N11705

PAPUA NEW GUINEA 
[NATIONAL COURT OF JUSTICE]

CR NO. 109 OF 2024

THE STATE

V

TOMMY CLEMENT

BOMANA: KHAN J
6, 7, 10, 11 NOVEMBER, 4 DECEMBER 2025; 17 FEBRUARY 2026

CRIMINAL LAW – Murder – Section 300 of Criminal Code – Deceased was in possession of a kitchen knife – Struggle ensued between accused and deceased over the knife – Accused disarmed deceased and stabbed him – Whether accused acted in self-defence from unprovoked attack – Whether the State disproved elements of defence of self-defence.

The accused was charged with murder. It was alleged that the deceased was drinking with the accused and his friends when he stabbed one of the persons who was part of the drinking party with a kitchen knife. He later swung the knife at the accused who took evasive actions to avoid being stabbed. The accused suggested that they have a fist fight and asked him to drop the knife. The deceased dropped the knife, and the accused started to approach him and without any warning, he suddenly picked up the knife. A struggled ensued between them over the knife. The accused managed to get hold of the knife and stabbed the deceased. 

Held:

(1)	Under s269 (2) of the Criminal Code the belief on reasonable grounds and the test is subjective. 

(2)	The accused raised sufficient evidence of self-defence, and the onus shifted on the prosecution of disprove beyond all reasonable doubt the elements of defence.

(3)	The State was unable to discharge the onus and therefore self-defence applied. The accused was acquitted of murder.

Cases cited 

Tapea Kwapena v The State [1978] PNGLR 316 at 319.
The State v Naomi Kerema [1997] N1623
The State v Lenny Banabu [2005] N2871 
R v Nikola Kristeff (1967) No 445
Henry v The State [2022] PTSC 75; SC2266
Beckford v R [1988] AC 130 per Lord Griffiths

Counsel

Ms. L Jack and Mr S Wak, for the State
Ms. K Watakapura, for the accused

			 VERDICT

1.	KHAN J:   The accused is charged with the offence of murder contrary to s300 (1) (a) of the Criminal Code that he murdered Simon Wemin. The offence is alleged to have been committed at the accused’s house at Konedobu, National Capital District on 9th July 2023 between 6-7am.

2.	The State’s case is that the deceased was in possession of a kitchen knife and stones were thrown at him by the accused and another person which hit him, and he lost possession of the knife, and the accused picked it up and stabbed him with it.  

3.	The defence case is that the deceased was in possession of a kitchen knife. He had earlier stabbed another person with it and was threatening to stab him as well. The accused asked him to drop the knife and suggested they could settle their differences by having a fist fight. The deceased dropped the knife to the ground, and the accused began to approach him and as he got closer to him the deceased without any warning, suddenly picked up the knife once again. The accused was scared that the deceased was going to stab him, so he grabbed hold of his hand in which he had the knife to stop him from attacking him. As a result, a struggle ensued between them which lasted for a while. The accused managed to gain possession of the knife and stabbed the deceased with it on his chest. 

4.	Section 300 of the Criminal Code provides: 

“ 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; or 

Penalty: Subject to s19, imprisonment for life”. 

5.	The elements of the offence of murder are:

1)	A person; 
2)	Who kills another person; 
3)	With the intention to cause grievous bodily harm to the person killed.
  
6.	Before I discuss the evidence in this case, I feel it is important to outline the background as it will give a proper perspective of how the incident took place.  

BACKGROUND
 
7.	On 8 July 2023 the accused, Soman and Awe Ricky were drinking “home brew” commonly called “Steam” at the front gate of the compound of his house at Konedobu.  
  
8.	The deceased later joined them during the night of 8 July 2023, and they continued drinking until the early hours of the 9 July 2023.  

9.	They ran out of alcohol, and the accused and Ricky went to buy more home brew. Thereafter they continued to drink.  They were later joined by John Jeffery and one of his rugby teammate Philip Kobilo.  

10.	Whilst they were drinking the deceased without any warning pulled out a kitchen knife which was tucked in his trousers and attempted to stab Philip on his chest.  Philip raised his hand to defend himself and he got hold of the blade of the knife and received serious injuries on his palm.  

11.	Philip later went inside the accused’s house to have the wound dressed up as he was bleeding heavily.  

12.	The accused later confronted the deceased and asked him as to why he stabbed Philip. The deceased turned around and attempted to attack him with the knife. He swung the knife at him, and he took evasive actions to avoid being stabbed and fell backwards. The deceased continued to be in possession of the knife and the accused suggested that they have a fist fight to settle their differences. 

13.	The accused then went into his house and the deceased followed him. 

14.	The accused threw two stones at the deceased to scare him and to stop him from getting near him but none of the stones hit him.

15.	Then the accused again asked him to drop the knife, and that they could have a fist fight. The deceased dropped the knife, and the accused began to move towards him and as he got closer to him, he picked up the knife without any warning to attack him.  

16.	The accused got hold of the hand in which he was holding the knife, and they struggled over the knife which lasted for a while. The accused managed to get possession of the knife and stabbed him with it.

17.	According to the accused all this happened very quickly within a matter of seconds. He believed that if he did not stab the deceased then he would have stabbed him instead. 

18.	After the stabbing John Jeffery approached him and asked as to why he stabbed Simon the accused’s response was that no he did not do that. He was in a state of a shock, and he threw the knife away.  

STATE’S WITNESSES

19.	In the indictment that the State had listed 12 witnesses.  
  
20.	Cecilia Dangi, the investigating officer, confirmed that she received a letter from the Office of the Public Prosecutor on 2nd October 2025 to arrange for the witness’s attendance to the court.  Upon receipt of the letter, she visited the deceased’s father to enquire about the witnesses and was informed that three witnesses namely, Soman Teine, Tara Lombo and Ben Wemin were in Simbu and that they took the deceased’s body for burial to Simbu and have not returned since. She further stated that they will not be able to attend the trial because of financial difficulties. She stated that Sonny Ben was in Kerema, and his location was not known, and two witnesses were in Konedobu.  

STATE’S EVIDENCE

21.	The State tendered the following documents by consent:

1)	Statement of Dorothy Clement dated 3rd August 2023.
2)	Statement of Tara Lombo dated 2nd August 2023.
3)	Photographs taken by Kemos Kongga during post-mortem on 21st July 2023.
4)	Statement of Jessica TauTau dated 28th September 2023.
5)	Statement of Cecilia Dangi date 28th September 2023.
6)	Record of interview (Original Pidgin Version) dated 20th July 2023.
7)	Record of interview (Translated English Version) dated 20th July 2023.
8)	Affidavit of Dr. Stephen Kiola-Davis dated 24th October 2023.
9)	Autopsy report prepared by Dr. Kiolo-Davis dated 20th October 2023.
10) Medical certificate of Death issued by Dr. Kiola-Davis dated 21st July 2023.

22.	The statement of Tara Lombo was tendered by consent in which she stated that stones were thrown at the deceased, and he fell to the ground together with the knife that he was holding. The accused picked up the knife and stabbed him on his neck. 

JOHN JEFFERY

23.	John Jeffery is 23 years old.  His evidence was that the accused and the deceased were arguing and the accused got hold of the knife and stabbed him.  He stated that he had known the accused since his childhood.  
   
24.	In cross examination he denied that there was any struggle between the accused and the deceased over the knife.  

BEN BIF

EXAMINATION IN CHIEF

25.	Ben Bif is the accused’s neighbour.  He is 39 years old and has lived in Konedobu for the last 16 to 17 years.  
  
26.	He was not part of the drinking group.  He was offered a cup of blueberry by the deceased, and he just took one sip.  

27.	He described that the deceased as being over drunk.  

28.	He said that he saw the deceased stabbing Philip with the knife and he later attempted to attack the accused. As he attacked the accused, he stepped back to avoid being stabbed.  

29.	He also stated that the accused, and John Jeffery threw stones at the deceased, and the stone hit him on his hand and the knife dropped and accused picked it and stabbed the deceased. 

CROSS EXAMINATION

30.	In the cross-examination he agreed that the accused asked the deceased to drop the knife and that they could have a fist fight instead.  He also agreed that when the accused asked the deceased to drop the knife, he dropped it. 
  
31.	He further agreed that as the accused was approaching him, the deceased without any warning picked up the knife. The deceased got hold of his hand in which he had the knife and then they struggled over the knife which took place for a while. 

32.	He stated that although a big crowd had gathered but no one intervened as they feared being injured.  He also stated that the accused shouted at the deceased to release the knife and when he released the knife, he took 2 steps back and knelt and fell to the ground. 

DEFENCE EVIDENCE 

33.	The accused is 38 years old and is married. 

34.	 He stated that he had been drinking home brew and blueberry alcohol from    8 July 2023 and continued drinking until the early hours of 9 July 2023.  

35.	He drank with Ricky Martin, Somen Teine, John Jeffery and Simon Wemin (deceased).  He stated that the deceased attempted to stab Philip and he got hold of the blade of the knife and received injuries on his palm. He questioned him as to why he did that and the deceased turned around and swung the knife at him and he stepped backwards to avoid being stabbed and in the process, fell down.  
  
36.	He later went inside his house, and the deceased followed him. He and John Jeffery threw stones at the deceased and none of the stones hit him.  

37.	He asked the deceased to drop the knife so that they could have a fist fight and the deceased dropped the knife. As he started to approach him and as he got closer to him, he suddenly picked up the knife. He got hold of his hand in which he had the knife to stop him from stabbing him and they struggled over the knife, and this lasted for a while. He managed to get possession of the knife and stabbed the deceased who collapsed to the ground. 

38.	 He stated that the act of the stabbing took place within seconds. He was of the belief that if he did not stab the deceased then he would have stabbed him instead.

39.	After the incident John Jeffery came and asked him as to why he stabbed Simon and punched him. The accused threw a punch back at him. 

40.	The accused was hit at the back of his head by someone, and he collapsed and he was assaulted by stick, stone and hands and his eyes were swollen. 

41.	 He was later taken to the hospital and then to the Boroko Police Station cell.

STATE’S CASE

42.	The State’s case simply is that after the deceased dropped the knife when he was hit with stones and the accused picked it and stabbed the deceased. This is supported by the evidence of John Jeffery and Tara Lombo and partially by the evidence of Ben Bif in examination in chief.

DID THE ACCUSED STABBED THE DECEASED
  
43.	Section 291 of the Criminal Code defines death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.  
  
44.	It is not in dispute that the accused stabbed the deceased which caused his death and this is supported by medical evidence. In the circumstances, I am satisfied beyond all reasonable doubt that the accused caused the death of the deceased.

SELF-DEFENCE

45.	The accused claimed that he acted in self-defence, and this is consistent with his response to the police when they conducted his record of interview and it is also consistent with the evidence of Ben Bif in cross-examination when he agreed that the accused asked the deceased to drop the knife and that they could have a fist fight; and that the deceased dropped the knife after which the accused started to approach him and as he got closer to him, he picked up the knife suddenly and they struggled over it. The accused managed to get hold of the knife and stabbed the deceased with it.

46.	The accused relies on s269 of the Criminal Code and if he succeeds in that then it will afford him a complete defence to the charge.
  
47.	Section 269 states:

(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.

48.	The defence relies on s269 (2) and the test for which is subjective as opposed to the objective test for s269(1).
  
49.	Under s269(2) the following questions must be addressed: 

1)	That the accused was unlawfully assaulted; 
2)	That the accused had not provoked the assault;
3)	That the nature of the assault was such as to cause apprehension of death or grievous bodily harm; and
4)	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 – see The State v Naomi Kerema [1997] N1623.

ONUS OF PROOF

50.	The accused put evidence of self-defence and the onus shifted on the prosecution to disprove the elements of the defence – see The State v Lenny Banabu [2005]; N2871 and see R v Nikola Kristeff (1967) No 445 where it was stated: 

As to the onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish this defence.  Once a ground is disclosed by evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all the ultimate facts which establish those pleas are not present.   
  
51.	The prosecution must prove that the answer to one or more question is ‘no.’  If it cannot do this then the defence of self-defence will succeed. 

QUESTION NO. 1 – THE ACCUSED WAS UNLAWFULLY ASSAULTED. 

52.	The deceased joined the accused and his group in the drinking session and for no reason whatsoever he stabbed Philip and when he was asked by the accused as to why did he do that he turned around and attempted to stab him and swung the knife at him and in that process, he fell down.  So, the answer to this question is ‘yes.’

QUESTION NO. 2 – THAT THE ACCUSED HAD NOT PROVOKED THE ASSAULT 

53.	The deceased was armed with a knife all along.  He had attempted to stab the accused after he had stabbed Philip and the accused to avoid any further violence asked him for a fist fight and for him to drop the knife.  He dropped the knife and as he was approaching him, he picked it up suddenly and thereafter they struggled over it.  The answer to this question is ‘yes.’ 

QUESTION NO. 3 – THAT THE NATURE OF THE ASSAULT WAS SUCH AS TO CAUSE REASONABLE APPREHENSION OF DEATH OR GRIEVOUS BODILY HARM.  

54.	Once the deceased picked up the knife the accused was under reasonable apprehension of death or grievous bodily harm and in my view he was justified in holding that belief as the deceased had earlier stabbed Philip for no reason. 

55.	The deceased acted in an aggressive manner in stabbing Philip, and he continued to act in that manner towards the accused by swinging the knife at him. By dropping the knife, he led the accused to believe that they will have a fist fight but, however, as the accused got closer to him, he picked up the knife without any warning. This in my respectful view would have caused reasonable apprehension of death or grievous bodily harm to the accused.  So, the answer to this question is ‘yes.’  
       
QUESTION NO. 4 – 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. 

56.	The deceased unknown to the accused and his companions was in possession of a kitchen knife which was hidden in his pants. He attempted to stab Philip for no reason. Philip received serious injuries to his palm when he defended himself otherwise, he would have stabbed him on his chest. He acted in a very aggressive manner and continued to act in that manner by attacking the accused with the knife. As the accused approached him, he again aggressively picked up the knife and thereafter a struggle ensued between them. Ben Bif was asked as to why anyone did not intervene to stop the fight.  His response was that everyone was frightened of being injured including himself.  He also stated that the stabbing of the deceased was the first time that he had witnessed an incident of this nature in his life and he was very frightened. 

57.	 In Henry v The State [2022] PTSC 75; SC 2266 it is relevantly stated at [19] [20] and [21] as follows:

[19] In considering this question it should be borne in mind that a person defending themselves cannot be expected to weigh precisely the amount of force required. Reactions in such circumstances are often made instinctively, and with little time for careful consideration. (Emphasis added)
[20] As observed in the following cases referred to by Saldhana J in Tapea Kwapena (emphasis ours):
As Taylor J said in R v Howe (1958) 100 CLR 448:
 
Moreover, action in self-defence is instinctive and does not wait upon a precise appreciation of the exigencies of the occasion or upon the formation of a belief concerning the precise measures which are necessary.
And Holes J said in Brown v. United States of America albeit in a slightly different context:
Detached reflection cannot be demanded in the presence of an uplifted knife.
 
[21] For obvious reasons, a person about to be attacked does not have to wait for his or her assailant to strike the first blow:  Beckford v R [1988] AC 130 per Lord Griffiths; see also Tapea Kwapena. 

58.	Although a lot of people had gathered around when the incident took place, but no one intervened as it was a very frightening situation.  The accused having disarmed the deceased stabbed him as he feared for his life.  He said that if he did not do that then he would have been stabbed by the deceased.
 
59.	I am satisfied that his belief in the circumstances was reasonable given the position that he was in. So, the answer to this question is ‘yes.’  

60.	The prosecution was unable to disprove any of the elements of the defence of self-defence and in the circumstances, I find that the self-defence succeeds.

61.	The third element of the offence has not been established, and I find the accused not guilty of murder and he is acquitted. 

 Orders accordingly.

Lawyer for State: Public Prosecutor
Lawyer for Offender: Public Solicitor