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State v Kasi [2023] PGNC 139; N10257 (16 March 2023)


N10257

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO 16 OF 2021


THE STATE


V


SIONI KASI


Wewak: Thoke, AJ
2022: 16th, 17th, 21st, March
2023: 16th March


CRIMINAL LAW – Practice & Procedure- Trial– Murder- Section 300 (1)(a) of the Criminal Code –altercation between villagers- Defence of Self Defence -Failure of Defence to provide clear evidence prior to prosecution discharging its onus to adduce negative elements of Defence on Self Defence - Accused guilty of Murder.


Brief Facts:


It is alleged that on the 25th day of May 2020, sometime around 12:00 noon and 1:00pm, a fight ensued between Sioni Kasi, Pais Andrew and Sato Hulasare relating to the harvesting of sago palm within a disputed sago grove undergoing mediation at that material time, between one Enoch Pariniaka and his family and Sioni Kasi, the accused. On the said date, Sioni Kasi questioned the right of these two men harvesting sago without his consent, which led to Sioni Kasi, the accused attacking one Sato, before Pais intervened. He then left the scene feeling angry, indicating none of them were the right person for the fight. Few minutes later, he attacked Enoch Pariniaka, with a bush knife, severing his leg, as he was walking towards the sago groves to find out what was happening. The cut sustained led to his death.


Held:


  1. The accused must prove beyond reasonable doubt the balance of probability with reliable evidence to dismiss any possible doubt in establishing a Defence of Self Defence.
  2. The accused in this case failed to prove with evidence on the standard balance of probability.
  3. The accused had a pre-determined intention to assault or kill any person who harvested sago within the disputed sago grove. He repeatedly stated three times “I will find the right person and cut his head off”, hence it is suffice to say there was strong intent to cause grievous bodily harm (GBH).
  4. Accordingly, the self defence raised by the Defence has failed, as such, accused is found guilty of murder.

Cases Cited:


Papua New Guinean Cases
Tapea Kwapena v The State [1978] PNGLR 316
The State v Apa [2020] PGNC 440; N8566
The State v Lenny Banabu (2005) N2871


Overseas Cases:
R v Kerr [1976] 1 NZLR 335.
Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266.


Legislations Cited:
The Criminal Code Act 1974
The Constitution


Counsel:
Ms. L Maru, for the State
Mr. A Kana, for the Accused


JUDGMENT ON VERDICT


16th March, 2023


  1. THOKE AJ: This matter came before me on the 16th March 2022. The Accused was charged with one count of Murder, under section 300(1)(a) of the Criminal Code Act.
  2. Section 300 of the Criminal Code states:

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; ...


Penalty: Subject to Section 19, imprisonment for life.


  1. The Prosecution has the onus of proving beyond reasonable doubt the four elements of the offence which are:
  2. The Indictment and statement of facts were read out to the Accused and he pleaded not guilty.
  3. The Indictment reads as follow:

“SION KASI OF SIMA VILLLAGE, YANGORU SAUSSSIA DISTRICT, EAST SEPIK PROVINCE stands charged that he on the 3rd day of June at Wewak, Wewak District Court, East Sepik Province of Papua New Guinea murdered one ENOCH PARINIAKA.”


  1. In pleading NOT GUILTY, the accused person raised his Defence to be one “Self Defence, thus the State and Defence were called for evidence to prove their respective cases.

THE PROSECUTION’S EVIDENCE


  1. The Prosecution opened its case by calling 3 witnesses to the stand.
  2. The first State witness Sato Hulasare gave sworn evidence that:
    1. He was scraping sago and went to get water. The accused, Sioni Kasi was walking before him. When he reached the place where the sago was, he witnessed the accused getting into an argument with Pais Andrew over the ownership of a sago palm grove. As they were arguing he told the accused the grove was not his and belonged to Pais Andrew and his family linage, from which, the accused furiously swung the bush knife at him.
  1. In defence he tried to remove the bush knife from him, however failed. He stated that by the time he went for the second swing, he practically went into a fight mode with him. He stated that the accused later got the knife off him and hit him with 2 stones, from which Pais Andrew intervened to stop the fight, however the fight continued. While the fight was going on, the accused told him that he was not the right person to have the fight with and he was going to find the right person and cut him.
  2. He left the scene and walked off to cut Enoch Pariniaka.
  3. He further stated he was not actually present when he cut the deceased, Enoch Parianka.
  1. The 2nd State Witness, Pais Andrew is the cousin to the deceased, and was the one involved in the initial argument with the accused. He gave sworn evidence that:
    1. On the 25th May, he was with Sato Hulasare scraping sago on the roadside, when Sato went to get some water. By the time he was gone, he heard some noise and argument going on so he went and stopped the accused and Sato who were engaged in a fight, whereby the Accused told him that he was not the right person to have that fight with, “I will find the right person and cut his head off” (translated from pidgin) and left the scene, following the road up-hill.
  2. Michael Pariniaka is the third state witness, who is the only eyewitness who witnessed the death of the victim, Enoch Pariniaka. He was with the deceased on the 25th day of May, the day that occasioned the death of the victim, Enoch Pariniaka:
    1. They were at the house waiting for the village councilors to call the weekly community meeting regarding community work, when they heard the noise coming from within the sago groves.
    2. He said Enoch heard the noise first and told him that there was a fighting happening at the sago groves where the other men were harvesting sago, so Enoch walked ahead and he trailed behind.
    3. He went on to explain that their village was situated at the top of the hill thus they could hear the noise coming from the commotion downhill, and as they were walking downhill Sioni Kasi was walking up armed with a bush knife, and by the time Sioni saw Enoch Parianka, he said “You are the man I am looking for, that sago is not yours! (translated from pidgin). While making those comments he swung the bush knife at Enoch, and Enoch who was harmless at that time, fell near his feet and was turned down on the grass in pain.
    4. He further stated that he used his walking stick to throw at the accused, Sion Kasi, upon realization that the deceased was injured.
    5. When asked how to describe how Sion Kasi cut the victim Enoch, he said the accused, Sion Kasi held the bush knife with both his hands, arched forward, cut Enoch and ran away.
    6. He confidently said that Enoch Pariniaka did not assault Sioni Kasi, it was Sioni Kasi who attacked Enoch Pariniaka.
    7. In cross examination, he went on to say that as they (him and the deceased) were going to the meeting place, Enoch heard his uncle’s voice Sato Hulasere’s voice from among the commotion at the sago patch, thus he walked down towards the sago patch, and he followed behind. As they were walking down, Sioni approached them and cut Enoch.
    8. When asked if the deceased was armed or held anything in his hand, he confirmed that he was barehanded, while he was in possession of his walking stick.
    9. The Defence Counsel enquired if he had given a statement to the police officers during the investigation process to which he responded “yes”. He was further asked to confirm is version of that statement, whereby he stated that the deceased, Enoch was in possession of an axe at the time of the fight and that he used the axe to initially cause harm on the accused” He responded that that is not true, and that the version he was giving to the court is the true version of what he witnessed, and that the statement given to the police consisted of errors or mistakes by the police.
    10. He was asked to confirm which version of the story was accurate, whether it was the one with Enoch, the victim, being barehanded, or the version given to the police in which Enoch, the victim was in the possession of an axe? and he responded that “Enoch did not have anything in his hand”

THE DEFENCE’S EVIDENCE


  1. Defence opened its case, calling the only witness, the accused Sioni Kasi.
  2. Sioni Kasi gave sworn evidence that:
    1. On the 25th of May, 2022, he was at Sima, doing church work.
    2. He went to get police pass to stop the harvesting of sago which is believed to be in his piece of land, and visited several people to assist him to stop the harvesting.
    3. He then saw the Councilor, whereby the Councilor stated that he was not willing to assist him since he never voted for him.
    4. With no assistance from any of the person he sought help for, he went down to the sago grove and presented the pass to the Pais and Sato and told them to scrape one part of the sago and leave everything behind, from which Sato Hulasare got a sago frond and hit him. He reciprocated by throwing a stone at him which hit him on his leg, whereby he subsequently used the same stone to hit him on his back.
    5. Pais Pariniaka intervened and stopped them thereafter.
    6. They then agreed to work on one part of the sago so he left them and walked back to the village.
    7. Before reaching the village, he bumped into Michael Pariniaka and Enoch Pariniaka, the deceased. Enoch confronted him on why he was trying to stop the sago harvesting “is it your sago to come around here stopping people” (translated from pidgin), while throwing an axe with a long handle at his head, from which it broke from my shoulder and hand when he tried to stop it from impacting him. He consequently used the handle to hit him on the stomach which caused him to excrete and pee in his pants at the same time.
    8. He further stated he was lying helpless on the ground as blood was oozing from his body.
    9. He then said he used his last strength, without looking, to swing the bush knife and it cut Enoch Pariniaka who he was giving his back to.
    10. He further stated that, the deceased hit him 8 times and his father Michael Pariniaka hit him 3 times, in which no medical report was furnished. The police did not take him to the hospital, nor did the CIS.
  3. In cross examination, no serious counter comments or questions were put to the accused’s defence of Self- Defence, as such, the state failed to negate or discredit the elements of Self- Defence in the defence, thus the cross- examination reinforces the defense’s case.

DEFENCE OF SELF DEFENCE - SUBMISSION BY DEFENCE


  1. The Defence raised the Defence of self- defence pursuant to Section 269 of the Criminal Code Act. Section 269 of the CCA which defines the issue of Self- Defence against unprovoked assault as:
  2. The Defence submits that two state witnesses, one Sato Hulasare and Pais Andrew are not credible sources as they are not eyewitnesses to the events that transpired at the second fight scene that led to the death of the deceased, Enoch Pariniaka.
  3. The Defence also submits that the evidence given by these state witnesses are not consistent with their initial statements to the police.
  4. Further the Defence referred to the case of Kwapena v The State [19878] PNGLR 316, whereby the Court held:

“Where a defence of self –defence to murder is raised either under s.274 or the first paragraph of 2.275 of the Criminal Code, the questions to be determined beyond reasonable doubt are:


  1. Whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm,
  2. Whether the accused believed that he could not preserve himself from death or grievous bodily harm otherwise than by using the force that he in fact used, and
  1. Whether the accused belief was based on reasonable grounds; or rather whether the State had navigated beyond reasonable doubt the possibility that the accused so believed on reasonable grounds.
  1. The Defence also brought attention to the principle applied by Justice Cannings in the case of the State v Lenny Banabu (2005) N2871.

ISSUES FOR THIS COURT’S DETERMINATION


  1. After hearing and evaluating the evidence of both the State and Defence Witnesses, correctly raised by the Counsel for the State and Defence, respectively, this Court is drowned into the following issues:
    1. Whether the deceased – Enoch Pariniaka was the first person to attack Sioni Kasi when they met half- way along the road?
    2. Whether Sioni Kasi was assaulted by Enoch Pariniaka, to the point where he was of reasonable apprehension to resort to the aid of a bush-knife as a necessary means of defence to protect himself?
    1. Whether the injuries inflicted on Enoch Pariniaka was justified within the ambit of Self Defence?
  2. To address the three issues above, it is imperative we consider the disputed and undisputed facts in this case.
  3. I am content with the State’s submission on the following undisputed facts:
  4. I also agree with the State’s submission on the following disputed facts;

CASE LAWS APPLICABLE


  1. While taking into consideration both the disputed and undisputed facts above, the Defence submission on self defence against unprovoked assault under Section 269 of the Criminal Code Act renders the prosecution an onus to disprove the following elements, pertaining to His Honour Justice Cannings guidelines as enunciated in the case of the State v Lenny Banabu (supra):
    1. the accused was unlawfully assaulted; and
    2. the accused did not provoke the assault; and
    1. the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and
    1. the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and
    2. the accused used such force as was necessary for his defence.”
  2. His Honour Justice Cannings then restated them in question forms for the prosecution to address it, before the purported act of the accused is deemed an act of self defence or otherwise.
    1. Was the accused unlawfully assaulted?
    2. Did the accused not provoke the assault?
    3. Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?
    4. Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?
  3. Did the accused use only such force as was necessary for his defence?

APPLICATION OF THE LAW


  1. To come to a clear resolution of the above three issues, I have articulated the Prosecution and Defence’s evidence applying the above principles.
  2. I see that there are two confrontations (fights) in the bigger picture of the problem on that day and time of the offence. As stated on the facts, one of the sago palms in the subject disputed land was cut down on the earlier day Sunday by the deceased. The accused went into the disputed land the next day, which was on a Monday, to stop Pais Andrew and Sato Hulasare from harvesting sago, wherein an argument ensued between him and Sato Hulasare.
  3. As there are two versions of evidences, one version disclosing the facts surrounding the first fight and the other disclosing the facts surrounding the second fight. The defence submitted that the version disclosing the facts surrounding the first fight are not credible on the basis that those evidences are from Sato Hulasare and Pais Andrew who were not eye witnesses to the second fight. Consequently, I am interested to discover whether there was a connection between the first fight and the second fight, and who provoked the first and second fight, respectively. If so, this will render me insight towards establishing the identification of the person(s) who provoked the assault, and whether the second fight was an extension of the first fight?
  4. Although the actual injury of the deceased on his lower left leg was sustained during the second fight, the circumstances leading to the second fight is relevant in this case. Thus, the issue of who provoked the assault is resolved in this way.
  5. Firstly, pertaining to the first fight, the accused said that he approached them with a letter from the police and asked them to only harvest the one palm that was already cut down and stop from harvesting further, to which Sato Hulasare hit him with a sago palm. The accused further said that Sato Hulasare then threw a stone at him in which he threw the same stone back at him. He said that he merely approached them with a letter from the police advising them to stop further harvesting, but it was Sato Hulasare who initially attacked him with a sago palm, and second time around with a stone, whereby he reacted by throwing the same stone back at him. I am not satisfied with this evidence, as the accused was the one who first approached the men who were already in the sago groves and busy harvesting sago on the land said to be in dispute between him (his family) and the deceased (deceased’s family).
  6. According to the evidence presented, Sato Hulasare is from a different place and related to Pais Andrew and the deceased by marriage, whereas all of them including the accused, deceased, and Pais Andrew are related by family, and are of same village. The accused’s evidence stating that Sato Hulasare is from a different place and only came to fight with him adds more reason to discredit his evidence. It is difficult to believe in the Defence’s evidence that Sato Hulasare is someone random from a different place who just came to fight the accused. Further, it is important to note that both state witnesses evidence that the accused was already in possession of a bush knife before the argument ensued, and swung the bush knife at Sato Hulasare when the argument escalated into a fight until Pais Andrew intervened and stopped them. I am satisfied with the State’s submission that the accused was already at fault by taking the law in his own hands when he made the decision to go into the sago palms for whatever reason, while mediation was pending.
  7. Once the fight was intervened by Pais Andrew, the accused left with animosity stating “I will find the right person and cut his head off” [translation mine]. Both state witnesses gave evidence that those were the exact words he uttered upon leaving the site.
  8. Although these witnesses are not eye witnesses to the second fight, I believe their evidences are circumstantial in essence as they have a direct bearing on the second fight.
  9. Michael Pariniaka, the third state witness and the only key witness to the second fight echoed the statement made by the accused upon approaching the deceased “you are the one I was looking for” [translation mine], which directly links the evidence of the state’s first two witnesses. Therefore, I agree with the state’s submission that upon being under pressure from the first fight and subsequently being confronted with the “right person” he was looking for, in this case the deceased, he reacted unequivocally. Thus, the second fight was the consequential event of the first fight. Since the accused is seen to be at fault in the ignition of the first fight, the first two elements of His Honour Justice Cannings’ principles in the State v Lenny Banabu (supra) do not protect the accused.

“Was the nature of the assault such as to cause reasonable apprehension of death of grievous bodily harm?”


  1. Although the onus is on the state to disprove the five elements in the Lenny Banabu case (supra), the accused is obliged to firstly prove on balance of probability to convince this Court with justifiable evidences as to provide clear picture and presence of all the elements in the Lenny Banabu case (supra) as reapplied by His Honour Justice Batari in the recent case of State v Apa [2020] PGNC 440. I quote the relevant part of the judgment in this case authority for ease of reference below.
    1. The conditions to be satisfied under this provision are that:
      1. the accused was unlawfully assaulted;
      2. the accused had not provoked the assault;
      1. the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and
      1. the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.
  2. The Court must be satisfied that these conditions are present on the facts to establish self-defence on the balance of probability, the accused having the onus of proof. He or she need not establish such a defence affirmatively but must point to aspects of the evidence which could induce reasonable doubt: R v Kerr [1976] 1 NZLR 335. Once the evidence is shown to have raised a possible defense of self-defence, the onus shifts to the prosecution to negative that defense beyond reasonable doubt: Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266.”
  3. The State submitted that evidence of Michael Pariniaka was reliable and credible as he was the only person present at the time and scene of the offence, and the only person who followed the deceased downhill when the accused confronted him.
  4. On the other hand, the accused stated that he swung the bush knife backward while laying on the ground facing backward and cut the deceased on his leg. The accused further said that he was hit 8 times by the deceased and 3 times by Michael Pariniaka using an axe, which caused him to fall onto the ground when the deceased hit him on his leg.
  5. I am convinced by the State’s submission that the use of such long- handled axe against a elderly person of age 61 with such a force that caused its handle to break off can potentially amount to severe damage of collar bones, or essentially cause collapse or trauma. The accused did not adduce any evidence resonating to such nature of damage. The accused did not say in his evidence, that he fell down from the force of the long- handled axe, rather he said that he fell down afterwards, when the deceased hit him on his leg. I am not satisfied with his assertion that he fell down as a result of the force exuded from the axe. His fall was a direct result of being hit on the leg, not from the axe. The accused’s evidence that he was beaten 8 times, consecutively, by the deceased and 3 times by Michael Pariniaka, and while asserting that he was laying on the ground covered in blood, he was also able to run away with one leg, is inconsistent and ludicrous. Hence, I am not content that he swung a bush knife while on the ground handicapped, or in the way he describes. I am rather content to establish that it was not a reasonable act of self defence, as it does not carry any element of provocation in causing such level of grievous bodily harm (GBH) or death on the other party. In other words, the accused’s act of self defence does not fall within the definitions implied in the third and fourth tests in the case of State v Lenny Banabu (supra) and State v Eki Apa (supra)
  6. I am also convinced by the State’s submission that force exerted in cutting the leg of the deceased was strong enough to cut through the bones as severely as it was, as affirmed by the medical autopsy report. This gives credibility to the evidence of Michael Pariniaka that accused used both hands to cut the leg of the deceased upon meeting him on the road.
  7. Furthermore, I am convinced by the evidence of third State’s witness, Michael Pariniaka, that deceased Enoch Pariniaka, was not in possession of an axe or armed with anything on that day. I relate this with the evidence of Michael Pariniaka, the key witness who gave evidence to this Court upon request, that the kind of axe alleged to be used by the deceased against the accused, is one that is commonly used in the cutting or harvesting of sago. In this case, the deceased had already cut down the subject sago on the earlier day, Sunday, thus did not necessarily had to be in possession of that particular axe the next day, that day he was subjected to the accused’s attack. These discredits the evidence of accused that the deceased was in possession of axe and used that axe to beat him up.
  8. In addition, the accused’s injuries as purportedly sustained from 8 times assault from the deceased and three times assault from Michael Pariniaka have never been proven medically. His assertion that he was never allowed seeking medication by the police officers and Correctional Service Officers during his custody is still questionable. Thus, the accused fails to prove on balance of probability as recently enunciated in State v Eki Apa (supra) with justifiable evidences to convince this Court.

DECISION SUMMARY


  1. For a simplified reasoning, I will provide a definitive YES and NO answer to each of the questions tested in the State v Lenny Banabu (supra), as follows:
    1. Was the accused unlawfully assaulted?

Answer: NO


  1. Did the accused not provoke the assault?

Answer: NO


  1. Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

Answer: NO


  1. Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

Answer: NO


  1. Did the accused use only such force as was necessary for his defence?

Answer: NO


  1. Since all tests of Self Defence are negative, all elements of Murder have been established.
  2. The nature of assault caused by the deceased is such that cannot cause reasonable apprehension of death or grievous bodily harm, as such, the defence of self defence is revoked and accused is to face criminal culpability of the charge of Murder, contrary to section 300(1)(a) of the Criminal Code.
  3. Accordingly, the Orders of the Court are as follows:

1.I find the accused is guilty of murder and convict him as charged.

2. Accused is to be further remanded in CIS awaiting sentence.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
State Solicitor: Lawyers for the Defendant

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