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Ba, Regina v [1975] PNGLR 90 (22 May 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 90 - Regina v Kaiwor Ba

[1975] PNGLR 90

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

KAIWOR BA

Madang

Frost CJ

21-22 May 1975

CRIMINAL LAW - Murder - Aiding in self-defence - No knowledge of whether first assault provoked - Degree of force that for unprovoked assault - Tests to be applied - Criminal Code (Queensland adopted), s. 271[xc]1, s. 273[xci]².

The accused was charged with wilful murder of one A. The undisputed evidence was that five men including the accused, his brother K. and A. were all sleeping in a house, that at some time during the night, K. got up and killed one W. after he noticed the latter rise from his bed; A. being roused was about to strike K. with an axe when the accused also aroused wrested the axe from A. and struck him with it once, thereby causing his death. It also appeared that the accused and K. had gone to sleep with a belief that several men including A. were out to kill them.

Held

(1)      In the circumstances the accused had no knowledge of the circumstances of the first killing and in particular whether it was provoked or not by his brother, and accordingly the degree of force which it was lawful for the accused to use for the purpose of aiding in self-defence under s. 273 of the Criminal Code (Queensland adopted) was to be determined according to the provisions of s. 271 of the Code.

(2)      To establish self-defence against unprovoked assault under s. 271 of the Criminal Code (Queensland adopted) it must be proved beyond reasonable doubt (a) that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; (b) that the person using the force believed that he could not otherwise preserve the person defended from death or grievous bodily harm; and (c) that such a belief was based on reasonable grounds;

Reg. v. Muratovic [1967] Qd. R. 15, and Reg. v. Johnson, [1964] Qd. R. 1 adopted and applied.

(3)      On the evidence, once the axe was taken from A. and A. was unarmed, any belief held by the accused that he could save his brother from death or grievous bodily harm was not based on reasonable grounds; and in going on to kill A. in those circumstances, the accused was not within the meaning of s. 273 of the Code acting as a person using force for the purpose of defending his brother, nor was he acting in good faith.

(4)      Having regard to one main blow only having been delivered at A., in contrast to many blows found upon the other body, there was a reasonable doubt of any intention to kill, but no doubt of an intention at least to do grievous bodily harm, and

(5)      The accused should be convicted of murder.

Trial

This was a trial on a charge of wilful murder where the main defence relied upon was that the accused acted in defence of his brother, under s. 273 of the Criminal Code (Queensland adopted).

Counsel

A. Webb, for the prosecution.

W. Kaputin, for the accused.

Cur. adv. vult.

22 May 1975

FROST CJ: In this case the accused is charged upon indictment for the wilful murder of one Ambroro. The evidence is overwhelming and not disputed that on Sunday night, 29th September, 1974, as five men were sleeping in a house at Yahl, a place more than a day’s walk from Simbi, the accused’s brother Korawamp got up and killed one Wuramp after he noticed the latter rise from his bed; that the accused then grabbed an axe from Ambroro who, roused from his sleep, was about to strike Karowamp and, having wrested the axe from Ambroro, the accused struck him with that axe thus causing the latter’s death. The brother has already been convicted and sentenced for the wilful murder.

Even before the killings, the scene had been indeed a grisly one for there were in another room of the house the bodies of two women who had been dead some time.

The key to these savage killings is the statement in the accused’s record of interview that on the previous afternoon he had been warned by the wife of the deceased Wuramp, “They have killed your brother in the bush and there is a length of shell money in my net bag and tonight some men will kill you two also”. The reference to the shell money apparently refers to an act of sorcery, belief in which in this primitive area is widespread. So as they went to sleep that night the accused and his brother must have had in their minds the possibility of a violent attack.

The main defence relied upon by Mr. Kaputin was that the accused acted in defence of his brother under s. 273 of the Criminal Code.[xcii]³

It is consistent with all the evidence that the accused woke up only after his brother had struck Wuramp with his axe, for it was that sound which woke him up.

The case must thus be treated as one in which the accused had no knowledge of the circumstances of that first killing and, in particular, as to whether it was provoked or not by his brother. It cannot be excluded therefore that the accused acted in good faith within the meaning of s. 273 at least to this extent, that he was unaware that his brother Korawamp had provoked the assault upon him by Ambroro as the latter stood about to strike Korawamp.

Thus s. 272, which is concerned with defence against provoked assaults, contrary to Mr. Webb’s submission, has no application in this case. The like degree of force which it was lawful for the accused to use for the purpose of defending his brother Korawamp under s. 273 is to be determined according to the provisions of s. 271[xciii]4 which is concerned with defence against unprovoked assaults. The effect of that latter section is set out in R. v. Muratovic[xciv]⁵ by Gibbs J, in whose judgment Lucas J agreed. The passage in the judgment can usefully be set out in full:

“In Reg. v. Johnson ([1964] Qd.R.1) at p. 13, Stanley J described the effect of the second paragraph of the section as follows: ‘The second paragraph of s. 271 deals with major unprovoked assaults. In repelling them, the person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm, if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm.’

There are only two remarks as to the effect of this paragraph that it seems to me to be necessary to add. In the first place, the word ‘otherwise’ must in my opinion in the context of the section mean ‘otherwise than by using the force which he in fact used’ (cf. R. v. Keith [1934] St. R. Qd. 155 at p. 176). Secondly, if the two conditions specified in the paragraph are satisfied, it does not become necessary for practical purposes to consider a third question, whether the force used was in fact necessary for defence. If the accused person had an honest and reasonable, although mistaken, belief that the force in fact used was necessary for defence, he is no more criminally responsible than if that force was in fact necessary for defence — s. 24 of the Code. Moreover, if the nature of an assault was such as to cause reasonable apprehension of death or grievous bodily harm, and the accused believed (which must mean honestly believed) on reasonable grounds that he could not preserve the person defended from death or grievous bodily harm otherwise than by using the force that he did in fact use, it must follow that the force in fact used was no more than the accused honestly and reasonably believed to be necessary for defence. In other words, if the jury consider that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and that the accused believed, on reasonable grounds, that he could not otherwise preserve the person defended from death or grievous bodily harm, or if they are left in doubt on those matters, the issue must be decided in favour of the accused and a verdict of acquittal must be entered, since on that hypothesis the jury could not be satisfied that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm.

The substantial question that arises in the present case is whether, assuming that the jury believed the evidence most favourable to the appellant, they would nevertheless be bound, if they acted reasonably, to beyond reasonable doubt:

1.       that the nature of the assault on the appellant by Markovic was not such as to cause reasonable apprehension of death or grievous bodily harm, or

2.       that the appellant did not believe that he could not preserve himself from death or grievous bodily harm except by stabbing Markovic in the manner that he did, or

3.       that, if the appellant had such belief, it was not based on reasonable grounds.”

I adopt this statement of the law as the proper construction of the section.

Whilst any evidence of threats made by the deceased Ambroro or his companions that they planned to attack and kill the accused and his brother Korawamp would be relevant as part of the defence of self-defence or aiding therein (R. v. Muratovic[xcv]⁶), the information given by the woman does not implicate Ambroro or his companions. However that evidence is relevant in another context, as I shall explain, and not in favour of the accused.

I should say at once that the significant feature in this case in my judgment is that once the axe was taken from Ambroro by the accused, Ambroro was unarmed. This leads me to the conclusion beyond reasonable doubt that even assuming in the accused’s favour that the accused had believed he could not, except by striking Ambroro with an axe, preserve his brother Korawamp from death or grievous bodily harm within the meaning of the second paragraph of s. 271, such belief was not based on reasonable grounds. The two brothers could easily have overpowered Ambroro or, if Ambroro once disarmed had not fled, have awaited any further move from him. There is no evidence relating to the actions of the third man, also slain, which could assist the accused.

In my opinion the case can be taken further. I do not consider that the accused was acting in self-defence or had the belief referred to at all. The acts of the accused from beginning to end have satisfied me that having awakened to see his brother being attacked he embarked upon a counter-attack against Ambroro, one of several men whom he believed were out to kill himself and his brother. Thus having disarmed Ambroro and having effectively removed Korawamp from danger, in going on to kill Ambroro he was not within the meaning of s. 273 acting as a person using force for the purpose of defending his brother, nor was he acting in good faith.

For these reasons in my opinion the Crown have excluded beyond reasonable doubt the defence of self-defence.

Mr. Kaputin’s second submission is that upon all the facts, particularly having regard to one main blow only having been delivered at Ambroro in contrast to the many blows found upon the other two bodies, I ought not to be satisfied beyond reasonable doubt of an intention to kill. Upon full consideration I accept this submission but I am left in no doubt that the accused intended at least to do grievous bodily harm.

I therefore find the accused guilty of murder.

Verdict: Guilty of murder.

Solicitor for the Crown: B. W. Kidu, Crown Solicitor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.