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State v Tanghohola [2011] PGNC 334; N4532 (8 June 2011)

N4532

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 145 OF 2011

THE STATE

V

FABIAN TANGHOHOLA

Vitu Island: Kawi, J
2011: 14th – 15th May
Kimbe: 8th June

CRIMINAL LAW – Accused charged with one count of wilful murder under Section 299(1) Criminal Code - Accused came to rescue his brother who was grievously assaulted by the deceased and his brothers – Accused chased away by a knife wielding deceased - Deceased attacked accused with two bush knives – Deceased swung bush knife at the accused on three different occasions – Accused blocked off knife swung by deceased on three occasions – Accused retaliated and swung knife at deceased – Knife chopped deceased on his neck – Deceased died instantly – Accused pleaded self defence as a defence to his charge – Section 269(2) of Criminal Code – Self defence against unprovoked assault – force used by accused was proportionate to the force used in the attack – Deceased was responsible for a prior attack on the accused – Accused was under a real apprehension of death or grievous bodily harm – Accused successfully raised the plea of self defence against unprovoked assault – Accused found not guilty of wilful murder and discharged of the indictment charging him with one count of wilful murder – VERDICT – NOT GUILTY.

Facts

The accused saw his brother being grievously attacked by the deceased and his brothers. He armed himself with a fishing gun and a bush knife and ran to rescue his brother. The deceased who had armed himself with two bush knives, one in each hand. He chased him away and kept pursuing him. As the accused was exhausted and running short of breath, he turned around to check if he was still being pursued by the deceased. When he turned around, the deceased attacked him by swinging the knife at him. He repeated this a second time.

On both occasions, the accused avoided the knife attack by jumping backward, but the tip of the bush knife had cut the accused on his forehead from which he was bleeding. The deceased then swung the knife at the accused on the third occasion but the accused blocked this knife swing by holding up his fishing gun.

The accused then retaliated by swinging his own knife, which cut the deceased then retaliated by swinging his own knife, which cut the deceased on his neck and chopped it off. On our indictment, charging the accused with willful murder, the accused with willful murder, the accused raised the defence of self defence under Section 269 of the Criminal Code.

Held:

(1) Properly considered, by looking at the whole circumstances of this case, the accused was under a real apprehension of death and grievous bodily harm being done to him.

(2) The accused was attacked by the deceased who swung a bush knife at him three times. The accused retaliated by swinging his own bush knife once at the deceased which chopped off his neck, thus killing the deceased instantly. In the circumstances, the force used by the accused on the deceased was proportionate to the force applied by the deceased. The killing was therefore justified or excused by law.

(3) In the circumstances the accused has successfully satisfied all the elements of the defence of self defence. He is therefore not found guilty and is acquitted and discharged of the indictment charging him with one count of willful murder.

Cases cited:
Papua New Guinea Cases

The State –v- Angela Colis Tovavik [1981] PNGLR 140
Mecklina Kar Poning –v- The State [2005] SC 814
Tapea Kwapena –v- The State [1978] PNGLR 316
The State –v- Lenny Banabu [2005] N2871
The State –v- Takip Palon [1976] PNGLR 90
The State –v- Leonard Masiap[1997] PNGLR 610
The State –v- Alex Gasi [2010] Unreported and Unnumbered Judgement of Kawi J dated 23rd April 2010
R –v- Nikola Kristoff [1967] Unreported No. 445
R –v- Korongia [1961] N204.

Overseas Cases

R –v- Muratovic [1967] Qd R 15

Counsel:

Mr Anthony Kupmain, for the State
Mr. Chris Emmanuel Thomas, for the accused

JUDGMENT ON VERDICT

8th June, 2011

1. KAWI, J: Fabian Tanghohola of Kuravu Village, Mundua Island, Talasea District, West New Britain Province pleaded not guilty on arraignment to an indictment charging him with one count of Wilful Murder of one Aaron Samuel contrary to Section 299(1) of the Criminal Code. He pleads the defence of self defence in his defence as justifying the killing.

1. STATE ALLEGATIONS

2. The State alleges that on Sunday the 25th July 2010, at around 3-00 pm the deceased was with his wife and baby boy at a game of volleyball at Kuravu Village, Mundua Island. The State further alleges that the accused, Fabian Tanghohola, armed themselves with a bush knife and went to the volleyball field. The State alleges that it was there that Fabian cut a banana tree down. The banana landed on the deceased who was carrying his baby while the mother was playing volleyball with her team. An argument then started and during the ensuing fight the accused who was carrying a one (1) meter long, Tramontina brand bush knife cut the deceased on his neck with his bush knife. The deceased then fell down there and then died instantly. The State further says that the accused intended to cause the death of the deceased and had done that successfully.

2. THE CHARGE

3. The accused was then indicted with one (1) count of Wilful Murder pursuant to Section 299(1) of the Criminal Code.

4. Section 299(1) is stated in the terms;

"s.299 – willful murder.

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

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

3. THE STATE EVIDENCE

5. The prosecution evidence comprised of three witnesses being called who all gave sworn evidence. Four (4) exhibits were all tendered into Court. This included the Record of Interview, the Confessional Statement and the Medical Certificate of Death and the Affidavit of Dr. Mamguas dated 2nd of August 2010.

4.(a) EVIDENCE OF ANNA AARON

6. The first State evidence was Anna Aaron. She is the wife and widow of the deceased. She gave evidence of being on the volleyball pitch playing volleyball on that Sunday afternoon 25th July2010. The game of volleyball was played at Alolo Village. About 3-00 pm, her team's game was on. Her late husband and their seven (7) months old baby were sitting on the lawn and watching the game. At about 3-00 pm, the accused and his brother, Freddy came onto the scene and the accused swore and cut down a banana tree which landed on the deceased and his baby. She saw what happened, grabbed the baby from her husband and all three then ran away to safety. The deceased however, chased them and when he turned around to check if he was still chasing them, the accused swung his bush knife to the deceased's neck and cut him, killing him instantly. She said she was about 3 meters away from her husband and the accused, when she saw the accused swung the knife which cut her late husband on the neck from whence he died.

7. The defence sought to establish the motive of the killing. During cross-examination, it was put to her, that her late husband had made one Elizabeth Joe pregnant. She denied this suggestion. It was further suggested that her late husband's brother, one Kevin Samuel had made Siko David, the daughter of Freddy Tanghohola pregnant and, she again denied any knowledge of this incident. It was further suggested to her that Elowin Samuel, another brother of the deceased was responsible for making Imelda, another daughter of Freddy Tanghohola pregnant. She again stated that she had no knowledge of these allegations.

8. Furthermore, she did not see Elowin Samuel and Kevin Samuel at the volleyball court during the time of the argument and fight. She however contradicted herself subsequently when she said, she only saw Kevin present during the argument at the volleyball field. She also said that there was a little fight between Freddy Tanghohola and Kevin Samuel, but she denied Freddy being injured in that fight.

4.(b) STATE WITNESS NO. 2 – KENNETH SMITH

9. In his evidence in chief he said that he was at a volleyball game watching the game which was played at Alolo Village. He said it was Sunday the 25th of July 2010 at about 3-00 pm while he was there and watching the game, he heard the accused swear and came to the front where the game was being played. He saw that the accused in his anger, had cut down a banana tree, which fell and landed on the deceased and his 7 months baby. The deceased then gave the baby away to his wife and ran away to safety as the accused pursued him. The accused chased the deceased for some 200 to 250 meters, when he stopped to check if the accused was still pursuing him, the accused who had closed the gap between himself and the deceased was very close by. He swung his knife and cut the deceased on his neck, killing him instantly. He said that he was about 7-8 meters away from the deceased when he saw the accused swung the knife which killed him.

10. In cross-examination, he said that the deceased ran for about 7-8 meters when he was chopped by the accused using a bush knife. He denied seeing the deceased arming himself with a knife. He denied seeing the accused acting in self-defence.

11. Furthermore, he denied all allegations of the impregnation of Elizabeth Joe, Siko David and Imelda, the other two being Freddy Tanghohola's daughters.

12. In his statement to the Police, he described the deceased as running very fast for his life and in cross-examination he said the deceased was not running fast.

4.(c) STATE WITNESS NO. 3 – KEVIN SAMUEL

13. This witness is one of the brothers of the deceased. He gave evidence of being at the volleyball court at Alolo when he saw Freddy Tanghohola arrived at the court. He heard Freddy swear in these words; "Kaikai kan, mi tait pinis," and walked across to where the deceased, Aaron Samuel was sitting with his wife and baby. He then saw the accused swearing again before cutting down a banana tree which fell and landed on the deceased and his baby. Freddy Tanghohola then chased him (Kevin) away by shouting "Kilim em, kilim em," but he did not know who was shouting, nor did he know who the person was referring to. As he was running away, he (Kevin) thought of his brother the deceased. He then ran back to check his brother the deceased. On his return, he was confronted by the accused and Freddy Tanghohola. He said that the accused shot at him with a fishing gun which scratches his hand. He then charged at both Fabian and Freddy. Fabian escaped and hid behind a mango tree, while himself and Freddy got themselves into a fight which was later stopped.

14. The accused, according to this witness was armed with a shell fish fishing gun and a long bush knife. He did however admit that he did not see how the deceased died and that the last place he saw the deceased was at the volleyball court before the deceased's fight with Freddy Tanghohola.

15. During cross-examination he agreed with the proposition that a fair distance had been covered and much had transpired from when the argument first started to where the actual fight occurred at the Anakutu Village.

16. He further claimed that the deceased was never present during his fight with Freddy Tanghohola. He further denied Freddy Tanghohola being ever injured by the deceased. He denied the existence of any animosity between his family and the Tanghohola family. This included all allegations of members of his family making the two daughters of Freddy Tanghohola pregnant as well as other women in the village.

17. After the State closed its case, the accused elected to give sworn evidence. Here is a summary of their evidence.

Defence Witness # 1 –v- Fabian Tanghohola (the accused)

18. The accused Fabian Tanghohola hails from Kuravu Village, Mundua Island. He gave evidence that on the 25th July 2010, he was at his little trade store, attending to the needs of his customers. His canteen was facing Anakutu Village and from where he stood he clearly heard and saw Elowin Samuel, Kevin Samuel and the deceased, Aaron Samuel had an argument with his brother Freddy. They were about 50-60 meters away from where he (Fabian) was.

19. He then saw Elowin Samuel and Kevin Samuel, shoot Freddy with a shell fish fishing gun. He also saw the deceased Aaron Samuel cut Freddy on his back and, by seeing these attacks on his brother, he grabbed his shell fish fishing gun along with his bush knife and ran towards his brother. He saw that the deceased himself was armed with bush knives in either hands. When the deceased saw the accused coming to the aid of his brother, he (the deceased) started chasing the accused, and while chasing him, he shouted out to him, threatening to kill him and pulling out all his guts and intestines. The accused was chased for about 200 meters towards the direction of the volleyball court. The accused was by then exhausted and stopped. He tried to surrender. As he was raising his hands in surrender the deceased came forward and swung his bush knife first at the accused. The accused jumped and avoided being cut. The deceased swung his bush knife at the accused the second time, which the accused again avoided the second time. On the third swing, the accused raised his fishing gun and the knife landed on it, cutting the shell fish fishing gun instead.

20. The tip of the knife of the deceased cut the accused on his head, causing the cut to bleed. At this instant just as the deceased was to raise his hand holding the knife again to swing at the accused, the accused seeing this, swung his own bush knife in the direction of the deceased's raised arm, hoping to cut and disable him, before he (deceased) could swung the knife at the accused. Unfortunately the knife of the accused landed on the neck of the deceased killing him instantly.

21. In cross-examination, the accused maintained and was quite dogmatic that he directly saw his brother Freddy being attacked by the deceased Aaron Samuel and his two brothers, Elowin and Kevin Samuel.

22. In cross-examination, the accused maintained that he had to do what he did, because had he not done so, the deceased would have killed him.

Defence Witness No. 2 – Freddy Tanghohola

23. Freddy is the older brother of the accused. He gave evidence that on the afternoon of Sunday the 25th July 2010, he was returning from his garden. When he passed Alolo Village, he saw a game of volleyball being played. He saw that the land on which the game was played was land owned by his brother-in-law. He noticed that Moses Samuel, Elowin Samuel, Aaron Samuel (the deceased), and Kevin Samuel were there and he was not happy with those people whom he claimed, had done wrong to him and his children. They were there playing game on land owned by his children's uncles. He said that in 2008, Kevin Samuel had made his daughter, Siko David pregnant and a compensation demand of K2,000.00 was then made, but this had not been paid as yet.

24. In 2010, Elowin Samuel had made Imelda, another of Freddy Tanghohola's daughters pregnant and yet another compensation demand of K2,000.00 was made, but no payment has been ever forthcoming.

25. He then approached Moses Samuel, the father of the deceased and explained to him the wrongs done to him and his family and the significance of this in custom. He further explained that by playing a game of volleyball on land owned by his children's uncles, the Samuels were showing blatant disrespect to his family. The deceased who was sitting and watching game of volleyball, did not understand what was going on and instead directed his younger brother Elowin Samuel to fight him (Freddy Tanghohola).

26. When Freddy saw the deceased ask his father for a bush knife, he became angry for the wrong done to him. Out of anger, Freddy then cut down a banana tree, which fell and landed on Aaron Samuel and his 7 months old child. The Samuels then left the volleyball court and returned to their houses while Freddy did the same.

27. He stayed in his house for a good 15-20 minutes. When the Samuels returned to their houses, they mobilized and re-grouped. They returned to confront Freddy Tanghohola.

28. The second confrontation occurred at Anakutu Village. The deceased Aaron Samuel upon returning swore at him, and when he heard this, he went out of his house to confront the deceased. At the same time, he realized that Elowin and Kevin Samuel were coming from his rear and guarding the rear flank to attack him. He then turned around to face Elowin and Kevin Samuel.

29. At the same time when he turned around, the deceased swung his bush knife which slashed him on his backside. He then saw his brother Fabian running in his directions to assist him and fearing that the armed Samuels would outnumber his brother, he threw a spear at Kevin Samuel which shot him on his leg. Kevin and Elowin continued to attack him and after being speared in his chest by Kevin, he fell to the ground unconscious.

30. In his evidence in chief, he was asked by the court to show the scar left behind by the wounds he sustained. He showed a very ugly 20 cm scar on his back and another deep scar on his chest as well as what appeared to be knife rashes on his arms and legs.

31. Freddy Tanghohola clearly recalled before falling unconscious, that he saw the deceased armed with two bush knives, one in each hand and had chased the accused away when the accused ran to assist his brother Freddy, who had fallen to the ground. He did also say that he saw that the accused himself was armed with a shell fish gun and a bush knife.

32. During cross-examination, he was dogmatic and maintained his story. He did however, say that the accused did not see Kevin and Elowin Samuel spear him as that happened after the deceased chased the accused away.

4.(c) DEFENCE WITNESS NO. 3 – WILFRED LINGE

33. In his evidence this witness stated that he was at Anakutu and saw the accused running out to assist his brother who had been cut by the deceased moments earlier, but when the deceased saw the accused running to rescue his brother, he chased the accused away. He was holding two bush knives, one in each hand. He ran in the same direction as the accused, as he too was afraid of being injured in a knife attack.

34. As he ran he heard the deceased shouting after the accused, that he would kill him and pull out his intestines. He said the accused was attacked first by the deceased, with two bush knives swings, but the accused managed to jump back and avoided being cut with the knives.

35. The third time the deceased swung his knife, but the accused block this by holding up his shell fish fishing gun. When he blocked the knife attack from the deceased, he swung his own bush knife which landed on the neck of the deceased, killing him instantly. The deceased then fell forward onto the accused and both of them fell to the ground.

36. According to Wilfred Linge, the accused would have been killed if he had not protected himself by attacking the deceased. He stated that he was indeed present at the volleyball court and saw and heard the arguments which had started there.

37. According to Wilfred Linge, Freddy Tanghohola had confronted the Samuels on the volleyball court because Elowin Samuel had made Imelda the daughter of Freddy Tanghohola pregnant.

38. In cross-examination, he said that he was about 10 meters away when he saw the accused being attacked by the deceased.

5. ANALYSIS AND ASSESSMENT OF THE EVIDENCE

5.1 Undisputed and Disputed Facts
5.1 (a) Undisputed Facts

➢ On Sunday the 25th of July 2010, a game of volleyball was being played at the Anakutu Village. Present at this game of volleyball, were Moses Samuel, Elowin Samuel, Kevin Samuel and Aaron Samuel. During the game of volleyball an argument broke out between Freddy Tanghohola and the Samuels.

➢ A banana tree was cut down by Freddy Tanghohola out of anger and the banana tree fell and landed on top of the deceased Aaron Samuel and his 7 months old baby.

➢ That afternoon there was a fight between Freddy Tanghohola and the Samuels at Anakutu Village, which was some 200 to 250 meters away from the volleyball court. During that fight, Freddy Tanghohola was injured by Aaron, Kevin and Elowin Samuel. Freddy's injuries consisted of a big gash caused by a bush knife to his back and, a spear wound to his chest and other minor cuts and lacerations to his arms and legs.

➢ The second fight occurred that same afternoon. It was a fight between the accused, Fabian Tanghohola and the deceased, Aaron Samuel, who was assisted by Kevin and Elowin Samuel.

➢ The deceased died on 25th July 2010. He died as a result of a knife attack from the accused. The accused killed the deceased.

(b) Disputed Facts

➢ Freddy Tanghohola had an ongoing dispute with the Samuel family over allegations that the Samuel brothers were responsible for making Elizabeth Joe, Siko David and Imelda Joe the latter two being the biological daughters of Freddy Tanghohola. The Samuel boys responsible are Aaron Samuel (the deceased), Kevin Samuel and Elowin Samuel.

➢ Fabian Tanghohola acted in self-defence when he attacked and cut the deceased on his neck. The deceased died instantly.

➢ There were two fights that afternoon. The first fight was between Freddy Tanghohola and the Samuel brothers, viz, Aaron Samuel, Kevin Samuel and Elowin Samuel. During this fight Freddy sustained serious bodily injuries of which left him unconscious.

➢ Fabian Tanghohola upon seeing his brother attacked, armed himself with a bush knife and shell fish fishing gun ran to assist his brother, but he was chased away by the deceased who was himself armed with two bush knives.

➢ The deceased Aaron Samuel attacked the accused twice with two knife swings. His third knife swing was blocked off by the accused with his shell fish fishing gun and in return the accused retaliated and swung his own knife and cut the accused on his neck which resulted in his instant death.

5.1 (b) Findings of Facts by the Court

39. On the basis of the entire evidence, both prosecution and defence and further drawing from both the disputed and undisputed facts, this Court records the following findings of facts;

(a) An argument erupted between Freddy Tanghohola and Moses Samuel, Aaron Samuel, Kevin Samuel and Elowin Samuel on Sunday afternoon, the 25th July 2010 during a game of volley ball.

(b) The argument related to claims by the Tanghohola family that the Samuel boys were responsible for making girls in the village pregnant.

This included claims that the deceased Aaron Samuel was responsible for impregnating Elizabeth Joe, who is a close relative of the Tanghohola's. Kevin Samuel and Elowin Samuel were accused of making Siko David and Imelda pregnant. Siko David and Imelda are the biological daughters of Freddy Tanghohola.

(c) Owing much to his anger, Freddy Tanghohola cut down a banana tree standing at the edge of the volley ball court which fell and landed on top of the deceased, Aaron Samuel and his 7 month old baby. It was Freddy Tanghohola, not Fabian, who cut the banana tree down.

(d) Everyone involved in the argument then withdrew from the games and returned to their respective homes. The Samuel boys retreated to their homes and regrouped to arm themselves. They then returned and attacked Freddy Tanghohola. Those who attacked Freddy Tanghohola were Aaron Samuel, Kevin Samuel and Elowin Samuel. This was the first fight. During this fight the deceased, Aaron Samuel slashed Freddy Tanghohola with a bush knife leaving behind an ugly 20 cm scar. He was also speared in the chest by Kevin Samuel and Elowin Samuel, which again left behind an ugly scar on Freddy's chest.

➢ Freddy could hardly see the deceased chasing the accused with two bush knives in his hands. By then he (Freddy) has fallen unconscious owing to the bodily injuries he sustained at the hands of Aaron, Kevin and Elowin Samuel.

➢ The deceased, Aaron Samuel then chased the accused, Fabian Tanghohola when he (Fabian) came to the aid of his brother Freddy. The deceased had armed himself with two sharp bush knives when he chased the accused.

The accused had run for some distance and had already begun to be exhausted. When he slowed down and turned around to check if the deceased Aaron Samuel was still pursuing him, the deceased attacked him. The first and second knife swings aimed at the accused missed its target as the accused jumped backward and avoided being cut.

When the deceased swung the bush knife at the accused the third time, he blocked it off using the fishing gun he was carrying. Having blocked off the third knife attack, the accused then retaliated and swung his own bush knife at the deceased cutting him on the neck.

The deceased sustained a fatal knife blow to his neck which killed him instantly.

The legal issue which arises for consideration here is whether or not the accused was acting in self-defence when he cut the neck of the deceased killing him instantly.

6. THE LAW

40. The accused was indicted for one count of willful murder under Section 299(1) of the Criminal Code.

Did the accused kill the deceased?

41. There is absolutely no doubt whatsoever in my mind that the accused Fabian Tanghohola killed the deceased by cutting him with a bush knife on the neck on Sunday afternoon the 25th July 2010. I refer here to Section 291 of the Criminal Code which states;

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

42. Section 299(1) of the Criminal Code states;

"s.299 – willful murder.

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

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

43. The Criminal Code has other provisions which may also apply in this case:

➢ Sections 269 and 270 deal with circumstances in which a killing in self-defence is justified or lawful.

➢ Section 539(1) provides that on an indictment charging a person with willful murder, he may be convicted of the crime of murder, or of the crime of manslaughter or some other offence as prescribed.

7. ELEMENTS OF THE OFFENCE OF WILFUL MURDER UNDER SECTION 299(1)

44. Fabian Tanghohola in this case is charged with willful murder and the prosecution bears the burden of proving beyond reasonable doubt that;

(a) The accused killed the deceased;

(b) The killing was unlawful or not justified or excused by law.

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

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

(a) The 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 willful murder being relied are proven, beyond reasonable doubt, an alternative verdict of murder or manslaughter can be entered under Section 539(1) if elements of any of the four prescribed offences are present.

8. THE LEGAL ISSUES

46. There are a number of legal issues which arise here for consideration.

(1) The first is, did the accused kill the deceased? If yes, the first element of willful murder is established. If no, then the accused must not be found guilty of willful murder.

(2) Does the defence of self-defence apply here? If yes, then the accused is entitled to an acquittal as the killing is justified or rendered lawful. If no, the court should consider whether other elements of willful 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 the second element of willful murder will be satisfied. If no, the accused is entitled to an acquittal, as the killing will be rendered lawful.

Section 289 provides that "Killing of another person is unlawful if it is not authorized of 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 willful murder will be established and the court should enter a conviction. If no, the court should consider whether or not 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.

9. THE ISSUE IN THIS CASE

47. It is not disputed that the deceased died from the knife wound to his neck. The accused is directly responsible for inflicting the neck wound with his bush knife. The accused is therefore entirely responsible for this killing.

48. The issue really is; when the accused swung the knife that chopped the neck of the deceased, did he do so to defend and preserve himself from possible apprehension of death or grievous bodily harm?

10. THE DEFENCE OF SELF-DEFENCE

49. Self-defence as a defence is prescribed under Section 269 of the Criminal Code.

50. Section 269 of the Criminal Code "Self-Defence against unprovoked Assault" is stated in these terms;

"Section 269 – Self Defence Against Unprovoked Assault.

(1) when a person is unlawfully assaulted, and has not provoked the 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 apprehensions 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 or is necessary for defence, even if it causes death or grievous bodily harm."

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

52. 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 applied the principles of law laid down in the Queensland case of R –v- Muratovic [1967] Qd R 15.

53. The decision in Muratovic was followed and applied in an earlier Supreme Court decision in Tapea Kwapena –v- The State [1978] PNGLR 316. In Kwapena's case the Supreme Court re-iterated these principles:

"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 are such as to cause reasonable apprehension of death or grievous bodily harm,

(b) whether the accused believed that he could not preserved himself from death or grievous bodily harm otherwise then 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 negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds,"

11. ELEMENTS OF SELF-DEFENCE

54. In order for an accused person to successfully raised 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 believed on reasonable grounds that he could not otherwise 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 exist, 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 Palue [1976] PNGLR 90, Tapea Kwapena –v- The State [1978] PNGLR 316, The State –v- Leonard Masiap[1997] PNGLR 610, R –v- Nikola Kristoff [1967] Unreported No. 445. R –v- Korongin [1961] N204.

55. Once the accused raises self-defence in his defence, the onus rests on the prosecution to negative all the elements of that defence. The leading case on this issue in the case of R –v- Nikola Kristoff [1967] No. 445. 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 elements of this defence beyond reasonable doubt.

1. Re-stating the element of self-defence – Was the accused unlawfully assaulted?

56. I will restate the elements of this offence and assess each element of the defence by following and taking the same approach taken by 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 respectfully adopt and ask myself. I took this same approach in the case of The State –v- Alex Gasi [2010] Unnumbered and Unreported Judgement of Kawi J dated 23rd April 2010.

57. I will look at the whole evidence to answer these questions. In respect of question 1, the evidence which this court accepts is this; that the accused saw his brother Freddy Tanghohola being attacked by Aaron Samuel, Elowin Samuel and Kevin Samuel. During this attack, the accused's brother Freddy was slashed on his back with a bush knife by Aaron Samuel, the deceased.

58. Kevin Samuel also speared him with a spear and Freddy sustained a spear wound on his chest. When the accused saw this he ran to assist his brother. He had armed himself with a shell fish fishing gun and a bush knife. He was however chased away by the deceased, Aaron Samuel, who had armed himself with two bush knives, one in each hand. When the accused who was gasping for air slowed down and turned around to see if the deceased was still pursuing him. He was quite surprised when the deceased attacked him by swinging the knife twice at him. He avoided the knife attacks on him by jumping backwards on both occasions.

59. On the third attack with the knife, the accused lifted up his shell fish fishing gun and blocked the knife before it landed on the accused. He retaliated by swinging his own knife at the deceased and in the process chopping his neck off.

60. In the case of The State –v- Angela Colis Tovavik [1981] PNGLR 140, it was held that there must be a prior assault in terms of Section 243 of the Criminal Code, for the defence of self-defence to become available. See also R –v- Korongia [1961] N204. I am very satisfied beyond reasonable doubt that there was a prior assault by the assailant, who was the deceased in this case, on the accused. So, I would answer question one (1) Yes.

2. Did the accused not provoked the assault?

61. Again looking at the whole circumstances of this case, I am quite satisfied that the accused did not provoke the assault upon himself. In other words the prosecution has not been able to prove beyond reasonable doubt that the accused provoked the assault upon him by the deceased.

62. In fact, this court finds that the accused only retaliated after sustaining and blocking off 3 different knife attacks upon himself. He retaliated to stop the deceased from further attacking him with the knife. If this was very provoking, then it was Freddy who provoked the Samuels, by cutting a banana tree which fell and landed on the deceased and his 7 month old child. Fabian Tanghohola never provoked anyone, let alone, the Samuel boys. Question 2 is again answered Yes.

3. 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.

63. Taking into account all evidence of both, the prosecution and the defence and the entire circumstances of this case, I have no doubt in my own mind that the accused harboured some real fears for his own life and safety.

64. In my view, the accused harboured some real fears that he would suffer some grievous bodily harm if he did not react the way he did.

65. First he witnessed first hand how the three Samuel brothers assaulted his brother Freddy and caused him grievous bodily harm. Then when the deceased chased him with two knives in each hand, he shouted at him that he would kill him and open up his intestines.

66. Seeing what happened to his brother, the accused had a real apprehension that he would suffer grievous bodily harm or even death if he had not retaliated with his own attack on the deceased.

67. Finally the accused had to block off three attempts by the deceased who used his bush knife to swing and attack the accused. On the third attempt the accused used his shell fish fishing gun to block off the knife attack. But the tip of the knife had cut the accused on his forehead in the first swing of the knife resulting in the accused bleeding from the forehead. As a result, the accused retaliated and chopped the neck of the deceased with his own knife, killing him instantly.

68. In these circumstances, the court finds that it is not unreasonable for the accused to harbor real fears of being killed or sustaining grievous bodily harm at the hands of the deceased. The court will have no hesitation at all to find that the nature of the assault was such that it caused a reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm at the hands of the deceased.

4. The Accused believed on reasonable grounds that he would not otherwise preserve himself from being killed or suffering from serious grievous bodily harm.

69. I have already found that it was the deceased who was the initial aggressor. He attacked the accused with a lethal and dangerous weapon. In the kind of hostile and unfriendly environment the accused was in, the accused believed that he would otherwise not preserve himself either from being killed or suffering some grievous bodily harm. The deceased had already made his intention known. The he would kill him and pull out his intestines.

70. I ask myself the obvious question. Was this the only way in which the accused could take to preserve himself or was there any other options available which he could take to preserve himself? Could the accused have retreated or run away to preserve himself?

71. In R –v- Kambe Pare [1965] PNGLR 321, the court held that retreating before employing a force is not an independent and imperative condition when self defence is raised as a defence. Whether the accused should have continued to run away or further retreated is a matter for the court to consider in deciding on the reasonableness of the conduct of the accused. In the circumstances of this case, I find that the accused would have opened himself up to more danger if he had continued running. I would answer question 4 in the affirmative.

5. Did the Accused use only such force as was necessary for his defence?

72. This is a very critical question. This question in my view requires the court to apply both a subjective and objective test. That is to say that the question to ask is whether the accused had an honest and reasonable, though a mistaken belief that the force, he used was necessary for his own defence. See R –v- Kaiwor Ba [1967] PNGLR 90.

73. The accused in this case was confronted by a deceased holding and wielding two bush knives. The first and second knife attacks were avoided by the accused when he jumped backwards on the spot of the attack. The third knife attack on him was avoided when the accused lifted up his shell fish fishing gun to block off the attack. After blocking off the knife attacks of the deceased, the accused then retaliated and chopped off the deceased's head.

74. In my view, a reasonable man standing in the position of the accused would have done exactly what the deceased did. I find that the force used by the deceased to retaliate was such force that "he considered" necessary and proportionate to the force applied by the deceased to attack him. I find that the accused did not use "more force then necessary" for his own self preservation. I would again answer question five (5) in the affirmative.

VERDICT

75. This court has no hesitation at all in finding that the accused has successfully established the defence of self-defence. The court further finds that the State has not negatived beyond reasonable doubt the defence of self-defence raised by the accused.

76. In my opinion, the accused found himself in an environment where he could not otherwise preserve himself from possible death or grievous bodily harm, other then by retaliating and striking back at an angry vengeful knife wielding deceased. The court is satisfied that all the elements of self-defence has been satisfied.

77. The consequence of finding that the defence of self-defence is available are that;

(1) The second element of the offence of willful murder has not been established beyond reasonable doubt.

(2) The accused is found not guilty of willful murder and is therefore acquitted and discharged of the indictment charging him with willful murder.

(3) The force used by the accused was lawful or justified by law by virtue of Section 269(2) of the Criminal Code.

(4) 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 referred to in Section 539.

(5) As self-defence is a complete defence, the accused is accordingly found not guilty and is acquitted and discharged of the indictment charging him with one count of willful murder.

Verdict – Not guilty on the basis of self-defence.

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