SC1537

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA No. 22 OF 2013
SCREV. Nos.47, 48 & 49 OF 2013.

BETWEEN:

REX PALIAU, BRIAN PALIAU,
EMMANUEL PALIAU & ELIJAH KILACH
Appellants

AND:
THE STATE
Respondent

Kokopo & Lorengau: Kirriwom, J, Ipang, &Pitpit, JJ
2015:  28th October
2016: 19thApril

SUPREME COURT – Appeal  - Appeal against conviction for wilful murder – Proof beyond reasonable doubt – Evidence not adequate to satisfy conviction for wilful murder – Failure to consider provocation as defence- Self Defence raised under Section 271 of Criminal Code – Not negatived – Reasonable doubts raised–Failure to identify which subsection of s 7 of the Criminal Code the evidence supported – Convictions unsafe and unsatisfactory – Appeals upheld – Convictions set aside – Criminal Code,ss.7, 299 & 271

Facts
The appellants were convicted of wilful murder and sentenced to 20 years imprisonment. They appealed against their convictions contending that the trial judge erred in convicting them of wilful murder when the evidence before the court was such that he could not be satisfied beyond reasonable doubt of their guilt of the charge.

The only issue in this appeal is, after all the evidence in the trial from both the State and the defence was placed before him, regardless of who was telling the truth and who was lying or who the trial judge believed and who he disbelieved, fairly and properly analysed and considered, could His Honour have been satisfied beyond reasonable doubt of the guilt of all the appellants on the charge of wilful murder or even murder?
Held: (upholding the appeals) that-
(a)	The entire chain of events leading to the stabbing of the deceased was triggered as the result of provocative acts or deeds (which are undisputed) of the deceased and his drinking friends trespassing into the appellants’ home while under the influence of alcohol, assaulted Rex and Emmanuel, tried to remove private properties like TV, boat and motor and even snatched Emmanuel’s bag and Rex’s mobile phone and took them away. Brian Paliau as father and head of the house was provoked by those very deeds to accept the challenge and went to confront the boys armed only with his torch.

(b)	Death resulted because the deceased first attacked Brian Paliau with a weapon described as sickle or a bush knife but Brian ducked and fell down and the sickle missed him, and as he attacked Brian the second time Emmanuel cut him with a bush knife on his chest. Even if the credibility of this story is doubtful, there is no other independent evidence to contradict the appellants’ version except the doctor’s opinion which is merely an opinion based on a hypothetical situation, not on contrary evidence from an eye-witness. 

(c)	Evidence in the Defence case had cast enough serious doubts on the veracity of the prosecution case such that no reasonable tribunal of fact could safely convict on such evidence.

(d)	Trial judge failed to apply his mind to provocation as defence as the motive for Brian Paliau going after the youths concerned as opposed to revenge.

(e)	Trial judge paid only lip-service to the defence of self-defence under section 271 of the Criminal Code squarely raised by the defence and not rebutted by evidence to the contrary. Consequently, the State did not negative beyond reasonable doubt self-defence as raised. Even if disbelieved, there were sufficient doubts created that no reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the appellants.

(f)	Not one iota of evidence implicating Rex Paliau and Elijah Kilach allegedly seen at the crime scene as far as section 7 of the Criminal Code is concerned. It was not so much a case of circumstantial evidence in that their sighting at the scene was not at the time of stabbing of the deceased but some minutes after the stabbing.

(g)	His Honour appears to have misdirected himself on the facts by leaning too heavily in favour of the prosecution theory of the case thereby deprived himself of the opportunity to appreciate the true scenario in the case which stemmed initially from provocation that triggered the confrontation that led to the killing.

(h)	His Honour was not all too certain himself in his handling of the trial because at some point in his judgment he appears to be discussing a case of murder and not wilful murder which prompted learned Public Prosecutor to enquire with him at the end of his 30 page judgment to clarify what His Honour’s verdict was for, murder or wilful murder. In the same uncertain manner His Honour stated it was Wilful Murder.

(i)	His Honour was obliged to identify or pin-point to the evidence which supported reliance on s 7 of the Criminal Code and the subsection of section 7 of the Code applicable, neither of which he did, at [43-52];

(j)	Consequently conviction against each appellant is quashed and set aside and verdict of not guilty is entered.
Full facts are in the judgment.

Cases cited:
Agiru Aieni v Paul T Tahain [1978] PNGLR 37
John Jaminan v The State (No.2) [1983] PNGLR 318.
PLAR No 1 of 1980 [1980] PNGLR 326
R v Kaiwor Ba [1975] PNGLR 90
R v Nikola Kristeff [1967] PGSC 56
The State v Saikoro Norman [1979] PNGLR 599
The State v Sailas Aita Anjipi [2007] N4963 (16 March 2007

Counsel:

P. Bannister, for the State
Appellants, in Person

19th April, 2016

1.	BY THE COURT: The appellants appealed against their convictions on charges of wilful murder under s 299 of the Criminal Code.  On 25th June 2013, Brian Paliau, Rex Paliau, Emmanuel Paliau and Elizah Kilach were convicted of wilful murder by the National Court here in Lorengau and were each sentenced to twenty (20) years imprisonment.  The sentences were imposed on 28th June 2013.

2.	The appellants lodged their appeals on 5th August 2013 only days before the expiry date of the time allowed by law to lodge an appeal against the decision.

3.	In October 2015 the appellants appeared in Kokopo and prosecuted their own appeals.

GROUND OF APPEAL

4.	In their respective notices of appeal the appellants have uniformly grounded their appeal is these terms.

“His Honour erred in convicting me and my co-accused on the charge of wilful murder under Section 299 of the Criminal Code Act when there is insufficient evidence to convict on it.  His Honour did not consider the alternative verdict of murder available to him under (sic) Section 539 of the Criminal Code Act and convicted me and my co-accused namely ……..”

5.	There is only one ground of appeal which is that His Honour had erred in returning a verdict of guilty of wilful murder when the evidence was insufficient to sustain that charge.  And the appellants contend further that His Honour did not even consider the possibility of a murder conviction on the evidence presented before the Court.  We address the ground fully in the judgement under the headings Provocation and Self-Defence.

6.	We heard counsel on behalf of the State after hearing the appellants’ spokesperson. The appellants were representing themselves. Mr. Bannister for the State strenuously argued that the conviction was supported by evidence and there was no reason or basis for this Court to interfere with the trial judge’s decision. We disagree and our reasons are stated in the judgment.

7.	Brian Paliau, as spokesperson, for himself and the other appellants argued that the conviction was wrong because the trial judge failed to fully consider the defence case in the context it was presented in that he was provoked when he went to the place where this incident took place and that Emmanuel Paliau was acting in self-defence when he attacked the deceased Don Siku who struck first but missed him (Brian). And further Rex Paliau and Elizah Kilach were not involved in this trouble at all.  He submitted they were therefore wrongly convicted of wilful murder.

GENERAL OBSERVATION BASED ON EVIDENCE IN THE TRANSCRIPT

8.	Throughout this trial in the National Court, the trial judge appears to have locked or anchored himself firmly to the position he was invited to by the prosecution to view and treat this entire case. And it starts with the way the State case was placed before the trial judge from the brief facts presented for purposes of arraignment of the accused. We set out verbatim from the Appeal Book:

8.1 “On the night of 5th August 2012, the accused persons all armed with dangerous weapons namely fishing guns and bush knives went to Ward 1 in Lorengau Town. The reason for them going there was to retrieve a bag that was alleged to be owned by Emmanuel Paliau which was allegedly taken by the deceased and other persons.

8.2 State alleged that when they went to Ward 1 they found the deceased and flashed a torch in his face. There Emmanuel Paliau cut the deceased on his chest with a bush knife. When Emmanuel Paliau cut the deceased he had the intention to kill him.

8.3 State further alleged that when the accused persons went in search of the deceased or those other persons who are alleged to have taken Emmanuel’s bag and being armed with dangerous weapons, intended to cause the death of the deceased or had intended to go and kill him. State also invoked section 7 of the Code by alleging that notwithstanding that only one accused struck the deceased with a bush knife, each of them is equally guilty as principal offenders as they were all armed with dangerous weapons and all had gone there with the intention to kill, whether it was Don Siku or any one of those boys who took Emmanuel’s bag.”

9.	That is the State’s view of the case based on those facts presented. However, at the close of the prosecution case after all the evidence in the State case had been led, State established the following:

a.	Brian Paliau was seen at Maggie Sulai’s store where he flashed his torch on Don Siku who swore at him. Patricia Kandu saw this and retreated into their house, (most probably not wanting to witness any physical confrontation between them). See Patricia’s testimony in the Appeal Book.
b.	It was at that location Emmanuel Paliau struck Don Siku with a bush knife. See confessional statements of Brian Paliau and Emmanuel Paliau in the Appeal Book.
c.	Brian Paliau was only holding a torch in his hand. This is uncontested by all those State witnesses who saw him at close range except Maggie Sulai.
d.	Mark Florian heard commotion at Maggie Sulai’s place but did not know what it was until Brian Paliau holding a torch and Emmanuel holding a bush knife came upon them. 
e.	Brian demanded the return of Emmanuel’s bag that was hanging on Junior Simeki’s side but they lied to him and they left. 
f.	Half an hour later they learnt that Don Siku was wounded.
g.	Danny Simeki Junior saw Don Siku leave their group to buy smoke and proceeded to Maggie Sulai’s store.
h.	Sometime later he saw Brian Paliau and Emmanuel Paliau appear where they were with Brian holding a torch and Emmanuel with a bush knife.
i.	He also saw someone like Rex and Elijah disappearing in the darkness with a Wenai man but did not see their faces clearly.
j.	Maggie Sulai saw Brian Paliau and his sons, all armed, walking towards their house while she was returning from Pere Camp where she had been.
k.	Dr Otto Numan gave evidence of his findings contained in the post mortem report that was tendered into evidence. 
l.	He also expressed his opinion on the possible murder weapon and the amount of force and the manner of delivery of the blow.

10.	At the close of the State case, this is all the evidence against all the accused. Apart from confessional statements by Brian Paliau and Emmanuel Paliau that had already become evidence in the State case, there was hardly any direct and independent evidence against any of them. There was evidence only of fleeting glance of Rex Paliau and Elijah Kilach at the scene but that was after the attack on the deceased had taken place. There is no evidence that they were anywhere near the scene of the attack supporting and encouraging Emmanuel to carry out this attack. There is no evidence that Emmanuel knew of their presence.

11.	At that point in time the trial judge had no evidence implicating Rex Paliau and Elijah Kilach independently from their record of interview where Elijah admits to arriving at the scene after the attack on the deceased where he took Emmanuel home. There was appropriately made a ‘no case’ submission for Rex and Elijah which was rejected by the trial judge. It is significant to note here that at this juncture, the no case submission was rejected even without a view being taken. 

