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State v Boma [2015] PGNC 79; N5987 (8 May 2015)

N5987

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1202 OF 2014

THE STATE

V

MIRIAM BOMA

Minj: Poole, J
2015: 7th & 8th May

CRIMINAL LAW - Attempted Murder-Defence of Provocation not available to persons charged with Attempted Murder because attempted requires a specific pre-existing intent before any overt act is taken. (Reg v Bena – Forepe [1965-66] PNGLR followed)

EVIDENCE - Absence of medical evidence that injury "of such a nature as to be likely to endanger human life", consequently the overt act of the accused not sufficient evidence of intent of itself.

EVIDENCE - Of intent required to convict of attempted murder must be stronger than that required for murder simpliciter.

EVIDENCE- Self Defence from unprovoked attack not open if accused had opportunity to preserve himself/herself by fleeing from conflict.

Cases cited:

The State v Les N2950.
Reg v Banoro – Dame [1965-66] PNGLR 201
Reg v Bena – Forepe [1965-66] PNGLR 329

Counsel:

Mr Done, for the State
Mr Moses, for the Accused

8 May, 2015

1. POOLE J: Background: In this case the accused, Miriam Boma, stands on trial on an Indictment containing one count, under section 304 of the Criminal Code, of Attempted Murder. This raises several points of law at the outset.

2. First, as an Attempt, it is necessary to consider the operation of section 4 of the Criminal Code:

4. Attempts to commit offences.

(1) When a person, intending to commit an offence –

(a) begins to put his intention into execution by means adapted to its fulfillment; and

(b) manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment whether –

(a) the offender does all that is necessary on his part for completing the commission of the offence; or

(b) the complete fulfillment of his intention is prevented by circumstances independent of his will; or

(c) he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence.

3. This, then, raises the question of whether an accused has put in train the intention to commit the murder by some clear act to carry out the intention, and not merely an act done in preparation for the offence.

4. In the case of attempted murder, of course, the prosecution must prove the accused had the intention to kill the victim of the attempt. It must be proved beyond reasonable doubt. Merely to sharpen a bush knife razor sharp and remark "this is good enough to lop someone's head off in one go" could not, in my view, be classed as anything more then preparation in the absence of evidence of anything further. There must be evidence of more than preparation to commit the murder – that evidence must be of taking steps to carry out the murder.

5. The Prosecution must prove that intention beyond reasonable doubt and, also, that while possessed of that intention, the accused took steps appropriate to carry it out and showed the intention by some manifest action.

6. At the outset, counsel for the accused stated that the Defence would be raising Self Defence and also Provocation. I have ruled, during the course of the trial that the defence of Provocation is not open to a person charged under section 304. The reason, when one considers it, is that the specific pre existing intention required under section 304 has been formed before any steps were taken to make the attempt. The prosecution case, in such a trial under section 304, is that there is a specific intention to kill – even though the intention was not carried to a conclusion. There is authority for this proposition in Papua New Guinea in the case of Reg v Banoro – Dame [1965-66] PNGLR 201 and, a decision brought to my attention by Mr Moses the defence counsel, the State v Les N2950.

7. The evidence called by the prosecution came from three witnesses. The first, Kapil Kambane, was the person whom the prosecution alleged the accused tried to kill.

8. She told the court she had known the accused for a long time and, in response to questions during cross examination, told the court she was the first wife of Kamben Manjip, and the accused was the second wife.

9. Her account of events on the 26th of January 2011 was sparse: "I was picking coffee cherry and she came from behind and attacked me." She said "another girl" called Kemne was with her and she also said that the accused attacked her with a small knife. She said she was struck on the back twice and fell down near a Pandanas tree. She said she had done nothing to cause the accused to attack her and specifically said she was hit by a small knife not a big one.

10. She acknowledged she and the accused did not have a friendly relationship because of the fact that she was the first wife and the accused was the second wife and her husband was living in the village with the accused and she was living elsewhere. She frankly admitted that she, as the first wife, resented the accused having anything to do with her husband's coffee trees.

11. She denied throwing a stone at the accused and denied charging at the accused and fighting with her. Her version of the events, "I was picking coffee cherry and she came from behind and attacked me and then I fell down" was repeated on a number of occasions and did not appear a spontaneous response to questions.

12. A young woman, Kemne Manjip, whom Kapil had raised as a child, and she regarded as her daughter, was also in the coffee garden – some distance away. She came after Kapil was wounded. She is physically a small woman and couldn't pick up Kapil so she called for help from a nearby man and he and Kemne carried Kapil to help. She was taken to Kudjip hospital.

13. Kapil said she didn't see the accused before she was attacked from behind, nor did she hear the accused's voice before she was stabbed.

14. Kemne Manjip also gave evidence. She, as I have said, regards herself as the daughter of Kapil Kamben.

15. She was a reluctant witness and repeatedly stated, "I didn't see anything". Counsel for the Public Prosecutor informed me in open court that it had been reported to the police that, on Monday the 4th of May 2015, at Minj, this witnesse's husband had threatened her with violence if she gave evidence.

16. When that was put to her in the witness box she denied it. I did not find her denial very credible – her demeanor in the witness box was evasive and her replies to direct questions non responsive repetitions of "I was picking coffee and I heard a noise and I ran to see what was happening and when I got there I saw Kapil."

17. The Statement she made to police was put to her. She eventually acknowledged her mark on the paper and that it had been read to her – but she said the "Miriam" she referred to that Statement to the police was not in the court room. I noted, in cross examination, she told the court she knew the accused well.

18. Under cross examination she stated she "saw Miriam stepping on Kapil's stomach and I told her don't do it again." She was a highly unsatisfactory witness and almost on the breach of exhibiting perjury.

19. On resumption of the hearing on the 7th of May 2015 I had police bring Kemne's husband, Touaim Peu, before the court where I put to him the allegation that he had threatened the witness and informed him that such action, if true, was a serious Contempt of Court. I put the allegation of the alleged contempt to him and told him he was to appear at 9.30 on the 8th of May 2015 and answer the particulars and state why he should not be dealt with for Contempt of Court.

20. He explained that what had happened was a misunderstanding. He said that he didn't threaten his wife not to give evidence he just wanted her to work in the garden and not go to court. He was warned in strong terms and allowed to leave.

21. The case had to be further adjourned till 1.30 in the afternoon because the remaining Prosecution witness was not available to present medical evidence. This loss of time is most regrettable because there are people remanded in custody awaiting trial and having their hearing delayed because limited court time is lost. At the Call-Over on the 24th of April 2015, I specifically directed the prosecutor present, Mr Kesan, that all medical witnesses were to be Summoned and notified of trial dates and all attempts were to be made to ensure their attendance with the minimum of inconvenience to them. This, quite clearly, was not done and my directions ignored to the detriment of the court time table and disadvantage of people in custody.

22. The medical evidence was eventually placed before the court by the Medical Superintendent of the Mount Hagen General Hospital who produced (without objection) a medical report dated the 3rd of November 2011 relating to an examination of Kapil Kamben by the then Surgical Registrar, Doctor Joel Martin. Relevantly, the report stated:

"On examination she is conscious and alert. Her vital examination is within normal limits.

Systems examination is unremarkable.

Examination of her back revealed two deep laceration on her back around the T4 level with loss of sensation below the T7 level and reduced power on her lower limbs (1/5), she also has urinary bladder and bowel incontinence.

"The condition was explained to her that it is permanent damage and she will require monthly IDC change."

23. There was a serious injury and, some 3 and half years ago, consequences of paraplegia. I noted that Kapil Kamben gave evidence from a wheel chair. Her evidence was, as I have previously stated, "I was picking coffee cherry and she came from behind and attacked me and I fell down". During the course of her evidence she said that during the tussle between her and the accused they had rolled down a slope near a Pandanas tree but before that, when she was picking coffee in her husband's garden, Kemne was "a bit faraway" a distance which was estimated at between 30 and 40 yards. I noted my impression of her at the time as being a witness who did not give a candid account of facts and appeared to be holding some things back.

24. There was no medical evidence which can be considered contemporary. There is no evidence that Kapil Kamben's condition has stabilized – only that she was seriously wounded. There is no evidence that the wounds she received on the 26th of January 2011 were such as, in the words of section 304 of the Criminal Code under which the accused is charged, to be "of such a nature as to be likely to endanger human life". It falls short of evidence which would be sufficient, on its own, of intent under section 304 – being equally consistent with a lesser intent, eg. Wounding.

25. The Law applicable to trials under section 304 of the Criminal Code is clear and well settled. The Prosecution carries the heavy onus of satisfying the Court beyond reasonable doubt that the accused had an actual intention to kill and that intention was shown by the accused, in the words of section 4(1) of the Criminal Code, "beginning to put (her) intention into execution by means adopted to its (ie the intention) fulfillment and manifest (her) intention by some overt act."

26. There must be proof of a specific and clear intention to kill. This imports a clearer and more determined degree of intention then that which is sufficient to establish the mens rea for the offence of murder simpliciter. There is clear authority for this in Papua New Guinea to be found in the cases of Reg v Banoro – Dame [1965-66] PNGLR 201 in which Frost J, on considering this question of intent, said "there is no warrant under that section (ie section 4 – attempts) for importing into section 306" (now 304) "any lesser intention such as an intention to do grievous bodily harm". In the same volume of Papua New Guinea Law Reports is the case of Reg v Bena – Forepe which is reported at page 329. In that case the court expressed the view that "there is no doubt in my mind, nor do I think, notwithstanding the use of the words "attempt to murder" in the heading to the section, that there could be any doubt that this charge places upon the Crown the obligation to prove an intent to kill and that an intent that would, in appropriate circumstances, render a person responsible only for murder, as define in section 302, would not be sufficient". Further, the overt act which an accused performs must be shown to be manifestly necessarily and intended to fulfill the intention of unlawfully killing the intended victim.

27. The Defence indicated, in addition to putting the prosecution to proof, it would be raising a defence of Self Defence from a unprovoked attack, as set forth in section 269 of the Criminal Code, and called the accused to give evidence. The accused's evidence was detailed and she was cross examined by the prosecution at some length. Her evidence was that, on the morning of the 26th of January 2011, she left the village and went, at her husband's direction, to visit the coffee gardens and check if people had been stealing coffee. She said that her husband gave her a bush knife and a smoldering stick to take fire up there. She went to her husband's coffee garden and, as she approached, stood on some dry wood which made a noise which, she said, alerted someone picking coffee and "there was a sound of a tree going up". She saw Kapil Kamben and they apparently looked at each other.

28. The accused went into a small "coffee house" lit a fire and came out of the house with her bush knife. When she came out she said Kapil saw her and laughed at her and said words that affect "you shouldn't be concerned about the coffee". The accused said "if you are here to pick coffee then go ahead and do it" and left and walked about 300 meters up the hill from the coffee ground to where her and her husband's house stands. When she got there she told her husband that Kapil was in the garden picking coffee cherry. At this he became very angry and said "you go back and kill her". She was, it seems, shaken by this so she got her about 8 months old baby, put some food and a small knife in a bilum and walked out. She said she threw the bush knife which she had brought back from the coffee garden under the house.

29. She headed down a path leading towards a bridge over the Minj river carrying her baby and carrying the bilum and the small knife. Her husband was calling to her to come back but she stood still because he was calling her angrily and she was afraid to return because, she said, "I knew he'd fight me" so she went down the path again to cross the bridge. She was close to the foot bridge and a number of houses belonging to Peter Mane near Peter Mane's coffee trees.

30. She said she went down there and someone came out of the bush and threw a stone which hit her on the thigh. On the accused's version, Kapil then ran at her with a bush knife in her (Kapil's) right hand and a piece of wood in her left hand.

31. The accused said she put the baby on the ground and a fight begin between the two women who tussled and then rolled down the slope. During the fight the accused got her "kitchen knife" out of her bilum and as Kapil was on the ground the accused said she held the knife to Kapil's neck and said "I don't want to kill you". The evidence thereafter is confused and somewhat contradictory but the summary of it is that during this struggle Kapil received two cuts to the centre of her back in the position described by doctors as T4 and the accused, because she said she had had her trousers pulled off, ran away because she was naked.

32. Some three years later she was arrested after a dispute arising from compensation negotiations and payment.

33. The accused specifically denied that she and her husband had planned to kill Kapil and she specifically denied creeping up behind Kapil and stabbing her twice. She also denied seeing Kemne (who had said that she had told the accused not to hurt Kapil).

34. My recorded impression of the accused was that she was hesitant over some details but her answers appeared to me to be unrehearsed and spontaneous.

35. It is clear, from the evidence of the accused, that the defence of Self Defence cannot stand. For a defence of Self Defence against non provoked assault to succeed, the accused must have been unlawfully assaulted without having provoked the assault. If that happens it is lawful for such a person to use such force in his or her own defence against the person attacking him or her as is "reasonably necessary to make an effectual defence against the assault". The force used by the party assaulted must not be intended or likely to cause death or grievous bodily harm.

36. If a person claiming to defend himself against an unprovoked assault is subjected to an assault of "such nature as to cause reasonable apprehension of death or grievous bodily harm" and the person using force to defend him or herself believes, on reasonable grounds, that he or she "cannot otherwise preserve himself or herself from death or grievous bodily harm" then it is lawful for him or her to use such force (even if it causes death or grievous bodily harm) as is necessary to defend themselves.

37. There is absolutely no evidence that the accused used any force in self defence and certainly no evidence that her involvement in the tussle between the two put her in a position where she could not otherwise preserve herself - for example by running away.

38. This then requires examination of whether, when applying the law to the evidence, the evidence is sufficient to substantiate a charge of attempted murder under section 304 of the Criminal Code. Intent is the key element which the Prosecution must prove beyond reasonable doubt and, because of the wording of this section and the interpretation of it by the cases to which I have referred, that intent must be proved to have existed before the accused performed any overt act by means necessary to carry out the intention to its conclusion.

39. The evidence of intention in this case is, in the most part, negative – so the court must draw inferences from the acceptable evidence before it. From the witnesses at trial Kapil, the person injured on the 26th of January 2011, said, on a number of occasions, "I was just picking coffee cherry and she came from behind and attacked me." She denied the facts which were the accused's account but, tellingly, she stated quite clearly she was cut by a "small knife not a big one".

40. Kemne, (who, though not her biological daughter, was raised from childhood by Kapil and regards her as mother) went with Kapil on the 26th of January to pick coffee in the garden. I was most unimpressed by this witness. Her demeanor in the witness box was, I noted, defiant and surly and she was evasive and non responsive to questions. She seemed to be a reciting an agreed version of facts – "I didn't see anything – I heard a noise and I ran to see what was happening and when I got there I saw Kapil". Her evidence was more revealing for what she didn't say than what she did.

41. Having repeatedly said she saw nothing and she didn't see the accused, she later said she saw the accused standing on Kapil's stomach and told her "don't do it again".

42. I have already referred to the medical evidence and what I regard as its failure to address the question of whether the injury was as such as to be life threatening despite the fact that it was clearly very serious.

43. I note also that the accused's evidence was that, during the tussle with Kapil, at one stage, she held a knife to Kapil's throat but did not cut her. This, clearly, is contradictory to any intention to kill Kapil.

44. Applying the law to these facts I have to be satisfied, as the tribunal of fact, beyond reasonable doubt that the accused, Miriam Boma, when she struck Kapil with the small knife she was carrying did so as a result of a preconceived intention to kill her – that the blow or blows she struck were an overt act intended to kill.

45. I am not so satisfied – and I shall explain why. For a start, the evidence is that the accused said that after she first saw Kapil she returned to report to her husband. He lost his temper and ordered her to go and kill his first wife. Her evidence, uncontradicted and unchallenged, was that she had brought a bush knife back from the garden. She threw it under the house, put some food and the small knife in her bilum and left the house with her baby.

46. Some events at the incident were challenged. The size of the knife and the absence of the bush knife was not. The discarding of the bush knife argues against an intent at that time to kill.

47. This, coupled with the fact that the accused said she had held the knife to Kapil's throat and said "I don't want to kill you" is entirely inconsistent with an intention to kill.

48. A further fact which I considered was that the tussle between the two wives occurred near Peter Mane's house which is a different place from her husband's coffee garden where the accused had last seen Kapil. Had she been acting on an intent to kill Kapil when she left her house the second time that day it is valid to ask, and not unreasonably, why didn't she go to look for Kapil at the place she had last seen her? She did not do so – the two met at a different place.

49. It was clear there was a struggle between the two wives in the course of which Kapil received two knife wounds. The accused's version was not seriously degraded in cross examination. She swung her hand behind her she was trying to climb up the hill away from Kapil (who then had hold of her) and the knife struck Kapil.

50. There was a tussle and they grappled and rolled down the slope. At the end of this, Kapil had two wounds. This version is not improbable – it is a distinct possibility and, therefore, because of its possibility I cannot be satisfied beyond reasonable doubt that the accused intended to kill Kapil and, in order to put that intent to practice, went and found her at a place different from where she last seen her and attacked her with a small knife.

51. It is, on my view of the facts, an event which occurred by accident within the meaning of section 24 of the Criminal Code. As I am not satisfied beyond reasonable doubt the accused had the necessary intention to kill Kapil, the charge is dismissed.

52. The Accused is found not guilty of the charge for which she stood trial and is discharged from the charge of Attempted Murder and free to go. Bail is to be refunded.

_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused