Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 92
N692
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
LAURA (NO 1)
Waigani
Kidu CJ
14 March 1989
17 March 1989
20-21 March 1989
24 March 1989
CRIMINAL LAW - Particular offences - Murder - Intention to cause grievous bodily harm - Defence of justification - Application of proviso to all circumstances of justification - Whether open on facts - Criminal Code (Ch No 262), ss 32(1), 300(1)(a).
Section 32(1) of the Criminal Code (Ch No 262) provides as follows:
“A person is not criminally responsible for an act or omission done or made:
(a)      in execution of the law; or
(b)      in obedience to the order of a competent authority that he is bound by law to obey, unless the order is manifestly unlawful; or
(c)      when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or
(d)      when he does or omits to do the act:
(i)       in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and
(ii)      believing himself to be unable otherwise to escape the carrying of the threats into execution,
but this protection does not extend to an act or omission that would constitute an offence, punishable with death, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.”
Under s 300(1)(a) of the Criminal Code (Ch No 262), a person is guilty of murder if he “intended to cause grievous bodily harm to the person killed”.
On a charge of murder under s 300(1)(a) where the defence of justification under s 32(1)(c) was raised,
Held
(1)      The proviso to s 32(1) applies to all the circumstances dealt with in s 32(1)(a) to (d) and applies only where the offence charged is punishable by death, or is an offence in the definition of which, or in the commission of which, the causing or intention to cause grievous bodily harm is an element.
R v Silk [1973] Qd R 298 at 300, followed.
(2)      In the circumstances the proviso applied and the defence was not available.
The State v Angela Colis Towavik [1981] PNGLR 140 at 146, applied.
Cases Cited
R v Silk [1973] Qd R 298.
The State v Angela Colis Towavik [1981] PNGLR 140.
Trial
This was the trial of an accused on a charge of murder under s 300(1)(a) of the Criminal Code (Ch No 262).
Counsel
T Pryke, for the State.
B Takin, for the accused.
Cur adv vult
24 March 1989
KIDU CJ: The charge against the accused is that he murdered the deceased, Marepo Kave, in the early hours of 2 July 1988 at Badili, near Suckling Enterprises, the 8 Balls snooker place and Haus Bilas.
It is alleged by the State that when the accused stabbed the deceased he intended to cause grievous bodily harm and as the deceased died as a result of the stabbing the accused is guilty of murder pursuant under s 300(1)(a) of the Criminal Code (Ch No 262).
There is no dispute by the defence that the accused did the stabbing, he did stab the deceased and he did so with the sharpened end of a grass knife which had a three-inch blade and a handle of about the same length. But he says he stabbed the deceased because it was reasonably necessary in order to resist actual and unlawful violence threatened to him — that is, the defence under s 32(1)(c) of the Criminal Code.
About 2 am on Friday, 2 July 1988, the accused, the deceased, State witness Mr Faido Piria Kiki, defence witness Lesley Mea Griffin, and others were near and in the “Norm’s fast food” shop near Suckling Enterprises at Badili to buy food to eat. The accused, Faido and others, all from the Gulf, had arrived first at the fast food store. The witness, Lesley Mea Griffin, arrived at the store in a vehicle with the deceased and a man by the name of Michael Willy and Michael’s girlfriend. Griffin and Marepo, the deceased, went in and bought their food, returned to their vehicle and started eating and Michael and his girlfriend left the vehicle to go into the fast food store to buy their food. When the woman walked into the store, first someone pinched her on the back, on the bottom and she shouted and demanded to know who had pinched her bottom. Michael then went in and as a result of arguments a fight started between the witness, Faido, and five others. It was then that the deceased went in, demanding to know what had happened. He then took off his shirt and fought with the youths who were fighting with Michael in the store. Exactly what happened in the fight before the accused ran out of the store and was chased by the deceased is not very clear because the three witnesses who gave evidence of the incident differ in many respects. According to Faido, who was called by the State, when the fight started he, the accused, Augustine Weka and three others were fighting with Michael and the deceased, and, he says that, when the police arrived, everyone ran out of the store and he went towards the Haus Bilas shop next to the fast food store. He was standing about 20 metres away from the Haus Bilas store when he saw the accused being chased by the deceased. According to his story, the deceased knocked the accused down in the space between Haus Bilas and the fast food store. The accused then got up and swung his hand at the deceased and after that the deceased yelled out, “This man stabbed me, hold him” and then started chasing the accused towards the 8 Balls across towards the bus stop near Suckling Enterprises and then back towards the fast food store again. The accused ran over and was held by a security man from Burns Philp and the deceased was in the process of crossing the road when it appears that he fell or collapsed presumably as a result of being stabbed in the heart and there is evidence that the police car which was chasing the accused ran over him and when people shouted, it reversed and ran over him again. On this part of the story, the accused and the witness, Lesley Griffin, held the same story.
