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State v Paul [1997] PGNC 104; N1612 (29 August 1997)

Unreported National Court Decisions

N1612

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 610 OF 1997
THE STATE
v
PIAM PAUL

Waigani

Batari AJ
25-29 August 1997

CRIMINAL LAW - Wilful Murder - Defence of accident - Onus on accused to prove on balance of probability.

CRIMINAL LAW - Particular Offence - Wilful Murder - Intent - Evidence - Insufficiently of.

Trial

This was a trial of an accused on a charge of wilful murder, to which the defence of accident was raised. The facts appear in the rsasons for judgment.

Counsel:

L Maru for the State

D Kari for the Accused

1 September 1997

BATARI AJ: An Indictment presented before me against the accused charged that on 15 December, 1996 she wilfully murdered one, Marata Wagim, (“the deceased”) at Boroko in the National Ca District. The charge was laid s.299s.299(1) of the the Criminal Code Act.

The story led by the State witnesses was that, on the day in question, the accused came upon the deceased at the junction of Okari Street and Hubert Murray Highway, Boroko and assaulted her over the man with whom both were having marital relationship. The accused stshe was marr married to the man while it is not known whether the same relationship existed between her husband and the deceased. There was however evidenat the accused’s husband had been seeing the deceasedeased for four (4) years up to the time of her death. As a result offight deceaseceased sustained a stab wound to the ribcase section below the armpit. T60; The wound pd the left left lung througthe left side of the heart. State wies said the accuseccused inflicted the wound with with a knife during the fight.

Thesed led evidence on her own behalf that on the day in questquestion, the deceased accosted her with a knife in a sudden attack during an altercation with her husband. She reacted spontaneously by grabbing the right hand of the deceased which held the knife. Btruggled over the knife fife for sometime before they collided against the wire fencing and fell. At that point, the ed red her hands from from the deceased and fled in fear of being attacked by the deceased.&#160 The defease was that the dthe deceaell first on her left side and the accused fell after her landing on her right side. 160; It was sugd the deceadeceased fell onown knife and was injured.

That being her case, I th I think the defence of total denial was open. However, the accused d on the defence of accident under s. 24 of the Criminal Coal Code. vidence of the deceaseded’s sudden appearance and ct on the scene suggested elements of provocation and self-defence. ce Counsel asel also triedtried to advance this in his finamissions. But I pointed outd out to Counsel, the accused cannot have it both ways. She may raise thence of prof provocation and-defence together but she cshe cannot also say, if she did not stab the deceased under self-defence or under provocation then, it wasccident.

The accused has the onus to establish on thon the balance of probability that the injury caused to the deceased was accidental. From her versio is possiblssible that the deceased met her death when she fell onto the knife which she held while struggling with the accused. However, when I consider the nature of the State’s evidence, the accused’s version in my view is not in the least probable. There was over-whelmiidencidence that the accused stabbed the deceased with a kn#160; The medical opinion wion was that a sharp slender instrument was used with a determined and considerable force to propel it int lung and through to the hehe heart. The instrument travelled in a medium upward direction and that the wound was a clean cut. This in my view, supported the proposition that the instrument was guided.

The medical evidence is consistent with vidence of Paul Maima.&#160 He spokeeeing the accused used stab the deceased within 5 meters from where he stood on the junction of Okari Street and Hubert Murray Highway. The stabbing he said wathen the middle of Okari Street, a few meters away from the junction. Constable Michael Aubo coefirmed that he saw blood in the middle of the road and on the side of the road. Thisonsistent Paul Maima&#ima&#ima’s evidence at the scene that, the deceased fell and was lying on the side of the road after she was sd in the middle of the road. Paima possibly did not witt witness the first part of thof the fight which may explain the inconsistency in his evidence on that aspect. He was on the other handaknshaken on his evidence that he stood within a short distance and saw the stabbing. His versis highly pr0; probable as it haportpport from other independent evidence.

The ed first gave the Police hece her version of the incident when interviewed. She repeated that version in Court. Her statement e Police wde made on 9 Febr February, 1997 some two (2) months after the event. I think she had had the tome to consider her sion an defence to the allegations. She didimot impress me as e as a truthful witness.

I find that the accused stabbed theased with a knife and that her act led to the demise of thef the deceased from loss of blood due to a stab wound piercing the left lung and heart.

Whether the accused intended to kill the deceased depends on direct evidence and inferences to be drawn from the evidence of the witnesses on the element of “intent” under s.299(1) of the Criminal Code. As I indicated earlthe defe defences of self-defence and provocation were fairly open on the accused’s evidence but she chose to conduct her differently. The evidence suggeshe was was in a heated argument with her own husbandsband when the deceased intervened. The accused spoke of being told earlier that her husband had slept at the deceased’s home and that the two had left the home in the early morning. It is reasonopen that she she would have beeen incensed by this and by the ongoing problems she spoke of as affecting her marriage. ould bly be ange angry to y to the extent of harbouring an intention to kill. She had the opportunitcarr carry out her intention when she confronted the deceased on the day in question. The fact she first used heed her han hit the deceased before stabbing her however do not in my view, sufficiently support an inan intention to kill. I find on the handevidencidence sufficiently supported an intention to c to cause the deceased, grievous bodily harm from which she died.

I the accused not guilty of wilful murder. I find her guilty of r purr pursuant to s.3o s.300(1)(a) of the Criminal Code. I havched this verdict undt under s.539(1) of the Criminal Code Act. I convict the accused accordingly.

Lawyer for tate:ic Prosecutor

Lawyer for the Accused: A/Public Solicitor