12.	A view is normally taken at the close of the prosecution case but in this case no view was taken and still the trial judge was comfortable to reject a no case submission. The purpose of the view is to ascertain whether, the prosecution case is strong enough to require the defence to elect” whether, to give evidence or not. A view taken at the close of the defence case when all the evidence had been led is rare. This is what happened in this case. It could be seen as a mere confirmation of earlier rulings or decisions by subsequent evidence tendered in the trial. Taking a view is direct evidence of the scene of crime by the court.

13.	When the defence was required to give evidence, both Rex Paliau and Elijah Kilach chose to remain silent while only Brian Paliau and Emmanuel Paliau gave sworn evidence. In a nutshell, both their evidence can be summarised as follows:

a.	Earlier that day on 5 August 2012 about 5pm the deceased Don Siku, Danny Junior Simeki and friends who had been drinking at West Irian camp assaulted Rex and Emmanuel Paliau at their place and threatened to steal their household belongings when angered by drink called homebrew that Emmanuel sold to them that they claimed was a fake. They wanted their money back. 
b.	In that confrontation Junior Simeki took Emmanuel’s bag which had his mobile phone. They returned to their area. Emmanuel rang his father and informed him of what happened. Brain Paliau and his wife were attending the funeral of Brian’s mother.
c.	Brian Paliau hurried home and after taking stock of what happened he informed his children to remain at home while he proceeded to West Irian camp to retrieve his son’s bag and mobile phone.
d.	Notwithstanding his instructions, Emmanuel Paliau followed after his father holding a bush knife. As Brian reached Maggie Sulai’s store, his torch shone on Don Siku who swore at him and swung at him with what was described as a sickle. 
e.	In trying to avoid being hit by the weapon, Brian fell down because of his bad leg. When the deceased tried to swing second time while Brian was on the ground, Emmanuel struck with his bush knife and caught the deceased on his chest. Emmanuel says he only swung to save his father from being killed by the deceased who had this sickle in his hand. When Brian saw Emmanuel he told him to desist from further attack of the deceased.
f.	Then they all walked together to the cement floor where the boys have been sitting and having their drink throughout the day. 
g.	Some of the boys wanted to fight Emmanuel and he was whisked away from there by Elijah.
h.	Brian asked for his son’s bag and phone but Danny Junior Semeki lied about seeing the bag and the phone. Brian realised that he was not getting anywhere with the boys as they became more and more aggressive so he left as well.

PROVOCATION

14.	The trial judge anchored himself to the position that the killing was unlawful at the outset as alleged by the State and throughout the trial and from the testimonies of State witnesses he tried to look for evidence to support the prosecution view. In reality however, after all the evidence had been led, there was very clear picture that the whole incident was orchestrated and triggered by Don Siku, Junior Jemeki and their friends who caused much disturbance at Brian Paliau’s residence and assaulted his sons, and not only that, but they also took his sons’ bag and mobile which indirectly was an invitation to challenge. It was very clear that this was a clear case of provocation.

15.	Provocation is a defence in a charge of wilful murder or murder which if upheld has the effect of reducing a charge of wilful murder or murder to manslaughter. Provocation can be a complete defence that can exonerate an accused person from criminal culpability even in a charge of manslaughter in an appropriate case: see The State v Saikoro Norman[1979] PNGLR599 and PLAR No.1of 1980 [1980] PNGLR 326.

16.	It is therefore imperative on the part of a trial judge to direct his mind to the defence where it is either raised or where the evidence points in that direction or where the overall circumstances of the case show elements of that defence being present. In this case, even from the prosecution opening remarks, there was a likelihood of provocation being the basis for what transpired in the end. That likelihood could not and ought not to be ignored. 

17.	After analysing the evidence presented in the trial and perusing the trial judge’s decision and his reasoning, we are of the opinion that the decision of the court below was reached as the result of a lop-sided appraisal and consideration of the entire evidence presented in court at the end of all the evidence tendered by both prosecution and defence. We too therefore hold the same view that properly analysed, in the light of the entire history of this case based on the evidence tendered in both the prosecution and defence case, the trial judge could not have been satisfied beyond reasonable doubt on the guilt of each accused. Even if he did not believe the defences’ only two witnesses, he still could not be satisfied beyond reasonable doubt because apart from the only eye-witness account of what exactly happened to the deceased Don Siku at the scene of crime, there was no other eye-witness account of the manner in which the deceased was attacked. He ought to have had reasonable doubts after rejecting the defence explanation. We explain elsewhere why Dr Otto Numan’s opinion is not evidence to substitute an eye-witness version that is rejected by the court if the doctor’s opinion is not supporting another eye-witness account, be it prosecution or defence witness. And this was the case here.

18.	We are of the view that the trial judge had fallen into error when he misconstrued the evidence of Brian Paliau going to retrieve his son’s bag and mobile phone from Don Siku and others as providing a motive for wanting to killthe deceased when in fact he was responding to an act of provocation or he was provoked to go after the boys to retrieve what was rightly his son’s property. There was nothing unlawful or sinister about that trip so why his innocent trip should be classified as motivated by ill-will and bad motive when he was the victim of an earlier attack by the deceased and his friends?

19.	 His Honour makes these findings as set out in page 252line 15 of the Appeal Book:

“Brian and his son Emmanuel Paliau’s 60 metre walk from their house to go and retrieve the bag and mobile phone during the night, armed with a bush knife, suggests aggressiveness and determination on their part. Their only reason for attempting to receive the mobile phone that night as a matter of urgency was to stay in contact with their haus krai relatives.His reasoning did not hold water and was flawed when they admitted during aggressive cross-examination that there were other mobile phones available, including the house access phone at their disposal. Both Emmanuel and his father in my view had told alie in their oral and documentary statements. The above discourse suggests determination on their part to go and take revenge on the youths who assaulted Rex and Emmanuel and attempted to ransack their house in the afternoon as alleged. The first person they came upon happened to be Don Siku who bore the brunt of their anger and viciousness, causing his death, ample evidence proving intention to cause harm.In the absence of any other evidence to the contrary, I have no reason to doubt and find the presence of motive in this murder.”

20.	At no time in his entire judgment did the trial judge make any reference to provocation or Brian Paliau being provoked to go after those youths who were drinking that day and assaulted his sons, walking into his house, ransacking it and attempting to walk away with their household items. It is parting company with reality for anyone to interpret and regard Brian Paliau’s decision to go after the youths who did those unacceptable things to him and his family as one of revenge. Revenge for what? There is no evidence that his mission was for revenge which was to kill one of the youths. There is no evidence of any pre-planning by Brian and his family to go and kill one of the boys. If His Honour’s use of the word “revenge” was to assault one of the youths, then at the highest the proper verdict would have been murder. But whether he went with a view for revenge or simply to retrieve his son’s bag and mobile phone, what cannot be stripped from him or denied him is that he was acting under provocation to go on that 60 meters mission to confront those youths who disturbed the peace in his house and left two of his children nursing their injuries when he got home. And as if that was not enough, the youths even took away Emmanuel’s bag and mobile phone. 

21.	It is not a matter of whether there were other phones in the house that the family could use to keep in touch with the relatives in the haus krai. Those boys had no right in the first place to remove that bag from Emmanuel and there was nothing unlawful for Brian Paliau going to confront the youths concerned to demand the return of the bag and phone. By failing to consider provocation as defence that could have reduced the charge of wilful murder to murder or manslaughter, the trial judge erred and the trial miscarried. Section 267 of the Code provides:

“267.	Defence of provocation.
(1)	A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—
(a)	is deprived by the provocation of the power of self-control; and
(b)	acts on it on the sudden and before there is time for his passion to cool,
if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2)	Any question, whether or not—
(a)	any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or
(b)	in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or
(c)	any force used is disproportionate to the provocation,
is a question of fact.”

22.	In our view Brian Paliau was acting under provocation after he and his wife arrived home following a telephone call from Emmanuel when drunken youths with evil intentions invaded their home, after taking stock of what happened, particularly seeing his sons nursing injuries sustained from the assaults by those youths and decided to go after those boys immediately. He was acting in the heat of passion as he was deprived of his power of self-control.

23.	If common sense were to have prevailed in the circumstances of this case, this is the only logical explanation for his behaviour. He cannot have gone there with deliberate intent to kill any one just because his two sons were assaulted, that is nonsense, but to demand the return of his son’s bag and phone. Any ordinary Papua New Guinean in his position would have done the same thing and it is not wrong. If the entire case was seen in this light, the whole incident was fuelled by provocation that the evidence cannot sustain a charge of wilful murder and His Honour could not be satisfied beyond reasonable doubt of the guilt of the accused. 

24.	The fact that His Honour failed even to direct his mind to the defence of provocation amidst overwhelming evidence is clearly an error of law and as such the conviction must be quashed and the appeal upheld.

SELF- DEFENCE

25.	If His Honour had kept an open mind and looked at the defence of self defence under section 271 raised by Emmanuel Paliau, that defence was supported by strong evidence and not rebutted by any other eye-witness account so he could not have been satisfied beyond reasonable doubt of their guilt. 

26.	His Honour did not seriously apply his mind to the defence of self-defence raised by Emmanuel Paliau.  His Honour made these remarks on self defence:
“I touch on self defence as that was raised.  In his confessional statement, Emmanuel said he followed his father to the boys who took the bag, armed with a broken handle, rusty knife.  He saw the deceased, swung the knife at him in his hand and his father fell backwards.  He then swung the knife in his hand to disturb the deceased but felt the knife land on something.  It was dark so he could not see where the knife landed.  Emmanuel’s version of events during oral testimony was quite different.  He swung his bush knife at the deceased as he was leaning over his father to cut him with a sickle.  Emmanuel’s father also told court the same version.  However, the post-mortem report findings and observations by Dr Otto Numan gives light to Emmanuel and his father’s version of the attempted attack on Brian’s life.

According to the doctor, the angle and impact of the knife would is indicative of the weapon being used by a person who was right handed frontally upon the deceased aimed obliquely and inferiorly.  These professional findings rule out all doubt that the deceased was attacked whilst standing upright and not leaning forward a s described by Emmanuel and his father.  I will discuss whether the deceased was armed with a weapon – sickle and I heard sickle later on.  I do not accept their version of events.

I uphold State’s submission that Brian and his son, Emmanuel, were not telling the truth in their respective oral testimonies.  The version of events given to the police in their record of interview was quite different.  Emmanuel’s statements suggest clearly that he acted deliberately and that he knew at the time of the attack what he had done.  He used the bush knife in his hand and slashed Don Siku on his chest causing his death.

Dr Otto Numan, in his post mortem, gives light to Emmanuel’s claim that he did not use much force in the process of defending his father.  The evidence shows that the deceased’s ribs; the second rib, third rib, fourth rib, fifth rib and sixth rib were all cleanly cut with a sharp knife which penetrated into the plural cavity.  This is evidence of considerable and deliberate force, I am therefore not convinced that Emmanuel used reasonable force and acted in good faith in his aid to his father.  I quote the case R v Kaiwor Ba [1975] PNGLR 90.  I find no justification in the use of massive force by the accused.

The prosecution has discharged the onus of disproving this element of aiding in self defence hence this defence does not apply.  Was Don Siku armed with a sickle or a half moon shaped knife? With exception of Emmanuel and his father, Brian Paliau, none of the State witnesses saw the deceased armed with a sickle.  Patricia, who was the last person to see Don Siku alive minutes before being slashed by Emmanuel, testified that he was not armed when he came to her market and asked to buy smoke.  She said when Don walked away, he saw Brain shine torch into his face, causing her to hurriedly retire into her house in fear.  Although she did not tell court what caused her to be scared and retire to her house, there is strong circumstantial evidence suggesting that a fight was about to break out.”

27.	He placed too much emphasis on the evidence of the medical doctor Dr. Otto Numan, and rejected the defence version when there was no eye-witness account contradicting the story given by the accused Emmanuel Paliau.  Dr. Numan’s evidence was merely his opinion based on his recollection of the wound he saw on the deceased’s body.  His opinion cannot substitute an eye-witness account. If his opinion clashed with defence evidence, and the judge disbelieves the defence story, doctor’s opinion does not take precedence over the explanation given by the accused even if the judge disbelieves the accused. All it does is it creates serious doubts in the story given by the accused but his opinion cannot substitute the witness’s testimony unless there is already evidence consistent with the doctor’s opinion from another source. Otherwise the trial judge cannot be satisfied beyond reasonable doubt on such evidence.

28.	Section 270 of the Code states:
“270.	Self-defence against provoked assault.
(1)	Subject to Subsection (2), when—
(a)	a person has unlawfully assaulted another person, or has provoked an assault from another person; and
(b)	the other person assaults him with such violence as—
(i)	to cause reasonable apprehension of death or grievous bodily harm; and
(ii)	to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,
the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.

(2)	The protection provided by Subsection (1) does not apply—
(a)	where the person using force that causes death or grievous bodily harm—
(i)	first began the assault with intent to kill or to do grievous bodily harm to some person; or
(ii)	endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or
(b)	unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

29.	And section 271 provides:
“271.	Aiding in self-defence.
Where it is lawful for a person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.”

30.	Supposing that whilst in the process of retrieving his son’s bag and mobile phone from the inebriated youths Brian provoked Don Siku to attack him with a sickle or a weapon fitting the description of a sickle when he flashed his torch at or in Don Siku’s face or eyes that made him angry, and was about to strike again for the second time after Brian was on the ground, Emmanuel’s reaction in striking Don Siku with his bush knife, would and should amount to self defence. To use a knife or sickle to attack someone whose act of provocation is simply pointing a shining torch in his face, amounts to assault of another with such violence to cause him reasonable apprehension of death or grievous bodily harm and to induce him to believe on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self defence and used force that was reasonably necessary for his preservation that resulted in death.

31.	When Don Siku went in to swing the second time after Brian had fallen down, Emmanuel went into action and swung his knife first striking Don Siku on the chest which prevented him from cutting or stabbing Brian. If believed, that should be enough to amount to self defence under section 270 in order for that defence to apply in section 271 situation.

32.	His Honour had a duty to properly analyse the evidence of self defence because the story of self-defence was not a new invention. It was raised only nine days after the incident in the confessional statements of Brian and Emmanuel and even if they had discussed this before giving their statements to the police, it is a kind of case that such discussion is inevitable because it is what they both witnessed and did.

33.	To determine whether the defence of aiding in self defence had been sufficiently raised, R v Kaiwor Ba [1975] PNGLR 90 (22 May 1975) provides the guidelines on the elements of the defence under s 271 that the defence must show and the prosecution must negative beyond each and every element. And the way to do so was by asking the following questions:

a.	Was the assault perpetrated upon Brian Paliau by Don Siku of such a nature so as to cause reasonable apprehension of death or grievous bodily harm?
b.	Did Emmanuel believe that he could not preserve his father from death or grievous bodily harm?
c.	Was that belief based on reasonable grounds?

34.	Had his Honour been fair to the appellants and considered their version of facts without completely locking them out as serial liars, his Honour could have found in the end, even if did not believe the story of self defence, he could not be satisfied beyond reasonable doubt of the guilt of the accused. 

35.	Be that as it may, assuming that both Brian and Emmanuel told the truth in their evidence, evidence presented demonstrates that Brian arrived at Maggie Sulai’s market/stall where she sells smoke and betel nuts. The glare of his torch blinds or annoys Don Siku who was chatting with Patricia Kandu and he swears at him so Brian switches off his torch. Brian says Don tried to cut him with a sickle or bush knife and he ducked and fell down in the process. Emmanuel heard the commotion and ran over to help his father just as he saw Don lifting up the sickle to swing down at his father, this is sufficient to satisfy the first element that the assault (lifting the sickle and aiming to strike Brian) was sufficient to cause reasonable apprehension of death or grievous bodily harm of his father.

36.	Did Emmanuel believe that he could not preserve his father from imminent death or grievous bodily harm? With the weapon Don was using, no doubt Emmanuel had every reason to believe that if he did not act immediately, his father would be killed or in the least suffer grievous bodily harm. He had all the reasons to believe that Don was capable of doing this because, firstly, he was intoxicated and had assaulted him and Rex at their house, secondly, he was armed with the same weapon that afternoon when he even threatened to cut Emmanuel’s stomach, thirdly, he and his friends were still upset over the home-brew that Emmanuel sold to them and they claimed was fake and wanted refund of their K20, and fourthly he and his friends were expecting Brian and his children coming after them when they retained Emmanuel’s bag and Rex’s mobile phone. 