According to the accused, he was waiting outside the shop when the fight started, he went in, he was minding his own business trying to buy something to eat during the fight and when the police arrived everyone who was fighting ran away except himself, the deceased and Michael. The deceased and Michael then started assaulting him according to his evidence on oath, he was kicked about 30 times and hit, punched by these two men for a period of 10 to 15 minutes and during all this time two police officers stood and watched the beating which took place. He says he then found a gap between the two men who were assaulting him and he ran outside the store and the deceased chased him and they ran towards the Haus Bilas shop next door and when he ran into the space between the two shops he was tripped, he fell down, the deceased kicked him again about six times, he then took out the knife which was in his socks, supported himself on his left hand, swung his hand towards the stomach of the deceased and stabbed him, pulled out the knife and ran. He agrees with Faido that the deceased did shout, “This man stab me with a knife, hold him”. He says the same story as Faido, that is, that the deceased then chased him towards the 8 Balls and then across towards the bus stop near Suckling Enterprises and then back towards the fast food store and he was then held by the Burns Philp security man and the deceased was on his way across when he was run over by a police vehicle.
According to the story told by Faido, the accused took part in the fight. He said that in his evidence in chief, however, when he was cross-examined he changed his story and said that he didn’t know whether the accused took part in the fight or not. I must be careful with this evidence because he was charged together with the accused and four other persons. However, when the trial commenced the other five accused persons, including Faido, were nollied and I discharged them. So he is not really an independent witness. The accused has also given two different versions of how the stabbing took place. I have already outlined the story he told about the stabbing when he gave evidence from the witness box. But back in a time which is closer to the offence, that is, 4 August 1988, he was interviewed by the police and this was a month after the incident and his mind would be fresher about the incident then. In that interview he was asked to give his story, and in his own words, this is part of what he said in answer to question 18:
“I ran out between them and that big fellow started running after me, when I looked back I saw him trying to trip my legs but I grabbed hold of a pipe post and swung myself and I fell off. That big fellow went and stopped and swung a hand at me. I was still on the cement, he was trying to swing me again but I got up, got a knife and stabbed him. I pulled the knife out from the big fellow’s body and threw the knife on the main road.”
It is clear from this version that first he was not kicked six times by the deceased, the deceased only swung at him and he retaliated by stabbing him with a knife. The second thing about the quote is that he says he got up, he stood up and then he stabbed this person with a knife. In fact, this is supported by Faido. In his evidence Faido said the accused got up, stood up and then swung his hand at the deceased and the deceased shouted, “He stabbed me with a knife”. So I accept the version that the accused gave which was closer in time to the offence than the version he has given nearly 10 months later. He has had time to think about the matter, it appears to me that he has tried to improve his story, and to blame the killing on the deceased to exonerate himself.
Both Faido and the witness, Lesley Griffin, say that the accused took part in the fight and I have no reason to reject their evidence on that point. I do not accept the accused’s evidence that he was an innocent bystander and was assaulted by the deceased and Michael Willy for nothing. There are various reasons why his story does not hold water. He had gone to the store with his friend, Augustine Weka, that is what he said in his evidence. He then saw the deceased knock down his friend, Augustine Weka, and he says that he did not see his friend being knocked down, he stood there and did nothing. This goes against common sense: usually if a friend is being assaulted I think an ordinary reasonable person in this country would go to the aid of a friend either to stop a fight or to take part in the fight on the side of his friend. Secondly, he says he was beaten up by the deceased and Michael Willy for about 10 or 15 minutes, they kicked him about 30 to 40 times and also punched him. It seems to me that if that was the case as he says that these men were wearing shoes (the deceased was wearing sandshoes) and while they were kicking him then for that number of kicks and the number of about for 10 or 15 minutes they would have nearly killed him and he would not have been able to get up and run away as he did, stabbed the deceased and keep running as he said. Also he would not have been able to go to his friend’s place at the Salvation Army Hostel, go to his sister’s place the next day and go to Four Mile to spin around, as he says in his record of interview, if he had been bashed up so badly at the fast food store — that story is very, very difficult to believe and this goes to the question of whether he is telling lies or telling the truth as to whether he took part in the fight or not. As I have said, I accept the evidence by Faido and Lesley Griffin that he did take part in the fight. Lesley Griffin goes further and says that during this fight, when Augustine was knocked down, the accused produced his knife and was threatening the deceased with it and the deceased was trying to avoid the knife and near the door of the fast food store the accused nicked the deceased with the knife, ran out of the store and was then pursued by the deceased. Later Lesley Griffin heard the deceased start shouting, “This man stabbed me, hold him”. He did not see the actual stabbing. So I find that the accused took part in the fight, he produced the knife in the fight inside the store and he was then chased out of the store by the deceased and he stabbed the deceased with the knife as he says in the space between the fast food store and Haus Bilas.
It is very clear that the stabbing was deliberate. This came out during the cross-examination of the accused by Mr Pryke. The accused was asked when he went to the Papua Hotel with the knife in his sock whether he was prepared to use it if he was threatened and he said yes. He was asked the following questions later on in the cross-examination:
“Q.     You were shooting the knife towards his abdomen, weren’t you?
A.       Yes.
Q.       So you must have known you were getting above his waist?
A.       Yes.
Q.       That’s where you meant to get him?
A.       Yes.”
So here we have the accused who was prepared to use the knife if he was in a fight, he did use it in the shop and said later he was prepared to use it to deliberately stab somebody towards the stomach. Any person who has a sharp weapon like a knife, who attacks another person and intends to hit him in the stomach must know that he is likely to cause harm to this person. Here there is no doubt from his answers in cross-examination that he intended to cause grievous bodily harm to the deceased.
As I have already stated here, the defence raised a defence based on s 32(1)(c) of the Criminal Code which reads as follows:
“(1)    A person is not criminally responsible for an act or omission done or made:
...
(c)      when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him; or
...
but this protection does not extend to an act or omission that would constitute an offence, punishable with death, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element ...”
The accused is charged with the offence of murder under s 300(1)(a) of the Criminal Code which reads as follows:
“(1)    Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:
(a)      if the offender intended to cause grievous bodily harm to the person killed ...”
The proviso to s 32(1) is very clear as to when the defences provided are available. In this case the defence provided for in par (c) is not available to the accused because he is charged with an offence of which grievous bodily harm is an element.
There are only two cases on this section and they relate to whether the proviso applies only to par (d) or whether it applies to pars (a) to (d). In the case of R v Silk [1973] Qd R 298, it was held by Kelly AJ that the proviso applied to all the paragraphs, (a) to (d), of the provision (it is s 31 in the Queensland Criminal Code). In this case, after giving his reasons for his opinion, the trial judge (at 300) concluded as follows:
“Weighing up the various matters to which I have referred, I am forced to the conclusion that on its correct construction the proviso is intended to apply to all the circumstances dealt with in the section and it is not limited to clause (4) and I would so rule.”
In the Papua New Guinea case of The State v Angela Colis Towavik [1981] PNGLR 140, Miles J agreed (at 146) that the proviso to s 32(1):
“applies only where the offence charged is punishable by death, or is an offence in the definition of which, or in the commission of which the causing or intention to cause grievous bodily harm is an element”.
But the proviso did not apply in that case because the accused was charged with unlawful wounding.
The defence of self-defence has not been raised. Anyway if it had been, it has not been made out. It is quite clear from the evidence that the accused stabbed the deceased deliberately and there was no element of self-defence involved in his action.
Verdict: Guilty of murder
Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.