N4616

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 479 OF 2010

THE STATE

V

PAULUS PANDEA

Mendi & Mount Hagen: Makail, J
2011: 23rd March & 26th, 28th, 30th September
2012: 06th, 07th, 09th & 23rd March

CRIMINAL LAW - Verdict - Wilful murder - Proof of - Defence of self-defence against unprovoked assault raised - Onus on prosecution to negate defence - Failure of - Accused entitled to acquittal - Not guilty verdict returned - Acquittal - Criminal Code, Ch 262 - Sections 269 & 299.

Cases cited:

R -v- Pari-Parilla (1969) N527 
R -v- Paul Maren (1971) N615 
The State -v- Takip Palne of Dumbol [1976] PNGLR 90 
Tapea Kwapena -v- The State [1978] PNGLR 316

Counsel:

Messrs J Kesan & J Waine, for the State 
Mr F Kirriwom, for the Accused 

VERDICT

23rd March, 2012

1.	MAKAIL, J: The accused in this case has been charged with one count of wilful murder under section 299 of the Criminal Code, Ch 262. Section 299 states: 

"299 Wilful 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."

2.	Wilful murder is considered a very serious offence because it is a deliberate termination of a human being's life by another. Like all criminal offences, the law places an onerous burden on the State to prove the charge against an accused beyond reasonable doubt. It must prove beyond reasonable doubt the mens rea and actus reus as follows: 

1.	The accused assaulted or injured the deceased;
2.	The death of the deceased; and
3.	The accused intended to cause the death of the deceased.

3.	The State alleged the accused struck the deceased Kelvin Nema with a bush knife at Pokorapul village in Imbongu District of the Southern Highlands Province on the morning of 19th April 2009. As a result of the bush knife wound, the deceased died. At that time, the accused was in a church with a group of people. The deceased and three other youths went to talk to him and relay a message in relation to negotiation of an earlier dispute involving the accused and another person. The accused came out of the church building with his daughter. His daughter grabbed the deceased and he took out his bush knife and struck the deceased on his head. The deceased collapsed and died.

4.	The defence case was based on self-defence against unprovoked assault. It is a defence under section 269 of the Criminal Code, Ch 262 and is set out below:

"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 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."

5.	Very briefly, the law is this, the prosecution bears the burden of disproving self-defence where the evidence discloses self-defence as a defence: R -v- Pari-Parilla (1969) N527. In other words, where the evidence suggest self-defence, the onus is on the State to show the absence of any one of the requirements of the section: R -v- Paul Maren (1971) N615. The elements of the defence are: 

·	the accused was unlawfully assaulted; and

·	the accused did not provoke the assault; and 

·	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 

·	the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and 

·	the accused used such force as was necessary for his defence.

6.	If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant. (see The State -v- Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena -v- The State [1978] PNGLR 316).

7.	The State tendered the accused's record of interview, an affidavit of Dr Michael Dokup, a post mortem report and medical certificate of death. The record of interview contained admissions in relation to the wounding of the deceased by the accused with a bush knife and suggestion of self-defence. The post mortem report stated the cause of death as being severe brain injury. In addition, it called three witnesses. They were:

1.	Tori Puruli;
2.	Indipindi Yakili; and
3.	Jason Steven.

8.	These witnesses' evidence established that a day before the alleged killing, the accused assaulted one Steven Yaku. As a result of the assault, Steven lost a number of his teeth. Steven and his tribesmen including the deceased and the three witnesses went to the accused's village at Lipite to resolve the dispute with the accused. They gathered at the singsing place and sent the deceased and the three witnesses to fetch the accused at his house. They had done so because no-one was willing to do that because the accused was a known trouble maker. The accused lived in a house in the church ground.

9.	When they arrived at the church ground, the accused was in the church. He came out and with no apparent reason, chopped the deceased with a long bush knife. He was assisted by his daughter Wilma Paulus who restrained the deceased by grabbing his right hand and another person named Dokta Noma. As the deceased was restrained, it made it possible for the accused to strike the deceased with the bush knife on his head. It was a single blow and a fatal one as the bush knife penetrated the skull and caused the brain membrane to spill out.

10.	The three of them stood there shell-shocked for a few minutes and after they recovered, took the deceased to the local health centre for treatment. They also called out to the others who had gathered at the singsing place for assistance. The deceased later died. While they took the deceased to the health centre, other tribesmen attacked and chopped the accused on his head. They also raided his house and property. They cut down his flowers, food crops and killed his chickens. They also burnt down his chicken house. 

11.	As for the accused, he gave evidence and called two witnesses namely, Pastor Owen Yana and Ondoks Paulus. Overall, their evidence established that the deceased, Tori, Jason, and Indipindi went to the church to fight with the accused in retaliation to the assault on Steven by the accused the previous day. They came with a group of armed men numbering between 45 and 50 and were armed with bush knives, axes and sticks. They spitted into two groups. One group attacked the accused and the other destroyed the accused's house and property.

12.	The accused was in the house getting ready to go to church when the armed men arrived at the church ground. In fear of his life, he took his bush knife and ran to the church building. On the way, he was confronted by a group of men. They surrounded him and attacked him. They struck him with bush knives and sticks. He sustained injuries to his head and in his defence, swung his bush knife. It struck one of the men. That distracted the men and he escaped. Their evidence also confirmed the State witnesses' evidence that the armed men raided the accused's house and property. They cut down his flowers, food crops and killed his chickens. They also burnt down his chicken house. It was a big fight and people chanted war-cries.

13.	From the overall evidence, there is no dispute the accused struck the deceased on his head with a bush knife and he died. Did the accused intent to kill the deceased? The State prosecutor submitted "yes" and asked the Court to find him guilty. First, he drew the Court's attention to the witnesses' demeanour and submitted, the Court should accept the evidence of the State witnesses because they were frank and fort right in their evidence that the accused's life was under no immediate danger for him to use such force to defend himself when he struck the deceased on his head with the bush knife. Secondly, he submitted the inflicting of the wound by the accused on the head of the deceased established an intention to kill and this was further supported by the State's case that the deceased was restrained by Wilma and Dokta thus giving the accused clear and unhindered access to strike the deceased on his head with the bush knife.

14.	These submissions make sense but in a case where the defence has raised the defence of self-defence under section 269 of the Criminal Code, Ch 262, the State bears the burden of negativing the defence beyond reasonable doubt. Defence counsel submitted this is where the State has failed to negative the defence of self-defence and pointed out a number of discrepancies in the State's case to support his submission. I will discuss them in a moment. 

15.	The defence evidence is that there was fear created in the mind of the accused that the accused was going to be killed when he was attacked by the group of men. The State does not dispute that the group of men were around 45 to 50 and some attacked the accused while others destroyed his property. They were armed with bush knives, axes and sticks. The accused was struck on the head with bush knives and sticks and sustained injuries. However, it disputes the time when the accused was attacked and sustained the injuries. The State prosecutor submitted, it was after the accused had struck the deceased with the bush knife. In my view, this is a crucial factual issue in the determination of the charge. A number of important points needed to be raised in relation to this contention by the State bearing in mind, the State bore the onus of proof to negate the defence of self- defence. They highlight the discrepancies in the State's case.

16.	First, none of the State witnesses gave evidence in relation to what they said to the accused at the time they arrived at the church ground to fetch him to go to the singsing place. Tori's evidence is that, when they arrived at the church ground, the accused came out of the church building and asked "You people are here to collect compensation?" and then swung the bush knife at the deceased's head. At that time, the deceased was facing the accused. Jason gave no evidence in relation to what he said to the accused. He just said the accused came out of the church building and struck the deceased on his head. The same evidence was given by Indipindi. It surprises me that none of these witnesses said anything to the accused when they arrived and the accused confronted them. What is more surprising is that, the accused is said to have come out of the church building and struck the deceased on his head with a bush knife with no apparent reason. In a real life situation where there had been a fight involving the accused and a relative of these witnesses prior to the meeting on that day, logic and common sense would dictate that the deceased and the three witnesses would have exchanged words with the accused when they arrived at the church ground, likewise creating a reason for the accused to come out of the church building and struck the deceased with the bush knife. I find these aspects of the State's evidence hard to believe.

17.	Further to these matters, even if it is accepted the accused attacked the deceased with no apparent reason, what is more surprising is the State's contention that Wilma and Dokta restrained the deceased for no apparent reason and that enabled the accused to strike the deceased with the bush knife. If it is accepted that they assisted the accused, surely, there must have been some reason for them to act in that way. In other words, there must have been something more than a mere inquiry by the accused "You people are here to collect compensation...." that may have sparked the attack on the deceased. Nonetheless, what is significant is, the State has not sufficiently explained why these two persons assisted the accused and this raises doubts as to its contention that the accused intended to kill the deceased.

18.	Furthermore, the State's case is that, Tori, Jason and Indipindi stood near the deceased when the accused struck him on his head with the bush knife. Why didn't they assist in defending him? Their explanation that they were shell-shocked when they saw blood spilling from the deceased's head following the assault by the accused is appreciated. But I am not satisfied it is a satisfactory explanation for their lack of assistance because given the prevailing situation at that time, it is not unreasonable to expect them to come to the aid of the deceased on short notice. This is another discrepancy in the State's case.

19.	Secondly, these witnesses said they had gone alone to fetch the accused and were unarmed, and that the rest of their tribesmen including village leaders were at the singsing place. If that was so, who then was responsible for the injuries sustained by the accused? There is no evidence the rest of the tribesmen attacked the accused following the accused's assault on the deceased. The three witnesses' evidence that the rest of their tribesmen were responsible for the accused's injuries is hearsay and inadmissible because none of them was present and saw the rest of the tribesmen attack the accused. Their evidence is that, following the accused's attack on the deceased, they took the deceased to the local health centre for treatment. The attack on the accused occurred after they had left the church ground. The lack of evidence in relation to this aspect of the State's case leaves a serious gap in relation to when, how and who inflicted the injuries on the accused. 