37.	Was that belief based on reasonable grounds? Don Siku and his friends had gone to Brian Paliau’s house earlier and without respect and regard for the property particularly the dwelling house of another person, they stormed into his house and touched things to steal them apart from assaulting Rex and Emmanuel. With this evidence which is not denied by the State, what more reason is necessary to convince an ordinary person like Emmanuel to believe that Don Siku was going to kill his father? If they had no qualms about showing any respect for their house, their personal assets and could not peacefully talk with Rex and Emmanuel about the homebrew, there is no guarantee that they would do anything within reason. Yes, Emmanuel would have had reasonable grounds for believing that Don Siku was going to kill his father and he had no choice but to strike first. There was only one blow and as such reasonable and not excessive.

38.	Defence did not carry any burden of proving every element of the defence of aiding in self defence. By incontestable evidence of Brian and Emmanuel it had established a legitimate defence, and it was the duty of the prosecution to prove beyond reasonable doubt that none of the above elements of self defence existed. As the Court held (Cannings J) in The State v Sailas Aita Anjipi (2007) N4963 (16 March 2007):

“When determining whether the defence of self defence applies, if the defence adduces sufficient evidence to legitimately raise the defence, the prosecution has the onus of proving beyond reasonable doubt that at least one of the elements of the defence did not apply.”

39.	His Honour adopted and applied the above principle from a pre-Independence case of R v Nikola Kristeff [1967] PGSC 56 (29 September, 1967). The prisoner shot the deceased with a shot gun claiming that he was acting in defence of his wife and child whom the deceased was threatening to harm, The defence raised the defence of provocation and self defence, Frost J said:
“It is for the Crown to exclude these defences of self defence and provocation and exclude them beyond reasonable doubt. If I am left in doubt after hearing the whole of the evidence that this man was lawfully acting in self defence or that he was provoked within the meaning of section 302he must have the benefit of the doubt, so that in the case of self defence, he must be acquitted or if I am left in doubt whether he was provoked under section 304, then it is my duty to reduce the crime of what otherwise maybe wilful murder or murder to manslaughter.
So far as self defence is concerned, the Crown has to exclude beyond reasonable doubt any of the following matters:
(i)	That the deceased was one who had joined in the assault on the accused and his wife.
(ii)	That the deceased or his wife did not provoke the assault;
(iii)	The nature of the assault was such as to cause the accused reasonable apprehension of death or grievous bodily harm to himself or his family;
(iv)	That the accused believed that he could not otherwise preserve himself from death or his wife except by shooting the deceased;
(v)	That this belief was based on reasonable grounds;
(vi)	The force used was not excessive.”

40.	Frost J held in this case that the use of a shot gun on an unarmed man was an excessive force and eventually found the accused guilty of manslaughter.

41.	The evidence of self-defence was the story that Emmanuel and his father maintained from the very beginning of this case. There is no other evidence in contradiction of this evidence which was an admission to the killing but at the same time providing legitimate reason for the killing. State tendered no rebuttal evidence to disprove this. The only contradiction to Emmanuel’s explanation of the stabbing for the deceased is the opinion expressed by Dr Otto Numan which the trial judge placed a lot of emphasis on in his rejection of the evidence of self-defence.

42.	His Honour was not at liberty to treat the appellants Brian and Emmanuel’s confessional evidence in any different way than the way it was presented. It cannot accept the evidence of admission and hold them criminally culpable and reject the self-defence explanation

CRIMINAL RESPONSIBILITY

43.	With regard to Rex Paliau and Elizah Kilach, their complicity in this crime is the fact of being seen after the event allegedly armed but which they explained.  Theirs is a case of whether theycan be held liable as accessories to the killing based on the stories told by the witnesses who saw them at different intervals after the event. Where is the evidence of their participation in the crime?

44.	Section 7 of the Code provides:
“7.	Principal offenders.
(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a)	every person who actually does the act or makes the omission that constitutes the offence; and
(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c)	every person who aids another person in committing the offence; and
(d)	any person who counsels or procures any other person to commit the offence....”

45.	If Rex and Elijah were criminally liable under section 7 of the Code, His Honour was obliged to explain or discuss the evidence that demonstrated their culpability as to where and how they came to be liable. There is no thorough discussion of their involvement. All that the trial judge said about their involvement is at page 253 line 20 of the transcript:
“Section 7, Criminal Code provides that it is possible for those who are not the main perpetrators to be also guilty. However, there must be some evidence of the wrong committed by that person or persons within the meaning of the provision and only a single act or omission or a series of them is sufficient in section 7 and 8. That is the law. I find here that there is evidence that the four persons seen that night did some of those things. To this end, i make findings based on all the evidence before me that all of the elements of the offence of murder are present and so the four of you must, as a matter of law, be lawfully convicted.”

46.	We take issue with the above statement and findings in the trial judge’s judgment for these reasons: Firstly His Honour has misapplied the law on criminal responsibility of parties to offences in such a generalised statement without specifically addressing or pointing out  evidence where exactly Rex and Elijah fit in as perpetrators of this very serious crime. Were they guilty under section 7(1)(a), (b), (c) or (d)? In other words were they liable as the persons who actually did the killing? That would not apply to them according to the evidence. Did they do anything that made it possible for Emmanuel Paliau to kill the deceased? If so, what did they do? Did they aid and abet Emmanuel to kill the deceased by their actions or words of encouragement? If so, what did they do or what did they say? Or did they counsel or procure the killing of Don Siku? If so, where , when and how did they do that? In section 7 situation, the degree of participation is important so the evidence must be specific as to the role the accused is alleged to have played towards the commission of the offence. Mere presence, as evidence here show but after the attack had taken place, is not enough to constitute an offence under section 7.

47.	Wilson J in Agiru Aieni v Paul T Tahain [1978] PNGLR 37 discussed the law on criminal responsibility by mere presence of a person at the scene of the crime:
“Having considered the various authorities on the notion of derivative responsibility and particularly those that apply to the Codes, I am satisfied that mere presence is not enough to constitute aiding and abetting. In The Queen v. Coney and Others[xxxiii]3 the proposition was established that mere voluntary presence does not as a matter of law necessarily render persons so present guilty of aiding and abetting. That case was the well-known prize fight case. In that case Hawkins J said at pp. 557-558:
“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.”
That dictum was applied by the Courts-Martial Appeal Court in R. v. Clarkson and Others4 at p. 347 where the Court said:
“It is not enough then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.”
The Court added that there must be both an intention to encourage and an encouragement in fact.
Both of the abovementioned dicta were applied by Mitchell J in Fabinyi v. Anderson[xxxv]5 at p. 339.
In Barrington v. Austin and Others[xxxvi]6, approved in Rice v. Hudson[xxxvii]7, it was held that, besides mere presence, there needs to be some proof of encouragement of the principal offenders.
In an American case United States v. Poenic[xxxviii]8, approved by Smithers J in Dennis v. Pight[xxxix]9 at p. 461, Learned Hand J said:
“The words aiding, abetting, counselling and procuring all demand that he (the accessory) in some sort, associate himself with the venture, that he participate in it as something he wishes to bring about, and that he seek by his action to make it succeed. All the words used, including the most colourless ‘abet’, carry an implication of a purposive attitude towards it.”
In R. v. Russell[xl]10 Cussen A.C.J in his judgment (at p. 66) said:
“Various words, such as ‘aiding’, ‘abetting’, ‘comforting’, ‘concurring’, ‘approbating’, ‘encouraging’, ‘consenting’, ‘assenting’, ‘countenancing’, are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of ‘abetting’ is ‘encouraging’ or ‘countenancing’; and this is to be remembered when the words ‘aiding or abetting’ alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely such commission.”
In George Donald Allan, James Joseph Boyle, Albert Ballantyne, Michael Mooney[xli]11 it was held by the Court of Criminal Appeal in England that, in the case of an accused being charged with being a principal in the second degree to affray, there must be proof of some encouragement as well as proof of presence. At p. 249, their Lordships said:
“Indeed, in our judgment, encouragement in one form or another is a minimal requirement before an accused person may properly be regarded as a principal in the second degree to any crime.”
48.	There must be proof of encouragement as well as proof of presence. There is evidence from Elijah that when he arrived, everything was over and he took Emmanuel home. There is no challenge to this evidence. State wanted the court to infer that because they were seen in the area, it must logically follow that they were involved. The law does not support this proposition. There must be active encouragement. No such evidence has been led.

49.	In the passage we quoted from his honour’s judgment and set out above His Honour said ‘I find here that there is evidence that the four persons seen that night did some of those things.’ This is a very generalised statement. What are some of those things that the four accused did. There is evidence of Emmanuel Paliau stabbing Don Siku with a bush knife. That is a fact confessed and testified on oath by Emmanuel. What did the others do to encourage Emmanuel to stab Don Siku at this material time? The charge against the accused is one of wilful murder so there can be no room for guesswork, assumptions and speculations of what others may have done. There must be strict proof of their involvement.

50.	And the third error we find in the passage we quote from His Honour’s judgment is where he said “To this end, I make findings based on all the evidence before me that all of the elements of the offence of murder are present and so the four of you must, as a matter of law, be lawfully convicted.” Here His Honour places himself wide open to question as to whether he really intended to return a verdict of guilty for murder or wilful murder? Was he really considering a verdict of murder or wilful murder? Accepting that the transcript is correct and does not lie, it could not have been a slip of the tongue for His Honour to have mentioned murder and not wilful murder.

51.	In our view if the witnesses saw both Rex and Elizah at the scene of crime, there must be clear evidence of their participation either by their actions or words such as encouragement.  Their presence alone is not enough as authorities show.   But the evidence of their sighting is not during or at the scene of the attack of Don Siku, they were sighted after the attack on Don Siku as Brian Paliau confronted the group of boys on the concrete slab and also as Brian Paliau and his sons were heading back to the residence according to Maggie Sulai, away from the scene of crime. It is also misapplication of the law to rely on circumstantial evidence in this scenario where other evidence clearly show that at the material time of the attack on the deceased, neither Rex and Elijah were with Brian and Emmanuel. Maggie Sulai’s evidence cannot provide that possible theory of their involvement nor can Danny Junior Simeki’s evidence of seeing Rex disappearing in the darkness at the scene where Brian demanded for his son’s bag because this sighting, if accepted, was well after the attack on Don Siku.

52.	There is evidence from Elizah Kilach that by the time he got to the scene, it was all over and he took Emmanuel back to the house.  On this evidence no court can conclude beyond reasonable doubt of the guilt of the accused Elizah Kilach. It is far too remote to infer from this evidence that because he was seen in the vicinity some minutes after the stabbing, he must have been involved. That is bordering on speculation and conjecture.

53.	We are of the view that the trial judge erred in his analysis of the facts presented when he failed to properly apprise himself of the circumstances giving rise to Brian Paliau coming home and going over to West Irian Camp to retrieve his son’s properties. The prosecution version of the facts was purposely designed to secure a conviction in the trial in which those who were responsible for setting in motion these chain of events were made to look innocent just because there was a death in their camp, and the appellants who were the victims of those drunk youths were made to appear as the villains. As the consequence, a father who took upon himself to confront these drunks armed only with his torch was branded as the trouble maker going to take revenge when he was acting under provocation or responding to several acts of provocation perpetrated on his household and family during his absence by the deceased and his friends drinking at the West Irian camp.  His Honour jumped on the prosecution bandwagon throughout the trial and locked his mind to believing what the prosecution witnesses testified and disbelieved the two defence witnesses.

54.	When the entire evidence is properly analysed, it is obvious thatthe story told by the defence witnesses is more coherent than those by the prosecution eye witnesses who saw nothing until after the attack had already taken place.

55.	If one is to accept the fact that the story advanced by the accused is untrue and rejected, how far does that improve the State’s position as far as evidence is concerned? The accused may be liars or told partially true and partially untrue stories, but for Brian and Emmanuel, their lies cannot amount to corroboration of the State’s case of wilful murder because they are not raising alibi as defence – see John Jaminan v The State (No.2) [1983] PNGLR 318. Only a false alibi can amount to corroboration therefore strengthening the prosecution case.

CONCLUSION
56.	But in this case where the defence case is founded on provocation and self – defence, and the evidence of both provocation and self defence have been clearly raised in sworn testimonies of or evidence by both Brian and Emmanuel but not rebutted by any direct or indirect independent eye witness account of the defence version of events which is corroborated by the confessional statements and record of interviews that State tendered into evidence, how can the trial judge easily overlook provocation and reject self defence and satisfy himself without a shadow of doubt that ALL the accused were guilty of wilful murder? We say he could not for these reasons, inter alia:

(a)	Time of death of deceased: The deceased did not die right away following the stabbing. He died the next day after admission at Lorengau Hospital. The time of death is inconsistent with someone stabbing another having intention to kill that person. Where is the evidence of intention to kill? Emmanuel was all the time there from the time he stabbed him and could have killed him right there if he wanted to. But why did he not kill him right there and then? He did not want to kill him, he only wanted to hurt him so that he did not harm his father.

(b)	Emmanuel’s only reason for stabbing Don Siku was that Don Siku was attacking his father. He heard his father fall down from a distance so he ran up and saw the deceased raised his hand to swing a knife in his hand. He swung his bush knife to prevent the deceased from causing serious harm to his father. Self defence was clearly raised here. How can the trial judge safely and confidently rule out elements of self defence and satisfy himself beyond reasonable doubt of the guilt of the accused of wilful murder with a clear conscience?

(c)	Emmanuel was a victim of earlier assault and the deceased was one of the assailants who threatened him with a sickle. Not only that but his bag and mobile phone were taken away by Danny Simeku Junior, and Don Siku was one of them who did this to him. He had the right to be there himself to retrieve his items. But the deceased intercepted him and his father before they could reach them all in the one spot they had gathered and drank all through the day. There was provocation for him to confront these boys when the opportunity availed itself and he saw this in the company of his father. With these elements of provocation abound, how can the trial judge satisfy himself beyond reasonable doubt as to the guilt of wilful murder?

(d)	The trial judge was too quick to find the appellants as liars when Rex and Emmanuel were victims of the earlier incident in which this same group of boys instigated and carried out upon them in their house while acting under the influence of alcohol. The fact that Don Siku with his friends had been drinking throughout the day and continued through the evening when this stabbing took place nearby played little or no significance at all in his Honour’s mind; when considering whose recollections of the events of the evening would be more reliable and credible of belief. There is no suggestion that any of the appellants was engaged in binge drinking that day or had consumed alcohol before going to West Irian Camp and therefore their minds were unaffected by alcohol to understand right from wrong.

(e)	The trial judge erroneously placed too much weight on the evidence of the medical doctor which was merely an expression of his expert opinion which he relied on heavily to exclude sworn testimonies of defence witnesses just because death resulted and it was caused by one of the appellants who confessed to the stabbing. Death per se did not prove that the killing was unlawful. Killing is unlawful where the reasons and circumstances under-pinning the killing are unjustified by law. But this is how the trial judge seemed to have perceived the case at the outset when he failed to even consider provocation as a defence and found that self defence was negatived beyond reasonable doubt. But what evidence negatived self defence? The medical evidence was hearsay, secondary and an opinion of a medical doctor. Otherwise there was no other material evidence by the State to rebut self-defence under section 271. 

57.	Finally we are of the firm view that the trial judge was not even certain of the final verdict he was returning in this case when asked by Mr Kaluwin to state precisely what his verdict was, whether it was for murder or wilful murder. Only then His Honour stammered in response: “Let me see, what did I say? Wilful murder.”See page 253 line 36 of the Appeal Book. 

58.	This is clearly indicative of an uncertain mind which means the verdict reached is the result of a choice he made at the end of reading out his judgment and not based on careful analysis of the evidence and the weight of the evidence. 

59.	There are no appeals against severity of uniform sentences imposed on the four appellants particularly by Rex Paliau and Elijah Kilach whose evidence of participation is unclear and their degree of involvement continues to remain uncertain.

60.	In our view there was miscarriage of justice by the trial judge in his appraisal of the entire case in the light of the whole evidence presented so we uphold the appeal and set aside the convictions against all four appellants.

61.	Appeals upheld.

Public Prosecutor	: Lawyer for the Respondent 
Appellants		: in Person