N10562

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 152 OF 2023

THE STATE
V
GREG BRUNO

Lorengau: Batari, J
2023:	13th June, 13th July

CRIMINAL LAW-Willful Murder – Evidence – Accused cut deceased with bush knife – Findings of facts – Defence of self-defence – Principles of – Whether accused acted in self-defence – Onus to show defence of self-defence – Objective test – Accused cut deceased who was not offering any threat – Onus to show accused acted in self-defence not discharged – Provocation – Evidence of – Strong evidence accused killed deceased under provocation – Verdict of not guilty of willful murder and guilty of murder appropriate.
Facts 

The accused killed the deceased in the circumstances of self-defense raised in his defence. This is the verdict following a trial on the defence of self-defense.

Held:

1.	When the defence of self-defense is raised, the question must be decided on the whole of the evidence with the defence having the onus of proof on the balance of probability before the burden shifts to the prosecution to disprove the defence beyond reasonable doubt. If the defence of self-defense fails then, no further consideration is necessary.
2.	Where on the charge of willful murder, the defence of provocation is open on the facts, it can reduce a conviction on willful murder to murder or manslaughter. 
3.	The defence of self-defense is not made out by the accused. However, I am satisfied the accused had reacted in attacking Augustine in the heat of passion from the prevailing facts where he was confronted and attacked by Juan.
4.	The accused was acquitted on the willful murder charge but convicted on murder by reason of the defence of provocation. 

Cases Cited:

Papua New Guinean Cases
R v Kaiwor Ba [1975] PNGLR 90
R v Korongia (1961) N204; [1961] PGSC 3
R v. Korongia [1961] No. 204 
R v. Kristeff [1967] No. 445; [1967] PGSC 56

Overseas Cases
Chan Kau v R [1955] 1 All ER 266  
R v Kerr [1976] 1 NZLR 335
R v Muratovic [1967] Qd R 15

Counsel:
Mr P Kaluwin, for the State
MR K Pokiton, for the Accused

VERDICT
13th July 2023

5.	BATARI J:	The accused, Greg Bruno stands charged that on 24/8/2021 at So’uh Village, Manus Province, he unlawfully killed Augustine Paiawi. State alleges that Greg cut Augustine on the neck with a bush knife intending to cause his death and because Augustine died, Greg is guilty of willful murder. Greg concedes the killing but raises self-defence. 
Issue
6.	The core issue then is whether Greg killed Augustine in self defence.

Statutory Defence of Self-Defence
7.	Sections 269 and 270 of the Criminal Code provide for the statutory defences of self-defence. Section 269 authorizes self-defence against unprovoked assault while s. 270 is a defence against provoked assault. It is unclear which one of these defences the accused relies on. However, the evidence suggests, Greg retaliated against an unprovoked assault.
8.	Thus, the defence of self-defence under s.269 of Criminal Code Act may apply.  It 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.”
9.	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.
10.	It is settled, the Court must be satisfied on the existence of these conditions on the facts to establish self-defence on the balance of probability, the accused having the onus of proof. He need not establish such a defense affirmatively but must point to aspects of the evidence which could induce reasonable doubt: R v Kerr [1976] 1 NZLR 335. 
11.	Once the evidence is shown to have raised a possible defense of self-defense, the onus shifts to the prosecution to negative that defense beyond reasonable doubt: Chan Kau v R [1955] 1 All ER 266. If the prosecution fails to negative the balance of probability 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 
12.	The evidence of Greg chopping Augustine with the bush knife is common to both sides. The incident occurred some 220 meters away from the home of the deceased, near a tree and a ‘V’ bush track junction and to some extent, in a secluded location. The incident occurred at twilight before or after 6.00pm. All along, the accused was armed with a bush knife.  
13.	I am also satisfied that Greg chopped Augustine once on the neck and that Augustine died after some time, a distance away from the site of the attack. I find, those at the scene were three male adults: Augustine Paiawi, his brother and prosecution witness, Juan Paiawi and the accused, Greg Bruno. I think defence child witness Martin Kanawi was most likely, also presence. His evidence is not seriously challenged by the prosecution in cross-examination and in the summing up address.     
14.	On the whole of the evidence, the story on events precipitating the killing and the motive is not as clearcut. The issue of who initiated and delivered the first blow is also hotly contested. The answer will determine if self-defence is fairly raised under s 269 (self-defence against unprovoked assault) or under s. 270 (self defence against provoked assault).  
15.	Of the two possible versions on the facts surrounding the killing, the prosecution’s story is in four segments: (i) Before the incident, Augustine sent Juan to Richard to borrow his diving torch as they plan to go night diving. Juan remained with Richard for some time. (ii) While returning from school along a bush track, Rachael Richard (daughter of Richard) saw the accused armed with a bush knife. She was scared and retreated to Augustine’s home. (iii) Augustine stopped sweeping under the house to accompany Rachael to her house. He took the broom with him. They possibly walked past the site of the killing. (iv) Augustine and Juan left Richard’s home, with Juan walking ahead of Augustine. At the ‘V’ track intersection next to a tree, Juan greeted Greg and continued walking. He looked back and saw Greg attacking his brother Augustine with the bush knife. Juan retaliated and attacked Greg with a hoe, but Greg evaded the blow. It was still light when Greg attacked Augustine. When Juan located Augustine’s body, it was already dark.
16.	The version by the accused is that he went to the garden with child Martin Kanawi. Around 6.30pm to 7.00pm Augustine and Juan confronted him. Augustine was armed with a bush knife and Juan with a piece of wood. They were not happy with him gardening on a land over which he has a standing dispute with them. While Augustine was talking to Greg, Juan hit him above the left eye with the wood. Greg retaliated by cutting Augustine with the bush knife. He then fought briefly with Juan before Juan and Martin fled the scene. It was then nighttime.
17.	The testimonies of the other prosecution and defence witnesses are on peripheral issues that are insignificant to the central issue on the statutory defence of self-defence. It is not necessary to restate them.      
Submissions by Counsel
18.	Defence counsel, Mr Pokiton submitted that the accused has fairly raised a defence of self-defense in his version of facts which the Court should accept as highly probable. The Court should find on the facts, Juan first attacked Greg and Greg retaliated. He attacked Augustine with the bush knife in an instinctive reaction to the assault by Juan. He acted in defence of his own life and that of his companion, Martin. He had reacted to the violence that was presently being offered and had struck the deceased in self-defence to preserve himself and Martin from death or grievous bodily harm.
19.	For the State, Public Prosecutor Mr Kaluwin submitted, the defence of self-defence fails on two propositions. First, 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, will support a possible defence of self-defence.  So, the prosecution is not required to negative that defence beyond reasonable doubt.  
20.	The State’s second contention is, that there is overwhelming evidence to show, the attack did not occur as recounted by the accused. Juan and his brother Augustine were returning home along a bush track when Greg confronted them and attack Augustine with the bush knife. He aimed and swung the weapon at the neck of the deceased. The location of the injury on a vital part of the body supports an intention to kill. Hence, the prosecution has discharged the onus on the required standard of proof. 
Reasons for Decision
21.	When the defence of self-defence is raised, the question to ask is whether there is any evidence before the Court 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. This question must be decided on the whole of the evidence. If there is no evidence of self-defence, then the defence fails and no further consideration is necessary.
22.	In assessing the evidence in this case, it is pertinent to make a finding of fact on whether the accused cut the deceased in an unprovoked assault. As the prosecution submitted, the question of who attacked first will decided whether the accused acted in self-defense against an unprovoked assault, or he reacted against a provoked assault. The issue of motive is also a relevant issue to make a finding of fact on.
