N11550

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 992 OF 2025

THE STATE

V

KESSY ISARA
(NO 1)

WABAG: ELLIS J
22, 23 OCTOBER 2025

CRIMINAL LAW – Murder – Accused struck victim in neck with knife – whether self-defence – whether accused had reasonable apprehension of death or grievous bodily harm – whether response of accused was reasonable – defence rejected

Facts

The husband entered into a relationship with the victim.  When the accused saw the victim with her youngest child, she took that child from the victim.  The victim then tried to stab the accused with a knife which the accused avoided.  The accused tripped the victim, who fell and dropped the knife.  The accused picked up that knife and stabbed the victim in the neck, once, thereby causing her death.

Held

(1)	The State had proved beyond reasonable doubt that the accused caused the death of the victim and intended to inflict grievous bodily harm.
(2)	The State had also proved beyond reasonable doubt that the accused did not act in self-defence.

Cases cited 
Meckline Poning v The State (2005) SC814
R v Ulel [1973] PNGLR 254 

Counsel
J. Kessan, for the State
L. Toke, for the defendant
		
VERDICT

1.	ELLIS J: 	Kessy Isara, of Aiyak village in Laiagam in Enga Province, was indicted on a charge of murder.  She entered a plea of not guilty in response to that charge, which was based on section 300(1)(a) of the Criminal Code Act 1974 (CCA), being a charge which carries a maximum penalty of life imprisonment.

2.	Section 300, so far as is presently relevant, provides as follows:

(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 …

Overview 

3.	When the victim tried to stab the accused with a knife, the accused tripped her and she dropped the knife which the accused then picked up and used to stab the victim in the neck, while the victim was lying on the ground.  That stab wound severed the carotid artery and jugular vein in the neck of the victim, causing her death.  A defence of self-defence was rejected.

The State’s case

4.	No witnesses were called in the State’s case.  Three documents were tendered: (1) the record of interview (Exhibit A), (2) the autopsy report (Exhibit B), and (3) the s 96 statement of the accused, made during the committal hearing (Exhibit C).

5.	In her record of interview, the accused said that she is the first wife of Jim Yuki and that the victim was his second wife.  She said that on 28 January 2025 she travelled from Mount Hagen to Wabag in order to make a complaint against her husband and the victim for committing adultery.  In answer to question 30, the accused said that, seeing the victim carrying her youngest child, she went to pull that son from the victim and, while they were struggling, the victim “pull[ed] out her kitchen knife and tried to kill me, therefore I got the same knife she was holding and stabbed her with it.  I stabbed her only once on the neck.”  In answer to question 33, the accused said she ran towards Wabag Police station to surrender, but instead ran to Maramuni market and, on the way there, she caught a bus.  She said that, after picking up her children, she escaped to her village.  In answer to question 34, the accused repeated her claim that “I went and pulled my son from her but she attacked me so I got the same knife and killed her”.

6.	The autopsy report found that there was “A deep stab wound …” and that the carotid artery and jugular vein had been severed.  The photos included in that report provide support for those observations.  Under the heading “Internal findings”, it was said that: “Internal investigations were not necessary; from the overwhelming exten[t] of surface findings, conclusive inferences without opening could be drawn.”  It was recorded that the stab wound severed the right-side carotid artery and the jugular vein.  The Court notes that the photos in the report provide support for a single stab wound on the right side of the neck of the victim.

7.	The accused opted to make a statement, on oath, during the committal hearing.  In the five-page handwritten document which recorded what she said, the following words appear:

On January 25, [20]25 I left [my] 9 month old child at home and ran away to Mt Hagen.  I was in Mt Hagen for 3 days … So I came to Wabag.  I came with my first born son, and when we arrived in Wabag, my son told me that the deceased was with my nine month old child, Lucky Dube.

I came down from the bus, and I went and pulled my child off her and she had a knife and stab at my face but I moved my head and evade it.  I tripped her foot and she fell and dropped the knife, I picked up the knife and I used my good hand to stab her once, and I got on the bus and went home.

8.	Cross-examination included the following questions and answers:

Q	What kind of knife?
A	K5.00 knife I threw to Kop Creek and ran off.
Q	Describe it?
A	Brown handle knife (6 to 8 inches long).
	Kitchen knife with a wooden handle.
Q	When you saw Jutrin with Lucky Dube, what was your intention?
A	I wanted to get my child back from her, but she stabbed at me so I stabbed her. 
Q	She held the knife with both hands or one hand?
A	One hand.
Q	Where was she standing?
A	Main highway, next to bus stop.  I tripped her and she fell on the ground.
Q	You fell with her?
A	I was standing, she fell and dropped the knife, so I picked it up and stabbed her.
Q	Was she lying on the ground or standing when you stabbed her?
A	I am disabled in one hand so I stab her as she lay.
Q	How far were you from Jutrin when she fell and you stabbed her?
A	Between 1 – 2 metres.

The defence case

9.	No witnesses were called in the case for the accused.  Instead, the accused made a lengthy unsworn statement from the dock.  After referring to the conduct of her husband, what the accused said in relation to the incident was as follows:

The next day I returned and I laid a complaint at the Wabag Police station.  And I was going to get my child back.  And at the Wabag bus stop, I saw the new wife with my child.  My first-born child, he told me that the new wife was with the baby.  I am a disabled person, so I wanted to get the child back from her.  I got the child back and I was holding that child.  At that moment she swung a knife at me.  The knife landed on my face while I was holding onto the baby. While she was standing, I struck with my leg and she fell down.  While she was laying down, I got the same knife.  When she fell down, she injured herself and dropped the knife.

I picked up the same knife and I knew that I got blood, so I wanted to do the same thing to her.  

10.	After again referring to her husband, the accused said: “I have done wrong already”.  At that point, the accused’s lawyer indicated that he wished to confer with his client.  That request was denied as it is not appropriate to permit a lawyer to advise an accused during an unsworn statement from the dock.  When the accused resumed speaking, the accused claimed that she acted in self-defence.

Submissions for the defence

11.	It was said that accused relied on s 269 of the CCA, that there was an unlawful attack by the victim and that the accused had no plan to attack.  There was a submission that the victim had a knife, and the accused sustained a cut on her face, after which the victim fell and dropped the knife. A submission was made that the accused then knew she would be attacked, and that was why the accused grabbed the knife and stabbed the victim once.  A submission was made that “The accused walked to the Police station because she was in fear of further attack.”  It was also suggested that the force was proportionate and the claim that the accused had no intention to attack the victim was repeated.  A further claim was made that the extent of the force used by the accused was equal to that of the victim attacking her.

12.	The medical report was criticised on that basis of no internal examination having been conducted and no indication of the depth of the wound.  It was contended that the defence of self-defence had been made out, that a verdict of not guilty should be returned, and that the accused should not be found guilty of any other charge.

Submissions for the State

13.	The Court was referred to the accused’s answer to question 30 in the record of interview and the portion of the s 96 statement quoted above.  After referring to s 269 and s 270 of the CCA, it was submitted that there must be an imminent threat but, as the accused had disarmed the victim, it was not necessary for the accused to use the knife in self-defence.  That was said to be the case regardless of whether there was a provoked or unprovoked assault by the victim on the accused.  It was noted that, as the accused had disarmed the victim, she could have taken the knife away without doing any harm to the victim.

14.	It was also submitted that the medical report confirmed an intention to inflict grievous bodily harm and showed that there was a serious stab wound to the neck.  The evidence was said to warrant an inference that the blow was substantial, and that the evidence supported a finding that the accused was guilty of the offence charged, which was based on s 300(1)(a) of the CCA.

Relevant law

15.	The question of what weight should be given to an unsworn statement was considered in R v Ulel [1973] PNGR 254.  Simply stated, what is said during an unsworn statement by the accused is not evidence, but can be taken into consideration.  Accordingly, it does not have the same weight as sworn evidence.  It must follow that, in the event of an inconsistency between what is said in an unsworn statement, and what is said under oath, the latter should normally be preferred.

16.	In the CCA, s 269 provides a defence of self-defence.  The wording of that section is set out below:

(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 the 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.

17.	Although not referred to by the accused’s lawyer, s 270 also provides a defence of self-defence.  That section is also quoted below:

(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 that force 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 arise; 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.

18.	It is well-established that, when self-defence is raised as a defence, it is for the prosecution to eliminate it as an issue by proving beyond reasonable doubt that the act of the accused was not in self-defence.  That may be done  by proving beyond reasonable doubt that the accused did not believe at the time of the incident that it was necessary to do what he or she did in order to defend himself or herself; or if it is reasonably possible that he or she did have such a belief, that nevertheless the act of the accused was not a reasonable response in the circumstances as he or she perceived them.  The circumstances should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself or herself: Meckline Poning v The State (2005) SC814.

Issues

19.	There are two issues requiring determination in this case:

(1)	whether the State has proved the charge and, if so,
(2)	whether the defence of self-defence provides an answer to the charge.

Consideration

20.	The accused gave three different versions of the events relevant to this charge: (1) in her record of interview, (2) in her s 96 statement, and (3) in her unsworn statement.  As it was only the s 96 statement that was made under oath, ie under an obligation to tell the truth, that version must be given greater weight.  Accordingly, in the event of any inconsistency, what was said in the s 96 statement is preferred.

21.	It is also necessary to note that what an accused person says in a record of interview is limited to responses to the questions asked by the Police officer who is conducting that recorded interview.  In this case, the explanation provided in the record of interview is an abbreviated version of the recollection provided in the s 96 statement.  In the s 96 statement, it is noted that what was said by the accused in chief, and during cross-examination, was that (1) she evaded the attempt of the victim to stab her, (2) the accused then tripped the victim who fell to the ground, (3) the victim dropped the knife, (4) the accused then picked up the knife and stabbed the victim, and (5) the victim was lying on the ground at that time.

22.	It was not until she made an unsworn statement that the accused claimed that the victim’s use of the knife struck her on the face.  That unsworn claim was not included in either the version given in the unsworn record of interview or in the sworn s 96 statement.  The Court considers that claim was embellishment, borne of a desire to enhance the defence of self-defence.  However, even if that aspect be accepted, there is a fundamental difficulty with the defence of self-defence, namely that the victim was lying on the ground and no longer had the knife when the accused used it to stab the victim.

23.	By reference to s 269 of the CCA, the force used by the accused was not reasonably necessary.  That is the first reason why s 269(1) does not apply.  The second reason why s 269(1) does not apply is that it only permits force to be used that is not likely to cause death or grievous bodily harm and using a knife to stab a person in the neck clearly does not satisfy that requirement.

24.	Moving to s 269(2), that provision operates to require the accused to have believed, on reasonable grounds, that she could not otherwise have defended herself from death or grievous bodily harm.  When the victim was lying on the ground, and no longer had the knife, it cannot be sensibly said that the accused had a reasonable apprehension of death or grievous bodily harm.  That is the first reason why s 269(2) does not apply here: she could have otherwise defended herself.  Secondly, there are multiple things the accused could have done, including to run away, taking the knife with her, with the result that she cannot be considered to have believed, on reasonable grounds, that she could not otherwise preserve herself.

25.	Turning to s 270, the accused cannot have had a reasonable apprehension of death or grievous bodily harm when the victim was lying on the ground, was no longer in possession of the knife, and the accused had possession of that knife.  Further, as with s 269, the accused cannot be considered to have believed, on reasonable grounds, that she could not otherwise preserve herself.

26.	The better view is that, when the accused stabbed the victim, she was motivated by revenge and not self-defence.  When the accused stabbed the victim, the victim was lying on the ground and was unarmed.  At that time, the victim posed no threat to the accused.

27.	There are submissions that were made on behalf of the accused that must be rejected.  First, the claim that the accused “sustained a cut on her face” is, for the reasons indicated above, not considered credible.  That submission is of no moment because, even if the accused did sustain such a cut, it does not overcome the fact that the victim was lying on the ground, unarmed, and was not threat to the accused, when the accused chose to stab the victim in the neck.   Secondly, there was a suggestion that “the accused knew she would be attacked, and that was why the accused grabbed the knife and stabbed the victim once”.  The flaw in that submission is that the accused cannot be said to know she would be attacked when the victim was lying on the ground, unarmed, and the accused had possession of the knife.  Thirdly, the submission that “The accused walked to the Police station because she was in fear of further attack.” does not accord with the evidence.  Fourthly, the suggestion that the force used was proportionate must be rejected: the victim tried to stab the accused and failed, fell to the ground, and dropped the knife.  For the accused to then stab the victim in the neck was not a proportionate response.  Fifthly, the claim that the extent of the force used by the accused was equal to that of the victim attacking her was not made out on the evidence.

28.	Sixthly, the criticism of the autopsy report misses the fact that the purpose of an autopsy report is to determine the cause of death.  When that is clear, there is no need to cut open the victim to make an internal examination.  The suggestion that the autopsy report did not indicate the depth of the wound is of no moment.  While it did describe the wound as “deep”, it was not necessary to indicate how deep was that wound when it was clear that the wound that was inflicted severed both the carotid artery and jugular vein.  It is clear beyond doubt that, when those blood vessels are severed, death will result because the carotid artery and the jugular vein are the blood vessels that take blood to and from the brain.  It is clear beyond any doubt that the knife wound inflicted on the victim by the accused was the cause of the victim’s death.

29.	Using a knife to strike a person in the neck is highly likely to cause death and will certainly cause grievous bodily harm.  Indeed, it is a reasonable inference that using a knife to strike a person anywhere on the body is likely to cause grievous bodily harm, noting that those three words are defined in s 1 of the CCA as follows:

”grievous bodily harm” means any bodily injury of such nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

30.	Finally, while it is not necessary for a decision as to the outcome of these proceedings, it is noted that the accused has a disability that affects her left arm, with the result that she would have used her right arm to inflict the wound on the victim.  As that wound was on the right side of the victim’s neck, as revealed in the photos in Exhibit B, it appears that, when the accused stabbed the victim in the neck, the victim was either lying on her left side, or she was facing away from the accused.

Findings of fact

31.	The Court makes the following findings of fact:

(1)	The husband of the accused formed a relationship with the victim.
(2)	On 28 January 2025, the victim was at a bus stop in Wabag.
(3)	At that time, she had with her the youngest child of the accused.
(4)	When the accused saw that, she grabbed her child from the victim.
(5)	The victim then tried to stab the accused in the face with a kitchen knife.
(6)	That was a brown handled knife, about 6 to 8 inches long.
(7)	The accused moved her head and thereby evaded that blow.
(8)	The accused then tripped the victim, who fell to the ground.
(9)	When she fell to the ground, the victim dropped that knife.
(10)	The accused then picked up that knife in her right hand and stabbed the victim.
(11)	The accused stabbed the victim, once, on the right side of her neck.
(12)	The victim was lying on the ground, unarmed, at that time.
(13)	That stab wound severed the carotid artery and the jugular vein.
(14)	That stab wound caused the death of the victim.
(15)	Stabbing a person in the neck is likely to cause the death of that person.
(16)	Stabbing a person on the body is likely to cause grievous bodily harm.
(17)	It is a reasonable inference that, when the accused used the knife to strike the victim, she intended to cause grievous bodily harm to the victim.

Conclusion

32.	As a result of those findings of fact, the Court is satisfied the State has been proved beyond reasonable doubt that: (1) the death of the victim was caused by the conduct of the accused, (2) that conduct was stabbing the victim on the right side of the neck with a knife, (3) that conduct of the accused was intended to inflict grievous bodily harm, (4) the accused could not have reasonably believed that conduct was necessary, and (5) even if she did so believe, such conduct was not a reasonable response.

33.	Accordingly, the defence of self-defence is rejected.  The Court returns a verdict of guilty of murder on the indictment.   The accused will be remanded to await sentence.

Verdict accordingly.

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