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State v Gio [2007] PGNC 19; N3114 (8 February 2007)

N3114

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 617 OF 2006

THE STATE

v

BENSON GIO

Kokopo: Lay J

2006: 22 November
2007: 8 February

CRIMINAL LAW - Criminal Code - S 302 - plea of guilty - claim of acting to protect brother made on allocutus - plea of guilty set aside - plea of not guilty entered.

Facts.

The accused pleaded guilty to 1 count of manslaughter. On his allocutus he said that the blow he struck was (a) intended to hit the deceased’s hand, not his head and (b) was to prevent the deceased from stabbing his elder brother.

Held

The allocutus raised the defence of accident (Criminal Code s 24); and the defence of protecting his brother from grievous bodily harm (Criminal Code s 269- s 271).
Where the accused raised a defence on allocutus the plea of guilty should be set aside and a plea of not guilty entered and the judge should disqualify himself from conducting the trial.

Counsel
L. Rangan, for the State
M. Isaac, for the accused

8 February, 2007

1. LAY J.: On the morning of 19 November 2005, in Nambi village, Watom Island, a birthday party had been in progress for some 24 hours. An argument erupted between the accused's relatives on the relatives of Tokai Boas (the deceased). The accused struck the deceased on the head with an empty Coca-Cola bottle. The deceased fell unconscious. When he woke up he walked home. Later he felt unwell, went to the aid post and subsequently to Nonga hospital where he died on 28 November 2005. The cause of death was necrosis of a haematoma to the brain.

2. On 21 November 2006, the offender, said to be aged 17 years old, was arraigned and he said that the facts were true. After perusal of the depositions a plea of guilty was entered. The offender was convicted of manslaughter contrary to section 302 of the Criminal Code.

3. On his allocutus the offender said that "they fought my brother. Boas Tukai took a knife and tried to cut my elder brother with it. I say that Boas was going to cut my elder brother with the knife. Then I tried to get rid of the knife from his arm by hitting his arm with the bottle. Some how the bottle landed on his head. I did not mean to do it."

4. Submissions on sentence were received and the matter was adjourned for a pre--sentence report to be received.

5. Six weeks after the matter was adjourned for a pre-sentence report, the report is not available. I have reviewed the matter to consider whether I can proceed to sentence without the report.

6. In reviewing the matter, I am concerned that on his allocutus the accused may have been raising a defence of self-defence against provoked assault as provided by the Criminal Code section 270. That section and the following section provide as follows:

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) endeavored 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.

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.

7. What the accused said concerning the knife held by the deceased was consistent with what he said in his record of interview, that he saw the deceased taking a knife out of his pocket.

8. In the case of R v Kaiwor Ba [1975] PNGLR 90 the court adopted what was said in R v Muratovic [1967]Qd R 15:

"The person using force in self-defense is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm."

9. Now I do not think that there could be any doubt that an apprehension of an immediate stabbing with a knife could constitute a reasonable apprehension of grievous bodily harm.

10. Whether the force actually used was reasonably necessary and whether the accused believed on reasonable grounds that he could not otherwise preserve his brother from the grievous bodily harm are not matters which are addressed in the plea procedure but on a trial. But I do not consider that the accused should be precluded from raising evidence on those issues when he wishes to raise the issue that his actions were directed at preserving his brother.

11. On a trial, once the evidence discloses a ground on which the plea of self-defense may arise the burden shifts to the prosecution to prove beyond reasonable doubt that one of the elements of the defence is not present: See R v Paul Maren (1971)N615, R v Pari-Parilla (1969) No. 527 and R v Kristeff (1967) No. 445.

12. The other matter which in retrospect has concerned me about this case is the plea in the allocutus that the bottle was really directed at the deceased's hand holding the knife and it was consequently something unexpected and not directed by the will of the accused that the bottle ended up on the deceased's head.

13. The Criminal Code Section 24 provides:

24. Intention: Motive.

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(a) an act or omission that occurs independently of the exercise of his will; or

(b) an event that occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced—

(a) to do or omit to do an act; or

(b) to form an intention, is immaterial so far as regards criminal responsibility.

14. In Timbu-Kolian v The Queen [1967-1968] PNGLR 320, the accused aimed a blow at his wife in the house in the dark. But unintended by him and unseen by him, the blows struck and killed the infant she was holding. The accused was held not guilty of manslaughter, the child's death being an accident within the meaning of Section 24.

15. Now in this case it is not said by the accused that the blow struck an unintended victim, but that it struck an unintended part of the body of the victim where it could be expected to cause injuries which would not be caused if the blow had landed where the accused says it was intended to land. As a matter of law it may be irrelevant as to where the blow landed, if it was intended and struck the person intended.

16. For the defence of "accident" to succeed the accused would have to show that the event which occurred was not intended, not foreseen, and unlikely and is one that is not reasonably to be foreseen as a consequence of a person's conduct: See Timbu-Kolian v The Queen [1967-1968] PNGLR 320 per Windeyer J.

17. It is not relevant for me to explore the likely success of the defence, only to consider what I should do in circumstances where that defence appears to be raised by the statement made by the accused on the allocutus.

18. Where the accused raises a defence on his allocutus the plea should not be allowed to stand: Martin Terry v The State (2000) SCRA 64 of 2000 (unreported and unnumbered judgment of the Supreme Court delivered November 2000 at Wewak) referred to in Geda Kairi v The State (2006) SC831 Kapi CJ, Kandakasi J, & Gabi J. The National Court has power to set aside a conviction previously entered: see Gabriel Laken v State [1981] PNGLR 350 (SC).

19. In the circumstances of this case, I think that the safest course to take is to set aside the conviction and plea of guilty and enter a plea of not guilty. I so order.

20. I disqualify myself from conducting a trial of the charge.

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Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the accused.