National Court of Papua New Guinea

3. It was a very small and crowded office measuring about 6 x 6 metres. It was divided in half by a chest high partition which commea few fromside (leav smal blocked by a table) and ended about 1.5 1.5 metremetres fros from them the othe other sidr side wall (leaving a small gap through which the public had access to staff serving behind the partition. On the customers’ side of the partition customers would enter through the front door (which opened inwards) and be immediately confronted by a table at which the new typist Beromina Moiun sat. On the far side wall was another table at which Incytrix Edgar normally sat facing Beromina. That table was on the customer’s side of the partition near the access gap.

On the staff or far side of the partition were two tables (up against the back of the partition. Fiona Gadebo worked on the table furthest from the access gap. At the time of the incident Incytrix was standing at the second table near Fiona (between Fiona and the access the gap) searching for the accused’s cheque and the accused was standing in the access gap waiting. He had a sharp “kitchen knife with a 5” pointed blade in his hip pocket.

4. ټ T60; The deceased walked en the front door, paused, saw the accused, and said “Yu tasol” meaning “you are the one!” and moved swiftly towards him.

5. ټ ҈ at tiot tiona wasa was sitt sitting aing at her desk and Beromina Moiun was sitting at her desk. State witness Kelly Kamura was standing on theomer of the partition talking to Fiona over the partitartition. Incytrix had left her own desk aesk and was behind the partition at the table next to Fiona standing with her front towards the partition sorting through cheques.

6. ; A60cuffse started betweentween the deceased (a taller, younger man) and the accused (a shorter, older but well built man)

While on top of her table she saw that the deceased was already on the floor in the access gap with blood near his head and the accused was running out the door. She then ran out herself.

Incytrix said she heard Fiona scream and saw her climbing the table. She immediately turned away from the struggle and moved towards Fiona and tried unsuccessfully to climb the table (she was too short and heavy) she turned back to escape through the access gap and saw deceased already on floor with blood pouring from his throat. The accused had already gone. She then walked around the body went through the access gap and headed for the front door just as Copland Gewa and Vincent Bakau entered.

Kelly’s evidence shows that he got a better look at the commencement of the struggle. He heard the words “Yu tasol” and saw the accused turning to face the deceased who was moving towards him. He saw them meet face to face and each place his hands on the upper part of the others body around the shoulder and neck area. The deceased was the more aggressive of the two and the force of his motion pushed the accused through the gap and up against the back wall. Neither person held anything in his hands. The accused had his back against the back wall retaliating strongly (seems pushing at deceased’s chest) and neither had a weapon.

Kelly went through the front door half jumping half running and ran three paces to the right stopped and turned to face back towards the front door. The accused had already come outside and was moving towards the bystanders and said “You stay here” opened the car door and got in shouting “take off take off!”. The car sped off.

Copland Gewa swore he heard screams and saw people rush out the front door. As he tried to enter he bumped against the accused who was coming out carrying a blood stained knife in his right hand. When he got inside the room he saw the deceased lying just inside the access gap with blood pouring from his neck. Incytrix was just stepping around the body to get through the access gap on her way to the front door. Kelly than returned and Gewa and Kelly examined the dying man. Kelly tried to apply pressure to stop the bleeding but his thumb went right inside the wound. The body was carried out and placed on a government utility and taken to hospital but was dead on arrival.

The doctor’s report (tendered by consent) describes the wound as 3” long 2” wide and 4” deep. “It cut through the major blood vessels in the neck which (are all in close proximity and on top of each other (ie main veins and arteries)”

“ ... he died from severe shock from massive haemorrhage (massive bleeding) as a result of the stab wound in his neck”.

The accused made a statement to the police which was tendered by consent as a record of interview. He also made an unsworn statement from the dock which was consistent with the record of interview in most respects.

His story is that he was standing at the partition with his back to the front door. The accused entered, said “you tasol” and immediately held him at the back of the neck and simultaneously punched his right and then his left ear. He claims that, still holding him by the neck; the deceased pushed him to the back wall without letting him turn around. He said the deceased then hit him again on both sides of the head and “at the same time he held me at the back and down here as well” (indicating the front of his throat).

The accused said that when the deceased squeezed his neck at the adams apple “I felt no good and I was frightened too and I felt no good”. Then he remembered the knife and he said he pulled it out of his hip pocket and swung it backwards over his right shoulder with intent to “get him on the arm so he will move his hands away and I will run out”.

He said that at the time his head was still against the wall and he demonstrated holding the handle of the knife in a tennis or “shaking hand” grip and a jabbing back over the right shoulder motion. He felt the hands loosen from his adams apple and he ran outside.

The accused never mentioned facing the deceased or placing his hands on the deceased in his defence. He clearly claims he had his back to the deceased at all times.

There are inconsistencies between the accused’s record of interview and the unsworn statement given in court regarding his possession of the knife. In answer to question 38 he said he carried it for his own protection. In answer to Question 41 he said he had taken it from his wife’s basket at a wantok’s house and was cutting betel nut when his wife took the basket away and so he put it in his pocket. In Court he said he was using the knife to cut betel nut outside the Finance Office when the door opened and he slipped the knife into his pocket and rushed inside to be first in the queue. These inconsistencies indicate I think, a tendency to improve his story to minimise his culpability.

I was very impressed by the evidence of Kelly Kamura and Fiona Gadeho who gave it very carefully and honestly. Copland Gewa also gave reliable evidence. I believe Incytrix and Beromina gave honest evidence but their shock and panic at the time and their rush to escape genuinely resulted in them seeing nothing of the struggle.

The accused’s version differs from Kelly’s version and after careful assessment, I accept Kelly’s version given on oath and thoroughly tested by cross-examination. Despite the short time which elapsed and the difficulties in observation the stories of the state witnesses are impressively consistent when it is all pulled together.

I find that the deceased came from behind the accused intending to assault him. The accused turned and the two grabbed each other. The deceased pushed the accused back up against the rear wall and they were face to face.

There is no living witness other than the accused (who has lied in court) to what happened next but it must have happened in a matter of seconds - in as long as it took Fiona to jump on the table - in less time than it took Kelly to run jump out the door and run three paces the accused must have pulled his knife and stabbed the deceased in the left side of the neck.

It would be most awkward for him to achieve this with an upward and backward thrust over his right shoulder (while jammed frontwards into a wall (because it would be a most awkward movement and most unlikely to cause a wound to the left side of the deceased’s neck). Only a few seconds before the two were seen face to face and for these reasons I find that the stab was delivered with the right hand while the two combatants were face to face. (This would be “likely to result in exactly the sort of wound inflicted). The stab caused death.

It remains to consider whether the killing was unlawful.

The defence relies on self defence against unprovoked assault under s 269 of the Code.

For this defence to succeed I would have to find that the force used was not intended or likely to cause death or grievous bodily harm. This force was clearly likely to cause death or grievous bodily harm. The only time when such force could be justifiable is set out in sub section (2) in cases where the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and where the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm. As this defence has been fairly raised on the facts the onus is on the prosecution to negative it beyond reasonable doubt.

Accepting the evidence of Kelly Kamura I find that the assault with the hands which was of very brief duration, did not cause reasonable apprehension of death or grievous bodily harm (not even in fact if the accused’s version is accepted).

Further I find that the accused did not believe on reasonable grounds that the only way he could preserve himself from death or grievous bodily harm was to use a knife face to face in the manner which I find that he did (it would not even be justified if he stabbed backwards as he demonstrated).

Thus although self defence was fairly raised on the evidence the State has discharged its duty to negative it beyond all reasonable doubt in my mind.

The defence also relied upon s 26 of the Criminal Code (Extraordinary Emergency).

This could only justify his stabbing if it was a sudden or extraordinary emergency (On the accepted version of the facts there was warning given by the words “yu tasol” as the emergency was not sudden. The two then commenced the sort of struggle which is not extraordinary but as all too normal (and in this case probably half expected).

To succeed the defence would need to show that an ordinary person with ordinary power of self control could not reasonably be expected to act in any other way than the accused did (by stabbing)

This defence also fails. It is not really raised on this evidence but in any event the State has discharged its duty to negative it beyond reasonable doubt. It follows that the killing was unlawful.

In those circumstances it must be either wilful murder, or manslaughter.

In the absence of an eye witness account of the actual stabbing and because it was a quick unplanned reaction to a sudden unprovoked assault I cannot be satisfied that there was an actual intention to kill.

Because it must have happened very suddenly - a wild frightened stab in all probability - I cannot be satisfied, either, that there was a conscious intention to cause grievous bodily harm.

Section 300 (1) (b) causes me more difficulty. The State argued that the stabbing occurred “in the course of an unlawful purpose” and (as it obviously was) the act was likely to endanger human life.

I find that the act of stabbing was done in the course of a lawful purpose (ie to defend himself). The fact that he used excessive force, in the absence of premeditation, does not make that purpose unlawful.

I therefore find the accused not guilty of murder under s 300 of the Criminal Code.

It remains however an unlawful killing not justified or excused by the law.

I therefore find him guilty of manslaughter under s 302 of the Criminal Code.

SENTENCE

The prisoner has been convicted of the crime of manslaughter which carries a maximum penalty of life imprisonment. The death occurred during a fight between the accused and the deceased which was started by the deceased. Both were Ministers in the Oro Provincial Government.

There had been a history of dispute between the two men which had previously erupted into violence. On this occasion however the accused had been actively working towards making a peace making feast. He was standing in the government Finance Office when the deceased entered and attacked him with his hands and fists without any immediate provocation. There was no witness who saw the fight in any detail but I have found as questions of fact that it was an unprovoked assault by the deceased using his hands and that the accused defended himself face to face with the deceased. At first he used his hands but almost immediately (within a few seconds) he pulled out a knife with a 5” blade and stabbed the deceased in the neck severing all main veins and arteries and, causing almost instant death. Although acting in self defence against an unprovoked assault the force used by the accused was grossly excessive.

To unlawfully take a life is a serious and terrible offence.

I take into account however the following factors:

1. ـ T6e accused had no d no prior convictions and was previously of good character and a leader of his community and church.

2. ҈& T60; The acce accused was defendimselinst tack for whir which hech he had had given no immediate provocation (although it seems he had previously played a part in causing the ill ng whed to reneweenewed assd assault).

3. &##10;& Th0;accu ed has heas heavy family commitments (wife and 12 children and a mortgage to repay on his oil palm block).

4. ـ҈ C60; Compensmpensation has been pa the sed&#s relatives.ives.

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Nevertheless the law must deal severely with fighters who unnecessarily pull a knife and use it during t fighe courts confronnfront thit this sort of behaviour often in gang fights and it must be strongly discouraged.

I have read the case of the State v Eddie Kava Laura (unreported) National Court N 693 where the Chief Justice imposed a sentence of eight years imprisonment on a man convicted of murder who used a knife which killed his opponent in a fight. In that case however the accused had been the attacker, he definitely intended to cause grievous bodily harm and the Chief Justice specifically found that “there was no element of self defence.

This is a conviction for manslaughter but it involves two leaders and it is important that the public sees that the law applies equally to all.

I believe this was a case which was proper to be defended as it largely turned on question of law and only the truly relevant facts were contested so the penalty is not influenced by the fact that he defended the case and put the state to unnecessary expenses.

I sentence the accused to 2 years imprisonment with hard labour.

Lawyer for the State: The Public Prosecutor

Counsel: Mr F. Kuvi

Lawyer for the Accused: Mr G. Emalio