20.	Thirdly, their evidence in relation to where the accused was after the attack on the deceased is conflicting and vague. Tori said the accused fled the church ground. Jason and Indipindi said nothing in relation to this aspect. Even if Tori's evidence is accepted, it is unlikely the rest of the tribesmen attacked the accused because he would have fled the church ground. This is more probable if it is accepted the tribesmen had congregated at the singsing place that morning. As for Jason and Indipindi, their evidence is vague. The conflicting and vague evidence leaves a serious gap in the State' case in relation to whether the accused was attacked by the rest of the tribesmen following the assault on the deceased.

21.	Fourthly, the time when the accused attacked the deceased is of some concern. The State witnesses said it was between 10 o'clock and 11 o'clock. The defence suggested it was between 8 o'clock and 9 o'clock. The day was a Sunday. In Papua New Guinea and of course other countries that practice the Christian faith, Sunday is set aside for worshipping God. People go to church. The accused assaulted the deceased at the church ground. If the State's contention that the accused attacked the deceased between 10 o'clock and 11 o'clock that morning is to be believed and accepted, how is it that apart from Wilma and Dokta, no-one else was around? Logically speaking, between 10 o'clock and 11 o'clock on a Sunday morning at the church ground, and depending on the size of the community, one would expect a group of people congregating for worship. Certainly, there would be more than two people present at that time in this case. This is another discrepancy.

22.	Fifthly, there is no evidence to corroborate the evidence of the three witnesses that the village leaders and tribesmen of the deceased had gathered at the singsing place to resolve the dispute. Indeed, the evidence is hearsay and inadmissible. 

23.	Finally, there is no dispute, disputes in village communities in the Highlands region of Papua New Guinea (as well as many other parts of the country), are facilitated and mediated by village leaders, usually elders or people with high standing in the village community. Where there are government appointed officials such as village peace officers and magistrates, they too are involved in the mediation process. In the present case, the State's case is that, the village elders from the deceased's tribe had gathered at the singsing place and had sent the deceased, Tori, Jason and Indipindi to fetch the accused to attend the meeting at the singsing place. These four boys were youths because some of them were attending high school at that time. They were tasked not only to go and relay the message to the accused but to also fetch him, meaning they were to escort him to the singsing place. They said they had done that because no-one from the accused's village was prepared to do that, adding the accused was a known trouble maker.

24.	That may be true, but if there were village elders including village peace officers and magistrates in the deceased's village as well as the accused's village, why didn't they attend to the accused? Look at it the other way, the undisputed fact is, there was a dispute at hand to be resolved at that time. The accused had assaulted Steven the previous day and Steven lost a number of his teeth. If Steven and his village elders were that serious in resolving the dispute, it was therefore in their interest to ensure proper protocols were followed to have the accused notified of the meeting at the singsing place so that he could attend. That would include Steven's village leaders establishing contact with the accused's village leaders and they would have informed the accused of the request to attend the meeting at the singsing place. To accept the State's contention that the four boys were the message bearer of Steven's people runs counter to the established protocols of dispute resolution in any village community in this country.

25.	All in all and re-iterating the State bears the onus of negativing the defence of self-defence, these points raise serious doubts in relation to how and who assaulted the accused at that time, and very importantly, when the accused assaulted the deceased. These discrepancies have led me to conclude the accused was assaulted by a group of armed men including the deceased and the three witnesses. This conclusion is fortified by the defence evidence that the accused was attacked by a group of armed men. It was at that time that he sustained the injuries. On this evidence, I am satisfied an assault within the definition of section 243(a)&(b) of the Criminal Code, Ch 262 had occurred. In defending himself, he swung his bush knife and struck one of the men. That man happened to be the deceased. 

26.	Was the force used by the accused reasonable in the circumstances? In my view I say "yes" because, for the reasons stated above, it is doubtful that the deceased and the three witnesses had simply gone to the accused's house to fetch him to go to the singsing place to resolve the dispute. I accept the evidence of the accused that he was attacked by a group of armed men. He was overpowered by the men. They assaulted him with bush knives and sticks. As a result, he sustained injuries on various parts of his head. In order to protect himself of being killed, he swung his bush knife at them and it apparently struck the deceased on his head. He did that because he believed if he did not use such force, he would be killed by the men. I am therefore satisfied the force used was reasonable in the circumstances. 

27.	For these reasons, I accept the defence of self-defence under section 269(2). I am therefore not satisfied the State has negatived the defence of self-defence. It follows the accused is entitled to an acquittal. I return a verdict of not guilty and accordingly, acquit him.

Verdict accordingly.

_______________________________

Public Prosecutor: Lawyers for State 
Public Solicitor: Lawyers for Accused