N11416

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 159 OF 2023

BETWEEN: 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
CHRIS DIDIMUS KUWESA-ANG
Accused

MANUS:  DINGAKE J
18 JULY 2025

CRIMINAL LAW – Murder – Criminal Code s.300(1)(a) – Defence of Self-Defence – Criminal Code ss.269 and 270 – Burden on State to disprove self-defence – Proportionality and necessity of force – Disproportionate use of lethal weapon – Defence rejected – Accused found guilty of murder.

Cases cited
State v Laki [2010] PGNC 260; N4164 
State v Gasi [2010] PGNC 255; N4165 
Takip Palne v The State [1976] PNGLR 90
Kwapena v The State [1978] PNGLR 316

Counsel
Mrs Linda Maru for the State 
Ms Kusunan Pokiton for the accused 
JUDGMENT

1.	DINGAKE J: INTRODUCTION:  The Accused, Chris Didimus Kuwesa-ang was charged with one count of murder pursuant to Section 300(1)(a) of the Criminal Code.

2.	The State alleged that he, on the 2nd of July 2021, at Levei Village, Lorengau in Papua New Guinea murdered one Justin Ka-ang Pwek thereby contravening Section 300 (1)(a) of the Criminal Code.

3.	He pleaded not guilty to the charge and a trial ensued.

4.	To succeed in proving the charge the State must prove that the accused intentionally intended to cause grievous bodily harm to the deceased and thereby caused his death.

5.	The State must prove the above beyond reasonable doubt by cogent evidence.

THE EVIDENCE

6.	The State called three witnesses to prove its case, namely, Alois Poto-op, Moses Richard, and Sikong Blaise.

7.	The evidence of Alois Poto-op was to the effect that on the material day, on his way to the village, he saw the Deceased, who carried no basket or knife.

8.	He saw the Accused and Deceased chase each other by the bridge. He said the Deceased was physically well and did not have injuries. He also testified that he heard the accused scream “he cut me!” referring to the accused. He said he saw the Deceased chasing the Accused covered with blood. He told the Court that the accused died that day.

9.	Mr. Moses Richard testified that on the 2nd of July 2021, between 5:30pm and 7pm he witnessed two people fighting on the bridge.

10.	Mr. Sikong Blaise testified that at the Village Court, both the Accused and the Deceased wife admitted their sexual relations.

11.	In the record of interview, the Accused admitted in his answers to questions 20 to 26 that he was carrying a kitchen knife in his basket and he used the knife to stab the Deceased with it.

12.	The Defence called the Accused to give evidence. He told the Court that the knife he used was not his but that of the Deceased. The Accused told the Court that it was the Deceased who started the fight by swearing at him first. He also testified that the Deceased wanted to stab him with his knife, on several occasions, and he missed him. 

13.	The Defence relies on section 269 and 270 of the Criminal Code, namely, self-defence.

THE LAW ON SELF-DEFENCE

14.	Section 269 and 270 of the Criminal Code provides that:

“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.

270. 	SELF-DEFENCE AGAINST PROVOKED ASSAULT. 

(1)	Subject to Subsection (2), when– 

(a)	a person has unlawfully assaulted another person, or has provoked an assault from another person; and 

(b) 	the other person assaults him with such violence as– 
(i) 	to cause reasonable apprehension of death or grievous bodily harm; and 

(ii) 	to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence, the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.  

(2) 	The protection provided by Subsection (1) does not apply– 

(a)	where the person using force that causes death or grievous bodily harm– 

(i)	 first began the assault with intent to kill or to do grievous bodily harm to some person; or 

(ii) 	endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or 

(b)	unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

15.	It is trite law that, in a criminal trial, where the defence of self-defence is raised and the accused adduces evidence in support of it, the burden shifts to the prosecution to negative the defence. That burden—to disprove the defence beyond reasonable doubt—lies with the State. (The State v Pondros Laki (2010) N4164).

16.	Once raised by the Accused there is no onus on the Accused to establish the defence of self-defence. (State v Gasi (2010) N4165).

ANALYSIS OF THE EVIDENCE

17.	It is not in dispute that on the 2nd of July 2021, a fight ensued between the Deceased and the Accused and that the Accused stabbed the Deceased with a knife.

18.	It is also not in dispute, that the Accused, about three weeks before the fighting occurred, appeared before the village court, at which the Accused admitted to having an extra-marital relationship with the wife of the Deceased.

19.	In the record of interview, the Accused said he was carrying a kitchen knife that he used to stab the Deceased. In Court the Accused said the opposite – he said the knife he used was not his but was that of the Deceased. He said the record of interview was wrong.

20.	The Accused evidence captured in his answers to questions 20-26 in the record of interview is consistent with the evidence of Alois Poto-op, to the effect that the Deceased was not carrying any knife on that fateful day.

21.	The question arises as to which of the two versions of the Accused is true? The one in the record of interview or his testimony in Court.

22.	I remind myself that the Accused record of interview was conducted on the 13th of July 2021, when, as the State says, his mind was still fresh; the record of interview was conducted in pidgin language; it was read back to him and he was happy with the contents of the record of interview and signed it, thereby affirming the correctness of the record.

23.	The Accused testified in his evidence in chief and under cross-examination that when the Deceased swore at him and said “eat your mother’s vagina” he said he felt bad. He confirmed under cross-examination that he was angered by the words the Deceased said to him. When asked in cross examination if these words made him angry, he said yes. Again, under cross examination he was asked if the reason for the fight was due to the Deceased swearing at him and he said yes.

24.	Based on the evidence I find as a fact that the Accused stabbed the Deceased with his own knife that he retrieved from his basket on that fateful day. I accept that the Accused was angered by the words the Deceased, reproduced earlier.

25.	I find also that the use of the knife to stab the Deceased occasioned grievous bodily harm, that ultimately led to the demise of the Deceased. I therefore find that the Deceased died from being stabbed by the Accused. The evidence of the Accused from the record of interview, and that of Alois Poto-op and Josephine Mark testify to this fact.

26.	On the evidence, it is clear to me that what caused the fight was due to the Deceased swearing at the Accused as earlier indicated. I reject as a fabrication that the Deceased attempted to assault the Accused with a knife. This assertion by the Accused is nowhere to be seen in the record of interview. It is an afterthought.

27.	The next logical and material question is whether the force used by the accused was proportionate and necessary to repel the danger or harm to himself that he perceived.

28.	On the evidence there is nothing that the Deceased did that threatened the Accused’s life.

29.	The Deceased unjustifiably used a knife, a lethal weapon because he was angry at the Deceased swearing at him.

30.	The force he used was wholly unjustifiable and not the one contemplated by Section 269 and 270 of the Criminal Code. It was wholly disproportionate to the insult he may have perceived. It was unnecessary. Life is sacred. There was no justification at all to take away life.

31.	In order for self-defence to succeed as a defence, it must be shown among other requisites, that the force used by the Accused was proportionate and necessary.
(Takip Palne v The State [1976] PGNC 54; PNGLR 90; Tapea Kwapena v The State [1978] PNGLR 316)

32.	I find that the force used by the Accused was not commensurate to the swearing uttered by the Deceased to him. It was disproportionate and unnecessary. The defence of self-defence does not therefore accrue in favour of the Accused. It is rejected in its entirety.

33.	In the result, having regard to the evidence before me, I am satisfied that the Accused, intending to do grievous bodily harm, killed the Deceased Justin Ka-ang Pwek

Orders of the Court

34. In the result, the Court finds the Accused Chris Didimus Kuwesa-ang guilty as charged.
__________________________________________________________________
Lawyer for the State:	 Public Prosecutor	 
Lawyer for the prisoner:	 Public Solicitor