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State v Malihombu [2003] PGNC 124; N2365 (29 April 2003)

N2365

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1084 of 2001

THE STATE

-V-

PETER MALIHOMBU

WEWAK: KANDAKASI, J.
2003: 24th, 25th, and 29th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Admitting into evidence accused record of interview – Evidence in record of interview inconsistent with state’s case – Accused sworn evidence confirming evidence in record of interview - Effect of – Creates doubt in state’s case – Benefit of doubt to the accused.

CRIMINAL LAW – Wilful Murder – Defence of provocation or self defence raised – Inconsistencies in State’s case – State’s evidence running contrary to any logic and common sense – Sufficient doubt created in case against accused – Effect of - State failing to establish beyond any reasonable doubt accused acted without provocation or in self- defence – Benefit of doubt goes to accused – Verdict of not guilty returned – ss. 266,267, and 303 of Criminal Code.

Cases cited:
SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
John Jaminan v. The State (No. 2) [1983] PNGLR 318.
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
Garitau Bonu and Rosanna Bonu v The State (1997) SC528.
The State v Edward Toude & Ors (No 1) (16/10/01) N2298.
Rosa Angitai v. The State [1983] PNGLR 185.

The State v. Tu'uo Ibru (20/10/99) N1940.

Counsel:
Mr. M. Ruari for the State
Mr. G. Korei for the Accused

29th April, 2003

DECISION ON VERDICT

KANDAKASI J: You pleaded not guilty to one charge of wilfully murdering a Philip Fegiwafi (deceased), contrary to s. 299 of the Criminal Code and raise the defence of provocation and self defence. Hence, a trial was conducted to determine whether you acted under provocation or in self-defence. This meant a number of facts were undisputed.

Undisputed Facts

The undisputed facts are these. The deceased came with his blood brothers and others seeking to solve a problem with you. A fight erupted and you used an iron spear to spear the deceased. You speared him at his chest area through his right arm. That led to the death of the deceased. This happened at about 7:30 p.m. on 17th April 2000 at Kininimbongu, Kubalia District, East Sepik Province.

Disputed facts: The Evidence

For the disputed facts, the State called three witnesses, Bill Fegiwafi, James Fegiwafi and Cletus Fugiha. The first two are the deceased biological brothers. The third went with the deceased to your house. Therefore they were not independent witnesses. In your defence you gave a sworn testimony.

(i) Bill Fegiwafi

Bill Fegiwafi’s evidence is this. You and the Fegiwafi’s are first Cousins. The fight between you and the deceased took place. The witness and his other brothers had gone to work on the road during the day while the deceased remained at the village in his house. When he and the rest of them returned to the village, the deceased told them that you and Lawrence, your elder brother, fought him and cut down a number of his (the deceased) banana and cocoa trees. So, the deceased, Bill, James and Jeffery Fegiwafi as well as Cletus Fugiha went to your house, seeking to resolve peacefully the problem that you created. They were not armed with any weapons.

When they got to your house, you and your family were having dinner. Upon arrival at your house, the deceased asked you about the cutting down of his cocoa and banana trees. You responded by asking, "why are you coming to my area and asking?" You then jumped up and down and swung a fist first at the deceased and the deceased and you had a fistfight for a short while. Then Lawrence fetched an iron and hit the deceased on the head and on his back causing him to feel pain and get a knife from where they were fighting and cut Lawrence twice. Lawrence went to his house and at that time, a sister in law of yours, Helen, got a coffee stick and hit the deceased on his head. The deceased then lifted his hands up and you shot him with the same iron Lawrence had used to hit the deceased. The spear was described as the kind usually used to shoot pigs, with 4 corners and 2 meters in length. After the deceased was shot, he and his brother went to the deceased and removed the iron spear.

This witness was on the side watching when the deceased and you fought. He was about 5 to 6 meters away. He said the time was around 4 and 5 p.m. so there was still daylight. Hence he was able to see clearly. But he was not able to say whether the others that went with him and the deceased did anything. He said those others will say what they did themselves and gave no reason for that. He also said he could not do a thing to stop the fight because all these happened in a very short time. Further this, witness said the deceased was fighting you on his own while Lawrence and Helen assisted you. Furthermore, he said the fight took place about a kilometre away from your house and there was no other house close by.

