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State v Ambrose [1997] PNGLR 682 (14 February 1997)

[1997] PNGLR 682

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BOLOK KIK AMBROSE

MOUNT HAGEN: AKURAM J
10, 14 February 1997

Facts

Accused is charged that on the 10th June 1996 he murdered one Namba Kik after an argument over land and a fight broke out. He stabbed his brother with a small kitchen knife measuring 10-12 inches. Accused alleged that deceased attacked him first with a bush knife and accused retaliated in self-defence.

Held

Where a defence of self-defence to murder is raised, the questions to be determined beyond reasonable doubt are:

(a) Whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm;

(b) Whether the accused believed that he could not preserve himself from death or grievous bodily harm otherwise than by using the force that he in fact used;

(c) Whether the accused’s belief was based on reasonable grounds, or rather whether the State has negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds; and

(d) The accused was acquitted since he has successfully made out his defence on the basis of the test in s 269, Criminal Code.

Papua New Guinea case cited

Kwapena v The State [1978] PNGLR 316.

Other cases cited

Palmer v The Queen [1971] 1 All ER 1070.

Turner v Mgm Pictures [1950] 1 All ER 449.

Counsels

Aipe, for the accused.
Kumo, for the State.

14 February 1997

AKURAM J. The brief facts as alleged by the State are that the deceased, after attending to the mourning of a deceased relative preparing firewood, came to the market, and then went over to the house of the deceased to tell him about the land the garden is on. Then a fight broke out and accused stabbed the deceased three times with the kitchen knife.

The accused’s evidence is that he came to Mount Hagen, left about 3 o’clock and arrived at home about 4 pm. As he was asked by some one to catch some eels (fish), he went to his home and got hooks and string and his bag and a lamp to go fishing at night. While he was preparing the hooks and the fishing line, the deceased came and got angry with him for not coming to the market as people were waiting for him to pay his K30.00 school fees for his child. The deceased then struck him with a long bush knife two times - once on the left hand wrist and second time on the shoulder joint of his left arm. The accused retaliated in self-defence and swung the kitchen knife he held towards the deceased then second time and third time and many times thereafter but inflict only three wounds. They then held onto each other.

It was then the second State witness (Oki), arrived and deceased told Oki to retrieve the knives from both of them. Witness Oki got the knife from the deceased but accused did not give his knife straightaway but sometime later.

At the conclusion of evidence of State and defence, counsels made submissions. The defence submitted that the accused acted in self-defence when deceased attacked him without any warning twice and when he was about to attack the third time, the accused retaliated by attacking him with a small kitchen knife. Accused’s evidence is that he swung the knife at random not knowing where it landed as his left arm was paralysed by a chop at the shoulder of his left hand.

There are no eye witnesses to the fight. Witness Oki came to the scene after they finished attacking each other and were holding onto each other.

So it is the word of accused as to how the fight started and ended. The accused in his record of interview (ROI) said this:

"On Monday morning I came to the main road to get a bus to come to Hagen town. In the afternoon some thing like 3.00 pm I went back. I went home, I put my shirt and trouser I got a hook from the drum and string and a bag and a knife. I saw sun was from east to west and it is getting dark so I got a lamp ready to go down to the creek. And in the night I want to hook fish. When I was ready to go, I heard a noise look like a man coming. When I saw Namba Kik came he was sweating holding a bush knife came close to me he told me that all men at the market told you to come. He came threw a bush knife to me. When he threw a bush knife I lift my left hand up to prevent me he chopped my left hand with the bush knife. I asked him why did you cut my hand when I say that he cut me second time there I felt pain and bloods run over me bleeding and I was weak so I was holding a pocket knife I stabbed him on his stomach. I felt my hand was getting worse I stabbed the second time on his stomach or backside I am not sure. The third time I stabbed him I am not sure whether stomach or backside. We both fought each there Oki came and stopped us". (Emphasis added).

His statement on attacks by deceased is consistent with the medical report and the scars on his left wrist and shoulder. There is no other evidence to the contrary so I had to believe the accused.

The issue is whether his actions were in self-defence against an unprovoked assault (s. 269 of Criminal Code). The State has no evidence to contradict what the accused had said as quoted above in the ROI. I therefore believe the accused that this was an unprovoked assault on him. He reacted after the second attack on him by the deceased with the bush knife. I am not saying that the allegations of land dispute are not a possibility of the cause of the fight. What I am saying is that no one witnessed the fight from beginning to the time when Oki arrived. When Oki arrived the deceased and accused were clinging onto each other’s body. They were not fighting.

As to the tests to be applied in such situations on the question of self-defence, from the facts I do not know who provoked the assaults first, but accepting the accused’s version as I have said above, if the deceased had provoked the accused first by attacking him, then the next question is, should the accused have retreated. I do not think so. He was sitting down when attacked and if he did not do anything to defend himself, the next blow could have been fatal on him. So he could not retreat and therefore reacted by swinging the only thing he had in his hand. He did not look for anything else. He had the pocketknife so he used it. The next question is whether his retaliation was excessive. I am of the view that there are no niceties in such situations. When you are attacked and your life is in danger, you have no time to think and decide whether to run away, to avoid next blow or to find another object to defend yourself. You have to use whatever is nearest to you to defend yourself whether it be a gun, another knife, and so on. So the only thing he had was a pocketknife, which he held at the time. As said in Tapea Kwapena v The State [1978] PNGLR 316 at 319 that:

"If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queens berry’s rules in your self-defence." (Quoted from Turner v MGM Pictures [1950] 1 All ER 449 at 471.)

The Privy Council in Palmer v The Queen [1970] UKPC 2; [1971] All ER 1077 at 1088 said of the common law position and quoted in Kwapena’s case that:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action".

As to the question whether the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm except by using the force that he did and not whether what he did was reasonable necessary to preserve him from death or grievous bodily harm (see Kwapena at p. 324), I would think so and, say that the accused did in the circumstances what he believed was reasonable. The State had not negatived beyond reasonable doubt with evidence the possibility that the accused so believed on reasonable grounds.

I therefore find the accused had acted on what he believed was reasonably necessary and do not find him guilty.

The accused is therefore acquitted and discharged forthwith.

Lawyer for the accused: Public Solicitor.
Lawyer for the State: Public Prosecutor.