased heard this and came out from the house, the accused shot him in the stomach. As a result, the deceased died shortly later. The State alleged that by firing the gun directly at the deceased, the accused intended to kill the deceased.

92.	In that case Injia AJ (as he then was) stated that intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.

93.	In this case the accused in cross examination said that he did not mean to kill the deceased but wanted to cause him grievous bodily harm. This in my view confirmed that when he attacked the deceased with the thick y-shaped half a metre long tree branch he had the necessary intention to do grievous bodily harm to the deceased.

94.	I find that there is sufficient and overwhelming evidence before this court that the accused life was not in in any immediate danger that was likely to cause reasonable apprehension of death or grievous bodily harm when he hit the deceased with a thick y-shaped half a metre long tree branch that led to his death. 

95.	I therefore find that the State has proven its case beyond reasonable doubt and find the accused guilty as charged.

Order

96.  I find the accused guilty and convict him of murder.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused