Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Gasi [2010] PGNC 255; N4165 (23 April 2010)

N4165

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 875 OF 2008

THE STATE

V

ALEX GASI

Waigani: Kawi, J
2010: 19th, 22nd March, 23rd April

CRIMINAL LAW – Indictable offence – Criminal Code section 299(1) - Homicide etc......Wilful murder trial – dispute over ownership of land resulted in a fight- Accused pleaded not guilty to wilful murder- Defence of self Defence- Land Dispute- Accused assaulted twice- Assaulted with a stone by the Deceased- Second time accused assaulted with a stick by brother of the deceased. Ensuing struggle to disarm stick- Stick disarmed by the accused from assailant - Deceased preparing to launch stone at accused- Accused strikes deceased with a stick to stop him from launching stone at him - Deceased died from the blow of the stick used by the accused to him - Accused hit on right parietal bone- medical evidence consistent with evidence of the accused- Element of the offence of Wilful murder considered- Elements of the defence of self defence under section 269 considered- Prosecution has not negative elements of self defence beyond reasonable doubt.

Facts

The accused was charged with the wilful murder of one Kila Koto, a national male of Magauto village, Rigo, Central Province. It was alleged that a fight had erupted as the accused and his people were cutting grass on a disputed land near the deceased's village. During the fight the accused hit the deceased with a stick to the right side of his face. The deceased was in a state of coma for three days before he died. The deceased died as a direct result of the blow from the accused. The accused pleaded not guilty and raised the defence of self defence.

HELD:

(1) In determining whether the defence of self defence applies, if the accused adduces evidence to legitimately raise the defence, the prosecution has the onus of proving beyond reasonable doubt, that at least one of the elements of the defence did not exists. R-v-Nikola Kristeff (1967) N445 applied.

(2) The essence of self defence is that violence is presently being offered. An actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – The State –v- Angela Colis Towavik [1981] PNGLR 140 applied.

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

(a) 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; and

(c) whether the accused's belief was based on reasonable grounds; or rather whether the State had negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds. Tapea Kwapena –v- The State [1978] PNGLR 316 applied

(4) In order for the accused to successfully raise the plea of self defence under section 269 of the Criminal Code the court needs to be satisfied that the following elements of the defence exist;

(a) the accused was unlawfully assaulted; and

(b) the accused did not provoke the assault

(c) the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm, and;

(d) the accused believe on reasonable grounds that he could not preserve himself from being killed or suffering grievous bodily harm; and

(e) the accused used such force as was necessary for his defence

Cases cited:
Papua New Guinea Cases

The State –v- Angela Colis Towavik [1981] PNGLR 140
Mecklina Kar Poning –v – The State (2005) SC 814
Tapea Kwapena –v- The State [1978] PNGLR 316
The State –v- Takip Palne [1976] PNGLR 90
The State –v- Leonard Masiap [1997] PNGLR 610 at page 617
R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23
R-v- Korongin [1961] N204 at page 8 per Mann CJ
The State –v- Leah Tununto (1990) N947 per Brunton AJ,
The State –v- Rose Yapihra (1997) N1741 per Bidar AJ,
The State –v- Michael Nema Melpa (2003) N2450, per Jalina J,
The State –v- Mathilda Edward (2004) N2726 per Davani J, and
The State –v- Albert Gias (2005) N2812 per Cannings J
The State –v- Lenny Banabu N2871" title="View LawCiteRecord" class="autolink_findcases">[2005] PNGLR N2871per Cannings J
The State –v- Michael Linas [2008] Unreported and Unnumbered Judgment of Paliau AJ dated 29th October 2008

Overseas cases

R-v-Muratovic [1967] Qd R 15

Counsel:
Mr. C. Sambua, for the State
Mr. M. Yawip, for the Accused

DECISION ON VERDICT

23April, 2010

1. KAWI, J: The accused Alex Gasi of Urigoro village, Rigo, Central Province stands charged that he wilfully murdered one Kila Koto at Magauto village, Rigo, Central Province on the 2nd of February 2008. The accused has therefore been indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code.

ARRAIGNMENT

2. On arraignment the accused pleaded not guilty to the charge that he wilfully murdered one Kila Koto. Through his counsel he pleaded self defence as a defence. I will address this issue later on in my judgment.

STATE ALLEGATIONS

3. The State alleges that there was a land dispute between Urigoro villagers and Magauto villagers. Both these villages are located in Rigo District of Central Province. The dispute was over a piece of land called Nagaroma, on which Magauto village is situated. The accused Alex Gasi is from Urigoro village, a few kilometers away from the disputed land. The deceased Kila Koto is from Magauto village. The State's allegations is that on the 21st January, 2008 the Urigoro people arrived and started cutting grass along the road side at Magauto village. Because of the disputed land, the councilor of Magauto village, one Stanley Malo, approached the Urigoro people and asked them not to cut grass on that land until the land dispute is resolved. The Urigoro people then left after this. Then on the morning of Tuesday 29th January 2008 the Urigoro people came back again to cut grass when they arrived they began cutting grass near a creek towards the village. The councilor of Magauto upon seeing this walked across to them and asked them to stop the grass cutting. This was around 3:00pm on the 29th January 2008. The State further alleges that when the councilor Stanley Malo asked the Urigoro Villages to stop cutting grass they shouted back at him with abusive and insulting words to this effect "kaikai kan, pack up and leave." Translated to English "Eat the vagina, pack up your things and go." They started assaulting Stanley Malo. The rest of the villagers upon seeing their councilor being assaulted came to his aid and it was during the course of that fight that it is alleged that the accused Alex Gasi hit the deceased Kila Koto on his head with a stick resulting in the deceased being unconscious.

After attempts to make him regain consciousness failed, he was initially transported to the Kwikila Health Center, and subsequently to the Port Moresby General Hospital, where he slept in a state of comma and after three (3) days, he died. The State alleges that the deceased Kila Koto died as a result of the accused Alex Gasi hitting him with a stick on that fateful afternoon. The State further alleges that when the accused Alex Gasi hit the deceased on the head, he intended to kill him. The allegation of the intention is that according to the Post Mortem Report, the deceased died of head injuries caused by a blunt object.

State's Evidence

4. In order to sustain this charge, the State called two eye witnesses. This was out of a total of 10 witnesses listed on the indictment which the State initially indicated it would call. However, after calling two eye witnesses, namely Councilor Stanley Malo and Christopher Yamule, the State opted not to call the other witnesses and closed its case.

5. The other State's evidence which are tendered in by consent of both counsels were as follows: -

(a) The Record of Interview dated 5th May 2008 – Exhibit 1;

(b) The original handwritten in Pidgin translated in English and typed in as marked as - Exhibit 1(a);

(c) Police witness Statement of Detective Constable Raymond Boyamo dated 19th May 2008 – Exhibit 2;

(d) Statement of Constable Joel Fierl dated 19th May 2008 – Exhibit 3;

(e) Sketch plan of the crime scene – Exhibit 4;

(f) Statement of Constable Vincent Tapungu dated 19th May 2008 - Exhibit 5;

(g) Post Mortem Report of Dr. Lucas Komnapi who did the autopsy on the 11th February 2008 – Exhibit 6;

(h) The Stick allegedly used to hit the deceased on the head – Exhibit 7.

State witness No. 1- Councilor Stanley Malo

6. The first State witness to be called was counselor Stanley Malo. He gave sworn evidence. He gave evidence that on the 29th January 2008 he was in his village of Magauto all day. While he was in the village a group of young men and the suspect Alex Gasi came to Magauto village and started cutting grass. They were from Urigoro village and they were dropped off by the vehicle identified as Guni-mix and owned by one Kamo Votu. They came straight into the village and started cutting grass beside the road, but near a creek. The land on which the grass cutting activity was going on is a disputed land. Counselor Stanley Malo proceeded onto and asked the Urigoro villages to stop cutting grass as the land on which the grass was being cut was disputed land.

7. As Councilor Malo was talking, he was shouted down by the accused, Alex Gasi, shouting words to this effect; "kaikai kan, this is not your land, pack up and leave." Alex Gasi then threatened and tried to cut the Councilor with the knife but Stanley Malo avoided it. According to Councilor Malo, he told Alex Gasi that he did not intend to fight or to argue with him. Alex Gasi then proceeded to punch Stanley Malo on the left cheek. He also grabbed the Councilor by the collar of his shirt and chest and started pushing him around. At that point Alex Gasi swung the knife again, but the Councilor avoided it. He told Alex Gasi and another person whom he described as Amos Nama's son, "I don't want to fight, I come politely to you, so stop the fight." At this point the deceased Kila Koto came and stood beside councilor Stanley Malo, while he was talking. The man identified as Amos Nama's son punched Kila Koto on the nose. Alex Gasi then began chasing Councilor Malo and the deceased with the bush knife. As the deceased Kila Koto was running away, he slipped on slippery ground and fell on the ground. Alex Gasi by this time had picked up a long piece of wood (about 1.5 meters) and holding the wood with both hands, he bludgeoned the deceased on the head as he was trying to get off the ground.

8. The deceased laid on the ground unconsciousness when attempts to revive him failed but he was transported to Kwikila Health Center, and then subsequently to the Port Moresby General Hospital, where he lay in coma for 3 days in the Intensive Care Unit and then died.

State Witness No. 2 – Mr Christopher Yamule

9. The next State witness was Christopher Yamule. He states that on Monday 28th January he accompanied the Magauto village councilor, Mr. Stanley Malo to talk to Urigoro village people who were cutting grass on a disputed land called "Nagaroma". This land is the subject of a bitter dispute between Magauto and Urigoro villages.

10. The Urigoro people went away and the next day which was the 29th of January 2008, Mr. Kamo Votu loaded his Urigoro people in his PMV truck and took them to and off loaded them at Magauto village where they started cutting grass right in the middle of the village. Most of the men who were cutting grass were Port Moresby based Urigoro people. This included the accused, Alex Gasi. The Urigoro people were armed with grass knives and bush knives when they were off loaded to cut grass.

11. As they were cutting grass, the Magauto village councilor Mr. Stanley Malo accompanied by Christopher Yamule came and again asked them politely to refrain from cutting grass on this land because of the existing dispute over this land.

12. There were about 10 village people who were with the councilor Stanley Malo when the Urigoro people were asked to stop. While the councilor was still talking Alex Gasi and another person identified as John Amos, picked up an argument with the councilor and charged at him. Alex Gasi was heard shouting words to this effect, "yu kaikai kan, This is not your land. Pack up and leave.

13. Alex Gasi is alleged to have said this while pointing aggressively to the Councilor. John Amos is alleged to have swung a bush knife at the councilor Stanley Malo, but missed him. Alex Gasi then grabbed the councilor by the collar of his shirt and chest and started pushing him around. The deceased Kila Koto was standing near the councilor when John Amos rushed up to him and punched him on his nose. At this point a fight started. When the fight started Alex Gasi charged at the Councilor, Stanley Malo and Kila Koto. Seeing this Kila Koto was running away and slipped on slippery ground. As he was attempting to get up from the ground Alex Gasi picked up a large piece of wood lying on the ground, and holding the stick with both hands, hit the deceased right on the head. The impact of the blow was such that it rendered the deceased into a state of unconsciousness.

14. Christopher Yamule made it clear that he was about five (5) meters away from Kila Koto when he saw Alex Gasi hit him with a stick. He stated that Alex Gasi chased Kila Koto for about 7 meters before he hit him with a large piece of wood on the head. This piece of timber was picked up from the ground. The piece of wood tendered into Court by consent as Exhibit 7 was identified as the murder weapon.

15. The deceased was still in this state of unconsciousness when he was rushed to the Kwikila Health Centre where attempts to revive him failed. He was then taken to and admitted at the Port Moresby General Hospital where he remained in coma for three (3) days at the Intensive Care Unit (ICU) and then died.

The State then closed its case.

THE DEFENCE CASE

16. At the close of the prosecution case, I addressed the accused on the following options open to him:

(a) First he could change his plea to guilty;

(b) Make a no case to answer submission;

(c) He could exercise his constitutional right and remain silent;

(d) He could make an unsworn statement from the dock;

(e) He could elect to give sworn evidence, in which case, he could subject himself to cross-examination and be questioned by the court as well.

Defence witness Alex Gasi

17. The accused elected to give sworn evidence and this is a summary of his evidence.

18. On the 29th January 2008 the accused and other Urigoro village people then residing in Port Moresby went to Magauto village to cut grass. He stated that a grass cutting contract had been awarded to the Urigoro village people by Hebou contractors who were then engaged by the National Government to upgrade, maintain and seal parts of the Magi Highway. The Urigoro people started cutting grass at Magauto village. When they started cutting grass, Magauto villagers armed themselves and confronted them. Two of those that were armed were identified as Aina Koto and his brother Kila Koto together with other villagers. When they confronted Alex Gasi and his Urigoro people, they showed them the knife and pushed his head. He identified the deceased Kila Koto as the one who pushed his head. The Urigoro villagers were told to stop cutting the grass but they defied this warning and continued to cut grass. At about 2:30 pm the Councilor, Mr Stanley Malo came up to his garden near where the grass cutting activity was taking place. He had armed himself with a bush knife and started shouting abusive words at the Urigoro village people in words to this effect. "Kaikai Kan, This is not your land pack up and leave, go back to your place."

19. This verbal abuse made the accused who walked up to him and said, "you are our ward Councilor in ward 6. It is wrong for you to come and swear at us." The Councilor Mr. Stanley Malo however grabbed the accused on his shirt collar and pulled him up towards him. When the Councilor shouted, all the Magauto village men ran up to where Alex Gasi and the other Urigoro people were including the deceased Kila Koto and his brother Aina Koto. The Magauto men were not armed but when they saw where Alex Gasi and his relatives, they swung punches at Sali Gasi, the brother of the accused. When Sali Gasi was hit, the fight broke out. It was the deceased Kila Koto who punched Sali Gasi and when the fight broke out the place was overcrowded with Magauto and Urigoro people punching each other.

20. The accused says that he was not armed, but the deceased Kila Koto got a stone and threw it at him and hit him hard on the left side of his ribs. The impact of the blow forced him to bend down low in a crouching position. Aina Koto seeing this got a piece of wood and ran towards the accused and swung the stick at him and hit him on the backside. When he hit the accused, the accused got up and grabbed the piece of wood with both hands and struggled with Aina Koto in an effort to disarm him. As both the accused and Aina Koto struggled with each other both holding the stick, the accused saw the deceased had picked up a second stone to hit him. The accused disarmed Aina Koto and as the deceased was preparing to launch the second stone at him, he feared that the deceased would hit him with the stone again and fearing for his own safety he hit the deceased on the left side of his face. By then another person had come up to hit the accused and upon seeing John Amos, who had by now come up to the accused, ran away. The councilor, Mr. Stanley Malo, by then had armed himself with two spears and began shouting a warriors battle cry. However he was stopped by Mr. Kamo Votu from Urigoro village who also disarmed and removed the two spears from him. The fight then stopped. The Hebou Construction Company vehicle was there at the time of the fight. This Hebou Construction vehicle picked up the deceased and then took him to the hospital initially to the Kwikila Health Center and then subsequently to the Port Moresby General Hospital where he stayed for three days at the Intensive Care Unit (ICU), but then died.

21. During cross-examination, the accused said that he had received a call from his mother the previous day advising that the ward 6 councilor of Magauto village, Mr. Stanley Malo had chased the Urigoro people away from the disputed land as they were cutting grass there. And so the Urigoro people based in Port Moresby loaded the vehicle owned by a Mr. Kamo Votu called Gumi Mix and drove down to Magauto village the next day on the 29th January 2008. On the way down, they stopped at the Kwikila Police Station and requested Police assistance in case, trouble and fight breaks out.
From this evidence it would appear that the Urigoro people had anticipated that there would be some trouble at Magauto village.

MEDICAL EVIDENCE

22. The Medical Findings on the cause of death are contained in a Report of Dr Lucas Komnapi who conducted the autopsy on the deceased. He conducted the autopsy of the body of the deceased on the 2nd February 2008.This Medical Report was tendered into evidence by consent of both counsels. A Summary of his findings are as follows: At autopsy external examination was unremarkable. Internal examination revealed diffuse subgaleal hemorrhage of the scalp. He had fractured right parietal bone, which extended over the crown to the left skull involving the temporal bone of the left side of the skull. The brain was also swollen and heavy. (1270g).He also had subdural hemorrhage with cloths in the right parietal and left temporal regions of the brain, Dr Komnapi concluded that the deceased Kila Koto died from severe head injuries due to application of blunt force,

ASSESSEMENT OF EVIDENCE

Undisputed Facts

• There is no dispute that the grass cutting activity was being carried out by Urigoro people at Magauto village on the 29th January, 2008.
  
• There is also no dispute that there was a fight at Magauto village on 29th January, 2008.
  
• It is also not disputed that the deceased was hit by the accused with a stick during this fight.
  
• It is that hit which eventually ended the life of the deceased.
  
• The deceased died from the blow to his head with a stick or piece of wood or timber received at hands of the accused.
  

Disputed Facts

• There is a big dispute as to who started the fight. The State alleges that the aggressors were the accused Alex Gasi and John Amos, while the accused says that it was Councilor Mr. Stanley Malo who provoked the fight to start. The accused also says that Stanley Malo is the aggressor.
  
• The State through Councilor Stanley Malo says that it was the accused who used offensive language, viz, "Kaikai Kan, this is not your land, pack up and leave" while the accused says it was Stanley Malo who shouted this abusive and offensive words, that sparked off the violence.
  
• The State has led evidence to show that the accused chased the deceased during the fight and the deceased in fact tripped and fell on slippery ground. As he was trying to rise up, the accused who had chased him saw a piece of wood on the ground, picked it up and holding it with both hands clubbed the deceased. The accused in his defence says that he was struggling with Aina Koto to disarm him from using a stick to hit him again.
  
• Aina Koto the brother of the deceased had a few moments before that struggle hit him(accused) with a stick on his backside. He was struggling with the said Aina Koto to disarm the stick when he saw the deceased arming himself with a stone to hit him. The accused disarmed the stick from Aina Koto and by then saw that the deceased was just about to launch the stone at him. Fearing for his life he hit the deceased with the stick on the left side of his face.
  
• The State through Councilor Malo identified a large piece of wood as the murder weapon. Stanley Malo says this is the stick with which the accused used to hit the deceased. Christopher Yamule corroborates this evidence to say that this piece of wood is the one the accused used to hit the deceased. The accused on the other hand says that this is not the stick or piece of wood he used. He says the piece of wood he used is thinner and longer. Against the accused on this aspect is that his counsel has already consented to the piece of wood being tendered as an Exhibit in evidence. In fact this piece of wood is Exhibit 7.
  
• Finally there is some dispute as to the spot where the deceased was hit. Stanley Malo and Christopher Yamule say that they saw the accused hit the deceased right on the head, while the accused says he hit the deceased with a stick on the left side of his face.
  
• In his evidence the accused stated that as he was struggling with the brother of the deceased Aina Koto to disarm him of the stick, he saw that deceased picked up a stone to hit him. Upon disarming the stick, he then turned around and swung the stick to hit the deceased on the right side of his face. It was this hit that led to the death of the deceased.
  
• The accused says that when he saw the deceased pick up the stone, he feared that the deceased would hit him with a stone again as only a few moments earlier the deceased did hit the accused with a stone on his left ribs. He hit the deceased to disarm him from throwing the stone and hitting him (accused) again.
  
• The accused is thus raising the defence of self defence which I must assess and see whether it applies here. If I find that the defence of self defence applies here, then the killing will be lawful. Thus the accused has to be acquitted and discharged.
  

FINDINGS OF FACTS BY THE COURT

1. Who started the fight?
   

23. The Court finds that there was already a tense atmosphere of fear of violence and apprehension occurring because of the earlier conduct of Magauto and Urigoro people. The environment was already unfriendly and hostile. It is in this kind of environment that John Amos punched the deceased on his nose that became the catalyst for the fight. I make the following findings of facts and therefore the evidence.

• Urigoro villagers started cutting grass on the disputed land initially on the 28 January 2008.They were asked to leave that same day, but than they came back on the 29th January 2010 to cut grass. This time they came back right into the middle of Magauto village to cut grass. These were mostly Urigoro people based in Port Moresby.
  
• Such actions were considered by the Magauto people as being provocative and a trespass on their land as well as trespass on their village. As a result leaders of Magauto village and the Abela people were conducting a leaders meeting on the 29th January to discuss and trace their genealogy and their origins.
  
• When the Urigoro people were cutting grass, Stanley Malo, the Village Councilor approached them to tell them to stop cutting grass again. Based on the previous day's events and experiences and the fact that now the grass cutting was being carried out right in the middle of Magauto village, there is room to infer that Stanley Malo and other Magauto villagers were already angry over what they considered as the trespassing and provocative behavior of the Urigoro people.
  

Who uttered the abusive and offensive words?

• In that kind of environment, the Court makes a finding that the aggressors in this case are Magauto people led by their Councilor Mr Stanley Malo. In the court's finding it was Stanley Malo who grabbed Alex Gasi by the collar of his shirt near his neck and started pushing him around. It was Stanley Malo who while pushing Alex Gasi around shouted angrily at the him with the offensive words; "Kaikai Kan, this is not your land, pack up and leave". The environment they were in and the chain of events which led to this fact was more conducive for Councilor Malo to utter these statements, than the accused.
  
• I also find that Stanley Malo was armed with a bush knife when he approached the Urigoro people particularly Alex Gasi.

Alex Gasi was then punched on the head by the deceased Kila Koto.

• I do find that Alex Gasi did not utter these insulting and offensive language. The actual fight started when the deceased Kila Koto was punched in the nose by John Amos, within this already unfriendly and hostile environment. When John Amos punched Kila Koto on the nose, other men from Magauto ran to Kila Koto's aid, though unarmed. Thus the fighting started. When the Magauto men came on the scene, Kila Koto the deceased armed himself with a stone and hit the accused on the left ribs with that stone.
  

Is Exhibit 7 the Murder Weapon?

• The impact of the blow was such that it made the accused try to sit down slightly bending low in a crouching position. As he was in the crouching position, Aina Koto, the brother of the deceased got a thin long stick and hit the accused on his back.
  
• The accused grabbed one end of the stick from Aina Koto and the two of them began to struggle with the same stick with both aiming to disarming one or the other from holding the stick. As they struggled the accused saw the deceased trying to pick up another stone to hit him (accused) again. Eventually the accused succeeded in disarming Aina Koto with the stick. The accused says he used all his strength to disarm Aina Koto holding onto the stick. When Aina Koto was disarmed he ran away. By then as he (the accused) was turning around after disarming the stick the deceased was getting ready to launch the stone at the accused, the accused turned around and using that same stick he dislodged from Aina Koto, hit the deceased Kila Koto on the left side of his face. Kila Koto at this time was standing about 1to 1.5 meters away from the accused.
  
• The stick which the accused used to hit the deceased was the same stick that Aina Koto used to hit the accused on his back. It is not the stick which Stanley Malo and Christopher Yamule say the accused picked up from the ground and then holding it with both hands clubbed the deceased right on the head.
  
• The accused never chased the deceased for some seven (7) meters resulting in the deceased sipping on slippery ground to fall. Neither did the accused club the deceased right on the head with Exhibit 7 as he was trying to stand up again after the fall.
  

What does the Medical evidence say on the cause of the death?

• The medical evidence shows that the accused hit the deceased on the right temporal bone which resulted in the fracture of right parietal bone which extended over the crown to the left skull involving the temporal bone of the left side of the skull. The State through its witnesses Stanley Malo and Christopher Yamule, say the accused hit the deceased right on the head. The accused says he hit the deceased on the right side of his face. I find the evidence of the accused to be very consistent with what the medical evidence says.
  
• The deceased died as a result of being hit by the accused with a stick or a piece of wood on the right temporal bone. In his record of interview the accused maintained that "I did not mean to kill him". I therefore find that Alex Gasi killed one Kila Koto with a stick when he hit him on the right temporal bone.
  
• The Court finds Stanley Malo to be the aggressor and not the peace maker that he claims to be. He was the one who grabbed Alex Gasi by the collar of his shirt and started pushing him around and swearing at him. He had a bush knife in his hand when he was doing this. This is also shown by his actions in arming himself with two spears and then running back to the scene of the fight and shouting a war cry only to be stopped by Mr. Kamo Votu.
  

How did the deceased die?

• The stick which the accused used to hit the deceased is the one that Aina Koto used to hit him initially and which he disarmed from Aina Koto. It is not Exhibit 7 which was picked up from the ground. The deceased therefore died from the blow he received to his the right temporal bone.
  
• I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by hitting him on the right temporal bone with a stick or a piece of wood or piece of timber. The medical evidence describes this as the application of the blunt force to his head.
  

CREDIBILITY OF WITNESSES

24. A total of three people gave evidence. Two gave evidence for the State and one, the accused gave evidence for his own defence. Having observed the demeanor of witnesses, I am unable to say that I am particularly impressed with the evidence of Stanley Malo and Christopher Yamule. Neither am I particularly unimpressive. I cannot brand them as being very evasive. Certainly I cannot brand them as witness of truth either. On the other hand Alex Gasi appeared to speak with some frankness and was at times quite impressive, despite the heavy cross examination from the learned State Prosecutor. I thought he handled himself very well under such a heavy and rigorous cross examination. He appeared to be a witness of truth who spoke with genuine frankness.

THE LAW

Did the accused Kill the deceased?

25. There is absolutely no doubt in my mind that the accused killed the deceased by hitting him with a stick or a large piece of wood or timber. I refer here to section 391 of the criminal code which states:

" Subject to the succeeding provisions of the code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed that other persons."

26. Section 299(1) of the Criminal Code states:

299. Wilful murder

(1) Subject to the succeeding provision of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

27. The Criminal Code has several provisions which may also apply in this case.

• Sections 269 and 270 deal with circumstances in which a killing in self defence is lawful.
  
• Section 302 creates the offence of manslaughter
  
• Section 539(1) provides that on an indictment charging a person with wilful murder, he may be convicted of the crime of murder, or of the crime of manslaughter or some other offence, as prescribed.
  

Elements of the offence under section 299(1)

28. The accused in this case is charged with wilful murder and so the onus is on the prosecution to prove beyond reasonable doubt that:

(a) The accused killed the deceased;

(b) The killing was unlawful; and

(c) The accused intended to cause the death of the deceased.

29. The above three elements of the offence prescribed under section 299(1) are however subject to two things:

(a) First is the defence of self defence which exists under section 269 of the criminal code; and

(b) Secondly if the court is not satisfied that the three elements of wilful murder being relied on are proven, an alternative verdict of murder or manslaughter can be entered under section 539 if elements of any of the four prescribed offences are present.

THE LEGAL ISSUES

30. There are a number of legal issues which arise here.

(1) The First is did the accused kill the deceased?

If yes, the first element of wilful murder is established. If no then he must not be found guilty of wilful murder.

(2) Does the defence of self defence apply here.

If yes the accused is entitled to an acquittal, as the killing will be rendered lawful. If no the court should consider whether other elements of wilful murder are established.

(3) Was the accused criminally negligent as defined by section 287 of the Criminal Code or was his killing of the deceased not authorized or justified or excused by law? If yes, the act of killing the deceased will be unlawful and the second element of wilful murder will be satisfied. If no, the accused is entitled to an acquittal, as the killing will be rendered lawful.

Section 289 provides that "the killing of another person is unlawful if it is not authorized or justified or excused by law".

(4) Did the accused intend to cause the death of the deceased or some other person? If yes, the third and final element of wilful murder will be established and the court should enter a conviction. If no the Court should consider whether an alternative verdict of murder or manslaughter should be entered.

(5) Have the elements of murder or manslaughter been established? If yes then I should proceed to record a conviction. If no, then I order an acquittal.

The issue in This Case

Since it is not disputed that the deceased died from the blow to his head caused by the accused hitting him with a stick, the issue is really when the accused hit the deceased, whether he did so to defend himself from possible death or grievous bodily harm to himself. If so whether the accused acted in self defence and whether he has established self defence by satisfying the test laid down for establishing this defence.

31. In his Record of Interview which was tendered into evidence by consent, the accused states that he acted in self defence. In question 20, he was asked:

Q20: According to information Police have there was a fight at that time and you took a stick and hit Kila KOTO at the back of his head. He fainted and was taken to the hospital and was admitted and later died. What will you say about this?

ANS: They started the fight because the Ward Councilor namely Stanley MALO took a bush knife, swore at me and provoked his boys and they came and punched me on my head. Kila KOTO took a stone and hit me on left side of my ribs. Later his elder brother namely Aina got the stick and tried to hit me. At that time I took that same stick away from Aina and hit Kila Koto to defend myself.

The accused maintained the same story in question 21:

Q21: Police had charged you for fighting Kila KOTO with a stick and he died. Do you understand?

ANS: I didn't really mean to kill him. He got two big stone[s] to hit me. I surprisingly turned around and swing and hit him.

The accused Alex Gasi maintained this same story throughout his evidence, even when he was put under some very aggressive and fiery but excellent cross- examination by the learned Prosecutor. Since the accused is raising self defence, he must satisfy the elements of this defence on a balance of probabilities. The prosecution has to negative that defence beyond reasonable doubt.

32. Self defence as a defence is prescribed under section 269 of the Criminal Code.

33. Section 269 of the Criminal Code 'Self Defence against Unprovoked Assault' states:

(1) When a person is unlawfully assaulted and has not provoked he assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm

(2) If – a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

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

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

34. The essence of self defence is that violence is presently being offered. An actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – See the State –v- Angela Colis Towavik [1981] PNGLR 140.

35. The principles of law relating to self defence is discussed in the Supreme Court case of Mecklina Kar Poning –v – The State (2005) SC 814 wherein the Supreme Court adopted and followed the principles of law pronounced in the Queensland case of R-v-Muratovic [1967] Qd R 15 which was followed by an earlier Supreme Court in Tapea Kwapena –v- The State [1978] PNGLR 316

36. The Supreme Courts made the following comments:

". "Where a defence of self- defence is raised............. The questions to be determined beyond reasonable doubt are: (a) 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; and (c) whether the accused's belief was based on reasonable grounds; or rather whether the State had negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds".

ELEMENTS OF SELF DEFENCE

37. In order for the accused to successfully raise the plea of self defence under section 269 the court needs to be satisfied that the following elements of the defence has been established;

(a) the accused was unlawfully assaulted; and

(b) the accused did not provoke the assault. and

(c) the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm, and;

(d) the accused believe on reasonable grounds that he could not preserve himself from being killed or suffering grievous bodily harm; and

(e) the accused used such force as was necessary for his defence. The National Court has held that if all these elements exists the force used by the accused is lawful even if it causes the death of the assailant; - See The State-v Lenny Banabu, [2005] N2871, The State –v- Takip Palne [1976] PNGLR 90 Tapea Kwapena –v- The State [1978] PNGLR 316, The State –v- Leonard Masiap [1997] PNGLR 610 at page 617. R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23. R-v- Korongin [1961] N204 at page 8 per Mann CJ.

38. Is there evidence before the Court for the accused to legitimately raise this defence? In his Record of Interview the accused stated the following in response to one of the questions Police asked him. He said:

"They started the fight because the Ward Councilor namely Stanley MALO took a bush knife, swore at me and provoked his boys and they came and punched me on my head. Kila KOTO took a stone and hit me on left side of my ribs. Later his elder brother namely Aina got the stick and tried to hit me. At that time I took that same stick away from Aina and hit Kila Koto to defend myself".

39. Clearly the accused is raising self defence here. But whether it is a valid defence or not depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exists.

ONUS OF PROOF

40. Once an accused raises self – defence in his evidence, the onus rests on the prosecution to negative the elements of that defence. The leading case on this issue is the case of R –v- Nikola Kristeff [1967] N445. This was a decision of the pre-Independence Supreme Court, in which Frost, J made the following comments:

" As to onus of proof, so far as the defence of self defence and provocation are concerned, there is no onus on the defence to establish these defense, once a ground is disclosed by the evidence upon which a plea of self-defence may, arise or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all the ultimate facts which establish these pleas are not present".

41. What is important to note here is that the accused bears the burden to establish self defence as a defence on a balance of probabilities, but the prosecution has to negative the existence of the elements of this defence beyond reasonable doubt.

42. The principle pronounced in R –v- Nikola Kristoff has been applied in many subsequent National Courts decision such as The State –v- Angela Colis Towa Viic [1981] PNGLR 140, per Miles J, The State –v- Misari Warum [1989] N753 per Brunton AJ, The State –v- Leah Tununto (1990) N947 per Brunton AJ, The State –v- Leonard Masiap [1997] PNGLR 610 per Sevua J, The State –v- Rose Yapihra (1997) N1741 per Bidar AJ, The State –v- Michael Nema Melpa (2003) N2450, per Jalina J, The State –v- Mathilda Edward (2004) N2726 per Davani J, and The State –v- Albert Gias (2005) N2812 per Cannings J. The State –v- Lenny Banabu N2871" title="View LawCiteRecord" class="autolink_findcases">[2005] PNGLR N2871per Cannings J and The State –v- Michael Linas [2008] Unreported and Unnumbered Judgement of Paliau AJ dated 29th October 2008.

43. I will examine the elements of self defence and assess whether the accused has established them from his evidence and whether the prosecution has negatived these elements.

44. I will restate the elements of this offence by following the same approach taken by his Honour Cannings J in the State –v- Lenny Banabu [2005] N2871. His Honour had asked a number of questions to establish each of the elements of the defence of self defence which I will adopt and ask here myself.

Was the accused unlawfully assaulted?

45. I will look at the whole circumstances of this case to answer this question. The evidence which the court has already accepted is this: The grass cutting was done in the middle of Magauto Village. The Magauto Village councilor Mr Stanley Malo had aggravated the tense situation by grabbing the collar of the shirt of the accused and pulled him aggressively towards him. Then he began pushing him around. Contrary to what Stanley Malo says the accused was not armed with a bush knife or other dangerous weapon. At this stage the deceased Kila Koto grabbed a stone and hit the accused on the left side of his ribs. And this forced the accused to sit down bending slightly in a crouching position.

46. While the accused was in this crouching position, Aina Koto, the brother of the deceased grabbed a stick and ran towards him and hit him with a big blow on his backside. When he hit the accused, the accused then grabbed one end of the stick and struggled with his assailant Aina Koto to disarm the stick from him. While Aina Koto and the accused were struggling with the stick, he (ie accused) saw the deceased picked up another stone to hit him again. As soon as he disarmed Aina Koto with the stick he swung the stick around and hit Kila Koto with that same stick in an effort to stop him from launching the second stone at him. It was this act by Stanley Malo, Aina Koto and the deceased himself which I am satisfied constituted an unlawful assault of the accused. In the State –v- Angela Colis Towavik [1981] PNGLR 140 it was held that there must be prior assault by the victim for the defence of self defence to become available. See also R-v- Korongia [1961] No. 204. I find that there was an actual prior assault by the assailant, the deceased on the accused. So question one is answered yes.

Did the Accused not provoke the Assault?

47. Again looking at the whole circumstances of this case, I am satisfied that the accused did not provoke this assault. In other words the prosecution has not been able to prove beyond reasonable doubt that the accused provoked the assault on him by the deceased. In fact I find that the accused hit the deceased with the same stick which he disarmed from Aina Koto. He hit the deceased to stop him from launching the second stone and hitting him again the second tine. Question 2 is again answered Yes.

The Nature of the Assault was Such as to Cause Reasonable Apprehension on the Part of the Accused That He Would Die Or Suffer Grievous Bodily Harm.

48. This fight took place in the middle of Magauto village. There is no doubt in my mind that the accused harbored some real fears for his life and his own safety because the fight was taking place in someone else's land and village. The accused would no doubt fear that he would suffer grievous bodily harm if he did not react in the way he did. This is especially true after he was assaulted initially by the deceased with a stone hitting him on his left ribs then followed by Aina Koto with a stick on the backside. The cumulative effect of all these assaults on the accused is that he had a reasonable apprehension that he could be killed at Magauto village or that he could suffer some grievous bodily harm at the hands of not only the deceased and his brother Aina Koto but also Stanley Malo and other Magauto Villagers.

The Accused Believed on Reasonable Grounds that he could not Otherwise Preserve himself from Being Killed or Suffering Grievous Bodily Harm

49. Again looking at the whole circumstances, I have already found that it was the Magauto Villagers through their Councilor Stanley Malo who were the initial aggressors. The accused found himself in a very hostile and an unfriendly environment. First he was grabbed on the collar of his shirt by the village Councilor Stanley Malo and pushed around. Then he was hit by the deceased with a stone on his left ribs. The hit from the stone was such that it forced the accused to sit down slightly bending in a crouching position. Immediately after that he was hit with a stick by Aina Koto, the brother of the deceased, on his back. As he was struggling with Aina Koto to disarm him from using the stick again, he saw the deceased pick up another stone to strike at him again the second time. In that kind of hostile and unfriendly environment, the accused believed that he would otherwise not preserve himself either from being killed or suffering from grievous bodily harm.

50. I ask the question. Was this the only way the accused would have preserved himself? Could he have retreated or run away to preserve himself? In the case of R-v- Kambe Pare [1965] PNGLR 321 it was held that retreating before employing a force is not an independent and imperative condition when self defence is raised as a defence. Whether he should have retreated or run away is a matter for the court to consider in deciding on the reasonableness of the conduct of the accused.

51. In fact I find that in the kind of hostile and unfriendly environment the accused found himself in, retreating and running away to preserve himself was not an option which the accused could exercise. Even if the accused tried to retreat or escape he could have found himself in a position where his life would still be in more danger. I would answer question 4 yes.

Did the Accused Used Only Such Force as was Necessary for His Defence?

52. This is a very critical question. If the prosecution proves that the answer is no; i.e. the accused used "more force than necessary" than self defence as a defence cannot be established. Both Councilor Stanley Malo and Christopher Yamule gave evidence of the accused bludgeoning Kila Koto right on the head with a large piece of wood (Exhibit 7). This indicates the use of more force.

53. The Medical evidence of Dr Konmapi who conducted the autopsy on the body of the deceased states the cause of death as being a blunt force to the head. According to the Medical evidence, the exact spot where the accused hit the deceased is markedly different from the spot described by Councilor Stanley Malo and Christopher Yamule. These two State witnesses say that the accused clubbed the deceased right on the head using Exhibit 7 with both hands.

54. The accused on the other hand says that he hit the deceased on the left side of his face. In his Record of Interview he said: "I did not mean to kill him". By this remarks I find that the accused did not think, albeit mistakenly the force he applied would not have killed the deceased. The medical evidence says that the deceased suffered a blow to the right parietal bone which in turn caused fractures in the other parts of the skull. In the Court's findings the medical opinion is more consistent with the evidence of the accused. These finding negatives the evidence and arguments by the State that the accused picked up a piece of wood or timber from the ground (Exhibit 7) and clubbed the deceased right on the head. I also find that the evidence by the accused that he disarmed Aina Koto and than used that stick which is more thinner and longer than Exhibit 7, to hit the accused on the left side of his face is also consistent with this medical evidence. The accused states the same thing to the Police in his Record of Interview: He says this in response to question Q20: According to information Police have there was a fight at that time and you took a stick and hit Kila KOTO at the back of his head. He fainted and was taken to the hospital and was admitted and later died. What will you say about this? ANS: They started the fight because the Ward Councilor namely Stanley MALO took a bush knife, swore at me and provoked his boys and they came and punched me on my head. Kila KOTO took a stone and hit me on left side of my ribs. Later his elder brother namely Aina got the stick and tied to hit me. At that time I took that same stick away from Aina and hit Kila Koto to defend myself.

55. Did the accused use more force than necessary? The two State witnesses say that the accused used both hands to club the deceased right on the head with Exhibit 7. The accused says that he used a thinner and longer stick to hit the deceased on the left side of his face. This is the stick that the accused disarmed and dislodged from Aina Koto. If we go by Exhibit 7 as the murder weapon, and that the accused used it to hit the deceased right on the head as the State alleges, then the deceased would have sustained much more serious fractures of the skull. In my view Exhibit 7 is not the murder weapon. The murder weapon is a longer stick that Aina Koto initially used to hit the accused and which the accused disarmed from the clutches of Aina Koto. The accused maintained this in his record of Interview, Which I had admitted into evidence. In question 21 of the Record of Interview he was asked: Q21: Police had charged you for fighting Kila KOTO with a stick and he died. Do you understand? ANS: I didn't really mean to kill him. He got two big stone[s] to hit me. I surprisingly turned around and swing and hit him.

56. By saying "I did not really mean to kill him", the accused is in effect saying that the force he used is not intended to kill the accused, though mistakenly. In any case I do not consider that in all the circumstances having already received two blows, one from a stone thrown by the deceased and the other a hit with a stick from the deceased's brother Aina Koto, it was not unreasonable for him to expect that he might soon receive another hit so he took the most natural action that "he considered" necessary for his own defence. I do not consider that in all the circumstances it can be held against him that in returning a blow to the deceased he used more force than in fact necessary.

57. The fifth element in my view requires the court to apply both a subjective and an objective test. That is to say that the question to ask is whether the accused had a honest and reasonable, though mistaken belief that the force, he used was necessary for his defence- See R-v- Kaiwor Ba [1976] PNGLR 90. I am unable to conclude that the accused used more force than was necessary. I am satisfied that he had an honest and considerable belief that he had to use considerable force to defend himself. The prosecution has not discharged the onus of disproving the final element of the defence. I would answer Yes to question five.

VERDICT

58. I find that the accused has successfully established the defence of self defence. The court finds that the State has not negatived beyond reasonable doubt the defence of self defence raised by the accused. In my opinion the accused found himself in a very hostile and an unfriendly environment, where he was subjected to unlawful assaults which he did not provoke. The nature of the assault and the environment he found himself in was such that he held a reasonable apprehension of death or grievous bodily harm and that he relied on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm otherwise than by striking back at the deceased. This court is satisfied that the test on self defence has been satisfied.

59. The consequences of finding that the defence of self defence is established is this:

(a) The second element of the offence of wilful murder cannot be established.

(b) The accused is found not guilty of wilful murder.

(c) The use of force by the accused was lawful, by virtue of section 269 (2) of the criminal code.

(d) As the accused used force lawfully he cannot be guilty of murder or manslaughter (the essence of which is unlawful killing) or any of the other offences in section 539.

(e) As self defence is a complete defence, the accused is accordingly found not guilty and is acquitted and discharged of the charge of wilful murder. His cash bail money is hereby ordered to be refunded upon presentation of the necessary receipts.

Verdict - Not Guilty and acquitted and discharged of wilful murder on the basis of self defence.

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