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State v Paru (No 2 of 2021) [2021] PGNC 254; N9109 (2 September 2021)

N9109

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 289 OF 2012

THE STATE

V

JAMES PARU
(No 2 of 2021)

Waigani: Berrigan J
2021: 2^nd, 3^rd June, 15^th July and 2^nd September

CRIMINAL LAW – WILFUL MURDER – S 299 of the Criminal Code – Elements – S 269(2) - Self-defence against unprovoked assault – Elements - Not fairly raised on the evidence - S 270 - Self defence against provoked assault – Elements – Excluded beyond reasonable doubt – Guilty.

On 22 July 2011 the accused, a former soldier with the Papua New Guinea Defence Force, was told by his niece, Taita Pritchard, that she was having problems with her former boyfriend, John Hulse, who was seeing another woman. She told the accused she wanted him to “terminate” the deceased. The following day she picked the accused up and they drove to Napanapa. The accused took with him a loaded pump action shotgun. On the way the accused called the deceased and told him to come to Napanapa to pick up his passport. The meeting location at Napanapa was isolated. It is about a 15 minute drive from Port Moresby town. At the time no buildings were visible from the scene. The nearest village was a kilometre away down the road. Once there Taita dropped the deceased on the side of the road. The accused walked over to the hill and waited for the deceased to arrive. Soon after the deceased’s arrival, the accused shot the deceased in the chest. Afterwards the accused fled the scene in the deceased’s vehicle, and told Taita “your will has been done”. He abandoned the deceased’s vehicle at a village about 25 minutes’ drive away from the scene of the crime, where he was picked up by Taita and taken to his home. The deceased’s body was found two days later at Napanapa, lying face down, partially located in an area of savannah grass that had been burnt by brush fire. It could not be seen from the road. At the time the deceased was wearing sports gear or beach wear and sandshoes, and at least two valuable items, a gold chain, and a wrist watch. No weapon was found on or near the body. The body had intense burns to its feet and ankles and superficial burns to the extremities. Medical evidence established that a shot gun cartridge entered the front right chest at the level of the 3^rd and 4^th ribs. The pellets travelled downwards and to the middle through the right lung, thoracic aorta and across to the left thoracic cavity causing massive blood loss and death.

In oral evidence the accused said that he had first been fired at by the deceased whilst he was unarmed, and fired up at the deceased whilst crouching or on the ground, and aiming at the deceased’s feet. In his confessional statement the accused said that he saw that the deceased had a pistol tucked in his beach wear. He took aim at the deceased and told him to turn around. Instead the deceased reached for his pistol so he shot him.

1. Pursuant to s 269(2) of the Criminal Code, where there is an unlawful and unprovoked assault, an accused may use force likely to cause death or grievous bodily harm if: a) the nature of the unlawful assault is such as to cause reasonable apprehension of death or grievous bodily harm; and b) the accused himself or herself believes on reasonable grounds that doing so is the only way to save himself or herself (or someone else) from an unprovoked and life threatening assault: Tapea Kwapena v The State [1978] PNGLR 316 at 319; see also R v Gray (1998) A Crim R 589; R v Messent [2011] QCA 125.
2. Where the evidence of self-defence has been fairly raised the essential question for the purposes of s 269(2) is whether the State has negatived beyond reasonable doubt the possibility that the appellant believed on reasonable grounds that what he or she did was reasonably necessary to preserve him or herself from death or grievous bodily harm, and not whether what he did was reasonably necessary to preserve him/her from death or grievous bodily harm: Kwapena (supra).
3. There was no evidence on which the defence under s 269(2) had been fairly raised. The accused’s oral evidence was rejected for being implausible and excluded by the State’s evidence.
4. The confessional statement of the accused was voluntary and reliable.
5. The totality of the evidence excluded any rational possibility that the deceased had in his possession a firearm that day.
6. Even assuming that the deceased did have a pistol with him and did reach for it, it was the accused who first began the assault on the deceased when he presented the gun, aimed at the deceased, and told him to stand and turn around. By doing so his gestures and words threatened to apply force to the person of the deceased, without his consent, in circumstances where the accused clearly had a present ability to effect his purpose: s 243(1)(b) of the Criminal Code.
7. Where it is the accused who was the initial aggressor or provoked the assault, the defence under s 270(1) is only available where: a) the assault by the other person is so violent as to induce reasonable apprehension of death or grievous bodily harm; b) the accused believed on reasonable grounds that it was necessary for his own preservation from death or grievous bodily harm to use the force used in self-defence; and c) the force used was in fact reasonably necessary to preserve the accused from death or grievous bodily harm.
8. The defence is not available, however, where the accused: a) began the assault on the other person with the intention to kill or cause grievous bodily harm; or b) endeavoured to kill or to do grievous bodily harm to some person before the necessity for self-defence arose; unless before the necessity arose, the accused declined further conflict, and quitted or retreated from it as far as was practicable: s 270(2).
9. The burden remains on the State at all times to prove that the accused was not acting in self-defence.
10. Applying s 270(1), the evidence established beyond reasonable doubt that the violence from the deceased was not so violent as to cause reasonable apprehension of death or grievous bodily harm. The deceased was reaching for his gun. He did not yet hold it and was not in a position to threaten violence so as to cause apprehension of death or grievous bodily harm. The accused could not have believed on reasonable grounds that the force used, namely the infliction of a shot to the deceased’s chest, was reasonably necessary, nor was it reasonably necessary on any objective view.
11. Moreover, the proviso under s 270(2) applied. The totality of the circumstances excluded any other rational inference than that at the time the accused first threatened the deceased with the pump action shotgun, he already intended to kill him.
12. The evidence established beyond reasonable doubt that the accused killed John Hulse. He did so unlawfully. The evidence excluded any rational inference other than at the time the accused killed the deceased he intended to cause his death. The State’s evidence excludes any rational possibility that the accused acted in self-defence.
    

Cases Cited:
Papua New Guinea Cases

Cosmas Kutau Kitawal and Christopher Katau v the State (2007) SC927
Nara v The State (2007) SC1314
Maladina v The State (2016) SC1495
Roland Tom v State (2019) SC1833
R v Mon and Debong [1965-1966] PNGLR 42
R v Namiropa Koinbondi [1969-1970] PNGLR 174
The State v Joseph Maino [1977] PNGLR 216
Tapea Kwapena v The State [1978] PNGLR 316
The State v Ungum Ovohe (1980) N245
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v. The State [1981] PNGLR 498
The State v John Yambra Pai (1986) N535
The State v Malepo (No 2) [1996] PNGLR 252
The State v Naomi Kerenge (1997) N1623
The State v Epei (2019) N7845
The State v Pati Kamale and Ors (2004) N2751
The State v James Paru No 1 (2021) N9108

Overseas Cases

Slatterie v Pooley [1840] EngR 227; (1840) 151 ER 579
Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619
R v McKay [1935] HCA 70; (1935) 54 CLR 1
Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584
Plomp v. The Queen (1963) C.L.R 234
Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108
Beckford v R [1987] UKPC 1; [1988] AC 130
R v Gray (1998) A Crim R 589
Peacock v The Queen
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
Gray; R v Messent [2011] QCA 125
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

Legislation and Other Materials Cited:

Sections 243, 269, 270, 279, 299 of the Criminal Code (Ch. 262) (the Criminal Code

Counsel

Mr. F. Galama, for the State
Mr L. Mamu, for the Accused

DECISION ON VERDICT

2^nd September, 2021

1. BERRIGAN J: The accused is charged with one count of wilful murder, contrary to s 299 of the Criminal Code (Ch. 262) (the Criminal Code), such that on the 23^rd day of July 2011 at Napanapa Road, Central Province he wilfully killed one John Hulse.
   
2. In brief terms the State alleged that the accused lured the deceased to an isolated location at Napanapa, where he shot him in the chest, wilfully causing his death.
   

STATE CASE

3. The State’s case relies primarily on the confessional statement of the accused given in English on 26 August 2011, which was admitted following voir dire, see The State v James Paru No 1 (2021), 15 July 2021: Exhibit P1. It is set out in full.
   

4. On 27 July 2011 Dr Seth Fose, a specialist pathologist, from Port Moresby General Hospital conducted an autopsy on the body of John Hulse. His report was admitted by consent: Exhibit P2. It states that the deceased died from excessive blood loss due to gunshot wounds caused by shot gun pellets which entered the front right chest at the level of the 3^rd and 4^th ribs creating an elliptical entry wound and lacerating the right lung, aorta and heart. The pellets travelled downwards and to the middle through the right lung, thoracic aorta and across to the left thoracic cavity. The pellets passed through the right atrium, left atrium and left ventricle to fracture the 4^th to 7^th left ribs at the back and dispersed into the soft tissues respectively. A single clear plastic cartridge was recovered in the right lung. A lead pellet was recovered at the back aspect of the left chest wall at the level of the 4th rib space. In addition there were deep burns to the feet and ankles and generalised superficial burns to the extremities, face and head. The front of the abdomen and the back below the shoulder blades were spared from the burns. There were no other significant findings.
   
5. Detective Senior Sergeant Lawrence Wellen, a police officer of 37 years standing, has been with the Criminal Investigation Division for 25 years. On 21 July 2011 his former Metropolitan Superintendent, Anderson Bawa, instructed him to investigate a report of an expatriate man, John Hulse, in respect of whom a missing person report and photo had been lodged that day at Boroko Police Station. Sgt Aaron Silas was tasked to assist. On 25 July he became aware that the deceased had reported to Chief Sergeant Sonny Bata, second in charge, at the Port Moresby Police Station that his passport had gone missing from the yacht on which he lived at the Yacht Club. On 25 July he heard over the police radio network that the body of an expatriate man had been found at the road leading to the Napanapa Oil Refinery and with Chief Sgt Joseph Numbos, Forensic Officer, went to the scene, where Met Sup, Anderson Bawa, was present. The deceased’s body was partially burnt by a bush fire. The body was taken to the funeral home. The following day, Met Sup Bawa brought Taita Pritchard to the office for the purpose of interview. She was released for lack of evidence. A search warrant was obtained in relation to certain telephone numbers of interest. After a month of investigation, on 25 August 2011, Taita Pritchard was brought in for further questioning in relation to certain telephone numbers. This led them to her nephew Chris Loau. Early on 26 August, between 3 and 4 am, police drove to Hisiu Village, about 2 hours from Port Moresby. Chris Loau provided information which led them to his uncle, the accused, at Sabama. Sgt Silas and others went to the accused’s residence with Loau. At about 9.10 S/Sgt Wellen arrived at Boroko Police Station with Taita Pritchard and she was placed in a cell. The accused was subsequently brought into the office. When he saw Wellen he pleaded with him and Sgt Silas that he would cooperate and give his statement. Wellen was present when the statement was made. After the confessional statement was given Wellen formally arrested the accused on one count of wilful murder and detained him at Boroko Cells.
   
6. In cross-examination he confirmed that the accused told his story and Sgt Silas took it down. Thirty, forty minutes, an hour, he cannot recall how long it took. The accused told them that after the shooting he called Taita Pritchard and told her that “the job has been done”. He did not agree that the accused did not say the words set out in the last paragraph of page 2 of the confessional statement. The accused did not say that the deceased had drawn his firearm which he pointed at the accused and actually discharged it at the accused. Everything that the accused said is contained in the confessional statement. They made enquiries at the deceased’s workplace, and his boat, and there was no sign that the deceased had a firearm. There was no evidence of any firearm at the scene.
   
7. Detective Sergeant Aaron Silas has been a police officer for 30 years and is currently the OIC of the Fraud Squad, at Boroko Police Station. On Monday 25 July 2011 he was asked by S/Sgt Wellen to assist in the investigation of a missing person, John Hulse. Whilst conducting inquiries they received information that a body had been recovered at the oil refinery. They picked up Chief Sergeant Joe Numbos from Gordons Police Barracks and drove to Napanapa. Met Sup Bawa was already there. Security guards from Millenium Security were also there. He walked over to the scene. There had been a bushfire around the area. It was still smoking. He saw the body of a white man. They turned the body over. He was wearing short trousers, a shirt and sandshoes which were partly burnt. The bones from the feet were quite exposed. He had a gold chain around his neck and a gold watch on as well. There was a big hole on the right side of his body. The body was taken to the funeral home, where it was identified as that of John Hulse by his fingerprints. A search warrant conducted in relation to phone numbers and text messages contained on a phone taken from Taita Pritchard led them to her nephew, Chris Loau. They proceeded up to Hisiu Village where they apprehended Loau, who led them to the accused, who told him he was going to cooperate with them. He showed them where he hid a pump action shotgun which they recovered at his house. He was taken back to the police station where he gave a confessional statement before being formally charged by S/Sgt Wellen.
   
8. In cross-examination he said he did not know who lit the bushfire. He agreed it could have been local villagers. The deceased’s body was lying in an area in which the bush had been partially cleared by the fire. It was quite a distance from the main road. From his observation the body could not be seen from the main road. It was he who took the confessional statement. He typed directly into the computer as the accused told the story. He did not agree that the accused told him that the deceased had already drawn his firearm, pointed it at the accused and then proceeded to discharge the firearm. What was in the confession was the exact thing the accused told him. He agreed that he informed the accused of his right to remain silent but failed to reflect that in the confessional statement. It was an oversight but apart from that everything the accused said was recorded in the confessional statement. He did not find any firearm at the crime scene. He agreed that it was possible the firearm might have been picked up by villagers, who might have been responsible for burning the bush, but the body still had jewellery on it, expensive jewellery, a gold chain and a watch. In response to the court’s questions, the body was lying face down at the time it was found. The area of the fire extended a few metres from the body. It did not appear to have been lit close to the body. The vegetation was savannah grassland.
   
9. Chief Sergeant Joseph Numbos has been with the Forensic Science Centre since 1988. He is a firearm and crime scene examiner. On 25 July 2011 he was asked to attend the scene of the dead body of an expatriate at Napanapa. There had been a bushfire. The body was partly burnt from the feet up. Footwear was burnt. The body was wearing white sportswear. Around the neck was a chain necklace. On the left wrist was a wrist watch. On the right wrist was a wrist band. The deceased was lying face down. He noticed that there was a round wound on the chest of the deceased. The deceased was transported to the funeral home at Erima. He did not know what caused the wound. In answer to the court’s questions he said that it takes about 15 minutes from town to Napanapa if there is no traffic. The body was in a cleared, flat place where a car could park, 15 to 20 metres from the road. There were no trees around the area where the body was found. There are no buildings in the immediate area. Only savannah grassland. It is not possible to see any buildings from the immediate area. He conducted an inspection of the area where the body was found. There was no disturbance of people walking or tyre tracks or footprints. He did not find anything else in the area.
   

DEFENCE CASE

10. James Paru gave evidence in his own defence. He is 60 years old, from Hisiu in Central Province, Bereina District. He is married to Ruth Paru, with four children. His eldest son is 37 and his youngest about 23 or 24 now. At the time of arrest he was not employed. He was previously employed with the PNG Defence Force as a corporal for 10 years until 1990, when he was honourably discharged. He gave evidence similar to that given on the voir dire regarding his apprehension. He maintained that his statement was taken by Wellen and not Silas.
    
11. He told police that on 22 July 2011, his cousin sister, Taita Pritchard, came to his house at Sabama and told him to deliver John Hulse’s visa to him. Hulse was Taita’s boyfriend. They were in a relationship. He did not know why she came to him but she told him that he would deliver it. He asked her why she would not deliver it herself and she said she did not want to see him. The relationship between the deceased and Taita was not going well because he had become involved with another woman, from Vietnam. Her instructions were to go and meet him and give him his visa. That is all. He did not choose Napanapa. The deceased was working with a catering company along Porebada and Napanapa road and chose to meet at Napanapa. Taita is his cousin. She is younger than him. At the time she was around 41. His mother is elder to her mother. He was not sure where she was living at the time. She lived with her brothers and she had friends. She moved around. He believes that he had met the deceased about two months earlier at a gathering in the village at Hisiu but he cannot be sure.
    
12. On 23 July 2011 Taita picked him up at Sabama at around 930 am. They went straight to Napanapa. She told him that they would go and meet the deceased and give him the visa. He did not know where they were going. She only mentioned that they would go to the highway. Porebada Road is not really a highway but he thought that they would meet on a highway somewhere on the Kairuku or Rigo side. He told her it was not safe and to do it in town. She said that she had already talked to the deceased and he did not want to miss work and he travels along that road and will meet at Napanapa. When she told the accused about the highway he was thinking of the Kairuku highway. It was 23 July and Remembrance Day and there were people moving about everywhere. He thought of security and so took his gun and she drove him to Napanapa. She said that the deceased worked in a catering company and they deliver food along those LNG and operational areas.
    
13. When they arrived at Napanapa she said he could wait for the deceased whilst she went down to the nearest village to buy some drinks. She went off to the nearest village, the entrance going to Roku. He did not know where she went but no other village is close to that area. Roku is about a kilometre from where she dropped him. He was left there just waiting. He put his bag on the ground. It was a very nice view looking down to Napanapa. It was around 11 am. He stood looking around at the AES and Curtain Brothers company working on the coastline on the other side of Motokea. He left his bag about 1 or 1.5 metres away on the ground with the visa inside. He saw a green CRV drive by. He could see the road about 300 metres away. He was standing in a big flat open area where the fuel tankers and big vehicles turn. He saw the deceased drive up and stop about 15 metres away. He demonstrated to the court that he had his back to the deceased and the deceased drove up slightly to the right side of him. He heard the door open and close again. He was watching the good views. His bag was behind him. He heard the door close, and after it closed, the deceased said “James you are a hard man to find”. He did not know why he said that. He did not know how he knew his name. He did not mind. He was watching the view. The next thing he heard was a gun cocked. He knew it was a light arm. He knows the difference between light and heavy arms being cocked. When he heard that he turned around. The gun was already pointed at him. He didn’t know what to do. He asked him “what are you doing?” and the deceased said “where is my visa?”. And then the deceased pointed the gun at him, and his hands were shaking, and his face was red and he was not steady. Whenever he heard a sound, he looked towards its direction, and the gun barrel moved away in that direction too. The deceased said “who sent you here and where is my visa?”. He told him that Taita sent him. Whilst the deceased was looking away in response to a noise he reached down for the visa. The accused said “the visa is here” and reached down. The deceased’s eyes were not on the accused when the accused reached down. The deceased fired at him and he could hear the whistle and the force of the bullet over his back and beside him. The deceased had an automatic weapon which could reload itself. Somehow it didn’t and there was a load in the chamber and the ejecting chamber. The accused didn’t get up. He didn’t aim. He just fired at the deceased’s feet. At the time the deceased’s second shot was fired up in the air. The first shot, he fell, the second shot was the accused’s, and the third was the deceased’s at the accused. The deceased fell down. He didn’t check him. He couldn’t wait around there. He just fled the scene. He waited but his sister never returned. The deceased’s vehicle was there with the key so he took the vehicle and parked it on the road side at a village near Koukou Village. Koukou Village is at the road going to Porebada Rd, near the junction at Gerehu Junction, about a km to Baruni Junction. After he left the village he was walking on the side of the main road. Taita found him. She asked him what happened there and he said “you just you brought me out there to be killed”. It was just a coincidence that she found him. She drove him home and he did not talk to her again until the day of his arrest. He didn’t want to see her.
14. On that day John Hulse was wearing beach wear and pacific kind of short trousers. He cannot remember his shoes. He didn’t see his feet. What he told the court is what he told police. He did not tell them what was said in second last and last paragraph on page two of his statement. He told his story and Wellen wrote it down.
15. In cross-examination he said Taita came to see him on 22 July and told him about her problems with John Hulse. She did not tell him about the deceased abusing her. Only about the visa. She did not mention she wanted to terminate John Hulse. She gave him K100. They were down in the house and had nothing. He met her at a shop where her friends were, close to Hitron, near Flick Pest Control. She picked him up and dropped him at Sabama. He did not use the K100 to purchase three rounds. On the morning of the incident Taita picked him up at his house. He packed his Mossberg in a bag. They drove in her white sedan to Kone fuel service station. He did not call John Hulse but Taita used his phone to call. He did not know if she used her phone or his. Taita dropped him off and he walked to see the view of AES and Curtain Bros. In response to the suggestion that it was he who called the deceased and told him to come to Napanapa, the accused said that he had never been to Napanapa. When he shot the deceased he fell towards him. He took the vehicle to flee the scene but did not feel well being in the vehicle and so abandoned it. It was not because Taita called him. He denied saying “your will has been done”. He denied shooting an unarmed man. The story he told police was the one he told the court in examination in chief. In answer to the court’s questions the accused said that Koukou village is up north, coming from Baruni, about a kilometre away from Napanapa. He took the main road to the village, about 25 minutes away. The handwritten initials on the second last paragraph of page 2 of the confessional statement are not his. He did not report the incident to the police. He was afraid. He did not tell anyone.

SUBMISSIONS

16. The State submitted that it was not in dispute that John Hulse died on 23 July at Napanapa from a single gunshot wound to the right chest, or that he went to Napanapa to get his visa or passport. The State’s evidence showed that when the body was found it was still bearing valuable items. The Court should accept the evidence of the State witnesses as a true record of what the accused told them and that the accused’s intention can be inferred from a number of matters contained in the statement, including his admission that he told Taita Pritchard that “your will has been done”. The killing was pre-planned. The deceased was shot in a vulnerable part of the body and the accused knew that the deceased would not recover from what transpired that day. The court should reject the accused’s statement in the confessional statement, however, that he fired when he saw the deceased reaching for his pistol. The killing was merciless.
17. Defence counsel submits that there is nothing else to support the State’s case than the statements made by the accused himself. The State has asked the court to disregard the evidence given by the accused today but if he is lying in court then what he told police must also be false. What he told the court in evidence is an elaboration of what he was trying to tell the police in his statement. He did not report the matter to police because he was afraid but when they came to him he freely confessed. His evidence in court broadens the confessional statement to explain exactly what transpired that day. He urged the court to accept his oral testimony. Taita had come to the accused in the past concerning gatherings in the village so it is understandable that she would come to her big brother to return the visa to the man who had moved on with another woman. This is why the accused was approached. The location was that chosen by the deceased. The situation changed when the accused tried to deliver the visa. There is a possibility that hunters or someone from the village nearby took the gun. The fire is evidence of human activity. It is one thing to remove a gun but a different thing to remove jewellery. The court should find that the accused acted in self defence pursuant to s 269(2) of the Criminal Code. Sgt Silas failed to record the answer of “yes” to the warning at the beginning of the statement. It is likely an oversight on his part to include what the accused told him and what was repeated in evidence in court.
18. No submissions addressing the elements of self-defence under 269(2) or 270 of the Criminal Code were made by either party.

WILFUL MURDER

19. Section 299(1) of the Criminal Code creates the offence of wilful murder:

“Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.”

20. To establish the offence of wilful murder the prosecution must establish beyond reasonable doubt that the accused:
    1. Killed the deceased
    2. Unlawfully
    100. With the intention of causing his death or the death of some other person.
         

THE LAW OF SELF-DEFENCE

21. The Criminal Code distinguishes between self-defence to provoked and unprovoked assaults.

Self defence against unprovoked assault

22. Section 269(1) of the Criminal Code provides:
    

SELF-DEFENCE AGAINST UNPROVOKED ASSAULT.

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) If–

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

23. Section 243 of the Criminal Code defines assault as follows.

(1) A person who–

(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

(2) A reference in Subsection (1) to the application of force includes a reference to the application of heat, light, electrical force, gas, odour, or any other substance or thing in such a degree as to cause injury or personal discomfort.

24. In R v Gray (1998) A Crim R 589 the Supreme Court of Queensland considered the equivalent provision in the Criminal Code of Queensland, on which ours is modelled. The Court considered that the conditions for self-defence proscribed by each of the subsections of s 269 are differently stated and should not for the purpose of 269(2) be treated as imposing requirements that are cumulative.
25. Section 269(1) of the Criminal Code contains the following elements:
26. 1. there was an unlawful assault on the accused;
    2. which was not provoked by the accused
       

AND the force used by the accused was:

100. reasonably necessary to make an effectual defence against the assault;

4. not intended to cause; and
5. was not likely to cause, death or grievous bodily harm.

27. The test as to whether the force is reasonably necessary in s 269(1) is objective.
    
28. None of those three conditions as to force appear in s 269(2). Where there is an unlawful and unprovoked assault only two conditions need to be satisfied for self-defence to be available under that subsection:
    
    1. The nature of the assault must be such as to cause reasonable apprehension of death or grievous bodily harm; and
    2. The accused must believe on reasonable grounds that he or she cannot otherwise preserve the person being defended from death or grievous bodily harm.
29. As explained by McPherson JA, with whom Davis JA and Fryberg J in Gray agreed:
    

“[T]here is plainly a difference between the mental condition predicated of a defender under s [269(1)] and under s [269(2)]. In the case of s [269(1)], the degree of force used must be “reasonably necessary” to make “effectual defence” against the assault. The criterion in that instance is objective and does not concern itself with the defender’s actual state of mind. In the case of s [269(2)], it is, at least in part, subjective. The defender must believe that what he is doing is the only way he can save himself or someone else from assault. He must hold that belief “on reasonable grounds”; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, “necessary” for the defence.””

30. In summary, where an assault on the accused (or the person being defended) is unprovoked, an accused may use such force “reasonably necessary” to make “an effectual defence” against the assault, pursuant to s 269(1). The test in that instance is objective and does not concern itself with the accused’s actual state of mind.
    
31. Pursuant to s 269(2), however, an accused may use force likely to cause death or grievous bodily harm if the nature of the unlawful assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the accused himself or herself believes on reasonable grounds that doing so is the only way to save himself or herself (or someone else) from an unprovoked and life threatening assault: Tapea Kwapena v The State [1978] PNGLR 316 at 319; Gray; R v Messent [2011] QCA 125.
    
32. The question to be asked is whether the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm except by using the force that he did and not whether what he did was reasonably necessary to preserve him from death or grievous bodily harm: Kwapena.
    
33. A person about to be attacked does not have to wait for his or her assailant to strike the first blow: Beckford v R [1987] UKPC 1; [1988] AC 130 per Lord Griffiths.
    
34. As observed by Saldhana J in Kwapena:

“[A]ction in self-defence is instinctive and does not wait upon a precise appreciation of the exigencies of the occasion or upon the formation of a belief concerning the precise measures which are necessary.

And Holes J said in Brown v. United States of America albeit in a slightly different context:

Detached reflection cannot be demanded in the presence of an uplifted knife.”

35. Whilst an accused person must not establish the defence affirmatively, the defence must point to aspects of it that could induce a reasonable doubt. Where there is none, the defence fails and no further consideration is necessary: The State v Naomi Kerenge (1997) N1623; The State v Pati Kamale and Ors (2004) N2751.
    
36. Where the evidence of self-defence has been fairly raised, the State must negative it beyond reasonable doubt: Cosmas Kutau Kitawal and Christopher Katau v the State (2007) SC927. It follows that the essential question is whether the State has negatived beyond reasonable doubt the possibility that the appellant so believed on reasonable grounds that what he did was reasonably necessary to preserve him or herself from death or grievous bodily harm: Kwapena.
    

Self defence against provoked assault

37. Where the accused provoked the assault, s 279 applies. It provides:
    

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.

38. There is a difference between the effect, or at least the language, of ss 269 and 270 of the Criminal Code. S 269 renders the accused’s conduct “lawful”. S 270 does not express the defence in those terms. Rather it provides the conditions on which an accused who first assaults another will not be “criminally responsible”, that is they will not be liable to punishment for an offence (see s 1 of the Code). This reflects the law’s disapprobation for those who unlawfully assault in the first place.
    
39. The elements of s 270(1) are that:
    
    1. the accused unlawfully assaulted the deceased or provoked an assault from him;
    2. the deceased assaulted the accused with such violence as to cause reasonable apprehension of death or grievous bodily harm;
    100. the accused believed on reasonable grounds that it was necessary in order to preserve himself from death or grievous bodily harm to use force in self-defence; and
    4. the force used by the accused was in fact reasonably necessary for his preservation from death or grievous bodily harm.
       

See also State v Winara (2008) N3345.

40. But the proviso under s 270(2) must be borne in mind. The defence does not apply where:
    
    1. the accused first began the assault with intent to kill or do grievous bodily harm; or
    2. endeavoured to kill or to do grievous bodily harm to the deceased before the necessity of so preserving himself arose,
       

Unless, before such necessity arose, he declined further conflict and quitted or retreated from it as far as was practicable.

41. The burden remains on the State at all times to prove that the accused was not acting in self-defence.
42. Thus if the State establish beyond reasonable doubt that any of the matters have been excluded beyond reasonable doubt the defence will not apply:
    1. the assault by the deceased was not of such violence as to cause reasonable apprehension of death or grievous bodily harm; or
    2. the assault did not induce the accused to believe, on reasonable grounds, that it was necessary for his own preservation from death or grievous bodily harm to use the force he used in self-defence; or
    100. the force used by the accused was more than was reasonably necessary to save the accused from death or grievous bodily harm;

OR

4. the accused first began the initial assault with intent to kill or to do grievous bodily harm to the deceased; or
5. the accused endeavoured to kill or do grievous bodily harm to the deceased before the necessity of so preserving himself arose;

unless, in either case, before such a necessity for self-defence arose, the accused declined further conflict, and quitted it, or retreated from it as far as practicable.

See R v Graham [2015] QCA 137, Supreme Court of Queensland at [30] and the discussion in the Queensland Supreme and District Court Benchbook, Chapter 96.

43. In summary, the effect of s 270(1) of the Criminal Code is that where it was the accused who was the initial aggressor or provoked the assault, the defence under s 270(1) is only available where a) the assault by the other person is so violent as to induce reasonable apprehension of death or grievous bodily harm; b) the accused believed on reasonable grounds that it was necessary for his own preservation from death or grievous bodily harm to use the force used in self-defence; and c) the force used was in fact reasonably necessary to preserve the accused from death or grievous bodily harm. It is important to note by comparison with s 269(2) the requirement that the force used must be reasonably necessary on an objective basis.
44. The defence is not available, however, where the accused: a) began the assault on the other person with the intention to kill or cause grievous bodily harm; or b) endeavoured to kill or to do grievous bodily harm to some person before the necessity for self-defence arose; unless before the necessity arose, the accused declined further conflict, and quitted or retreated from it as far as was practicable: s 270(2).
    

PRINCIPLES GOVERNING A CIRCUMSTANTIAL CASE

45. The State’s case is partly circumstantial. The principles governing such cases are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661.

An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence ... ”.

46. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at [48] referred to in The State v Epei (2019) N7845. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
47. As above, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra). The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [46] to [47]^[1]. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
48. The High Court also observed in Baden-Clay, approved in Roland Tom v State (2019) SC1833 that:

“a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."

49. Further, at [62]: “It may readily be accepted that "it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference."[2] Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypothesis reasonably available upon the evidence: [54], [55], [62] and [63]. As I said in Epei (supra) at [50], to my mind that approach equally applies in this jurisdiction.
    

THE ACCUSED KILLED JOHN HULSE

50. It is not in dispute and I am satisfied beyond reasonable doubt that the accused killed John Hulse on 23 July 2011. It is the accused’s case that he acted in self-defence.
    

CONSIDERATION OF SELF DEFENCE – UNPROVOKED ASSAULT

51. In this case the only basis for suggesting that the accused acted in self-defence in response to an unprovoked assault for the purposes of s 269(2) of the Criminal Code is the accused’s oral testimony that the deceased fired at him, whilst the accused was unarmed and reaching for the visa from his bag, and that the accused only fired in self-defence after falling to the ground or crouching, and whilst aiming at the feet of the deceased, whilst the deceased fired at him for a second time.
52. Having heard and observed the accused in the witness box I am unable to accept him as a witness of truth.
53. I do not accept that he agreed to go out with Taita Pritchard that day without knowing the location to which they were going. This was a man with 10 years of military training. A man who was, on his own version of events, so concerned about security and “people” on “the highway” that he took a loaded pump action shotgun with him.
54. I do not accept that it was the deceased who asked to meet at such an isolated location. 23 July 2011 was a Saturday. On the evidence of both the State witnesses and the accused, the deceased was wearing shorts, a shirt and sandshoes, more in keeping with playing a game of tennis, going to the beach, or going sailing on his yacht, than working at a catering company which was delivering food in the area.
55. I do not accept that after setting out with a loaded pump action shot gun because of security concerns, and then having arrived at such an isolated location, which the accused said in evidence that he had never been to before, he then allowed his niece to drive off to buy drinks on her own, at some nearby village.
56. I do not accept that the accused had never been to Napanapa before for that matter. He knew the name of the closest village to which his niece was going to get drinks, Roku. He knew the road that led to it, and how far away it was. He knew that he was standing in an area where the fuel tankers and big vehicles turn. He was familiar with the villages in the broader area, the distance between them, and the surrounding roads and highways.
57. Does the accused really expect the court to believe that he, a trained infantryman, who was so concerned about security that he took a loaded pump action shot gun with him that day, and having taken the weapon out of the vehicle, instead of just the passport and visa, and whilst standing in this isolated place, a place he says he has never been to before, was so mesmerised by the view that having seen a vehicle enter and drive up within 15 metres of him, he essentially remained with his back to it, and left the bag containing the loaded weapon 1.5 metres behind him? Furthermore, that he did not turn around when the vehicle stopped, nor even when he heard the door of the vehicle open and then close, nor when the deceased called his name, but only when he heard the cocking of a firearm? I don’t think there is a person in Papua New Guinea that would believe that. Certainly I don’t.
58. Nor do I accept that the deceased fired at him when he reached for his bag, and that it was only then that he shot at the deceased, but only at the deceased’s feet, whilst he was, on his version, vulnerable on the ground. Nor do I accept that the accused aimed at the deceased’s feet and at the same time did not see his feet.
59. The accused said that the deceased fired two shots from a weapon which had an ejecting chamber, and yet no shells were found at the scene, although the accused was not cross-examined about his confusing evidence about the ejecting chamber of the deceased’s gun.
60. Nor do I accept that the accused then fled without checking whether or not the deceased was dead or alive. Regardless of where he had been aiming but particularly if he had been aiming at the deceased’s feet, how did he know the deceased wasn’t injured and not dead or incapacitated such that he was not able to shoot at the accused from the ground as he went near the deceased to take his vehicle?
61. As for the suggestion that it was purely by coincidence that Taita found him as he was walking along the highway, having abandoned the deceased’s vehicle at Koukou, at least 25 minutes later, I reject that too.
62. The accused’s oral testimony is inherently inconsistent and utterly implausible.
63. Whilst the accused was under no obligation to give a statement to the police, I have already found that he did give the confessional statement voluntarily.
64. I indicated in assessing his credibility on the voir dire that it was unclear whether his position was that he gave the statement involuntarily, or signed a statement involuntarily, which he did not give himself, i.e. which was fabricated by the police.
65. Where the accused’s sole claim is that the confessional evidence was not made or was not accurately recorded there is no need for a voir dire. Those are matters for the trial proper: The State v Joseph Maino [1977] PNGLR 216; The State v John Yambra Pai (1986) N535. In my decision on the voir dire I observed that there is some authority for the proposition that such issues must not ever be dealt with on the voir dire: Pai (supra). It is my view that the preferable approach, which appears to have developed as a matter of practice over the years in Papua New Guinea, is that where both voluntariness and accuracy are challenged, evidence in respect of both matters may be taken during the voir dire. It means that both the State and the accused witnesses only give evidence once. In my experience the totality of the evidence on the taking of the statement is often necessary to a proper understanding of whether or not it was given voluntarily, even where they go to fabrication or accuracy, for instance, whether the accused was given an opportunity to read the statement, whether he amended any part of it and so forth. It is for this reason that in other jurisdictions where there is a jury, evidence on such matters might be given twice – once before the judge on the issue of voluntariness, and again before the jury on fabrication or accuracy. In this country that is unnecessary in my view, and rather than trying to limit the evidence on the voir dire, it is better to take it all at once. The court does need to be mindful, however, that the question of whether the confession was made, and the weight to be given to it, must be determined in the context of the evidence on the trial as a whole.
    
66. In this case the accused was not curtailed in his evidence on the voir dire and he did attempt to establish on the trial proper that certain parts of his confessional statement were not fully and/or accurately recorded, and that certain parts of the statement were not made by him.
67. I reject the evidence of the accused that Sgt Silas failed to accurately record what the accused said. I have already found Sgt Silas to be a credible and reliable witness regarding the taking of the statement. I accept his evidence that the accused spoke freely and that he took the statement down on the computer as he spoke. S/Sgt Wellen corroborates this. In this regard I found on the voir dire that Sgt Silas warned the accused of his right to remain silent and that the accused said that he understood and that he agreed to give the statement.
68. The confessional statement itself reads as that of a man who is keen to provide in detail his version of events, the history of Taita’s relationship, her role in the events, the number of cartridges purchased, together with the details of the day, where he met Taita, the colour of her car, and their conversations. The exact circumstances of the shooting are the most critical part of those events.
69. I reject the submission that the evidence simply expands and explains that given in his confessional statement. These are not mere supplementary details. The details are multiple and significantly change the effect of the accused’s case, and in particular the nature of his defence.
70. For similar reasons I also reject the defence submission that there was an oversight on the part of Sgt Silas to record the evidence given in oral testimony by the accused as to the immediate circumstances of the shooting. As I have said, those matters are substantial and different to the matters recorded in the last two paragraphs of page 2 of the accused’s confessional statement. Those details could not be overlooked in taking the statement down, and there is nothing before me to suggest that Sgt Silas deliberately omitted any such statements by the accused.
71. In addition, the accused’s evidence is inconsistent with the medical evidence, which shows that the shot travelled downwards, not upwards as would be the case if the accused fired up at the deceased from the ground as he said in his testimony.
72. In summary the accused’s version of events is implausible and excluded by the State’s evidence. The only reasonable inference is that the evidence given by the accused at trial is a recent invention.
73. Accordingly, the defence of self-defence under s 269(2) was not fairly raised on the evidence.
    
74. I make it clear, however, that the accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial. The question remains whether the State has established its case beyond reasonable doubt.
    

PRELIMINARY FINDINGS OF FACT

75. Respectfully, I do not accept the defence submission that if I reject the accused’s evidence and find him lacking credibility I cannot accept anything contained in his confessional statement.
76. This is a different situation from that where a witness’ credibility is demonstrated to be lacking by proof of a prior inconsistent statement.
77. An admission, or a statement of fact which suggests an inference as to any fact that is relevant and which is adverse to the interests of the person responsible for the statement, has long been accepted as an exception to the hearsay rule because it is presumed to be reliable. What an accused person admits or confesses to be true may reasonably be presumed to be: Slatterie v Pooley [1840] EngR 227; (1840) 151 ER 579, per Viscount Parke at 581.
78. In addition, there is no rule of law that says a conviction cannot be based on an uncorroborated confession: R v McKay [1935] HCA 70; (1935) 54 CLR 1, adopted and applied in R v Mon and Debong [1965-1966] PNGLR 42; R v Namiropa Koinbondi [1969-1970] PNGLR 174; The State v Ungum Ovohe (1980) N245; and The State v Malepo (No 2) [1996] PNGLR 252; Nara v The State (2007) SC1314.
79. Before doing so, however, the trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession.
80. I note here that the accused does not dispute much of the confessional statement.
81. As for those parts in respect of which the accused did give some evidence inconsistent with his statement regarding the conversations between himself and Taita Pritchard on 22 July or 23 July, neither Silas nor Wellen were cross-examined about those admissions. Whilst a breach of the rule in Browne v Dunn does not necessarily lead to the conclusion that such statements are recent inventions, I have already found that the accused’s evidence on the trial lacked credibility and I reject his evidence at trial resiling from the admissions made.
82. As above, having heard and observed Silas and Wellen I accept their evidence as to the taking of the statement.
83. Furthermore, having regard to both the circumstances in which it was made, the nature and detail of its the contents and the other evidence in this case I am satisfied that the statement is neither false nor unreliable.
84. This does not mean, however, that I am required to accept every statement contained in the confessional statement. It is often the case that admissions against interest in a confession will be accepted but exculpatory or other statements seeking to reduce the accused’s culpability will be rejected. It will depend on the circumstances of any particular case.
85. The question remains whether I should also accept the second last paragraphs of the statement on page 2. I will return to this below.
86. As for the balance of the State witnesses’ evidence, for the most part not in dispute and goes mainly to the circumstances in which the body of the deceased was found. The evidence of each officer was consistent with the State’s evidence as a whole but not in terms to suggest that it had been contrived by the witnesses. I note that S/Sgt Wellen said he was tasked to find the deceased on the 21^st July, two days before the killing. In my view he is mistaken about the date. Here I note that the investigation took place ten years ago. It is not in dispute that the deceased died on 23 July.
87. In the circumstances I make the following preliminary findings of fact.
    

Findings of Fact

88. The following matters are not in dispute. By his own admission, the accused is a former soldier with the Papua New Guinea Defence Force having served the force for 10 years from 1980 to 1990. He is familiar with light and heavy arms. On 22 July 2011, his cousin sister, Taita Pritchard, told him that she was having problems in her relationship with John Hulse because he had become involved with another woman. The following day Taita picked him up and they drove to Napanapa. On the way one of them called the deceased and told him to meet at Napanapa to collect his passport and visa. Once there Taita dropped him off on the side of the road. He walked over to the side of the hill and waited for the deceased to arrive. Soon after the deceased’s arrival, the accused shot the deceased in the chest with a single shot from a pump action shotgun. The accused fled the scene in the deceased’s vehicle. The accused abandoned the deceased’s vehicle at Koukou Village. The accused walked back to the main road where Taita picked him up and took him back to his house. The accused did not report the matter to police.
89. In addition, I am satisfied that on the admissions made by the accused to police, which I accept, that Taita told the accused that she wanted the accused to “terminate” the deceased. The accused asked her if she was serious and she said she had made up her mind and wanted him “to get rid of the man”. Taita gave him K100, which the accused used to purchase three shotgun cartridges. Afterwards Taita called him and the accused told her that “your will has been done”. These matters, whilst they would not be admissible against Taita if she were a co-accused, are admissible against the accused as being admitted by him in his confessional statement.
90. The evidence also establishes that the meeting location at Napanapa is isolated. It is about a 15 minute drive from Port Moresby town. At the time no buildings could be seen from the scene. The nearest village was a kilometre away down the road.
91. The deceased’s body was found at the side of the cleared area at Napanapa some distance from the road, and could not be seen from the road.
92. The deceased was wearing sports gear or beach wear and sandshoes.
93. The body was found lying on its front, and at least partially in a grassy area, some of which had been burnt. The deceased’s feet and ankles bore deep burns. There were generalised superficial burns to to the extremities, the face, and head but the front of the abdomen and the back below the shoulder blades were spared from the burns.
94. The skin around the chest wound was burnt and smoke stained. It is not possible on the evidence to say whether that was a result of a shot at close range, or the result of the fire. The autopsy report refers to generalised body burns and smoke staining. I therefore find that the burning near the wound is the result of the fire.
95. It is not possible to say whether the fire was started by human intervention or not.
96. The fire did not start where the body was but extended to it, particularly to the feet and ankles.
97. The body was not found for two days, until the day of the fire.
98. Medical evidence established that the shot entered the front right chest at the level of the 3^rd and 4^th ribs and lacerating the right lung, aorta and heart. The pellets travelled downwards and to the middle through the right lung, thoracic aorta and across to the left thoracic cavity.
99. When the body was found it was still bearing at least two if not three valuable items, i.e., a gold chain, wrist watch, and perhaps a bracelet or wrist band.
100. When the body was found no weapon was found on or near the body. No other items were found in the vicinity. There was no disturbance of people walking or tyre tracks or footprints.
     

CONSIDERATION: SELF DEFENCE AGAINST PROVOKED ASSAULT

101. Returning to the two last paragraphs on page 2 of the accused’s confessional statement. Is there a possibility that the deceased had a gun with him that day? In my view having regard to the totality of the evidence the possibility is so remote as to be fanciful.
102. Police inquiries found nothing to suggest that the deceased owned one himself but the detail of those enquiries was at best vague, if not hearsay, and no documentation was produced from the firearms registry.
103. The deceased was hardly dressed as if he was expecting trouble.
104. Most relevant is the fact that no gun was found at the scene, whilst several items of value were so found, albeit that two days had passed. In this regard the accused agreed that the body fell face down. He said that the body fell towards him. The body was found two days later face down. If there was a pistol in the front of the shorts of the deceased as suggested then it is implausible that some other party, like someone from a nearby village, would have come, been willing to roll the body over in the hope of finding something valuable, retrieve a pistol, and yet not also been prepared to remove the jewellery. It is also relevant here that there was no disturbance of the ground in the vicinity of the body, although it is unclear what impact the fire may have had in this regard.
105. It is my view that those matters, when taken together with the other circumstances in this case, exclude any rational possibility that the deceased was in possession of a pistol at the time.
106. Even if I am wrong about that, and proceeding on the basis that the deceased did have a pistol tucked in his “beach wear” and did, whilst having a pump action shotgun aimed at him by the accused, and being told to stand and turn around, reach for his pistol, the defence under s 270 of the Criminal Code is not available to the accused.
107. Having regard to the elements of s 270(1) outline above, the questions are: a) did the accused unlawfully assault the deceased or provoke an assault from him?; b) was the response from the deceased so violent as to cause reasonable apprehension of death or grievous bodily harm?; d) did the accused believe on reasonable grounds that it was necessary in order to preserve himself from death or grievous bodily harm to use the force used in self-defence?; and d) was the force in fact used reasonably necessary for his preservation from death or grievous bodily harm?
108. The evidence establishes beyond reasonable doubt in respect of each of the questions the following matters.
109. Firstly, in response to a), that it was the accused who began the unlawful assault on the deceased when he presented the gun, aimed it at the deceased, told him to stand and turn around. By doing so his words and gestures threatened to apply force to the person of the deceased, without his consent, in circumstances where the accused clearly had a present ability to effect his purpose: see s 243(1)(b) of the Criminal Code.
110. In answer to b), the violence from the deceased was not so violent as to cause reasonable apprehension of death or grievous bodily harm. The deceased was reaching for his gun. He did not yet hold it and was not yet in a position to threaten violence so as to cause apprehension of death or grievous bodily harm. At the time the accused still had control of the situation, he was holding a loaded gun aimed at the deceased’s chest. He could have ordered the deceased to put his hands up, or to pull out and throw down the gun.
111. In answer to c), the accused could not have believed on reasonable grounds that it was necessary to use the force used for the reasons stated. In any event, for the purposes of d), the force used by firing a shotgun to the chest of the deceased was not reasonably necessary on any objective view.
112. Moreover, and more importantly, the proviso under s 270(2) of the Criminal Code applies in this case. Having regard to the totality of the circumstances, it is beyond any reasonable doubt that at the time the accused first threatened the deceased with the pump action shotgun, he already intended to kill him.
113. The fact that the killing may have been immediately precipitated because the deceased reached for his pistol is beside the point. That is the very purpose of s 270 of the Criminal Code. A person who assaults another with the intention of killing or causing grievous bodily harm cannot escape liability when the person they have assaulted responds or makes an attempt to defend themselves. The only exception to this is when the accused quits or retreats as far as practicable before the necessity for self-preservation arises. This is not such a case.
114. The evidence excludes any other rational inference than that the accused deliberately lured the deceased to an isolated location with the purpose of killing him, on the pretext of returning his passport and visa to him. He did so to avenge his niece who had been turned over for another woman. He took with him a loaded pump action shot gun. He arrived first and waited for the deceased. When the deceased arrived he threatened the deceased with the weapon. The accused shot him once in the chest. The location of the single shot, the nature of the weapon used to inflict the injury, and the experience of the accused, further evidence that this was a deliberate and precise shot intended to kill. The accused then immediately fled the scene in the deceased’s vehicle and drove for some twenty five minutes before abandoning the vehicle, at a village. Having done so he confirmed with Taita that her “will had been done” before she picked him up. This was a premeditated and well planned killing.
115. In conclusion, the evidence establishes beyond reasonable doubt that the accused killed John Hulse. He did so unlawfully. The evidence excludes any rational inference other than at the time the accused killed the deceased he intended to cause his death. The State’s evidence excludes any rational possibility that the accused acted in self-defence.

Verdict: Guilty of wilful murder.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

^[1] Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7.