SC1685

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 38 OF 2017

BETWEEN:
JUSTIN PARKER
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:  Higgins, Neill & Liosi, JJ
2018   :  30th April & 29th June

(Per NEILL & LIOSI, JJ) 
Criminal Law - Provocation - self-defence against provoked assault – s.266, s. 267, s. 270  Criminal Code Act – error of trial judge – s. 23 Supreme Court Act, s. 155(2) Constitution - confirm conviction of manslaughter - reduction of sentence – not the worst case of its type 

Per HIGGINS, J (dissenting)

APPEAL – charge of murder – conviction for manslaughter – ss 300(1)(a), 302 Criminal Code Act 1974 

SELF-DEFENCE – whether excluded by the State – State witness inconsistent – lack of valid reasons to reject evidence of accused – conviction set aside

NEW TRIAL – whether new trial should be ordered – should be verdict of acquittal

Cases Cited:
Papua New Guinea Cases

Elvis Tanabo v The State [2016] SC1543
Gelu Kombuk v The State [2016] SC1544
John Beng v The State [1977] PNGLR 115
Koe v State [2004] SC 739

Overseas Cases

Azzopardi v The Queen (2001) 205 CLR 50, 74
Burns v The Queen [2012] HCA 35
Conway v R [2002] HCA 2; 209 CLR 203
Dyers v R (2002) 210 CLR 285
Gerakiteys v R (1984) HCA 8; 153 CLT 317
Jones v Dunkel (1959) 101 CLR 298
MFA v R (2002) 213 CLR 606
Parker v The Queen (1997) 186 CLR 494
R v Phillips (1985) 7 Cr AppR (S) 235
RPS v R (2000) 199 CLR 620

COUNSEL:

Mr. Ian Molloy with Mr. Derek Woods, for the Appellant
Mr. Tom McPhee with Mr. Connor, for the Respondent

29th June, 2018
1.	HIGGINS, J:  This is an appeal against both conviction and sentence on behalf of the accused, Justin Parker. 

2.	The accused was convicted by his Honour, Sir Gibbs Salika DCJ, of the unlawful killing of Lapan Nason who had died on 8 June 2015 from an injury to his head sustained on 6 June 2015.  On 21 August 2017 the accused was sentenced to 13 years imprisonment.

3.	The indictment presented against the accused alleged that on the 8th day of June 2017 [he] murdered one Lapan Nason, contrary to s.300(1)(a) of the Criminal Code Act 1974.  That engaged the provision that:

“… a person who kills another person
… is guilty of murder –

(a)	 if the offender intended to do grievous bodily harm to the person killed …”

4.	That also engaged s.302 as an available alternative verdict:

“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder, or infanticide is guilty of manslaughter.”

5.	In each case, the penalty is life imprisonment which, under s.19, may be reduced to such lesser penalty as the court thinks fit.

6.	In the case of manslaughter, the penalty is very much dependent on the circumstances of the death and the way it was actually caused.  See R v Phillips (1985) 7 Cr AppR (S) 235.

7.	The indictment was presented on 1 May 2017.  The State case, as outlined by Ms. Roalakona, was that:

“Lapan Nason [the deceased] was an aircraft engineer employed as a contractor with Golden Valley Enterprise (Tribal Wings), a company owned by the accused, Justin Parker.  The State alleges that in the early hours of the morning between the hours of 4 and 6 am, on Saturday, 6 June 2015, Lapan Nason was asleep at his house at Gorobe Street, Badili.  The accused, Justin Parker, had entered Lapan’s house and assaulted him in his room … while he was in bed.  The accused then pulled him out of his bed and continued to assault Lapan by kicking and punching him in [his] face and all over his body.  He then dragged Lapan out of the house and continued assaulting him.  When outside the house, the accused then punched Lapan on the head, causing him to hit his head on the concrete outside the house. The State alleges that Lapan struggled to sit up against the concrete wall when the accused scolded and threw an empty cup at him.

The accused then punched Lapan again causing him to hit his head against the concrete stone wall.  The accused then left Lapan.  Lapan’s daughter, Elsah, who had witnessed the accused assaulting her father, went to assist her father who was not responding to her calls [she, William Yatapya and his wife called an ambulance].

Lapan was taken to Port Moresby General Hospital … He remained in a coma until 8 June 2015 where he passed away …

It is the State’s allegation that the accused, Justin Parker, had assaulted the deceased with an intention to cause him grievous bodily harm that caused his death”. 

8.	The first State witness was William Yatapya.

9.	He received a phone call from the deceased’s daughter in the early hours of 6 June 2015.  He went quickly to the residence she was at.  There he saw a security guard named “Akai”, the daughter of the deceased and the deceased who was struggling for air and bloodied.

10.	In cross-examination, he described the deceased as a heavy man though of short stature.

11.	A general surgeon, Dr. Esther Apuahe, gave evidence that she had attended upon the deceased on 6 June 2015.  Her report was dated 20 August 2015.  The history was that the deceased, a 54 year old male person had been assaulted in the early hours of 6 June 2015.  He was diagnosed with a severe traumatic brain injury with a massive acute left subdural haemorrhage and basal skull fracture.

12.	She noticed no external signs of injury save for “ecchymosis around the eyes”.  That indicated the appearance of bruising around the eyes.

13.	Other medical evidence came from Dr. Dora Lenturut–Katal, a radiologist.  There was, she found, a hairline fracture in the cervical spine at C2.  There was also a skull fracture, undisplaced, involving the sphenoid bone and right temporal bone.

14.	The autopsy report identified abrasions above the elbow on the left upper arm, a bruise on the back of the head and another on the left side of the head.

15.	The pathologist, Dr. S. Mabone, reported the history he was given was that the deceased was punched once on the back of his head and fell to the ground.  There he was punched once on the abdomen and several times on his head.

16.	The following day the sole eye witness, Elsah Nason, the daughter of the deceased, gave evidence.

17.	She stated that on 6 June 2015, she was sleeping when she heard shouting.

(254) “… so when I came out, I saw Justin [i.e. the accused] pulling my dad out of the house.”

18.	When she arrived at the door,

	“… that is when I saw Justin, he punched my dad, my dad fell on the porch.
(255)

… fell on the cement.”

19.	Then she came out of the door and the two men were talking.

“I heard my dad telling Justin that it is good that they will sit down on the verandah and like discuss things over but Justin did not listen, he was – he then punched my dad again.

That is when he kicked my dad on his stomach and he fell backwards on his back.

	And then Justin was saying some things and he came across a kikkoman sauce bottle that was on the rail and he got it and he broke it and then another cup, that one he threw it towards my dad --- but it did not hit dad (255A).

255B.  That is when I shouted and I asked Justin to stop but he did not and then he kicked …

and then he punched dad under his chin --- and dad’s head went backwards and then he hit his head on the cement – brick wall, I mean ---

And then dad fell to the cement and he just slept --- then Justin walked back down to his house.”

20.	Then the security man, Akai, came and they helped the deceased into the house.  In the house, she bathed his face “because his face was swelling up”.  255D 

21.	Thereafter, an ambulance was obtained and the deceased was taken to hospital.

22.	Her identification of photographs made it clear that she was at the door leading to the porch when she saw the first blow she described.  There were then two steps down to the tiled area with the stone wall where the deceased struck his head (to the right).  Immediately in front were 3 steps leading up to a further paved area with what appears to be a pool.

23.	Interestingly, when referring to the intention the deceased expressed to go to Kavieng, she said:

(259) “… he just said he was quitting his job that was why we had to go back to Kavieng.”

24.	The incident lasted, she said “probably about 15 minutes.”  Four punches were thrown, all at the deceased’s face by the accused.  The deceased hit his head once only on the stone wall.

25.	In cross-examination, the witness agreed with Mr. Molloy that the deceased had told her that he was quitting his job and resented being pushed around “like a small boy.”  He was “a bit angry.”

26.	She further agreed that the deceased had thrown a phone at her mother when he was angry with her.

27.	She agreed that the accused did not go into the house but called out to the deceased from outside.  Nevertheless, she said, the accused pulled the deceased out of the house. Her initial observation was that the deceased was lower down the steps than the accused.  The deceased had blood on his nose, however, almost immediately she denied that.  She also agreed that the deceased, a very large man, had his back to her, obscuring what was happening in front of him.  She denied that the accused grabbed the deceased by the shirt but could not explain how it got ripped.  She also said that the deceased fell down and hit his head on the stone wall on the adjacent steps.  Even that was somewhat confused with the witness then denying that the deceased hit his head on the steps.  She also said this:

(287) “A: No. He [the deceased] fell once when Justin threw the first punch and while he was on the ground, that was when Justin kicked him.

 … on the stomach.”

28.	Then, she said, the deceased got up, the accused smashed a sauce bottle and punched the deceased who fell against the stone wall.

29.	She did agree that the circumstances were “very confusing.”

30.	The pathologist, Dr. Mabone found bruising on the head of the deceased at the back and on the left side.  She was told it was due to a punch.  There was no sign of abdominal injury though she was alerted by police to that possibility.  There was no facial bruising.

31.	The Record of Interview (exh H), though in evidence, yielded nothing adverse to the accused.

32.	The defence called both the accused and an expert, Professor Duflou.

33.	The accused gave evidence that the deceased had failed to turn up to assist with the certification of a new helicopter.  Despite his absence, the certification inspection was successful.  He asked the security guard, Akai, to tell the deceased that he, the accused, wanted to see him.

34.	He returned later, in the early hours of 6 June.  The security guard told him the deceased was still up watching TV.  He went to the verandah and knocked on the door.  He called out to the deceased.

35.	There was a brief conversation, apparently not amicable.  The accused demanded to know why the deceased had not attended the certification meeting.  The deceased complained of not being paid.  The accused told him “You are fired.”  He added to that that the deceased would have to justify what he had been paid and would have to leave his motor vehicle as security.

36.	That, he said, angered the deceased, who offered some verbal abuse and then punched the accused in the face.  Akai had been told to remove the tyres of the deceased’s vehicle and had gone to do so.

37.	The accused reacted by punching the deceased 3 times in the face and then descended to the paved level.  He denied dragging the deceased out of the house.  The deceased did not fall down.

38.	The deceased followed him onto the paved area.  The accused, believing he was to be attacked again grabbed the deceased by his shirt and swung him around.  The deceased stumbled and fell backwards towards the back steps and stone wall where he struck his head and then fell to the pavement striking his face.  The deceased’s shirt tore in the course of him being swung around.

39.	He did not intend any injury to the deceased.  He was simply attempting to avoid being struck again.

40.	He then departed, telling the daughter of the deceased that he would take him to hospital if necessary.

41.	In cross-examination, he denied that he was angry with the deceased.  He agreed that if he was disturbed at that time of the morning “I would not be happy.”

42.	Clearly, it was open to his Honour to conclude that the accused was angry with the deceased and that the deceased was angry with the accused.

43.	Professor Duflou gave evidence as an expert pathologist.  He cast doubt upon the hypothesis that there had been a sustained attack on the deceased.  Particularly, kicking to the face was “very unlikely”.  That he had been punched to the face was consistent with the injuries to his face. The injuries were consistent with the accused’s version of events.

44.	Counsel addressed the trial judge.  Mr. Molloy challenged the version of events deposed to by Ms. Nason.  The events deposed to by the accused were consistent with reasonable self-defence.

45.	The State, through Ms. Roalakona, submitted that Ms. Nason’s version should be accepted.  He was angry with the deceased and had gone to attack him thus negating self-defence.  She conceded that if self-defence failed but intent to do grievous bodily harm was not made out then s.539 would allow an alternative verdict of manslaughter.

46.	The matter was then adjourned.  It resumed on 29 May 2017 for decision.

47.	His Honour noted that intention to cause grievous bodily harm was an essential element of the offence charged (murder).

48.	There was no evidence, he found, that the accused entered the house of the deceased.  The witness, Ms. Nason, he considered could not have witnessed any relevant event before the accused grabbed the deceased by his shirt.

49.	He was satisfied that, in the circumstances, both men were angry.  Support for that, he considered, could be found in the instruction to Akai to remove the wheels of the deceased’s vehicle.

50.	He described that as follows:

(438)  “To go directly and confront Lapan why he did not show up, to me with respect, is confrontational arrogant and dictatorial and is a wrong approach to a human being.  As a result of this wrong approach, Justin is in court …

I am satisfied beyond reasonable doubt that there was an intention on the part of the accused to inflict some bodily harm to Lapan.”
	
51.	He agreed the State opening was not supported by any evidence, however.

439  “There is no dispute that Justin assaulted Lapan and Lapan died from those assaults directly or indirectly.”

52.	That, his Honour found was the result of:

440	“… delivery of four or three punches to Lapan’s head by Justin and Lapan bumping his head on the stone wall as a direct result of Justin swinging him and Lapan falling against the stone wall.  The defence of self-defence only came out later during the course of the trial.  It was never specifically pleaded and the pre-trial review statement filed by the defence.  The State and the court were only – became aware of it later in the trial.”  (emphasis added)

53.	His Honour then noted the deceased’s physical disabilities and commented he was, therefore,:

441  “… not a real threat to him and his life”.

54.	Were the photographs showing swelling to the face of the deceased a result of the accused assaulting the deceased or the fall?  His Honour’s conclusion was:

	442  “… could be or could not be not.  One thing is certain and that is …, only one man assaulted Lapan Nason and that man is Justin Parker.”

55.	There was, he found, no evidence:

442 “… of any injury sustained by Justin Parker.  Yet Justin say Lapan punched him on his face. If Lapan connected to Justin’s face and Justin says he did, then one would expect Justin to suffer some injury to his face.”

56.	That, he concluded was inconsistent with his evidence of being struck by the deceased but consistent with the evidence of Elsah, the deceased’s daughter, that the accused had struck the deceased.

57.	However, his Honour did not reject the accused’s version of events and considered whether that raised self-defence as an issue excusing the assault on the deceased.

444  “… Considering what section 281 of the Criminal Codes says, I am of the opinion that even if I accept the evidence of Justin that he was acting in self-defence, he would be in his right to use force that is not excessive.”

In this case and again, if I accept that Lapan punched him first, I am of the opinion that Justin used more force than was necessary or justified by law … That is that Lapan was heavy, could not move fast, he was limping … he could easily fall and he was unstable … even if I was to believe that (emphasis added) but considering all the evidence that is before me.  I do not believe that Lapan ever punched Justin first or ever at all and that he punched him back in self-defence.”

58.	Pausing there, it should be noted that it is not incumbent on the accused to persuade the court that his account is the truth, it is for the State to persuade the court beyond reasonable doubt that it is not true.  Given that his Honour had already concluded that Ms. Nason only observed the latter part of the incident, it was not possible to be satisfied that the deceased was not so enraged by the accused’s interaction with him at the door of the premises that he struck him and appeared willing, despite being struck in return, to continue the attack.
59.	Even if there was evidence of no injury to the accused as opposed to no evidence of injury, the hypothesis of violence emanating from the deceased could not be excluded.
60.	Why, then, did his Honour feel confident to reject the accused’s account of his encounter with the deceased?
61.	First, was his observation that the defence of self-defence was not earlier disclosed.
62.	Second, there was no evidence of the accused seeking medical help for the assault upon him.
63.	Third, that the account of an assault upon him was “a recent invention”.
64.	Fourth … “Akai who was Justin’s security guard was not called to support Justin’s story” (444)
65.	The first reason lacks validity.  The accused had the right to remain silent when questioned and no adverse inference should or could be drawn from his exercise of that right.
66.	As to the second, the lack of evidence of injury did not warrant an inference there was none.  Nor is to be expected that any blow struck by the deceased would have consequences so severe that the accused needed medical attention.
67.	The third observation was plainly wrong.  The report of Professor Duflou indicates that:
 94	“A conversation reportedly took place between Mr. Nason and Mr. Parker, after which time Mr. Nason assaulted Mr. Parker.  In self-defence, Mr. Parker punched Mr Nason in the face with his right and left hands after which he saw Mr. Nason bleeding from the nose …”
68.	The balance of the paragraph is consistent with the evidence the accused later gave at trial.
69.	As to the fourth observation, if it was a purported application of the Rule in Jones v Dunkel (1959) 101 CLR 298, then it was inappropriate for two reasons.  First, in a criminal case, it is inconsistent with the onus of proof and persuasion being on the State and not the accused.  It does not apply to an accused in a criminal case.  Second, the witness Akai was a witness who was to be called by the State but could not be found.
70.	In any event, he was absent from the scene at the relevant time, immobilising the deceased’s motor vehicle.  (see also Dyers v R (2002) 210 CLR 285).
71.	Not only do the reasons advanced for disbelieving the accused lack validity but the trial judge expressly disavowed any adverse view of the accused as a witness, commenting only:
444  “… a convincing witness is not necessarily a truthful witness.”
72.	A further defect is the test his Honour applied for self-defence.
445 “(9) Whether Justin believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm, otherwise than by using the force he in fact used.”
73.	This was, of course, premised on the assumption that the deceased never assaulted the accused but the test is not whether the accused feared death or grievous bodily harm.  On his account of it, he faced only some momentary pain or discomfort but he was not obliged to submit to that provided his defence was proportionate to the threat.  On his account of it, it was proportionate.
74.	A question is raised as to the correct approach to a failure to call or challenge available and relevant evidence.
75.	The correct position is stated in the Supreme and District Court Bench book of Queensland.
“The model direction is:
It may appear to you [the jury or judge alone] that witnesses other than those who have given evidence might have been able to give some relevant evidence.
You may not speculate about what others who were not called might have said if they had been called.
You should act on the basis of the evidence that has been called and only that evidence.”
76.	That is applicable where the defence has not called a potential witness.  The only exception is in a rare case as referred to in Azzopardi v The Queen (2001) 205 CLR 50, 74.
77.	If the prosecution fails to call a material witness, the tribunal of fact, if there is no good reason for the failure, 
“… may infer that nothing he [or she] could have said would have assisted the prosecution case.  You cannot infer that he [or she] would have given evidence damaging to the prosecution case but … you may find that you can accept more readily the evidence given by [the accused] for the defence since it is not contradicted by anything [the missing witness] might have said.”
(see also RPS v R (2000) 199 CLR 620 and MFA v R (2002) 213 CLR 606 (particularly or [20], [36] and [81])).
78.	Mr. McPhee for the State, agreed that he could not defend his Honour’s reasons as stated for rejecting the evidence of the accused.  He did submit, and I agree, that whilst it is not permissible to find an adverse inference from a failure to state a proposed defence in the Pre-trial Report, such a Report is a useful tool for shortening a trial, enabling a focus on the real issues rather than requiring the prosecution to address matters which turn out not to be in issue.
79.	In my view, therefore, the appeal must be upheld and the conviction and sentence set aside.
80.	The next issue is whether a new trial should be ordered to be held if the Public Prosecutor so decides but limited to the issue of the Appellant’s guilt or not of the crime of manslaughter.
81.	The exercise of a power to order a new trial was extensively considered by the High Court of Australia in Conway v R [2002] HCA 2; 209 CLR 203.  The discretion to order a new trial is enlivened by a finding of error unless the error could not reasonably be supposed to have affected the result of the trial (see [28] (supra) – [30].
82.	That case affirmed the proposition that if no substantial miscarriage of justice had occurred then, even if error was found, a new trial need not be ordered and the appeal should be dismissed.
83.	Parker v The Queen (1997) 186 CLR 494 refers to a case where an appeal was upheld but no retrial ordered.  Verdicts of acquittal were entered.  That was on the basis that to order a retrial would require the accused to face a significantly different case than that which had originally been presented.
84.	A new trial should not be ordered if the evidence at the original trial was insufficient to justify a conviction. (Gerakiteys v R (1984) HCA 8; 153 CLR 317).  A similar test and conclusion was applied in Burns v The Queen [2012] HCA 35.  That case involved the supply of illicit drugs to the deceased by the accused.  There was reasonable doubt, not excluded, that the deceased took the drugs himself, negating a legal duty on the accused to assist him.
85.	In this case there was an issue as to whether the accused assaulted the deceased otherwise than in self-defence.  If it was so, the deceased suffered the fatal injury as a consequence, albeit unintended, of that assault.  A conviction for manslaughter would be open.
86.	If, however, the hypothesis that the deceased attacked the accused could not be excluded beyond reasonable doubt then the accused would have to be acquitted.
87.	The acceptance of the former version of events would require the tribunal of fact to disregard the conflict in the evidence of Ms. Nason that she commenced her observation of the fight only after both the deceased and the accused were outside of the house and on the porch and stairs to the paved area marked out by the stone wall area and her assertion that the accused struck the deceased who did not respond by striking the accused.  This was the hypothesis Salika DCJ accepted.  However, it is not, in my opinion, open to accept that hypothesis beyond reasonable doubt in the light of the unsatisfactory evidence given by Ms. Nason.
88.	I would uphold the appeal, set aside the conviction and sentence and substitute a verdict of acquittal.
89.	It follows that it is unnecessary for me to address the sentence appealed.
90.	I would note however, that the accused 
-	  was aged 45 years
-	  Had no prior criminal history
-	  Had a genuine grievance as to the deceased’s conduct.

