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State v Winara [2008] PGNC 65; N3345 (4 April 2008)

N3345

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 666 OF 2006

THE STATE

-v-

ANGELINE WINARA

Lae: Kirriwom, J
2008: 2, 3 & 4 April

(No. 1)

CRIMINAL LAW – Particular offence – Murder – Intention to cause grievous bodily harm – Defence of Accident or unwilled act- Self Defence Against Provoked Assault – Tendency towards violence persistent – No imminent threat to life – Assault was intentional – Assault motivated by anger and not in self defence – Verdict of guilty returned – Criminal Code, ss. 300, 270 and 24.

Cases cited

1. Timbu Kolian v. R [1967-68] PNGLR 320
2. Mamote Kulang of Tamogot v. Regina [1963] PNGLR 155, 163
3. The State v. Mas Judah Binas [2007] N3118
4. Java Johnson Beraro v. The State [1988-89] PNGLR 562

Counsel

N. Miviri, for the State
K. Pais, for the Accused

DECISION ON VERDICT

4 April, 2008

1. KIRRIWOM, J: The accused Angeline Winara pleaded not guilty to one count of murder. The charge against her is brought under s.300(1)(a) of the Criminal Code which states that on 24th December, 2005 the accused murdered the deceased, Simon Gura, at Kamkumung Lae.

2. The facts are that on the evening of 24th December, 2005 the deceased who is the husband of the accused went to another block nearby in Kamkumung Ass Mango Block as their son wanted to watch movies on CD at Rex Siwi’s place. His wife, the accused, taking her kitchen knife with her for their protection joined them. It later became apparent that one Rita Greg too was with them. After the show ended Rita Greg left, followed by the accused and their son to return to their house. The son wanted to be carried and the mother sent him back to the father to carry him. When the son went to the father, he sent him back to his mother. The mother became quite agitated by the father’s refusal to piggy-back his son and she told him to go back to the father. This time the father got irritated and slapped the son on his buttocks and told him to go to his mother. The child cried and ran back to his mother. The mother became angry when the husband did this to the child and she went over to where he was and slapped him on his cheek. The husband picked up a stick and pursued the accused to retaliate. As they confronted each other the accused stabbed the deceased on the left chest with a kitchen knife. The knife penetrated the left lung and causing it to collapse. The deceased died in the same area where he was stabbed and was taken to the hospital. He was pronounced dead on arrival.

3. The State’s only witness was Rita Greg. She was an eyewitness to the incident. It is not clear on the evidence of her relationship to either the accused or the deceased. She was however referred to as their son’s aunt. She said after the picture show ended, she left the area first, followed by the accused and her son. As they walked home she saw the accused slap the boy and sent him to his father. The child went to the father and returned without him and the mother sent him back again. This time the child came crying because the father smacked him. The accused then went and hit the deceased. The deceased was shocked, looked around and picked up a dried ‘tanget’ wood or stick about the size of her wrist in diameter which was estimated to be 2 inches or 10 to 15 centimetres in metric and one meter long with which he wanted to hit his wife. However, before he could retaliate, the accused stabbed him above his left chest below the neck with a kitchen knife in a downward swing. She said the accused stabbed him with her right hand and using her left hand on top of the right knuckles she pushed the knife deep into the point of impact. As she did so she said words to the effect in pidgin ‘yu pilim nau, wantok bilong husait, yu ken dai go’. She walked past Rita and told her that she had wounded the deceased and went away. She heard the deceased cry out in pain: ‘mama ia, mi dai nau’ (oh mother I’m dying) several times and ran towards Rex Siwi’s house as he called for help and fell on top of someone called Robert. Robert held him up and supported him out of the house. She watched the deceased struggle in pain until his head sagged to his right side lifelessly and she knew that he was dead. She cried and other family members joined and took him to the hospital while she remained home with the deceased’s son. He was already dead so they took the body back home that night and mourned over him.

4. In cross-examination she maintained that there was enough light shining onto the area where the stabbing took place and she could clearly see what happened. She further maintained that the deceased picked up a dried piece of ‘tanget’ wood about 2-3 inches thick in diameter and one meter long to hit the accused after she assaulted him but the accused went straight up to him and stabbed him with her right hand by plunging the knife down the left side of his neck above the left chest. Then she used her left hand to push the blade deep into the body. She vehemently denied that the deceased took a 4"x 4" timber to hit the accused.

5. State closed its case and Defence went into evidence. The accused gave sworn evidence in her defence. She told the court about going to watch CD next door with son and deceased. After watching one movie they left for their house. She estimated the time to be between 7.00 pm and 8.00 pm. Rita Greg left first followed by herself and her son. She sent the son to go back and tell his father to come over and carry him to the house. The son went to the father but the father told him to go to his mother. She sent him back to his father. This time his father slapped him and he returned crying. She became angry when the husband assaulted their son so she went over to him and slapped him on his cheek. She said she did this ‘to stop the son from crying’. The deceased however picked up a 4 x 4 timber under a coconut tree to hit her. Seeing this she feared for her life and ran. She said he had given her many injuries in the past and she was afraid that he would do the same. When she turned she saw him closing in on her and both his hands holding the 4 x 4 timber were raised and he was poised to strike her. She lifted both her hands up to block the blow from the timber

and in that instant, in the darkness, the knife struck the deceased and she could not remember how the knife found its way to the body of the deceased. She said due to the darkness she could not see where the knife found its mark. She only saw blood on the knife and she proceeded to the house to get money to take him to the hospital.

6. In cross-examination she admitted an earlier occasion in 2001 when she also used a knife to stab the deceased during a quarrel over money. This was also admitted in her record of interview she gave to the Police in relation to this offence. She however denied that she had the propensity to use a knife on her husband when they quarrelled and fought over very little things. She said she took the kitchen knife with her to the video place for their protection and not to do any harm to her husband with it. She was strongly cross-examined by Mr Miviri. She was asked as to why she could not carry their son if the husband refused to do so. She replied that she was tired from carrying the son during the day and going over to Eriku on his instructions.

7. Counsel for the accused Mr. Pais fairly summarized the undisputed and disputed facts in his submissions after all the evidence has been led. Undisputed facts are as follows:

1. Deceased, the accused and their son went to Rex Siwi’s place at Kamkumung Ass Mango Block to watch movie from a CD.
2. After the movie show ended, Rita Greg left first and followed by the accused and her son while the deceased remained behind.
   

100. Accused then sent the son back to where the father was to get him to carry him.
     

4. The father scolded him and sent him back to his mother.
   
5. The mother sent the son back to the father second time and this time the father slapped him on his back or buttocks and he cried.
   
6. Accused slapped the deceased on his left cheek.
   
7. Deceased picked up something and charged at the accused.
   
8. Accused had a kitchen knife in her possession all the time.
   
9. The only light illuminating the area was from Rex Siwi’s house.
   
10. The deceased sustained injury during the confrontation between him and the accused.
    
11. The deceased died from the injury sustained in that confrontation.
    

8. What is however disputed are that:

50. The deceased was not armed with a one meter dried tanget branch or stick measuring 2 inches in thickness or the size of the witness’s wrist. He was armed with a 4" x 4" timber with which he wanted to attack the accused.
    

13. The deceased actually swung the stick or timber at the accused when the accused spontaneously reacted by lifting both her hands to fend of the swing or blow when the knife struck the deceased.
    
14. The assault took place in the dark where there was no light so there was no way the accused could have seen where the knife landed on the deceased’s body. And by the same token Rita Greg who was further away from the accused and the deceased could not have clearly seen what the deceased had in his hand, a stick or piece of

4" x 4" timber.

• The accused did not intend to do grievous bodily harm or cause the death of the deceased.
  

9. Defence submits that there are several issues in the case. The first issue is whether the accused intended to cause grievous bodily harm to the deceased. Second, whether the death of the deceased was the result of an accident and not by a deliberate act of the accused? Third, whether the defence of accident under section 24(1)(a) and (b) of the Criminal Code has been fairly made out and that the State had negatived the defence beyond reasonable doubt. Fourth, whether some other defence can be availed the
accused on the evidence before the court? In contrast with these submissions, it was initially thought that the defence was raising the defence of self defence against provoked assault which is provided under section 270 of the Code but that is not so now.

10. Mr Pais submits that the court must accept the evidence given by the accused and find that the deceased’s death was an accident. The accused had no intention to cause his death or even to cause him grievous bodily harm. She had the knife in her hand and when the deceased swung the 4 x 4 timber at her, all that was in her mind was to protect herself and she raised her hands to fend of the blow but the knife somehow found its mark on the body of the deceased in the darkness. The act of stabbing happened independently of the exercise of the will of the accused. On this submission, the defence is raising both self defence and accident.

11. Section 24 provides as follows:

"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."

12. Mr. Pais referred me to several pre-independence Supreme Court judgments of Timbu Kolian v R [1967-68] P & NGLR 320 and also Mamote Kulang of Tamogot v Regina [1963] P & NGLR 155, 163 where this defence of accident was raised and discussed. He also referred me to a most recent National Court case of State v Mas Judah Binas (2007) N3118 by Cannings J where the accused was charged with murder under s.300(1)(a). In that case the accused was alleged to have stabbed the deceased in what appeared to be an affray and he denied stabbing the deceased claiming that somebody else might have done it. The issue in the case was whether the accused stabbed the deceased and did he do so deliberately with the intention to cause grievous bodily harm to the deceased? The court accepted the evidence of two eyewitnesses who actually saw him stab the deceased and held that the accused stabbed the deceased but he did not do so deliberately so found him not guilty of murder but guilty of manslaughter. The post-Independence Supreme Court case of Java Johnson Beraro v The State [1988-89] PNGLR 562 discussed the availability of defence of accident where a charge of manslaughter by criminal negligence was preferred against the accused. The court followed the decision in Timbu Kolian v R (supra) and held that defence of accident was not open to a charge of manslaughter by negligence.

13. Of course in this case, the charge is not one of manslaughter by negligence. The accused is charged with murder and accepting that the law as stated by Cannings J in State v Mas Judah Binas (supra) to be correct, would the appropriate verdict be one of manslaughter and not a complete acquittal of the accused? This question was not addressed before me. In one view, assuming the court were to accept the defence version of the facts, if the accused says that it was quite dark and she did not see where the knife struck the deceased as she tried to defend herself, then the question is, then why handle the knife in such manner knowing it to be a dangerous weapon that has the potential to cause serious bodily harm or even death, if she could not see where she was swinging such lethal weapon? Could this not amount to a negligent handling of the knife that resulted in the stabbing of the deceased culminating in his instant death? If the answer to this question is positive, then the only verdict open is guilty of manslaughter.

14. But if she maintains that she acted in self defence, then the relevant provision is section 270 of the Code. Section 270 provides:

270. Self-defence against provoked assault.

(1) Subject to Subsection (2), when—

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

(b) the other person assaults him with such violence as—

(i) to cause reasonable apprehension of death or grievous bodily harm; and

(ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.

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

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

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

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

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

15. The elements necessary to sustain this defence when applied to this case are:

16. That the accused first assaulted the deceased or provoked an assault from him;
    
17. The deceased then assaults the accused with such violence so as to cause her reasonable apprehension of death or grievous bodily harm;
    
18. The assault induced her to believe on reasonable ground that it is necessary for her preservation from death or grievous bodily harm to use force in self defence.
    
19. The force used was reasonably necessary for preservation of her own life from imminent death or grievous bodily harm posed by the threat perpetrated by the deceased.
    

16. There are however exceptions to this law under subsection (2) of the abovementioned section. This defence is unavailable where:

20. The accused who first started the assault of the deceased did so with intent to kill or cause grievous bodily harm to some person;
    
21. The accused endeavoured to kill or to do grievous bodily harm to some person before the necessity for preserving herself arose;
    

5. The accused had declined further conflict and had quitted or retreated as far as possible from it before the necessity arose.
   

17. Applying these exceptions to this case in the light of the evidence before the court, there can be no doubt that the assault by the accused that provoked the deceased to react with a stick was not that serious, there was no intention on her part to kill or do grievous bodily harm to the deceased or to anyone and there is no time lapse between the original assault and the reaction by the deceased culminating in his stabbing.

18. On the facts before me, the more appropriate defence of self defence is section 270 of the Criminal Code which is self defence against provoked assault. There can be no dispute that the accused provoked the deceased by assaulting him in the first place which led to him chasing her with a stick, whatever it might have been, a dried tanget stick or branch or a 4 x 4 timber as seen by the accused. The question that remains now is whether the force she used was reasonably necessary for preservation of her own life. Her evidence is supportive of a reckless use or application of a kitchen knife in the darkness and not caring exactly where she was swinging the knife and as the consequence the knife found its mark in the deceased’s body. Of course the knife could not have by itself dropped out of her hand and stabbed the deceased as if by an act of satan or some supernatural being. That is the picture she is painting when she said that all she can remember is lifting both her hands up to block or fend off the blow she saw about to be delivered by the deceased with a 4 x 4 timber. She does not know how the knife penetrated the chest of the deceased although it was always in her possession.

19. The defence of self-defence under section 270 can only be sustained if there is evidence to show the necessary ingredients alluded to in paragraph 15. There must be evidence that the deceased assaulted her with such violence so as to cause her reasonable apprehension of death or grievous bodily harm, and this assault induced her to believe on reasonable grounds that it was necessary for her to preserve her own life from death of grievous bodily harm to use force in self defence and the force she used was reasonably necessary to preserve herself from death or grievous bodily harm. The evidence as to whether her life was in real danger is very shaky as it rests on who the court believes. Even if I accept her story about the 4 x 4 timber, evidence as to what extent that 4 x 4 timber posed serious threat to her life is unclear. There is no question that even threatening words or threat to do harm to someone can amount to assault. However there must be some evidence showing the extent to which that threat was manifested to its fruition to amount to assault of the nature that would induce reasonable apprehension of death or grievous bodily harm is necessary for self-defence to apply in my respectful view. This is not trying to shift the onus of proof to the accused. The least that the accused could show is some evidence of this possibility so as to qualify for this defence and it is for the prosecution to negative that defence beyond reasonable doubt.

20. In this case, the court only has to choose between the evidence given by Rita Greg or the accused. I have examined both witnesses in the witness box and one observation I can make of them is that both are intelligent persons. They are related in some way. Both are educated women and both are no doubt fully conversant in the English language. Witness Rita Greg demonstrated in court that she could speak English although she chose to give her evidence in pidgin. The accused as I noted from the record of interview in Q15 and Q16 that she completed Grade 10 at Maprik High School in 1995. So both witnesses have given their evidence in relation to this trouble fully conscious of the reasons for their attendance in court and testifying before the court. When I examine both their demeanours, I am more impressed by the evidence given by Rita Greg. She did not appear to me as if she was adding on anything extra to make her story stronger against the accused. She gave her evidence in a cool, calm and even manner, trying to be fair as much as possible to both the accused and the deceased. She maintained strongly that the deceased had a tanget stick and before he could use the stick the deceased stabbed him once with her right hand and with her left hand on the right knuckle she pushed the blade in deeper. The impression given in her evidence is that the accused was never under any threat of being killed or seriously injured even with the stick that the deceased had in his hand.

21. The accused on the other hand gave me an impression that she is a woman of violent temperament. She had no respect for her husband and she could become agitated quite easily. She wanted the court to believe that the knife in her hand acted on its own to penetrate the deceased’s chest cavity and pierced his left lung. On this story she want the court to find that what happened to the deceased was an act that happened independently of the exercise of her will, it was thus an accident. I find this story quite fanciful and I am not impressed by her evidence. Therefore for the purpose of determining where the truth lies, I accept the evidence of Rita Greg. I am satisfied that she told the truth and her story is coherent and capable of belief. It follows therefore that with the rejection of the accused’s story of what happened, the defence of accident under section 24 collapses. Even if that defence were to survive, the accused cannot escape completely of being criminally liable for the deceased’s death. It is only self defence that accords complete defence on charges of homicide. She would be liable for alternative verdict of manslaughter or grievous bodily harm. However, with the medical evidence of the extent of the injury caused and the manner it was inflicted, conviction for manslaughter would be inevitable.

22. But returning to the evidence before me, I am satisfied that there was sufficient light where this incident happened. If it was pitched dark as the accused wants me to believe, none of them could have seen anything. I find that the deceased grabbed a stick as described by Rita Greg after being provoked by the accused who slapped him. I further find that he did not hit or assault the accused with the stick in his hand. I find that upon seeing him armed with a stick, the accused, using the knife that was in her possession, stabbed him above his left chest in a downward thrust just below the neck in the manner as described by Rita Greg. I find that the accused did that in anger as opposed to acting in her own defence because she was unhappy with him for not helping her to piggy-back their son who wanted to be carried to the house, but instead slapped him which further provoked her. She was still agitated over that even after slapping or assaulting him with her hand but seeing him trying to retaliate with a stick further antagonized her to use the knife on him. She took the knife to the video show for their protection, but she used it against the husband consciously and wilfully to inflict pain and serious harm upon him.

23. The manner in which the accused trusted that knife into the deceased’s body and drove it further and deeper inside with the other hand as she held onto the knife is clearly indicative of deliberate and calculated act to either kill or cause serious bodily harm to the deceased. She was determined to inflict that injury by her action and conduct towards her husband. I am satisfied beyond reasonable doubt that when the accused stabbed the deceased with the knife, she intended to cause him grievous bodily harm. From this injury he died instantly within minutes of the attack. I find the accused guilty as charged.

Verdict: Guilty of Murder.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defence