National Court of Papua New Guinea

2006: 22 November
2007: 8 February

CRIMINAL LAW – Criminal Code – S302 – manslaughter – plea of guilty – son assisting mother in attack by father with bush knife – aiding in self defence pleaded on allocutus plea of guilty set aside.

Counsel:

R. Auka, for the State
M. Painap, for Accused

1. LAY J: On the 22nd November I accepted a plea of guilty and convicted the accused of manslaughter contrary to the provisions of s302 of the Criminal Code.

2. The brief facts put to the accused on arraignment were that on the night of the 7th August 2005, the accused was at home with his mother at their village at Napapar. Tade Tamil, now deceased, the accused’s father, came to the house to talk to his wife, the accused’s mother. Tade Tamil started to argue with his wife and hit her with a bush knife. The accused went to his mother’s aid and held Tade and punched him in the face. He then took the grass knife from Tade Tamil who fell down to the ground. The accused then used the grass knife to slash Tade behind his right ankle to immobilize him. Tade bled heavily from the wound and died.
   
3. On his allocutus the accused said “I didn’t mean to kill my father, I was trying to defend my mother. I was surprised that my father was dead. I didn’t expect this trouble to happen. I am aged 23 years old. In my 23 years I have done nothing wrong.”
   
4. A somewhat different set of circumstances appears from the depositions than from the brief facts. Moriel Kalapua, the deceased’s wife said in her deposition;
   

“When I was standing on the doorway, Tade started to argue with me. Then he took out the grass knife he was holding and stabbed me between the eyes, and there we struggled a bit and went out from the door way. When Julai saw that he came to my aid and grabbed his father, but his father turned around and slashed Julai on his arm with the grass knife. Tade was a bit drunk at that time; so when Julai and I grabbed him; he fell to the ground. While he was on the ground, I grabbed his testicles and he couldn’t get up and didn’t put up a fight. While Tade was still on the ground, Julai got his grass knife and slashed him on his heels. For me, blood was already running down my eyes and face.”

5. The accused’s wife, Julai Mary said in her deposition;

“I heard Kalapua crying out saying “God, my eyes are already being spoilt”. When I heard that I felt sorry for her, so I took the hurricane lamp and went out. From that instance I saw that Julai’s right arm was already bleeding and blood was running down Kalapua’s face.”

6. In his record of interview, the accused said;

“While still arguing, he lifted the grass knife he was holding and stabbed my mother between her eyes. He then tried to get the spear, I got up and disturbed him. He left the spear and tried to cut me with the grass knife he was holding. The first time he swung the grass knife, I tried to block it but the knife cut my hand, the second time he swung it, I caught his hand, and at the same time I punched him on the face twice and also twisted his hand. I removed the grass knife and he fell to the ground. When he fell to the ground, I took the grass knife from his hand and slashed him behind his legs to immobilize him only so that he won’t do anything else to me and my mother again. I didn’t mean to kill him.”

7. Two months after the matter was adjourned for a Pre-Sentence Report, the report is not available. I have reviewed the matter to consider whether I can proceed to sentence without the report.

8. In reviewing the matter I am concerned that on his allocutus the accused may have been raising a defense of self defense against provoked assault as provided by the Criminal Code s270 or aiding in self defense of a provoked assault as provided by s271. In the case of R V Kaiwor BA [1975] PNGLR 90. The Court adopted was said in R V Muratovic [1967] QD R15;

“The person using force in self defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if;

(1) the nature of the assault is as to cause reasonable apprehension of death or grievous bodily harm and

(2) the person using the force by way of self defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm.”

9. Now it seems to me the actual stabbing with a knife of the accused and the actual stabbing of his mother with a knife constitutes circumstances from which a reasonable apprehension of grievous bodily harm might arguably arise.

10 Whether the force actually used by the accused was reasonably necessary; and whether the accused believed on reasonable grounds that he could not otherwise preserve himself or his mother from the grievous bodily harm, are not matters addressed in the plea procedure, but on a trial. But I do not consider that the accused should be precluded from raising evidence on those issues when he wishes to raise the issue that his actions were directed at preserving his mother.

11. On a trial, once the evidence discloses a ground on which the plea of self defense may arise, the burden shifts to the prosecution to prove beyond reasonable doubt that one of the elements of the defense is not present, see Rv Paul Maren (1971) IN 615 Rv Para-Parilla (1969)No. 527 and Rv Kristeff (1967) 445.

12. The other matter which, in retrospect has concerned me about this case, is that the brief facts on plea proceed on the basis that the deceased’s death was caused by the bleeding from the slashing behind the right ankle. However, the post mortem report indicates that the cause of death was intracranial bleeding. That report also indicates 6 puncture wounds at the back of the deceased head, which are not explained by the contents of the depositions. The intracranial bleeding may have been caused by the punch to the face given by the accused. On the other hand, it may have been caused by whatever misadventure caused the puncture wounds at the back of the deceased’s head. It raises the possibility that it was not the accused’s actions which caused the deceased’s death.

13. Now I am mindful that the judge accepting a plea is not privy to other evidence which might to available to the State or the accused. Nor is he privy to the advice provided to the accused. But on a fuller consideration of the material which is before me, and the words spoken by the accused on his allocutus, I am not satisfied that the plea of guilty is safe.

14. Where the accused raises a defense on his allocutus the plea should not be allowed to stand; Martin Terry v State (2000) scra 64 of 2000 (unreported and unnumbered judgment of the Supreme Court delivered November 2000 at Wewak) referred in the State V Nickson Puri (1)(2000) N2037 Kandakasi J.

15. The Court has power to set aside a conviction, see Gabriel Laken v State [1981] PNGLR350 (SC).

16. I set aside the conviction and the guilty plea and enter a plea of not guilty. The matter is adjourned to the call over. I disqualify myself from hearing any trial of the matter.

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