N10428

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 13 OF 2021

THE STATE

V

JACOB MARAN
(No 1)

Aitape: Miviri J
2023: 04th & 7th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 CCA – Not Guilty – Armed with Bush knife Started a Fight – Quelled – Armed with Hunting Spear destroyed own House and Utensils – Argued with Deceased whilst in possession of Spear – Swearing Exchanges – Deceased with Bush Knife ran to Accused – 2 to 3 Meters Accused Speared Deceased – Death Resulting – Whether Acted in Self Defence – Accused instigates The Swearing Prompting Retaliation by Deceased – Force Over & Above Necessary – No Self Defence – Guilty of Murder – Remanded for Sentence.
CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 CCA – Not Guilty – Deliberate Lies in the face of Guilt– Corroboration of Prosecution Account – weapon that Killed Spear Not Bush knife – Medical Report Conclusive Independent Evidence – Deceased Killed with Spear by Accused – Intent to Cause GBH – Guilty of Murder.
Facts
The accused was rowdy, aggressive and abusive to his fellow villagers. Armed himself with a bush knife went and started a fight with them. He was disarmed. Then went back to his house armed himself with a hunting spear and started an argument with the deceased. And swore at him indecencies to his mother repeatedly. Deceased responded arming himself with a bush knife running to attack the Accused who stabbed him to the chest with a hunting Spear with rugged edge. He died because of the spear stab to his chest piercing his lungs. 
Held 
1.	Incredible evidence by Accused.
2.	Independent evidence of death from Spear.
3.	In hands of Accused
4.	No Self Defence force over and above.
5.	Guilty of Murder
6.	Remanded to await Sentence.

Cases Cited
Hagena v State [2017] PGSC 55; SC1659
 John Jaminan v The State [1983] PNGLR 318 
Beng, The State v [1976] PNGLR 471
Kandakason v The State [1998] PGSC 20; SC558 
Waranaka v Dusava [2009] PGSC 11; SC980
Kwapena v The State [1978] PNGLR 316 
James v State [2020] PGSC 39; SC1937
Paulus Pawa v The State [1981] PNGLR 498
Kairi v The State [2006] PGSC 8; SC831 
Angitai v The State [1983] PNGLR 185

Counsel:
D. Mark, for the State
P. Moses, for Defendant
VERDICT
07th  August 2023
1.	MIVIRI J: 	This is the verdict after trial where the accused stabbed the deceased in the chest with a hunting spear rupturing his lung bleeding within killing him. 

2.	The facts on arraignment were that the Accused on the 07th of June 2020 between 7.00am and 11.00am was very rowdy and aggressive towards the villagers at Babien Ulau village. He begun to swear at them after he could not find his bush knife at his house. Then he armed himself with a bush knife and walked to the beach. He was angry and started a fight there with the other villagers. But was stopped and disarmed. He walked back to his house. There he picked up a spear made of an iron rod fastened tightly to a long piece of wood. It is used for hunting pigs. Using it he destroyed his own house and household items. 

3.	After which he walked over to the bridge over a creek and started swearing at the deceased, Nelson Mungare. He demanded that he repay his sister’s K50.00 to which the deceased replied that he would pay once he had the money. But the Accused continued to swear at him saying, “You suck your mother’s cunt”. Which made the deceased angry, so he picked up a bush knife and ran towards the accused. And as he got to about 2 to 3 meters away from the Accused, the Accused took the spear he held made of the iron rod fastened to the wood and thrust it towards the deceased’s chest. The spear entered the deceased upper right chest resulting in blood and air flowing into the lungs cavity, resulting in the death of the deceased soon after being injured. He intended to cause grievous bodily harm to the deceased and thereby contravening section 300 (1) (a) of the Criminal Code Act.

4.	That section is in the following terms:

“(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 harm to the person killed or to some other person;
(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;
(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.
(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender–
(a) did not intend to cause death; or
(b) did not know that death was likely to result.”

