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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 130 OF 2016
BETWEEN:
THE STATE
AND:
JUSTIN PARKER
Waigani : Salika, DCJ
2017: 01st, 02nd, 03rd & 04th March; 29th May
CRIMINAL LAW – Charge of Murder – Defence of self defence under Section 269 – Whether defence made out – defence not made out – no evidence to cause grievous bodily harm
Cases cited:
State v Takip Palne (1976) PNGLR 90
Counsel:
Miss H Roalakona and Miss M Tamate, for the State
Mr I Molloy and Mr D Wood, for the Accused
DECISION ON VERDICT
29th May, 2017
1. SALIKA, DCJ: INTRODUCTION: Mr Justin Parker is charged that he on the 8th day of June 2015, at Badili in Papua New Guinea murdered one Lapan Nason. The charge is brought under Section 300 (i) (a) of the
Criminal Code Act.
The State Allegations
2. The State alleges that in the early hours of the morning between 4.00 am and 6.00 am of Saturday 6 June 2015 Lapan Nason was asleep in his house at Gorobe Street, Badili. The accused, entered Lapan Nason’s house and assaulted him in his room while he was in bed. He then pulled him out of his bed and continued to assault Lapan by kicking and punching him on his face and all over his body. He then dragged Lapan out of the house and continued assaulting him. When outside the house the accused then punched Lapan on the head causing him to hit his head on the concrete stonewall outside the house.
3. Lapan struggled to sit up against the concrete wall when the accused scolded him and threw an empty cup at him. The accused then punched Lapan again causing him to hit his head against the concrete wall. The accused then left Lapan.
4. Lapan Nason’s daughter, Elsha who witnessed the accused assaulting her father went to assist her father who was not responding to her calls. She called for her father’s friend William Yatapya for assistance. William and his wife arrived and called for the ambulance. Lapan was taken to the Port Moresby General Hospital where he underwent a CT scan and it was established that he had suffered a subdural haemorrhage. He remained in a coma until the 8th June 2015 where he passed away from the injuries he sustained caused by direct blunt force trauma caused by the accused when he assaulted him on 6th
June 2015.
5. The State says that when Justin Parker assaulted the deceased he intended to cause him grievous bodily harm and caused his death thereby contravening s.300(1) (a) of the Criminal Code Act.
Undisputed Facts
6. Justin Parker is the principal of Golden Valley Enterprise Limited. For the purpose of the company’s operations, it had decided to purchase and operate a Bell Helicopter.
7. Lapan Nason was a licensed aircraft engineer. He was engaged by the company to assist in enabling the helicopter to be made operational so that an application could be made to the Civil Aviation Safety Authority (CASA) for approval to fly in Papua New Guinea.
8. On 5 June 2015 Lapan Nason did not attend the inspection of the helicopter with Civil Aviation Safety Authority Officials (CASA) to make the helicopter operational.
9. Lapan Nason and his daughter lived in the upper part of the house located at Section 2 Lot 10, Gorobe Street, Badili (Badili house).
10. Justin Parker stayed in the separate lower part of the house when he was in Port Moresby.
11. Lapan Nason was involved in an altercation with Justin Parker around 4 am on Saturday 6 June 2015 at the Badili House.
12. Justin Parker punched Lapan Nason on his head and face and Lapan Nason was bleeding from his nose.
13. Lapan Nason was taken from the Badili house to Port Moresby General Hospital by ambulance sometime after the altercation on 6 June 2015.
14. Lapan Nason died in hospital on 8 June 2015.
15. The cause of death was a subdural haemorrhage as a consequence of blunt force to the head.
Disputed Facts
16. Justin entered the house at Badli and assaulted Lapan while he was in bed.
17. Justin pulled Lapan out of his bed and continued to assault Lapan by kicking and punching him on his face and all over his body.
18. Justin dragged Lapan out of the house and continued assaulting him.
19. When outside Justin punched Lapan on his head causing him to fall on the concrete stonewall outside the house.
20. Justin punched Lapan again causing him to hit his head against the concrete stone wall.
21. Justin punched Lapan and swung him to the stone wall in self defence.
The Issues
22. In my respectful opinion the relevant issues for the Court to determine are:-
(i) Whether Justin entered into the part of the house that Lapan and his daughter lived?
(ii) Whether Justin unlawfully assaulted Lapan in bed?
(iii) Whether Justin pulled Lapan out of bed and continued to unlawfully assault Lapan?
(iv) Did Justin drag Lapan out of the house and continue to unlawfully assault Lapan?
(v) Whether Justin unlawfully assault and swung Lapan causing Lapan to hit his head against the concrete stone wall?
(vi) If Justin did punch Lapan was the assault lawful?
(vii) If Justin did hold Lapan by his shirt and swing him and cause Lapan to fall was it lawful for him to do that?
(viii) Whether Lapan unlawfully assaulted Justin?
(ix) Whether Lapan provoked Justin?
(x) Whether the assault by Lapan or Justin was such as to cause reasonable apprehension of death or grievous bodily harm?
(xi) Justin believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.
Elements of Charge
23. The elements of the charge of murder under s.300(i)(a) are:-
(i) The accused
(ii) On a date
(iii) At a place
(iv) With intent to cause grievous bodily harm
(v) Unlawfully did grievous bodily harm
(vi) To another person
(vii) Causing his death
24. Each of the elements of the charge are to be proved by the State beyond reasonable doubt.
Dealing with each of the Elements of the Charge.
Elements (i), (ii), (iii), (vi) and (vii).
25. There are no issues on the above named elements of the charge because there is clear evidence from Elsha and Justin himself that Justin Parker on 6 June 2015 at Badili in PNG assaulted Lapan Nason, and he died. There is no evidence that Lapan was assaulted by any other persons other than Justin which led to his death.
Element iv.
26. The element of with intent to cause grievous bodily harm is in dispute. The State says Justin Parker intended to cause grievous bodily harm to Lapan Nason while Justin says he never intended to cause grievous bodily harm to Lapan and that he was acting in self defence, a statutory defence under s.269 of the Criminal Code. There is however, in my opinion, clear medical evidence that grievous bodily harm was occasioned to Lapan Nason. Grievous Bodily Harm means any bodily injury of such nature as to endanger or to be likely to endanger life, or to cause or be likely to cause permanent injury to health. The subdural haemorrhage was caused by a direct blunt force on the head of Lapan. The only evidence of direct blunt blows to Lapan’s head are the punches on Lapan’s head by Justin and the hitting of his head on the concrete stone wall as a result of Justin swinging him onto the stone wall. I am therefore satisfied beyond reasonable doubt that grievous bodily harm was occasioned to Lapan Nason by Justin Parker. The next question is: was the grievous bodily harm intended?
Was there an intention to cause Grievous Bodily Harm.
27. Section 300 says a person who kills another person intending to cause grievous bodily harm to the person is said to have murdered the person.
The prosecution must prove beyond reasonable doubt an:
- Actual; and
- Subjective
intention on the part of the accused person. R v Ping [2005] QCA 472; (2006) 2 Qd R 69 at 78.
28. Intention is a matter which goes to the State of mind of the accused person at the time he or she acted. (See The State v Raphael Kuanande (1994) PNGLR 518). I think it also must include his state of mind before, during and after he acted. Intention is a purpose or design in a person’s mind.
29. Intention, which is a state of mind, can never be proven as fact. It can only be inferred from other facts which are proved if there are no admissions. In this case there are no admissions and so the Court must go to the evidence to consider what happened there so that inferences could possibly be drawn.
30. The state of mind of an accused can be
the commission of the offence which may include circumstantial evidence in order to prove his intent at the time of the commission of the offence.
It is the conduct and intention of the accused that is in issue and not that of a reasonable man. I am minded to suggest too that a person’s emotional conduct also comes into play here. Emotion is defined by the Oxford Advanced Learners Dictionary as a strong feeling such as love, fear or anger : the part of a person’s character that consists of feelings. Emotional intelligence is defined by the same dictionary as “the ability to understand your emotions and those of other people and to behave appropriately in different situations.”
31. Intention to cause a specific result is an element of the offence of murder, therefore, the prosecution must prove such an intention beyond reasonable doubt. Intention is not easy to prove because intention or no intention is only in the mind of the accused. An accused in this given situation is not going to broadcast his intention until one sees him in action. Only then can one have some idea of his intention.
32. Lapan Nason had failed to attend the inspection of the helicopter. Lapan was meant to be present and he was needed there because he was to answer any questions from the inspectors from the Civil Aviation Safety Authority responsible for granting licenses for the helicopter to operate and award certificate of airworthiness. Lapan’s presence was solely missing. He had not informed Justin that he would not be attending. Justin expected him to be there. Lapan failed Justin. So what was the state of Justin’s emotional mind after Lapan failed to show up. Anyone placed in Justin’s situation in my opinion would have feelings of being anxious, nervous and worried whether his company would be granted the mechanical clearance and certificate of airworthiness to commence operation and be engaged in business.