This witness answered in the negative when put in cross-examination that you knocked the deceased down to the ground in the fistfight. But when further suggested in terms of, "when Peter (you) knocked him (deceased) down on the ground, he (deceased) got the knife and cut you" he answered in the affirmative. Further, he answered in the negative to a suggestion in cross-examination that, when Lawrence came to assist you, the deceased cut him. But when asked in terms of Lawrence falling down upon being cut, he answered "yes". In so doing, he contradicted his earlier claim that Lawrence went to his house and did nothing yet, only to subsequently correct himself upon being reminded of the contradiction. Based on these instances, it was suggested to the witness in cross-examination that what he told the Court were all uncertainties. His response was, this was his first time in Court and as such he was not confident.

The witness denied a suggestion in cross-examination that he and the others supported the deceased by going with him to your house at the first place and when the fight took place they did nothing to stop it. But he was not able to answer a question, " if you were not supporting him, why didn’t you stay back in your house instead of accompanying the deceased?" Further he was not able to answer a question the Court put to him as to where did the knife and iron spear come from if the fight took place one kilometer away from your house?

(ii) James Fegiwafi

The Second witness, James Fegiwafi gave a similar testimony to that of his brother, Bill. But he differed from Bill’s account in a number of respects. The most obvious ones were in the timing and location of the incident. Contrary to the first witness’ account of the fight taking place between 4 to 5 p.m., James said the fight took place around 6:00 p.m beside your house as opposed to about a kilometre away from your house according to the first witness. The other was in the number of people coming with the deceased. Contrary to the first witnesses speaking of 5 people, this witness spoke of 6 people, Bill Fegiwafi, Cletus Fugiha, Johanna Fegiwafi, Alois Niamba, Jeffery Huanjehunie and himself. Another area was in the events just before the fight. Without specifying what it was, this witness said you showed signs to fight when the deceased and his group turned up and this caused the deceased who was already angry over the cutting down of his crops fought with you. This witness initially said nothing about the deceased, asking you about the cutting down of his crops and you saying something in return, when contrasted with the first witness’ account. Later however on further questioning, he said the deceased said something about his (deceased) crops again without specifying what was it that was said.

This witness also differed with the first witness in a number of other respects. Firstly, he said the rest of the people going with the deceased ran away upon the deceased being shot by you with the iron and him falling down. The first witness said nothing about this. Secondly, he spoke of Cletus removing the iron spear from the deceased body and the deceased was taken home. Secondly, he said when Helen lifted the stick to hit the deceased, the deceased lifted his hands to protect himself and that is when you shot him with the iron spear. The first witness said nothing about this. Thirdly, Lawrence was present at the immediate scene when you speared the deceased as opposed to the first witness saying he went to the house. Fourthly, again in contrast to what the first witness said, this witness said he did not see Lawrence fall down on the ground and that Lawrence used a different weapon (iron) and not the same one as used later by you to spear the deceased. Fifthly, he spoke of three irons being present at the scene, one used by Lawrence, the other by you and another. But in a statement he had given to the police, he spoke of two irons only. He provided no explanation of these variances.

There are yet other areas in which this witness differs or spoke of things the first witness did not mention. These are:

1. when Helen hit the deceased on the head, the knife that the deceased used to cut Lawrence fell on the ground as he lifted his hands to protect his head from Helen’s attacks;
2. the knife used by the deceased to cut Lawrence was a rusty one;
3. Philip was shot from your house;
4. he discussed the case with the first witness at the village before coming into Court;
5. Helen hit the deceased on his head twice;
6. the deceased did not speak to any village leader or the councilor in order to resolve the problem relating to the cutting of the deceased crops peacefully; and
7. the deceased’s group knew that there was going to be trouble so they went without any weapons, as they are cousins.
   

(iii) Cletus Fugiha

The final witness, Mr. Cletus Fugiha, gave a similar account to that of the first and second witnesses. But he also differs from those two witnesses even to the extent of calling the second witness a liar under cross-examination. Firstly, this witness said you fell in the fight between you and the deceased. That is when Lawrence got an iron and hit the deceased. Then the deceased got hold of a bush knife from your own house and cut Lawrence. This is the second area in which this witness differs. Thirdly, when asked as to how many times the deceased cut Lawrence, he said only once, though consistent with the first witness. The next area is in the number of times Helen hitting the deceased. This witness said Helen effected only one hit as opposed to two hits according to the second witness.

Further, this witness said Lawrence went and sat on the ground on his buttocks turning his affected hand around after being cut by the deceased only once. This is inconsistent with the evidence of the first and second witnesses who said Lawrence went to his house after the deceased cut Lawrence twice. Furthermore, this witness said Lawrence was not hospitalized following the fight. This is in conflict with the second witness who said Lawrence was hospitalized for the injuries he received in the fight. Contrary to what the earlier witnesses said, this witness also said, in the fight between you and the deceased, you were knocked down. This witness also said his version of what happened is correct and that the evidence given especially by the second witness is false.

The Court asked this witness as to how the problem caused by the cutting down of the deceased crops were going to be resolved peacefully. He did not give any clear answer. But he did say that the village councillor was home and was not informed of the conflict. The village court magistrate, was Lawrence Malihombu and they were going to inform him. He did agree with a suggestion from your lawyer following on from the Court’s question that it would have been appropriate to inform the village leaders of the problem and let them arrange for a peaceful resolution of the dispute.

Finally, this witness said the fight took only 5 seconds from what appears to be from start to finish. If this is true, according to this witness, the fistfight and your spearing of the deceased is suggested all happened like lightening.

(iv) Other Evidence

In addition to the above oral evidence, the State admitted into evidence as part of its case, your record of interview with the police dated 28th July 2000. It was marked as "A1" and "A2" respectively for both the Pidgin and English versions.

The record of interview states that about 7:00 p.m. you were at your home having your dinner. At that time, the deceased and his group came and said "Hold up! We are here to fight." You got up when the children cried on the deceased trying to swing an iron at Lawrence. You therefore went and stopped the deceased. Thereupon, the decease left Lawrence and came and fought you and you asked him to get to the clearing in front of your house and led him to the clearing and he did. There you two fought with your hands, while the boys who came with the deceased watched and nobody tried to stop the two of you.

In the fight, you punched the deceased down to the ground and he rolled over to where his bush knife was and got it. With the bush knife he tried to cut you when Lawrence intervened and told him not to fight with the bush knife. At that stage, the deceased turned around and cut Lawrence who felt pain and fell to the ground calling out to you, "Peter I am dying now, help me." But you found it hard to stop the deceased because he had the bush knife with him. That is when Helen seeing what was happening got a stick and hit the deceased on his head and the deceased turned toward Helen and she ran away. About this time, you went into your house and got an iron spear. Then as the deceased lifted his hands to further cut Lawrence, you threw the spear at him aiming for his right hand or arm to stop him from cutting Lawrence. The spear got the deceased right arm and you did not know until later that, it also reached the deceased chest area causing him to fall. That stopped the fight and the boys who came with the deceased ran away. So you went and lifted him up and send him away to his boys. A little later, you heard the village garamut sound and you knew that Philip must have died.

In your evidence, you give an account similar to what you told the police in your record of interview. You add however, that the deceased came armed with bush and grass knives, stones and sticks to fight you. When they came to your house they surrounded it and called out " hold up! We are here to fight you." You responded by asking for a fistfight on the clearing and the deceased group obliged. You also added that, when the deceased cut Lawrence and he fell down, the State’s witnesses and the others who were with the deceased fled thinking that the deceased was cutting Lawrence to death. Further, you added by emphasizing that you got the spear and speared the deceased to prevent him from cutting Lawrence to death.

Assessment of the Evidence

From the above outline of the State’s evidence, it is clear that there are inconsistencies in a number of areas. This obviously gives rise to number of related questions. First, are the inconsistencies serious enough to cause a serious doubt in the case against you particularly in relation to your defence of provocation or self-defence? Secondly, whether the State’s witnesses are credible? Finally, whether or not the State has established its case against you beyond any reasonable doubt?

These are very important questions that must be carefully considered and answered because of the relevant legal principles that are involved. It is settled law that the State has the burden to establish the charge against you on the required standard of proof, beyond any reasonable doubt. This is particularly in relation to the essential elements of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court in SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, Greville Smith J made this clear in these terms:

"The general rule is that in criminal cases it is for the prosecution to prove, and to prove beyond reasonable doubt, every element of the alleged offence .... The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly, the Crown must prove every fact, whether affirmative or negative, which forms an ingredient of the offence"

It should be clear from this also that, where a defence such as provocation or self-defence is raised, the prosecution is under an obligation to show that the defence does not exist. See John Jaminan v. The State (N0.2) [1983] PNGLR 318, per Pratt J. and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266.

Back to your case, whether the State has discharged its burden is dependent on whether it has produced credible evidence in relation to each of the elements of the offence and the displacement of your defence. This in turn depends on the credibility of the witnesses called. In this case, this issue is critical because none of the State’s witnesses are independent. The first two are the deceased blood brothers and the third was with the deceased and accompanied him to your house. Their evidence is therefore not independent and free of any inclination by anyone or all of them to give evidence against you.

I will thus address the issue of credibility of the witnesses first. The first thing that I note against them is the fact that, there are a number of inconsistencies in each other’s evidence. If it is true that they all accompanied the deceased and were all very close to where the fight was taking place and are talking about the same incident, there should not be many inconsistencies but there is. Most of these inconsistencies exist in what actually happened in the fight and in particular the series of events before you speared the deceased. These inconsistencies make it difficult for me to say with any reasonable certainty what actually happened and whether you acted under provocation within the meaning of s. 266 or self-defence under s. 270 or 271 of the Criminal Code.

Secondly, I have some difficulty in accepting the State’s witnesses’ claim that the deceased group went to your house completely unarmed because they wanted to make peace. They came to your house after you and your brother had earlier cut down some of the deceased crops. Logically and indeed common sense dictates that the deceased was angry, as one of the State’s witnesses says. I infer from this that he would have wanted to either fight you or destroy your property in return. Hence, I am of the view that he could not have in the circumstances come empty handed. I am of the view that, he could have come with a bush knife or such other weapons knowing that he was not coming in peacetime but in response to an earlier violent action against his property by you. If indeed they wanted to make peace, common sense also dictates that they could have involved one of the village leaders but they did not do that. The State witnesses claim that they simply went to your house with the deceased to inform you of the need to solve the issue of you cutting the deceased crops by Wednesday, without making any prior arrangement or consulting the person who was to mediate between you and them.

Furthermore, I find it hard to accept that the State’s witness did nothing throughout the fight until you speared the deceased if indeed they were present throughout the fight until the deceased was shot down. Being blood brothers of the deceased and coming together with the deceased, common sense and logic dictate that at least one of the State’s witnesses or the other persons with them could have done something to assist the deceased. But their claim is that they did absolutely nothing except to stand around and watch the deceased being fought by three people. Most people in Papua New Guinea and indeed it is part of human nature for a close relative or a friend to intervene on behalf a relative or a close friend that is being attacked or is in some apparent danger. This is why in the assessment of witnesses and or their evidence in any case, logic and common sense usually play a major part. A clear application of this is the Supreme Court judgement in Garitau Bonu and Rosanna Bonu v The State (1997) SC528. I note that my colleagues and I have followed and applied this approach in a large number of cases such as that of The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298.

Moreover, I can not possibly believe that the fight took only 5 seconds as is claimed by the third State witness. This is because, there was first a fistfight, between you and the deceased, then Lawrence either joined in or tried to stop the two of you, followed by the deceased cutting Lawrence, causing Helen to join in and finally you going for the spear and spearing the deceased. Surely this could have taken much more than 5 seconds.

This illogical or non-sensible account given by the State’s witnesses could be explained in terms of the witnesses either withholding evidence that favours you or that what you say in your evidence is correct. That is to say that, it is true that the State’s witness did come with the deceased and watched you and him having the fistfight. But when the deceased picked up a knife and started to cut Lawrence causing him to fall, they fled thinking the deceased was cutting Lawrence to his death. Therefore, they did not stay to see what happened next.

Finally, I carefully note each of the witnesses’ demeanours in the witness box. None of them gave me any clear impression of being truthful witnesses. They appeared confused and not able to clearly recall what happened, evidenced by their numerous hesitations before answering questions put to them and at times contradicting each other’s evidence. I had difficulty hearing what they had to say despite my consistently reminding them to face the Court and speak up. Instead of doing as they were told, they consistently faced the interpreter and gave me the impression that they were not confident. Their conduct in my view was consistent with a person trying to hide something. I do note that these witnesses may have come into Court and have given evidence for the first time and therefore might have been a nervous experience for them. But this has to be contrasted with their responses to questions concerning your intent where they showed no hesitation but quickly provided the answers on a number of occasions that you intended to kill the deceased by spearing him at a vital part of his body.

Next, the State’s evidence through the witnesses called was in clear contrast with the case that was put to you upon your arraignment, in some respects. First, the case put to you was that you shot the deceased through his arm penetrating to the chest. This is consistent with your evidence that you intended to injure the deceased as he was lifting his arm to continue to cut Lawrence and it was not your intention to kill him. The State witnesses demonstrated in their evidence that the spear got the deceased at his chest just below the right armpit.

Secondly, they claimed the incident took place between 4 and 5 p.m. by one of them and 6:00 p.m. by another. This also contradicts the facts as were put to you upon your arraignment. No correction was made to this allegation at any stage of the proceedings. I find this was a deliberate attempt by the State witnesses to establish that their visibility was clear which could not have been possible at about 7:00p.m.

For these reasons I am not convinced as to the credibility of the State’s witnesses and their evidence. The account of the incident given by you appears to be reasonable and logical but exaggerated in some respects. Your account also accords well with the brief facts that were put to you upon your arraignment. To the extent that the State admitted into evidence your record of interview it made the contents of the record of interview part of its case. In the face of the obvious inconsistencies in the State’s case particularly in relation to the defence you have raised, the benefit of the doubt must go to you.

It is settled law that the defence can not establish the prosecution’s case. That means the prosecution must first establish a prima facie case against an accused person. That includes an obligation to negative any defence that may be raised by the defence. Once the prosecution has established a prima facie case, only then can the defence be called upon to answer it: R v. Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266. It follows therefore in my view that if the defence has gone into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I believe this is the consequence of the Constitutional guarantee of presumption of innocence until proven guilty.

Bearing in mind what I have just said, I note from the above outline of the evidence that you were not personally under any direct or imminent risk of death or injury, but Lawrence was. You therefore did what you did in relation to the risk that was presented against Lawrence. This in my view appears to sound well for a possible case of provocation within the meaning of s. 266 (1)(b)(ii) and (2) or aiding in self-defence under s. 271 of the Criminal Code.

I will deal firstly with the possible defence of provocation under s. 266(1)(b)(ii) and (2). The provision stipulates:

"Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

(a) ...

(b) in the presence of an ordinary person to another person—

(i) ..

(ii) to whom he stands—

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) ...

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault."

As noted in The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (supra), the Supreme Court in Rosa Angitai v. The State [1983] PNGLR 185, per Kaputin and Gajewicz JJ., specified the elements that must be met for a defence under s. 266 in these terms:

"A person (who is charged with an offence) is not criminally responsible for an assault committed on a person who gives him provocation for the assault provided always that the person charged —

(1) is deprived by the provocation of the power of self-control; and

(2) he acts on the provocation on the sudden; and

(3) before there is time for his passion to cool;

and provided further that the force used by the person charged —

(4) is not disproportionate to the provocation; and

(5) is not intended to cause death or grievous bodily harm and

(6) (the force used) is not likely to cause death or grievous bodily harm."

As for the offence under s.303 of the Criminal Code, stipulates:

"303. Killing on provocation.

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only."

In Rosa Angitai v. The State [1983] PNGLR 185, the Supreme Court held that, unlike the defence of provocation under s. 267, the defence of provocation under s.303 is not a complete defence. The defence if established only entitles an accused to be convicted of manslaughter and not wilful murder or murder.

What this means in effect is that, a person who is charge with wilful murder or murder is entitled to have his charge and therefore conviction reduced to the lower and less serious offence of manslaughter if he is able to establish a the defence of provocation under s. 266 of the Criminal Code. In any case, I note that it is a well-accepted practice following the dictates of s. 539(1) and (4) of the Criminal Code and the case law built around it. Under this practice, a Court can still return a guilty verdict on an alternative count if the charge with which the accused has been charged and tried is not established but the evidence establishes another offence. This is possible where the alternative charge is lesser than the one with which the accused has been charge and tried. An example of that being done is The State v. Tu'uo Ibru (20/10/99) N1940.

In order for a defence under s. 303 of the Criminal Code, to be sustained their Honours in the Rosa Angitai v. The State case, said:

"In our view, examination of that section shows that in order to reduce wilful murder to manslaughter the following three circumstances must co-exist. The accused must do the act which causes death,

(i) in the heat of passion which must be caused by

(ii) sudden provocation within the meaning of s. 266; and

(iii) before there is time for his passion to cool."

So for the purpose of a defence under s. 303 the force:

(a) used by the accused may be disproportionate to the provocation;

(b) it can be intended to cause death or grievous bodily harm; and

(c) it may be likely to cause death or grievous bodily harm.

Whilst the existence of any one of these three elements could render a defence under s. 267, ineffective. It can still provide a defence under s. 303 and if established, reduce the charge to manslaughter.

The effect of this is that, in order for the defence of provocation to come to the aid of an accused like you, four conditions must be met. These are that (1) you must have acted in the heat of passion; (2) caused by a sudden provocation; (3) before there is time for the passion to cool off; and (4) the force used is proportionate to the provocation. However, where the defence is raised in answer to a wilful murder or a murder charge, the defence may still be made out if the first three conditions exist. In such a case, the defence could still be made out even if the accused intended to cause grievous bodily harm or that the force used is disproportionate and has the likelihood of causing death or grievous bodily harm.

The question in your case, then is, did you act in the heat of passion which was caused by sudden provocation within the meaning of s. 266 and before there was time for your passion to cool off?

Having rejected the State’s evidence as incredible, I am left with only your evidence and the undisputed facts supported in part by the State’s case, particularly your record of interview. From this evidence it is clear to me that you thought the deceased was going to cut your brother, Lawrence to death. You say you could not stop him with your hands as he was in possession of a bush knife and you feared that he might kill you or cause serious bodily injuries to you. Therefore you went for your spear and shot at the deceased aiming for his right hand, the very hand he was lifting a bush knife to further cut Lawrence. Unfortunately, the spear got the deceased arm and penetrated into his chest. That led to bleeding and the eventual death of the deceased.

Neither is there any evidence, nor is there any suggestion as to how else you could have stopped what you believed was a case of possible death for your brother, Lawrence unless you did what you did. But I have some difficulty accepting your claim that you acted in the heat of passion and that you could not stop the deceased from further cutting your brother Lawrence to death, (according to your believe at the time) in any other way than the way in which you acted. There is no evidence of Lawrence being badly or serious injured by the deceased’s attack. Therefore there were three of you attacking one man. Surely you could have found some less deadly way to stop the deceased from carrying out what you believed he was going to do unless you stopped him. Nevertheless the law, is that what matters is how you perceived the case to be when faced with the situation. In the absence of any evidence to the contrary particularly from the prosecution, I feel unsafe to infer that you did not act in the heat of passion and before there was opportunity to cool off. I therefore consider it appropriate that the benefit of the doubt must go to you because of the heavy presumption of innocence until proven guilty under our system of justice operating in your favour.

In the circumstances, I find that you acted under provocation within the meaning of section 303 as interpreted and clarified by the Supreme Court in Rosa Angitai v. The State (supra). But this can only provide you with a partial defence placing a duty upon this Court to return a guilty verdict on the alternative charge of manslaughter under s. 303 and pursuant to s. 539 (1) and (4) of the Criminal Code. However, because you also claim the other defence of acting in self-defence, it is necessary to give consideration to that defence before arriving at a final decision on verdict.

On your own evidence and the other evidence before me, there is no doubt that there was no immediate and direct assault either actual or threatened against you before you took the iron spear and speared the deceased. Instead it is your claim and the evidence appears to suggest that you acted in aid of your brother, Lawrence’s defence. Hence the possible defence of self-defence has to be under s. 271 of the Criminal Code. That provision states:

"271. Aiding in self-defence.