5.	The allegation is that the accused intended to cause grievous bodily harm upon the deceased which resulted in the death of the deceased. He denied the allegation putting the State to task to prove it against him. To this end the following evidence were tendered and marked as exhibits in the matter.

6.	Exhibit P1 was the statement of Ruth Nelson Mungare wife of the deceased dated the 12th June 2020. She is 32 years old married to the deceased and both have five children. She witnessed and saw what happened to Nelson Mungare the injury he received and from which he died. It was Sunday 07th June 2020 between 8.00am and 11.00am and I was at our house at Babian Ulau village. And Nelson went to the bush. I was there and saw the fight and argument between Jacob Maran and Michael Walai which finished, and Nelson came back to the house. We were there and Jacob came back and was still cross and saying, “Kan hul” to all of us sitting at the Wind house. Nelson heard this and went up politely to Jacob and told him, “My in-law you and I got married here and your argument with our brother-in-law is over, you can reside with the other in law or go to where you wish to go.”

7.	But the Accused swore at him, “you are a cunt, you suck your wife’s cunt, you are a useless cunt, useless cunt.” This prompted the deceased to take a bush knife ran crossing the wooden bridge heading to the accused. “I was slow, but I can see Nelson getting close to Jacob. I was still running and could see Nelson continue running and fell down on the sand. When I reached him (Nelson) I saw him lying facing the sand so I tried to put my hands under his stomach to turn his face upwards but he was so heavy. Later Glen Steven came assisting me to turn Nelson upwards.” And uncovering his shirt I saw blood on his chest and tried to prevent it to no avail, rushed him to the hospital but he was already dead. I was so sad and started to cry and brought his body back to the house.

8.	Exhibit P2 is the statement of Glen Steven dated 12th June 2020. A 39-year-old man he too was there on that Sunday 07th June 2020 and saw what happened. Together with his wife Brenda Steven they were with the deceased Nelson Mungare and the others. He confirms the fighting at the Beach front in which Jacob Maran was involved. That he personally stopped that fight by the Accused by removing the bush knife that Accused held and accused returned to his house. And when he returned to his house, he got a stick with an iron rod fastened to it used for hunting pigs. He started destroying his house and tried to burn down his house, but I stopped him. I also removed a grass knife from his hand. He continued and grabbed a cooking pot and walked off towards the log bridge to the other side. As he did, he started saying, “Suck your mother’s cunt, I will kill one of you, I am son of a crocodile, I will kill one of you and I will go to my village. I will be around during the day and night.”

9.	This prompted the deceased Nelson to try and to stop him from continuing as he was doing, but to no avail as “Jacob swore at Nelson repeatedly, so Nelson grabbed a bush knife with his hand and ran towards Jacob. I followed Nelson when I saw this, but I was late and saw the stick stuck on Late Nelson’s chest and he fell down on the sand. Prior to that I saw Nelson kept running after Jacob but could not continue further so he (Nelson) fell on the sand. When I arrived Nelson said, Glen, no more, I will die so rushed me to the hospital”. I check his body by lifting the armless shirt and saw blood coming out on his chest, I removed my shirt and tried to stop the blood. Later Nelson’s wife Ruth came and assisted positioning herself underneath Nelson, then we lifted Nelson and rushed him to the hospital.

10.	Exhibit P3 is the statement of Michael Solwo dated the 13th June 2020. He is 26 years old from mix Paup and Ulau village. He too recalls it was Sunday 07th June 2020 between 9.00am and 11.00am and was sitting with the deceased Nelson Mungare and other families at the Wind house. And the Accused stood on the other side of the creek and swearing at the top of his voice, “You suck your mother’s cunt. Nelson heard this got frustrated grabbed a bush knife and ran across the log bridge heading towards Jacob. I got up and ran after Nelson about 3 to 5 meters behind him. When Nelson was about 2 to 3 meters from Jacob who was holding the stick fastened to a sharp iron rode (spear) pushed it towards Nelson. I saw the spear piercing Nelson, so I kept on running following Nelson and Jacob. Nelson continued running but could not go any further while Jona Walai, Vincent Milai and I went after Jacob, but he (Jacob) got into the bush and hid himself. I came back and witnessed that Nelson was assisted and taken to the hospital. I then went to the house and later noticed that Nelson’s body was brought back so I knew that Nelson had died. I got frustrated so I searched for Jacob to kill him, but he surrendered himself to the Police, so the other youths and I came back to the house. I was shocked and worried with Nelson’s death. I am now giving my report to the police, and I want the Court to penalize Jacob Maran.”

11.	Exhibit P4 is the next evidence of the State comprising the statement of the witness Michael Walai aged 48 years old from Babien Ulau village. On the 07th June 2020 I saw Jacob Maran returned with fish in his hand to the house. He was searching for his bush knife and started asking one Dien Walai who is 5 years old if he knew the whereabouts of the bush knife. But Bathesiba Walai and Debra Walai told him, “Hey yesterday you used the bush knife split galip nuts with the boys and maybe you left it there,” So he left the house to search around the galip tree for it. I was still in the house when I heard Jacob saying, “How did you mingle about me? So, my wife Dona Walai explained saying, “They are not arguing with you but did inform you of where you left the bush knife.” Then I heard Jacob insulted my wife saying, “Cunt, rubbish cunt,” upon hearing that I was so embarrassed, so I told Jacob, “Jacob, that is not right, she is not your wife, she is my wife. That doesn’t sound good.”

12.	Dona was so upset and said she would report the matter to the village court magistrate to hear the matter and to deal with it there. Jacob continued and said. “I am the son of a crocodile and the stone of the highlands.” I saw him grabbed a bush knife, a pig’s chin bone and a spear made from a sharp iron steel fastened to a stick used purposely to pierce a pig during hunting and came out of the house. I was very sick so when I saw him coming out of the house, I got scared and moved a certain distance, stood, and watched him crossing the log bridge heading to the beach. When he arrived there, he was chasing everyone on the beach but was calmed by someone there. From there he came back to his own house and destroyed it with his cooking utensils. I left the house and went to the beach to a house wind and stayed. Then I saw Jacob crossing the log bridge and went to the other side and swearing, Cunt, excreting on the cunt, ass-hole cunt and ass-hole” to which late Nelson wanted to stop him, but he also insulted and swore at him saying, “Cunt,  you are a cunt, you will refund my sister’s K50.00” to which Nelson responded that he will refund it. But Jacob repeated swearing so Nelson got a bush knife and headed across to Jacob on that wooden bridge. I was so sick and sat there. I heard People screaming and arguing, later heard that Nelson sustained injuries to his body and died as a result because Jacob pierced him with a spear. I was shocked and worried about Nelson’s death. I am now providing this information to Police I want the Court to penalize Jacob.

13.	Exhibit P5(1) is the pidgin original record of interview conducted by police and the accused on the 17th June 2020. The English translation is Exhibit P5(2). And Exhibits P8 for Senior Constable Francis Borem of Public Safety Aitape Police Station. Exhibit P9 Detective First Constable Kelly Vavena attached to Criminal Investigation Division Aitape Police Station are the Investigator and the Corroborator who are responsible for the conduct of the record of interview and the investigations.

14.	Material evidence out of the record of interview is that on the 07th June 2020 the Accused was resident at Ulau (Munai- Babien). And knows Nelson Mungare because he is married to Michael Walai’s daughter. She is niece to Ruth the wife of Nelson Mungare. And they reside together there. Asked at question 14, “Police report reveal that you pierced Nelson Mungare with a spear used for hunting pigs. What would you say? Ans: It is not a spear for hunting pigs. I used a short bush knife. I must be honest and reveal the truth to you the police and I must admit it before the Lord as well.

15.	Question 15: Is this the bush knife? (Exhibit/Weapon -bush knife shown to the defendant), Ans: That is the one and that is the bush knife.

16.	Question 16: Police report reveal that during that time, you were holding onto a spear for hunting pigs in your hand. What would you say? Ans: That is true, I hold onto the spear for hunting pigs, but I threw it into the ocean.

17.	Question 17: Now, do you wish to glance at Nelson’s photograph with the injury sustained? Ans: Yes, that is okay. (Photograph shown to the defendant)

18.	Question 18: Is it a wound of a bush knife or what? Ans: It is a bush knife wound; I must admit.

19.	Question 19: According to Police Report, it is reveal that you used the spear to stab the cooking pot in the house. What would you say? Ans: Yes, that is true, I stabbed a cooking pot and a dish. I destroyed my own house as well. He is shown the pot and dish and confirms that he did destroy them. Which is material confirmation of what the witnesses all saw him do. And he confirms the use of the spear to this fact. But the difference is that he says it was not used any further because he threw it into the sea. And when he met the deceased, he used a bush knife that he has identified being with the police. None of the witnesses saw him throw the spear into the sea. Only one witness Michael Walai says he threw the chin bone of a pig into the sea, not the spear. It is also not clear as to how the bush knife in the possession of the police got to be there. There is no link from the Accused at the scene with that bush knife to the police. And consequently, into the production at the record of interview. It is evidence that will not discharge the balance with any doubts to the State’s case.

20.	What it intends to show is evidence that has been painted out by the accused to suit his case that he used a bush knife now with the police. That evidence would lower him to the same level with the Deceased. That the weapons were likened to each other. They were bush knives, so the force opposing was equal. There was self-defence and the accused should be acquitted as a result. Not the spear that has been identified by all witnesses of the state, that he has conveniently thrown into the sea. If it were the case that is now not the evidence of Doctor Israel Bera of the Catholic Raiho rural hospital, who says on oath that whatever penetrated the deceased is sharp but with a curved tip that upon withdrawal would have pulled out the wound as was seen. It is not made by a knife or a bush knife. Understanding the doctor’s evidence, it would seem the blade had curves at its tip like a fishhook so that straight out removal after it had penetrated would leave an outward wound as was seen here. It would be very strong able to penetrate as seen by the Exhibit P6 the postmortem report prepared by the Doctor Josephine Kipit (Locum Medical Officer) dated the 16th June 2020.  

21.	The Accused is shown and reads Exhibit P6 the postmortem report. It relates to the deceased Nelson Mungare and is of the autopsy conducted on the 11th June 2020 at 1.45pm at the Raiho District Hospital Mortuary Section. Importantly the following evidence come out of that exhibit, “Evidence of recent injuries: Has only one open wound to the upper right chest (figure 3). Appears to be situated 131.5cm from the leg and 3cm from the sternum midline. The wound appears to be punched out and is 4.5cm in length and 2.5cm in width; having a penetrating path below the punch out wound which travels through the 02nd right anterior rib, fracturing the rib and entering all the way into the lung cavity.” Figure 3 is photograph of the right upper chest wound of Nelson Mungare.

22.	The summary of the medical autopsy by the doctor is in this way; “The deceased, who is from Paup village, Aitape District of West Sepik Province of PNG, happened to be at Ulau village also in Aitape at the time of the death. He was unfortunate to be in a quarrel with the assailant, who was in possession of an unidentified weapon which managed to penetrate the upper right chest of the deceased. This event happened at approximately 10.00am on the 07th June 2020. He was rushed to the nearest health Centre but was pronounced dead by 10.00am.

23.	Visual Autopsy was conducted 4 days later at Raiho District Hospital. Upon external examination and careful measurements, the deceased has only one evidence of recent injury. This recent injury was noted to be the right upper chest wound. This wound is a punctured-out lesion however also caused a continuous penetrating wound through the right 2nd rib, fracturing it and entering into the lung cavity.

24.	It is my opinion that the weapon used may have had a sharp blade at the tip and a hook just a few centimetres from the blade tip which this weapon, with much force, had happened to penetrate the rib and into the lung cavity and when it was removed, it ripped off the skin and tissues below causing the punched-out wound.

25.	Such penetrating wounds are fatal; as body structures below the chest ribs at the 2nd ribs are such as the big subclavian artery and vein and also there are inter-rib blood vessels. Noting the fact that the wound penetrates into the lung cavity, the deceased had succumbed to death from severe blood loss into the lung cavity and also air pressure increased in the lung which is called hemopneumothorax.

26.	Haemothorax; haemo refers to blood and thorax refers to the lung cavity. Thus, haemothorax means pressure of blood in the lung cavity. Haemothorax can be fatal due to severe blood loss of more than 30% of the body’s blood volume if no appropriate intervention is done.
Pneumothorax: Pneumo refers to air, and thorax refers to the lung cavity. Thus, pneumothorax means air in the lung cavity. This condition also can be fatal when air builds up in the lung cavity, increasing the pressures and stopping the lung to expand normally which effects breathing and oxygen absorption and carbon dioxide release from the blood.
Haemo-pneumothorax; is when there is pressure of both blood and air in the lung cavity.”

27.	The opinion of the Doctor is that, based on what I have observed myself, my experience and training and the information supplied to me:
(a)	Time and date of death: 10.00am on 07th June 2020.
(b)	Place of death was Babien-Ulau village Aitape West Sepik Province.
(c)	Cause of death (direct cause or disease or condition directly leading to death: Haemo-pneumothorax.
(d)	Antecedent cause: Morbid conditions, if any, giving rise to the above causes, stating the underlying condition last; Penetrating wound to the Right Upper Chest.”

28.	Both Doctors are professionals in their field. What they depose to set out above draws from that fact. They are not related to the deceased or the witnesses who have provided the statements set out above. Nor have they come together to give evidence this morning. One has been called to explain the medical findings of the other made earlier. He has not come with the author Doctor of the report. Both have independently given the evidence each has given. Each is a very independent person schooled in his profession unrelated to each other, nor the deceased, or any others before the court. Their evidence will therefore make or break the prosecution case. They are not interested in whether the accused is guilty or not. They give their evidence driven by their medical know how and expertise. They do not qualify as does the accused at question 47 “Do you wish to make changes to the ROI content? Ans: Yes, that is regarding question #2. That is, I did not used the spear for hunting pigs. I did use the bush knife by throwing it at Nelson which stabbed on him, and he died. It is not a spear used for hunting pigs. That is all. The other information is correct.” 

29.	But this qualification does not hold water in the light of the fact that the weapon responsible for the death of the deceased described by the medical report Exhibit P6, the postmortem report prepared by the Doctor Josephine Kipit (Locum Medical Officer) dated the 16th June 2020, verified materially by the sworn evidence of Doctor Israel Bera also of the Raiho district Hospital, is not a bush knife. Because it does not have a hook just few centimetres from the tip of the blade. A spear would and so too a fishing hook.  “It is my opinion that the weapon used may have had a sharp blade at the tip and a hook just a few centimetres from the blade tip which this weapon.” This is independent verification of the account of the witnesses that it was a spear not a bush knife. The weapon that was used to kill the deceased was a spear and not a bush knife as contended by the accused. Because that is borne out by the two photographs P7(1) and P7(2) depicting the deceased facial and chest area. One with the shirt removed shows a gaping hole in the chest wall. It is a rounded circular injury not a cut as caused by a thin blade of a bush knife. This is injury that has circumference as if the weapon is a rounded weapon. It has diameter to it and is round to cause that sharp a circular wound as opposed to a thin slicing cut. And it would in all probability be caused by a spear than a bush knife comparing the blades in each case. 