91.	Further, the hypothesis supporting guilt could not have been found to involve “vicious force”.  The injuries suffered by the deceased were not consistent with “repeated kicks and punches”.  Thus Koe v State [2004] SC 739 would not have supported a tariff beyond 7 – 12 years.
SEPARATE JUDGMENT

92.	NEILL & LIOSI, JJ:  This is an appeal against a conviction of manslaughter and a sentence of 13 years imprisonment that was imposed by the trial judge. While respecting the judgment of the President, the other presiding judges in this separate judgment dismiss the appeal.

FACTS

93.	The facts as admitted by the Appellant are:

1.	The Appellant through his air transport company (company), that he controlled, employed Lapan Nason (deceased) as an engineer. The deceased was accommodated and provided with a vehicle by the company.

2.	The Appellant was not pleased with the deceased, for not attending at an inspection of a company aircraft, although the aircraft passed the inspection, none-the-less.

3.	In the early hours of 6 June 2015 about 2 a.m. the Appellant went to the residence of the deceased. The company vehicle used by the deceased was there. The Appellant told the security to remove the wheels. The security tried but as he could not, he just deflated the tyres so it could not be driven by the then living Mr Nason.

4.	The Appellant’s residence, when he might be in Port Moresby, is a flat below the flat provided by the company to the deceased.
 
5.	The Appellant noted that at that early hour the deceased was watching television. The Appellant went to the porch of the deceased’s flat, called him out and said this:

•	You are fired;
•	You will have to justify what work you did before you get any pay on termination;
•	You will leave the vehicle (obviously given the deflated tyres).

94.	The explanation for this behaviour at that early hour was offered by the Appellant that he had to catch a plane to Lae that day. It turns out the flight was at 11 a.m.

95.	The deceased reacted to the behaviour of the Appellant by punching him. They moved from the porch down a few steps to where there was a low stone wall. The Appellant said that the deceased came at him such that the Appellant felt he was in danger of injury. The Appellant then grabbing the deceased’s shirt and swung him away from the Appellant and in the process, the deceased hit his head on the stone wall and died in hospital a few days later from the injury.

96.	The deceased’s daughter lived with him in his flat and awakened by the noise came out of the flat. There were problems with the daughter’s evidence, and the trial judge did not accept her evidence as to how the deceased was injured.

97.	The Appellant focused on the obvious errors of the trial judge in making the comments noted in the overview and these comments:

•	The security was not called as a witness;
•	The Appellant did not offer an explanation to the Police of how the deceased came to hit his head on the stone wall;
•	Though the Appellant claimed he received an injury in the scuffle he did not put this forward until the trial nor seek medical help;
•	Considered the explanation of the Appellant of self-defence was a recent invention.

98.	There can be no doubt of the law in this regard and the trial judge erred as an accused is entitled to reserve his story until his trial and an adverse comment about not calling the security was incorrect. The judgment of his Honour Higgins J comprehensively analyses the law in regard to the errors of the trial judge and we have nothing further to add.

PROVOCATION

99.	It must have been distressing for the deceased to be treated in this way on his doorstep at such an early/late hour. The trial judge described the Appellant’s behaviour as:
 
“confrontational, arrogant and dictatorial and a wrong approach to a human being”. One word, the behaviour of that of a bully, could describe the Appellant’s behaviour on that occasion.
 
100.	Relevant to the evidence of the Appellant are sections 266, 267 and 270 of the Criminal Code Act [extracted as follows]. 

266.	Provocation.

(1)	Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—
(a)	to an ordinary person; or ….

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2)	When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault….

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.

101.	In the mind of any reasonable person the actions of the Appellant were provocation to the deceased resulting in the deceased lashing out at the Appellant. 

102.	The Appellant says he had to defend himself. To look at the Appellant’s assertion in a realistic way one has to consider the facts:

1.	The deceased is noted on the autopsy as 54 years, overweight at 130 kilo, disabled with one leg shorter than the other.
2.	The Appellant appears to be about 10 years younger, and fit.
3.	The deceased was not armed with any weapon.

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.

103.	It is not realistic on the facts for the Appellant to put forward he had a reasonable apprehension of being soon harmed by the deceased so as to provide the Appellant with a defence under section 270.

104.	When a person provokes a fight it is foreseeable that the other person will react to the provocation and someone will get hurt. It is not an excuse for the person who started the fight to say “I didn’t mean to hurt him” or “I didn’t expect him to hit his head, it was an accident”. That some hurt would happen is foreseeable albeit the extent of the harm is unexpected. 

Supreme Court Act – cases

105.	Similar issues arose in Gelu Kombuk v The State [2016] SC1544 (Makail, Geita and Nablu JJ) where the Supreme Court upheld an appeal as to conviction for wilful murder and substituted a conviction of murder:

14.	Having considered the competing submissions of counsel, we have concluded, with respect that the learned trial Judge made some, but not all, of the identifiable errors contended for by the appellant.

15.	We consider that in hearing an application for review of convictions, the Supreme Court should apply the same principles it applies when hearing an appeal against convictions. We therefore, invoke powers given to the Supreme Court under Section 155 (2) (b) of the Constitution:

“(2)	The Supreme Court—
(b)	has an inherent power to review all judicial acts of the National Court;”

16.	In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from Sections 23(1) of the Supreme Court Act, which state that:

(1)	Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)	the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)	there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.

(2)	Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred. ….

(4)	On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

17.	That is, to succeed in an application, an applicant must establish that:
•	   the verdict is unsafe or unsatisfactory, or
•	the conviction entailed a wrong decision on a question of law, or
•	there was a material irregularity in the trial.

18.	As to the question of alternative verdicts the trial Judge has ruled that it was not necessary to consider same. That finding is perfect so far as the indictment relates to wilful murder properly supported by evidence. With respect we are of the view that from the evidence presented to him and the resulting findings of an alternative verdict was available to the Court. In this case we consider murder under Section 300 of the Criminal Code most appropriate … 

19.	We are also of the considered view that the errors identified although serious do not warrant the whole of this case futile, resulting in full acquittal of the appellant. Instead we will proceed to correct the anomaly with an alternative verdict. 

20.	Having reached that conclusion, it is appropriate to invoke the principles allowing the Supreme Court to set aside the verdict on conviction on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; which are set out in Section 23(1) (a) (b) (c) of the Supreme Court Act. 

21.	We invoke Section 23(1) of the Supreme Court Act and Section 155 (2) (b) of the Constitution and set aside the verdict on conviction of wilful murder and substitute with a verdict of murder.

22.	As to the appeal on sentence we have concluded that:
	
The primary Judge made an identifiable error in imposing a sentence of 30 years as His Honour arrived at that sentence by treating the case as wilful murder which was not supported by his findings. This vitiates the sentence and in all the circumstances we consider that an alternative sentence is more appropriate. 

106.	The Beng case involved identification as the main issue and cited Lord Diplock (who was in agreement with three others in the House of Lords decision of Stafford v D.P.P. [1974] A.C. 878) in referring to the UK counterpart of our Supreme Court Act commented, “am I myself satisfied that the verdict of the jury was safe and satisfactory”. The test adopted in Beng was whether there was a “reasonable doubt” about that.

107.	Despite the errors of the trial judge, we do not have a reasonable doubt whether the conviction of manslaughter is safe and satisfactory. In all the circumstances of the case there has been no miscarriage of justice in finding the Appellant guilty of manslaughter.

SENTENCE

108.	In Norris v The State [1979] PNGLR 605 the trial judge had wrongly relied on comments in a diary that a relation of the deceased produced. The Court was clear that it has wide powers to vary a sentence if a sentence is out of all reasonable proportion to the circumstances of the crime. 

109.	In Elvis Tanabo v The State [2016] SC1543 (Makail, Geita and Nablu JJ) the Supreme Court found that on the facts, the conviction was not the “worst case” and that the appellant was entitled to have all matters favourable to him taken into account on sentence.

110.	The range of sentence for manslaughter when there has been intended violence or done in company is more in line with a sentence of 13 years. This is less serious than those cases.

111.	The sentence that was imposed by the trial judge is reduced to 7 years.  

Order

1.	The Appeal as to conviction is dismissed.

2.	The sentence passed by the National Court on 21 August 2017 is quashed. Instead, a sentence of 7 years imprisonment is imposed, less the time served to date. No part of the term is suspended.

3.	A replacement warrant of commitment in accordance, to issue.
_______________________________________________________________
Ashurst Lawyers : Lawyers for the Appellant		
Public Prosecutor : Lawyers for the Respondent