23.	It is clear from the whole of the evidence, a land dispute between the parties in this case was the underlying cause for the killing. The land dispute was initiated by the accused and his clan against August, Juan, Richard, and their clan. The evidence suggests, the clan runs along the father’s line in a patrilineal society of which Manus Province, I think, is one.
24.	I accept the defence version that Augustine and Juan confronted Greg because he was farming the land in contempt of the dispute proceedings that was still pending mediation. Augustine was berating Greg over his actions when Juan attacked him.
25.	The defence version is consistence with logic and common sense. Augustine and Juan would have a perfect motive to attack Greg where he was gardening on the disputed land. Juan, I find, gave guarded and evasive evidence on the issue of land dispute. He said nothing about it in his evidence in chief until towards the end as follows:        
	Q. Is there any other reason why Greg would attack Augustine?
	A. I think there is no other reason, it may because of a land issue.
26.	In cross-examination, he meekly denied the land issue being the cause of the attack on Greg by him and his brother Augustine. The killing when seen in the context the land dispute, makes the story of the prosecution witnesses highly suspicious. 
27.	This is what I think, was the most likely scenario. The child Rachael saw Greg gardening and she reported the incident to Augustine. Her story of being frightened at the sight of Greg with the bush knife and of being afraid at the sight of anyone in the village holding a bush knife, is most incredible and highly improbable because bush knives are synonymous with a typical village life. 
28.	The evidence which suggested that Augustine hastily abandoned his domestic chores to escort Rachael to her home, still armed with the broom, begs the question of the underlying urgency of his reaction. It is possible, Augustine and Juan had gone to consult Richard, a male member of their mother’s clan. Their father was from Mendi, Southern Highlands Province so, they have no immediate or direct inheritance claim to the land in dispute. The two men then left to confront and attack the accused.        
29.	There is some evidence and I accept that Greg was unlawfully assaulted prior to the killing. I am also satisfied that, he had not provoked the physical assault, albeit his act of farming a disputed land provided the impetus for the attack on him by Augustine and Juan.
30.	In essence, the accused must show or point out from the evidence that he had not provoked the assault and that, the assault on him was such as to cause reasonable apprehension of death or grievous bodily harm. He must further show that, he believed on reasonable grounds, it was necessary for him to use force which he in fact used to preserve himself from death or grievous bodily harm. As was said in, R v Muratovic [1967] Qd R 15, adopted in R v Kaiwor Ba [1975] PNGLR 90:
"The person using force in self-defense 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."
31.	Whether or not the accused believed it was necessary for him to strike the deceased with the bush knife to preserve his own life or that of another person is an objective test.  The accused must show the other person was assaulting or about to assault him with such violence which caused him reasonable 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.
Whether the accused Greg Bruno acted in self-defence?
32.	The defence of self-defence is raised in the testimony of Greg, that after Augustine berated him over gardening on a disputed land, he was surprised when Juan hit him above the left eyebrow with a piece of wood.  He feared for his safety and that of Martin, so he swung the bush knife at Augustine who was armed with a bush knife, in defence of the two of them.
33.	That is the highest the accused has put his defence.  If his story is accepted, then the nature of the assault may be such as to cause reasonable apprehension of death or grievous bodily harm.  
34.	I find Greg’s assertions that he cut Augustine in retaliation of the attack on him by Juan fanciful because, Augustine was not the attacker, and he did not say Augustine was about to use the knife on him and he reacted to that threat. His evidence is, that he cut Augustine because Augustine might use the knife against him. His apprehension was not due to any real attack posed by Augustine. The violence or threat of violence no longer existed after Juan left. The accused was no longer placed in any imminent danger.  
35.	It is settled, the essence of self-defence is, that violence is presently being offered in the sense of actual assault under s 243 of the Criminal Code: R v Korongia (1961) N204. I am not satisfied that Greg was facing any immediate danger or threat from Augustine. Hence, it was unnecessary for him to use the bush knife against an unarmed adversary. 
36.	It can also be seen that the force used by the accused on Augustine was unreasonable. And it is possible, Augustine was not armed with a bush knife because if he did, he would have highly likely attacked Greg with it. 
37.	In any case, if Greg was suddenly attacked by Juan as he spoke of, it is likely the impact would have thrown him off balance or he would fallen unconscious. I am nevertheless satisfied; Juan and Augustine had a motive to confront Greg over his gardening on a disputed land and that Juan proceeded to attack Greg with a piece wood as a weapon. 
Conclusion 
38.	I find that the accused has not raised the defence of self-defence to the requisite standard.  In the end result, the defence of self-defence fails.
39.	I have also considered whether the defence of provocation is open on the facts as submitted by the defence. If successfully raised, it can reduce a conviction on willful murder to murder or manslaughter. I accept Juan attacked Greg in the manner that Greg described. I am satisfied in that regard that Greg had reacted in attacking Augustine in the heat of passion from the prevailing facts where he was confronted and attacked by Juan. The defence of provocation in my conclusion is open to Greg on the facts.
40.	I find the accused not Guilty of Willful murder but guilty of murder. He is convicted accordingly.
__________________________________________________________________Public Prosecutor:  Lawyers for the State		
Public Solicitor: Lawyers for the Accused