30.	The Accused is a very unimpressive witness. He was the instigator of the whole chain of events that day. He was adamant that he should be allowed to take his wife to his village of Manmeri in Angoram East Sepik Province by his evidence on oath. What stood in his way was the parents of his wife. The deceased is an innocent person who is married to the aunty of his wife. He did not deserve that he should die on this morning because the Accused’s motive did not involve him. Like any other reasonable person his actions were in reply immediate to the swearing of the Accused directed to him. He was armed with a bush knife as he went to confront the accused. Who was armed with a hunting spear, iron rod mounted on a long pole. The reach of which was extended against an attacker as was seen on this occasion. Deceased was 2 to 3 meters away when the Accused lunged out and speared him in the chest. This is confirmed by the depth of the wound seen by the doctor. And the injury that endured when the spear was pulled out. And the bones within in the words of the Doctor in the report; “…having a penetrating path below the punch out wound which travels through the 2nd anterior rib, fracturing the rib and entering all the way into the lung cavity.” This supports the thrust of the spear, in particular the iron rod mounted on a pole lunged out in the manner by the Accused. It cannot be equal terms now because a spear’s reach in safeness to the wielder is clear, only the recipient is injured not he who wields and holds the weapon as here. It is a hunting spear used to hunt pigs. It takes account of a charging pig and the safety of the hunter in its use. It can be lunged at a safe distance injuring the pig killing it not the hunter being injured. And that in all probability is what happened here.

31.	 It does not make sense that there is an outward injury observed by the Doctors. If indeed a bush knife is used there would have been one way in injury. Here is injury that cuts back out described by the doctors as “punch out wound.” And that description is by two doctor both confirming a spear as the weapon used. It is common sense that a bush knife if thrusted against the victim would have cut one way, not out again. This is where the Accused is alone in his evidence. And that is because he has an interest to see a favourable outcome in his case. That is, he was acting on self defence and not intended on causing grievous bodily harm, leading to the death of the deceased. His evidence is self-serving not corroborated by any independent and material evidence to point in his favour: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). That means he has given false and belated evidence disassociating himself from the truth to avoid the guilt that is glaring against his action, build up and over to the pinnacle that day death of the deceased. There can be only one conclusion in law that he was armed with a hunting spear at that time immediately before the deceased was stabbed. That is the weapon that was in his possession that he used fatally and mortally stabbing the deceased to his death. And because of all set out above, I find as a fact that the weapon that was in the possession of the accused used to cause the injury to the right chest of the Nelson Mungare leading to his death was a spear. Not a bush knife.

32.	The effect of which is that the accused has consciously told lies to disassociate that the weapon he used was not the spear, but a bush knife. He knows that the truth now verified by the independence evidence of the doctors is that the killing was committed not with a bush knife, but with a spear which had its tip “a hook just a few centimetres from the blade tip.” And from this fact I find that the Accused has deliberately lied in the choice of the weapon that he has used to kill the deceased. I find as a fact that the weapon used to kill the deceased Nelson Mungare was a spear which had a hooked tip to it. It was responsible for the injuries in the way that the Doctors have described in their respective evidence I set out above. I find as a fact that the lies have been deliberately told to avoid his guilt in the murder of the deceased Nelson Mungare. Because lies told consciously to avoid guilt has been held to amount to corroboration of the State account: John Jaminan v The State [1983] PNGLR 318. 

33.	He has told that deliberate lie because he was not defending himself within the meaning of section 270 Self defence against Provoked Assault. He was the instigator of the provocation and the assaults, that is depicted by the aggregate of all the evidence of all the witnesses set out above. He topped that off with the eventual killing of the deceased. Because as he recounted out in no uncertain terms prior to killing, “Suck your mother’s cunt, I will kill one of you, I am son of a crocodile, I will kill one of you and I will go to my village. I will be around during the day and night.” And the repeated indecencies and foul language emanating from his lips all that morning can be seen that, he was the aggressor, and no one would stand in his way. The timid, solemn, and sober attitude of the deceased to quell that devilish, defiant arrogance of the accused brought no sense and logic to him. He saw no reason to subside until he had killed. And that is what he did. 

34.	In my view the aggregate is that there is firm and conclusive ring of the truth spiralling through the state evidence, so much so that the only credible version is that of the state which I prefer over and above that of the accused. The injuries are consistent with the use of a spear, not a bush knife. Because here the evidence of the witnesses is made in broad daylight in close quarters. It would be harmonious to read the test in Beng, The State v [1976] PNGLR 471. That what the Accused did was observed in very good lightening, at close quarters by persons who were known to him. All knew each other, there was no room for mistakes and the like to doubt what the accused did to the deceased on this day. All statements were tendered into evidence unopposed and by consent. Their veracity stands uncontradicted compared to the accused.

35.	Because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).  That is not the case against the witnesses of the State but is the case for the accused case as I have set out above. His evidence suffers that fate. It will be rejected outright that a bush knife was used to kill the deceased. It is now firm by this fact that the weapon in the hands of the Accused was a hunting spear. He lunged out with it no threat to his life taking the life of Nelson Mungare. He did not act because he was faced as was in Kwapena v The State [1978] PNGLR 316. He is not acting to self-preserve himself from imminent danger to life and limb. He had lunged out 2 or 3 meters against the deceased. That is not in self-defence. There is clear evidence of animosity by the Accused prior and leading up to the killing, James v State [2020] PGSC 39; SC1937 (24 April 2020). Which is clear from his conduct all morning to the pinnacle. He was dangerous to that community on that day early in the morning to when he killed. And was not acting in self-defence in every sense of that word in law.

36.	What is the only compound and the aggregate conclusion reasonable is that this was not in self defence but the pinnacle of the Accused’s aggressive behaviour that day ignited eventually to the killing of the deceased. There is no other reasonable hypothesis other than that fact: Paulus Pawa v The State [1981] PNGLR 498. Nor is this a case likened to Kairi v The State [2006] PGSC 8; SC831 (28 April 2006) where appellant stabbed deceased to stop the beatings that were exerted and continuing upon her. She reacted as she did to stop deceased continuing the assaults upon her with their children, therefore had defences that came out of her allocutus of provocation, self- defence, and causation. The Supreme Court set aside the verdict and sentence and ordered a re-trial. That is not the facts, nor the circumstances of this case set out by the evidence I have set out above.

37.	Quite the contrary the spear was held in readiness even before Nelson Mungare coming onto the scene. He reacted because he was uttered indecencies with his mother by the accused. Any person within the hearing was offended as was the deceased. And this was the conduct of the accused that day particulars all set out by the witness above. He could not be said to be provoked within the meaning of Angitai v The State [1983] PNGLR 185. Because he was the initiating and igniting party. He had drawn out the spear long before he uttered the indecencies to the deceased. I have no doubt in my mind that on the 07th June 2020 at Babien Ulau village the Accused lunged with the spear in his hand stabbing Nelson Mungare in the chest piercing the right lung from which he bled to his death. That at the time that he did this he had the intention to cause grievous bodily harm upon him, because that is what he uttered which I have set out above. He wanted to kill one of the persons there. And one of the persons of the many that he acted violently on that day was the deceased. 

38.	His evidence in defence on oath given all I have set out above do not improve his defence. He basically stated that he cut the deceased with a bush knife not a spear. And it was culmination of the fact that he wanted to take his wife back home to where he originated from in Angoram. And the parents of his wife was always in the way stopping him from doing that. It is not one of the parents of the wife who is injured and dies as a result, but an innocent person married to the aunty of his wife, husband of Ruth Nelson Mungare. The State in my view has discharged the burden of proof beyond all reasonable doubt that Accused pierced the right chest of Nelson Mungare with the spear intending to cause grievous bodily harm. And as a result, he died. Jacob Maran is guilty as indicted of murder pursuant to section 300 (1) (a) of the Criminal Code. He will be remanded to await his sentence.

39.	Verdict: Guilty of Murder pursuant to section 300 (1) (a) Criminal Code Act.

Ordered accordingly.

Public Prosecutor:  Lawyers for the State	
Public Solicitor   : Lawyers for the Defendant