Where it is lawful for a person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him."

It seems clear to me that a defence under this provision may be made out where the following elements exist or are all made out:

(a) it is lawful to use force of any degree to defend oneself against assault;

(b) any other person acting in good faith may act in aid of a person faced with an assault; and

(c) a person acting under (b) uses force of like degree.

The earlier section 270 provides for the defence of self-defence to amount to a lawful use of force within the meaning of s. 271. It stipulates:

"(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."

It seems clear to me that, in order for there to be a valid defence under this provisions the following conditions must exist:

(a) a person must first unlawfully assault the person claiming the defence independent of any provocation from him;
(b) the other person has applied such force or violence to cause the person claiming the defence to have a reasonable apprehension of death or grievous bodily harm;
(c) induced to believe on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

But this defence can not be available, where:

(a) the person claiming the defence first began the assault with intent to kill or do grievous bodily harm; or

(b) endeavoured to kill or to do grievous bodily harm to some person before the necessity of preserving him arose; or

(c) before the necessity to prevent him arose, the person using the force declined further conflict and quitted it, or retreated from it as far as is possible.

In this case, the facts are that, you and your brother first went and cut down a number of the deceased cocoa and banana trees. So the deceased and his brothers and some others came to your house. You say they came to fight you and the State’s witnesses say they came to peacefully resolve the dispute. For reasons already given I rejected the claim by the State’s witnesses. So I find that they came to fight you. You managed to get the deceased to enter into a fistfight as opposed to fighting with the use of any weapon. You and the deceased then had a fistfight and you knocked him down. At that stage he reached for a bush knife and tried to cut you. So Lawrence intervened and the deceased cut him with the bush knife. That caused Lawrence to go down on the ground and the deceased was going to continue to cut him. You therefore reached for an iron spear and speared the deceased aiming for his right arm, the very arm the deceased was lifting a bush knife to cut Lawrence. This you say was to prevent the deceased from cutting Lawrence. You did not mean to kill him. This is consistent with the case that was put to you on arraignment especially in relation to the description of the way in which the injuries to the deceased’s arm and his chest were inflicted.

Again consistent with what I said in relation to the defence under s. 303 of the Criminal Code, particularly, the State’s obligation and its failure to discharge that equally applies here. In much the same way, the observations I made in relation to your state of mind at the very moment you were confronted with the situation applies here too.

In the end I find whilst you may have committed a very serious crime in circumstances that were avoidable from the very outset by all the parties all involved, it is one that the law excuses under s. 266, 303 and 270 and 271 of the Criminal Code. This is particularly as a consequence of the State’s witnesses failing to impress upon me as truthful witness. As a matter of law therefore, I return a verdict of not guilty in relation to the charge under s. 299 and the possible alternative under s. 303 of the Criminal Code.

Having arrived at that conclusion, let me say that the defence of provocation and self-defence are matters not clearly known and understood by the ordinary person on the street and worse still by the person in the village. Our traditional system of justice does not recognise the principle of presumption of innocence and its attendant features. Likewise it does not know the defence of provocation and self-defence. All it knows in the context of a death as in this case is that you are responsible for the death of the deceased. You are therefore obliged to appease that, by way of paying compensation or otherwise making peace. I strongly suggest that you seriously consider doing that, if you have not yet done that, as you will be living in the village with the deceased immediate relatives, who are your close relatives.

May I also remind you that, Papua New Guinea being a Christian nation is built on the foundation of the Holy Word of God the Bible. That Holy Word teaches all men to love one another and live in peace. It prohibits killing in the Ten Commandments. There is no defence of provocation or self-defence. Any transgression of God’s Commandments carries a maximum penalty of death according to Romans 6: 23, unless you confess and truly seek the forgiveness of God and your fellow men starting with the latter. I firmly believe that the Good Lord is coming soon to take his people home to Heaven, because there is so much killing and all kinds of lawlessness abounding in this world and the human race is thinking evil continuously.

I would suggest to you that you seek God’s forgiveness and that of your brothers so that you can be part of that group that will go to Heaven when Jesus comes.
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Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor