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Takip Palne, The State v [1976] PNGLR 90 (29 March 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 90 - The State v Takip Palne of Dumbol 

[1976] PNGLR 90

N35

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

TAKIP PALNE OF DUMBOL

Minj

O’Leary AJ

26 March 1976

29 March 1976

CRIMINAL LAW - Murder - Self defence - Unprovoked assault - Tests to be applied - Belief on reasonable grounds that cannot otherwise preserve himself from death or grievous bodily harm - “Otherwise” means otherwise than by using force in fact used - Criminal Code (Queensland adopted), s. 271[cxv]1.

To raise a plea of self defence under the second paragraph of s. 271[cxvi]2 of the Criminal Code (Queensland adopted) there must be evidence of the following matters:

(1)      That the accused was unlawfully assaulted;

(2)      That the accused had not provoked the assault;

(3)      That the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; and

(4)      That the accused believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.

R. v. Muratovic, [1967] Qd. R. 15 at p. 19 applied.

Trial

This was a trial on a charge of murder in which leave was granted pursuant to s. 575 of the Criminal Code (Queensland adopted) to enter a plea of not guilty on behalf of the accused. Pleas of self-defence and provocation were then made to the charge.

Counsel

BJ Cassells for the State

E Jubilee for the accused

Cur. adv. vult.

29 March 1976

O’LEARY AJ:  The accused, Takip Palne of Dumbol, has been indicted before me on a charge that on 15th August, 1975 she murdered one Kapen Tokamataudal. When arraigned on that charge she pleaded guilty, but on the application of her counsel, Mr. Jubilee, I gave leave for him to enter a plea of not guilty on her behalf, he having informed me that he wished to enter a plea of self-defence to the charge, as well as a plea of provocation.

The facts relating to the matter of the charge are provided almost entirely by the accused herself, first in a record of interview with the police, and later in a statement made before the District Court at the committal proceedings.

[His Honour then set out the relevant parts of the record of interview and the statement made before the District Court and proceeded:]

I think I must conclude from this evidence that although the accused, in her record of interview and her statement in the District Court, seemed to say that she only struck the deceased once with the bush knife, she did in fact strike her twice. I think I must also conclude that she struck the deceased with “considerable force”, and that it was one, or other, or both of these blows that caused the death of the deceased. The evidence, however, does not enable me to say whether the blows were struck in quick succession or whether there was some interval of time between them.

The only other significant witness called for the prosecution was Amban Koro, a sister of the deceased. She said that on the morning of the 15th August, 1975, she was in her peanut garden when she saw the accused come out of the deceased’s coffee garden. At the time she first saw her the accused was walking, but when detected by Amban she ran. Amban wanted to see her sister, and when she eventually came across her in her coffee garden she found her “lying on the ground dead”. This must have been, I think, a fairly short time after the killing. She said that when she walked inside the coffee garden she saw a string bag and a bed sheet and coffee picking gear.

The accused and the deceased are both wives of one man.

The first ground of defence relied on by counsel for the accused is that of self-defence. He relies on s. 271[cxvii]³ of the Code, that is the section dealing with self-defence against an unprovoked assault.

Counsel for the accused concedes that the present case does not come within the terms of the first paragraph of that section, but, he submits, it does fairly come within the terms of the second paragraph.

Where a defence of self-defence is raised, I think the first step to be taken by the trial judge is to inquire whether there is any evidence before the court on which a jury, or other tribunal of fact, acting reasonably, would be entitled to find that the killing (if the charge is homicide) was done in self-defence or to entertain a doubt whether it was done in self-defence: see R. v. Muratovic [cxviii]⁴, per Gibbs J. at p. 18. If there is, then the issue must be left to the jury, or tribunal of fact, to decide on the whole of the evidence before the court; if there is not, then the plea fails and calls for no further consideration.

It will be seen from a reading of the section that to raise a plea of self-defence under the second paragraph of that section, there must be evidence of the following matters:

1.       that the accused was unlawfully assaulted;

2.       that the accused had not provoked the assault;

3.       that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; and

4.       that the accused believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.

It will be noted that in formulating the fourth matter above, I have adopted the meaning of the word “otherwise” given to it by Gibbs J. in R. v. Muratovic[cxix]⁵. It seems to me that that is the meaning that must be given to the word in the context of the section, and I have not had any local authority cited to me, nor am I aware of any, by which I would be bound to adopt another interpretation. The consequence of this is, as Gibbs J. pointed out, that if the matters above set out are satisfied, it does not become necessary for practical purposes to consider whether the force used was in fact necessary for defence. As he said (loc. cit.):

“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 my opinion, as will appear from what I say hereunder, there is in the present case some evidence of each of the matters I have set out above, with the consequence that, if the case were being tried by a jury, the ultimate question as to whether the issue of self-defence is to be decided in favour of the accused would have to be left to the jury to decide.

As the tribunal of fact in this case, I therefore now turn to consider and evaluate the evidence in relation to each of these matters, bearing in mind, as I must, that before I can convict I must be persuaded beyond reasonable doubt that the factual constituents of a plea of self-defence as I have set them out, or some one of them, did not exist: see Reg. v. Howe [cxx]⁶, per Dixon C.J. at p. 459.

As to the question whether the accused was unlawfully assaulted, I think there can be no doubt that that was so. Leaving aside the preliminary skirmish between the two women (which is probably not material for present purposes) the evidence is that the deceased, after a while, ran off and came back to the fray with a bush knife. The accused’s back was turned to the deceased at the time, but hearing someone running towards her, she turned and saw the deceased with a bush knife in her right hand charging at her to cut her. The deceased swung the bush knife at the accused, but there being a coffee tree between them she did not strike her with it; instead, as the accused said, “her hand holding the bush knife landed on my head and back of my neck”. That is clearly enough an unlawful assault on the accused.

The next question then is, did the accused provoke the assault. Again, I think the evidence clearly supports the conclusion that she did not. I think the evidence fairly supports the conclusion that it was the deceased who started the quarrel on that particular morning when she asked the accused did she know anything about the K2 missing from the K8 left in her room. As the accused said, she told her she did not know anything about it, but she (the deceased) accused her and kept on saying she stole it. The accused told her she did not steal it and if she liked she could search her string bag. The deceased did search her string bag, opening it roughly, breaking it as well as the accused’s bed sheet that was in it. That this was so is supported by the evidence of Amban Koro as to what she saw when she came on the scene after the killing. At that stage the accused said she did not do anything as she thought the deceased might fight her. It was then that the deceased commenced her attack on the accused which culminated in her (the deceased) running away and getting the bush knife with which she tried to cut the accused. Certainly, that final attack on the accused by the deceased (which I think is the material one) was in no way provoked by the accused.

The next question to be considered is whether the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm. Having regard to the fact that the assault consisted of the deceased charging at the accused with a bush knife to cut her (as the accused believed), that this was the ninth time that the deceased had tried to cut her with a bush knife (having succeeded to some extent on a number of those occasions), I do not think it can be doubted that the assault was such as to cause reasonable apprehension of death or grievous bodily harm.

The final question then is, did the accused believe, on reasonable grounds, that she could not preserve herself from death or grievous bodily harm otherwise than by using the force which she in fact used. There is no direct evidence as to what the accused’s belief was at the time she struck the deceased, but if she did hold the belief that she could not preserve herself otherwise than by using the force which she in fact used, I think that would be a belief which she had reasonable grounds for holding, having regard to the nature of the assault and the deceased’s previous attempts to cut her with a bush knife. Furthermore, the whole of the evidence indicates to me that she probably did hold such a belief. After all, the attack by the deceased was a most serious one which put the accused in immediate and desperate peril. Some defensive action was necessary, and in those circumstances I do not think she could be expected to “weigh to a nicety the exact measure of ... necessary defensive action”: cf. Palmer v. The Queen [cxxi]⁷. As was said by Holmes J. in Brown v. United States of America[cxxii]⁸ cited by Dixon C.J. in Reg. v. Howe[cxxiii]⁹ at p. 463: “Detached reflection cannot be demanded in the presence of an uplifted knife.” Much less, I would think, could it be demanded in the presence of an uplifted bush knife. I, therefore, think, as I have said, that the accused did believe at the time she struck the deceased (whether it was with one or two blows) that she could not preserve herself from death or grievous bodily harm otherwise than by using the force she did, and that she had reasonable grounds for so believing. At the very least, I am certainly not satisfied that she did not hold that belief, or, if she did, that she did not have reasonable grounds for holding it.

It was put to me by counsel for the State that, having disarmed her assailant by taking the bush knife off her, what the accused did was not by way of self-defence but rather by way of retaliation against the deceased. It is true, of course, that if the attack were all over and no sort of peril remained to the accused, then the employment of force may well be by way of revenge or punishment or of paying off an old score, there being no longer any link with a necessity of defence: cf. Palmer v. The Queen [cxxiv]¹⁰.

I do not think there is any evidence in the present case that would entitle me to think that that was the case here. In fact, to my mind, that was clearly not the case. What the accused did was, in my view, an instinctive thing directed only to preserving herself from death or grievous bodily harm at the hands of her assailant. As I see it, the case is not so much one of disarming her assailant as of having gained possession, at least temporarily, of the lethal weapon with which she was being attacked and striking with it to defend herself from a further attack — and it should be borne in mind that the deceased was in fact charging at the accused to grab her when the accused struck her with the knife. In those circumstances, I could not be satisfied that no further peril remained to the accused.

In the result then I am not satisfied beyond reasonable doubt that any of the above constituent elements of a plea of self-defence did not exist in the present case. In that event it becomes unnecessary for me to consider the defence of provocation which has also been raised by the defence.

I therefore find the accused not guilty of murder, and I discharge her accordingly.

Verdict: Not guilty of murder.

Solicitor for the State: K. B. Egan, Acting Public Prosecutor.

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

[cxv]Section 271 of the Criminal Code (Queensland adopted) provides:—

Self defence against unprovoked assault—When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

[cxvi]Section 271 of the Criminal Code (Queensland adopted) provides:—

Self defence against unprovoked assault—When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

[cxvii]Infra p. 190 footnote.

[cxviii][1967] Qd. R. 15.

[cxix] [1967] Qd. R. 15, at p. 19.

[cxx](1958) 100 C.L.R. 448.

[cxxi](1971) 55 Cr. App. R. 223.

[cxxii](1920) 256 U.S., at p. 343.

[cxxiii](1958) 100 C.L.R. 448.

[cxxiv][1970] UKPC 2; (1971) 55 Cr. App. R. 223.