33. Section 300 (1) (a) says:
MURDER.
(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–
(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;
(2) In a case to which subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.
34. It is obvious from evidence that relationships between Lapan and the accused were not good at that time. Lapan appeared to be worried about not being paid for some time and, he and his daughter were going to leave for Kavieng that morning. I ascertain from the evidence that he had not been paid for some time. This was one of the first things he allegedly asked Justin about and Justin allegedly said to check with Luke the General Manager on that. Lapan and his daughter were leaving for Kavieng that day and not being paid may have been bothering him. To make matters worse Justin allegedly sacked him there and then and to my mind Lapan would have been angry that he was sacked, but then he had told Elsha earlier that he was quitting his job and that they were going back home on that Saturday.
35. The relevant parts of Elisha’s evidence are that she was asleep in her room at the Badili house owned by the accused. She and her father lived in the higher part of the house while Justin at the material time used the lower part of the house and when he came to Port Moresby. She said her father Lapan Nason had a bed in the living or lounge room and was sleeping there.
36. She said at about 4.00 am on the 6 June 2015 she heard shouting so she got out of bed and came out. She said she heard Justin Parker call her dad so she got up and walked out. She said when she came out Justin was pulling her dad out and they were on the steps. She said her dad told Justin that they should sit down and talk things over. She refuted the defence counsel’s suggestion that her dad said “you can’t do this to me” and that her father punched Justin Parker.
37. Justin Parker’s own description of Lapan’s punch was that; Lapan pointed a finger at his face and then folded it into a fist across his face and nose and not a punch. A punch is a hit with a fist. If Lapan had punched Justin on his face, he probably would have suffered a broken nose or a swollen face. There is however no evidence from Justin he suffered a broken nose, swollen face or injury to his body.
38. Elsha said when she came out Justin was pulling her dad out of the house and said Justin was holding the collar of her dad’s shirt. She was asked – “Your dad punched Justin Parker and Justin Parker punched your dad” to which she said her father never punched Justin. Again if Lapan’s heavy fist connected with Justin’s face Justin in all probability would in my opinion suffer some injury. But there is no evidence he suffered any injury.
39. Apart from the “one punch” the accused said Lapan swung his fist first at him a few times which never connected to his body except the one that got him on his side and at the back of his head. Elsha was adamant and said her father never punched Justin.
40. There is no dispute that Justin Parker started this whole incident by engaging with Lapan at about 4.00 am on 6 June 2015. He had been playing pokies most of the night at the Aviat Club and later at the Lamana Gold Club. Whether he won money or lost money, the court does not know. All that the Court knows is that he was managing money at the pokies. The then Metropolitan Police Commander Andy Bawa gave him a bottle of beer which he drank at Lamana and he in return bought a round of beer for Mr Bawa and his friends and he left.
41. When he returned to Badili he asked Agai the Security Officer if Lapan was in and Agai told him he was in and that he was awake, watching TV. Whether Lapan was infact awake and watching TV cannot be confirmed. Agai was never called as a State or Defence witness. He was originally a suspect but the court is not aware if he was actually charged. Whether a statement was obtained from him by the police is not in evidence, but he was in my opinion a key witness to this whole saga because he was present most of the time there right throughout from the beginning to the end.
42. This witness would have witnessed quite a lot of what happened. He was sent by Justin to take out the wheels off Lapan’s motor vehicle. Agai went and instead deflated the tyre only as seen on photograph No 4 of the exhibits.
43. Elsha said when she came down Justin was pulling her father by the collar of his shirt outside on the veranda. If that is only what she first saw, then obviously she did not hear any of the earlier conversations between her father and Justin and did not know if Justin went into the house to the Lounge area. Only Agai would have seen those events so there is no evidence Justin went into the house. If her father pointed a finger at Justin and later on folded it into a fist and punched him, she would not have seen it. As to whether her father had opened the door to come out she would not have seen that. If her father asked Justin for his unpaid wages and Justin said to raise it with Luke, she would not have heard this. If Justin sacked her father she would not have heard it. If her father said you cannot treat me like a small boy she would not have heard it. All this was because she was not there then. When she came out, she saw her father being pulled out by Justin by the collar of his shirt onto the veranda outside.
44. Both Justin and Lapan had reasons to be angry. Lapan did not get paid. Justin was angry because Lapan’s work performance had declined and on the Friday 5 June 2015, Lapan was supposed to be at the inspection of the helicopter to be granted an airworthy licence to be operational but he never turned up at the airport for that inspection. Justin in his evidence said he was not angry for Lapan not turning up for the helicopter inspection on 5 June 2015 but I find that very hard to believe. Justin relied on Lapan to be present. Lapan was the main man because Lapan assembled the helicopter and it was Lapan who Justin needed most to be there to answer questions from Civil Aviation Safety Authority. Justin needed the helicopter to be operational as soon as possible and Lapan was the one to make it happen. Lapan failed to turn up. So for Justin to say he was not angry with Lapan not turning up at the critical moment to carry on business in my view is a lie. Even a prudent businessman in my opinion would be upset and angry with Lapan for not turning up given the same factual situation.
45. Why see Lapan at 4.00 am if he was not angry? The first question he asked Lapan at 4.00 am was, where were you yesterday or why were you not at work yesterday? The earlier part of the night, Justin was managing money matters and arriving at the Badili house he changed roles to manage a man. Managing money and managing people are two separate things. Managing money in my opinion is easier because money cannot hear, see, talk and think. Managing people is not as easy as managing money because man hears, smells, listens, feels, talks, tastes and thinks. A man has the ability to react. Money cannot react. This situation was no exception. Justin got Lapan out of bed and Lapan responded.
46. To me with respect there are clear indications that Justin was angry with Lapan. To shout Lapan’s name loudly is one such indication that he was angry. Justin’s flight was at 11 am that day so he had a lot of time to see him after full daybreak, but he had to see Lapan at 4 am and to me that was another clear overt manifestation of his anger at Lapan. He had heard that Lapan’s work performance had dropped and now he witnessed it himself and decided that enough was enough and that he must confront Lapan now and not later and confront him he did at 4.00 am on 6 June 2015.
47. He ensured Lapan was not going anywhere that day and that he would pay for his non attendance to his duties. To instruct Agai to take off the wheels of Lapans motor vehicle was another of those clear overt actions that to me showed his anger towards Lapan. If he was not angry, he would have waited for the right opportunity to talk to Lapan. But to me his action to confront Lapan at that material time and at that moment was only convenient to him. Justin was obviously conscious of what time it was then. There is no evidence he was not. He did not drink any beer that night except one bottle of beer at Lamana. Whether Justin considered Lapan’s convenience that it would be wrong to disturb and confront Lapan at the time, it appears it did not matter to him. To me I do not think he had that necessary good conscience. His mind was made up, he was going to confront Lapan whether Lapan liked it or not. If he was not angry he could have seen him later that morning before flying to Lae. To me he was angry that is why he could not wait. Furthermore, if he was not angry, he would have approached Lapan differently.
48. To go direct and confront Lapan why he did not show up, to me, with respect is confrontational, arrogant and dictatorial and is a wrong approach to a human. As a result of the wrong approach he is in court.
49. Applying therefore the actual and subjective test in relation to the intention of the accused at the material time and the accused’s actions prior to, during and after the assaults on Lapan, I am satisfied beyond reasonable doubt that there was an intention on the part of the accused to inflict some bodily harm on Lapan.
50. It was submitted on the accused’s behalf that, the fact, that Justin offered to take Lapan to the hospital was an indication by Justin to help and that that very fact showed he had no intention to hurt or injure Lapan. With respect, I do not subscribe to that submission. The accused realised he had caused considerable injury to Lapan and that Lapan was now helpless and needed his help right there and then. Why would Elsha refuse his offer? The damage had been done. Justin’s duty then was to take Lapan to the hospital. There was no need for Justin to get Elsha’s permission as it were, to take Lapan to the hospital. Lapan needed help and Justin was right there to give it and take him to the hospital, no questions asked. Just go to the hospital. That is the least he could have done.
51. Elsha asked Agai to get a taxi but Agai said he needed to see Justin first because there were no other security guards on duty. Whether Agai saw Justin on that matter is not known, but Elsha was able to get one of her father’s friends William Yatapya to come and help and as it turned out William and his wife arranged to have an ambulance come to take Lapan to the hospital and Agai helped to put Lapan on the ambulance. Oblivious to what had just happened, Justin goes and watches the television, not too far away from where Lapan was dying.
52. The submissions of the accused through his lawyers have attacked the credibility of the evidence of Elsha. Those submissions in particular pointed out the inconsistencies in her evidence and the unlikelihood of those events taking place. While I accept the defence submission on pointing out the inconsistencies of the State’s opening address and Elsha’s evidence I do not consider it fair to submit that the State’s opening statement must have come from Elsha. Elsha’s statement I assume was on the court depositions. If Elsha’s statement was as opened by the State, the defence was at liberty to cross-examine Elsha on that and have her statement tendered into evidence as a prior inconsistent statement but that was not the case. The defence never tendered Elsha’s statement as evidence of a prior inconsistent statement. Elsha was not here on the first day of trial. She was still in Kavieng. Where the State got its opening address from, I do not know but it did not come from Elsha. I agree the State’s opening does not match Elsha’s evidence. State Prosecutors must be careful that they allege accurately what the witness will say. For that they needed to go through the witnesses’ depositions. Elsha was not the only person who witnessed the event.
53. The critical fact of the matter remains and is not tainted in any way and that is there is no dispute that Justin assaulted Lapan and Lapan died from those assaults directly or indirectly. Elsha came to the scene later and saw Justin pulling her father by the shirt outside on the verandah. She was not there from the start. Elsha was there to see it and tell it, otherwise there would have been a total black out and silence on how Lapan met his death. Some explanation of any inconsistency in her evidence is that she came out when Justin was pulling her father out on the verandah. Again she was not there from the start.
54. Elsha was cross examined on whether her dad was frustrated and angry to which she said- Yes. She was asked if her dad was not happy with work and she said – Yes. She was asked if her father punched Justin and she said – No. She was asked about how her father’s shirt was ripped and she said she did not know and was confused about that. She was asked if her father had told her that he had quit his job and she said – yes. Effectively, Lapan had terminated himself from his employment. Justin’s termination of him was therefore a mere formality.
55. All the inconsistencies could be for reason that she did not see everything. Her evidence is however solid on the accused being responsible for her father’s death. Justin punched her father four times and from Justin’s own evidence 3 times and he held Lapan by the collar of his shirt and swung him. Lapan was a “big man” (meaning he was about 115 to 130 kgs) and that he had a limp as a result of a hip replacement and therefore unsteady on his feet making one of his legs shorter than the other. Lapan hit his head on the concrete stone wall. Lapan’s shirt was ripped off and tore as a result of the swing. The shirt Lapan wore was a tee shirt type shirt and for the shirt to be ripped off like that (shirt in evidence) would mean that a considerable force was used to swing Lapan and Lapan would have fallen down easily being unbalanced in my opinion. There is no evidence of Justin’s consciousness being impeded. From his own evidence his conscience was not impeded either because according to him, he was acting in self defence from Lapan’s assaults on him.
56. The doctor’s evidence is that Lapan “died from subdural haemorrhage due to direct blunt force trauma to the head”. The only evidence of direct blunt force to the head is delivery of 4 or 3 punches to Lapan’s head by Justin and Lapan bumping his head on the stone wall as a direct result of Justin pulling him by his shirt and swinging him and Lapan falling against the stone wall.
57. The defence of self defence only came out later during the cause of the trial. It was never specifically pleaded and the pre-trial review statement filed by the defence never raised a defence of self defence. The State and the court were never informed of the accused’s defence.
58. The doctor produced by the defence Dr Duflou reported that Lapan had a hip replacement for a previous hip fracture and the prosthesis showed proximal migration on CT. This would have had the effect of making the left leg shorter than the right and in all likelihood the deceased would have walked with a limp, again making the person more prone to instability and falling. Indeed Lapan walked with a limp.
59. Justin knew that Lapan walked with a limp. He also knew Lapan was slow and unstable on his feet and therefore not a real threat to him and his life. Apart from the limp, Dr Duflou says Lapan was “morbidly obese and that “Persons with morbid obesity have a higher predilection to falling than persons of a normal body habitué, because it negatively affects balance and postural stability”. Further, obese persons have a higher mortality following traumatic injury, with head injury being the most common cause of death in those types of cases.
60. There is no conclusive medical evidence as to which direct blow caused the subdural haematoma of the base of the left brain. Haematoma is a collection of blood (from Black’s Medical Dictionary). The dural is defined by the same dictionary as the outermost and strongest of the three membranes or meninges which envelope the brain and spinal cord. In it runs the vessels which nourish the inner surface of the skull. Subdural is defined by Oxford Concise Color Medical Dictionary as “below the dural matter relating to the space between the dural matter and arachnoids”.
61. In this case therefore there was a collection of blood at the left base of the skull – thus the subdural haemorrhage.
62. It is possible that this could have been caused by the direct heavy punches to the head or face or from a fall on a hard object. In this case 2 events occurred – that is the 3 or 4 punches to his head and a single fall on the stone wall. The punches came first and the fall followed. Those two combined forces could have caused the damage to the head of Lapan or only one of those forces, but we do not know for sure which source caused the subdural haemorrhage. All we know was that those punches were delivered which landed on Lapan’s head and he was swung and hit his head on the stone wall. The doctor’s opinion was that the subdural haemorrhage more likely came from the head connecting to stone wall.
63. Evidence from Elsha and Justin is that Lapan was bleeding from his nose and face. His face was swollen as shown on the photographs tendered into evidence. All the many doctors called in this case say there were no bruises on his body or face, yet the photographs showed his face was heavily swollen thus the question is what was the cause of his swollen face? Could it have been as a result of blows to his head and face from Justin’s punches? Could be or could be not. Could it be from the fall on the stone? Again could be or could be not.
64. One thing is certain and that is only one man assaulted Lapan Nason and that man is Justin Parker. Did Justin Parker sustain any injuries from any alleged assaults on him by Lapan Nason? No, there is no evidence of any injury sustained by Justin Parker. Yet Justin said Lapan punched him on the face. If Lapan connect to Justin’s face and Justin said he did, then one would expect Justin to suffer some injury to his face because Lapan had a big heavy hand and fist. Is this consistent with Justin Parker’s evidence? No. Is this consistent with Elsha’s evidence? Yes, because Elsha said her father never punched Justin and that Justin was the aggressor all that time whether it was 5 minutes or 20 minutes.
65. In relation to elements (iv) of the charge, I am satisfied beyond reasonable doubt that the accused had the intent to cause some harm to Lapan for all the reasons I have pointed out.
Element (v)
Were Justin’s assaults on Lapan unlawful?
66. To answer this question as events unfolded, Lapan died from the injuries as a direct consequence of the assaults occasioned on him by Justin. The question to be determined is whether those assaults were lawful. Unlawfully and lawfully are not defined in the Criminal Code or the Interpretation Act. However, s.244(1) of the Criminal Code says an assault is unlawful and constitutes an offence, unless it is authorised, justified or excused by law. Subsection (2) says that the application of force by one person to the person of another may be unlawful, even if it is done with the consent of that other person.
67. Assault is defined by s.243 of the Criminal Code as:-
(1) A person who–
(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or
(b) by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,
is said to assault that other person, and the act is called an assault.
(2) A reference in Subsection (1) to the application of force includes a reference to the application of heat, light, electrical force, gas, odour, or any other substance or thing in such a degree as to cause injury or personal discomfort.
(3) A male person under the age of 17 years shall be deemed not to be capable of consenting to any act by any other male person that but for such consent would be an indecent assault.
68. The State again is required to prove beyond reasonable doubt the unlawfulness of the assault on Lapan by Justin. There is no doubt Justin assaulted Lapan but was that assault unlawful. Were the assaults authorised, justified or excused by law.
Were the assaults authorised by law?
EXCESSIVE FORCE.
Even where the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful
70. The evidence from Justin was that Lapan punched him first. This was when Lapan is alleged to have said:- “you cannot do this to me” and after he was terminated by Justin. Lapan is alleged to have opened the door then and pointed his finger in the face of Justin and then folded it into a fist and punched him on his nose and face. Justin demonstrated this in his evidence in court and I observed him to point his finger and closed it into a fist and brushed it against his nose and face. If it was a proper punch on his nose or face, Justin I think, would have suffered some serious injury on his nose or face because Lapan being heavy fisted, would in my opinion have caused that but he did not and there is no evidence he was injured. Justin’s evidence is that from then on, Lapan swung his fist at him but did not connect except when he said Lapan hit him on the back of his head. Elsha’s evidence is that her father never punched Justin.
71. The Court only has the evidence of Justin as to whether Lapan first punched or assaulted Justin. This is because Elsha arrived at the scene later when Justin was pulling Lapan out of the house on the verandah, so she followed.
72. Evidence showed Justin suffered no injury. The question then is what was he defending himself from and who was he defending himself from. At the outset, I indicated that the defence of self defence was never put forward by the defence team as the defence. It was never mentioned in the pre-trial review statement as the defence or possible defence. The defence relied on the State v Takip Palne (1976) PNGLR 90 where the court said that one of the matters that defence must raise is:-
“that the accused believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.”
In this case the accused said he was acting in self defence to preserve himself from the swinging punches of Lapan. There is no evidence that Justin’s life was at stake or that he had sustained serious injuries and that he could be killed by Lapan or seriously injured by him.
73. More-over evidence shows Lapan was handicapped in that his left leg was shorter than the right leg and therefore had a limp in his strides or steps. Lapan was a “big man”, obese and not able to move fast. The question again – who was Justin defending himself from?
74. Considering what s.281 of the Code says, I am of the opinion that even if I accept the evidence of Justin that he was acting in self defence, he would be in his right to use force, that is not excessive. In this case, and again if I accept that Lapan punched him first. I am of the opinion that Justin used more force than was necessary or justified by law given the circumstances that I have addressed, that is Lapan was heavy, could not move fast, he was limping, he was bleeding heavily from his nose.
75. However with respect, I do not believe that Lapan ever punched Justin first or at all and that he punched him back in self defence. What I find hard to believe in Justin’s story is that Lapan with a heavy fist lands one on Justin’s face and nose, there is no injury to him. No bleeding from his nose, no bruising on his face. Elsha’s evidence in that regard is consistent that her father never punched Justin. Even though Elsha arrived much later she never saw her father throw a punch at Justin.
76. I find that Justin made up the story that he was assaulted or punched by Lapan Nason first and that he was acting in self defence. His story I find is a recent invention. His story was told convincingly and he was not swayed by the cross examination. However, a convincing witness is not necessarily a truthful witness and that is what I consider Justin to be with respect. He was never injured and never sought or received any medical help for those alleged assaults inflicted on him by Lapan. He escaped unscathed. Agai who was Justin’s security guard was not called to support Justin’s story.
77. The end result is that I do not believe Justin’s story and therefore do not believe his defence. However, I do not believe that he intended to cause grievous bodily harm. I find that he intended to cause him some bodily pain and injury. Accordingly I acquit him of the charge of murder but I find him guilty of manslaughter or unlawful killing of Lapan Nason as the alternative verdict under Section 539 of the Criminal Code Act.
ANSWERS TO ISSUES RAISED
78. In summary having dissected all the evidence I answer each of the issues raised in this way:-
(i) Whether Justin entered into the part of the home where Lapan and his daughter lived? There is no evidence that Justin went into the house.
(ii) Whether Justin unlawfully assaulted Lapan in bed? There is no evidence of that.
(iii) Whether Justin pulled Lapan out of bed and unlawfully assaulted Lapan? There is no evidence Justin pulled Lapan out of bed and unlawfully assaulted Lapan.,
(iv) Did Justin drag Lapan out of the house and continue to assault Lapan? There is no evidence of that.
(v) Whether Justin unlawfully assaulted Lapan and swung Lapan causing him to hit his head on the stone wall? There is evidence of Justin swinging Lapan causing Lapan to be off balance and causing him to fall and hitting his head on the stone wall. I find beyond reasonable doubt that Justin unlawfully held him by the shirt and swung him thus causing him to hit his head on the stone wall.
(vi) If Justin did punch Lapan was it lawful? Evidence from both Justin and Elsha is that Justin did punch Lapan. Weighing up all the matters I find beyond reasonable doubt that Justin assaulted (punched) Lapan unlawfully.
(viii) Whether Lapan unlawfully assault Justin first? Justin said Lapan punched him first and continued to swing at him and punched him. I find beyond reasonable doubt that Lapan did not assault Justin.
(ix) Whether Justin believed on reasonable grounds that he could not preserve himself from death or grevious bodily harm otherwise than by using the force which he in fact used.
I find beyond reasonable doubt that Lapan did not assault Justin, thus Justin’s life was in no danger.
79. Accordingly I reject the defence of self defence and provocation.
80. I find Justin guilty of unlawful killing of Lapan Nason beyond reasonable doubt.
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Public Prosecutor: Lawyer for the State
Ashurst Lawyers: Lawyer for the Defence
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URL: http://www.paclii.org/pg/cases/PGNC/2017/158.html