Tapis v Sarr [2009] PGDC 109; DC1026 (2 November 2009)

DC1026

PAPUA NEW GUINEA
IN THE DISTRICT COURT SITTING IN ITS GRADE JURISDICTION AT WEWAK

GFC NO: 11 OF 2008

BETWEEN:

LAWRENCE TAPIS
Informant

AND:

NICK SARR
Defendant

Wewak: J. August, acting Gr.5 Magistrate
2009: 27 July, 04, 06 August, 29 October, 02 November

DECISION

CRIMINAL LAW – Unlawful Wounding - Plea of not guilty – Trial – Criminal Code, s.322(1)(a).

CRIMINAL LAW – Unlawful Wounding – Not guilty plea – Trial – Evidence – Standard of proof – Whether Self defence or Provocation proved - The Criminal Code, ss. 266, 267, 270.

Cases cited: None

Counsels: Accused - unrepresented

November 02 2009

J. AUGUST a/PM: The Accused was charged for unlawful wounding under section 322(1) (a) of the Criminal Code, Chapter 262. On arraignment, the court entered a plea of Not Guilty on the basis that the Accused was raising a defence of self - defence or provocation.

Facts

The Accused Nick Sarr 32 years of Kubren Hamlet of Woginara village, Dagua Central, East Sepik Province was alleged to have unlawfully wounded the victim, Manuel Naruos from the same Village on Sunday 13th July 2008 at about 8.30 pm in the night. The Accused has a first wife and wanted a second wife by the name of Rachael Yadabut. That night Rachael’s brothers saw him talking to her on the road some metres away from their family house and were upset over the relationship so they fought with the Accused. The victim who was not present in the fight in the first instance but came in some minutes later assisted the Yadabut brothers and was slashed on the forehead with a knife which the Accused was carrying. The victim was assisted to Dagua Heath Centre where he received 11 stitches to his wound.

The Law

Section 322 of the Criminal Code of Papua New Guinea, Chapter 264, reads:

"322. WOUNDING AND SIMILAR ACTS.

(1) A person who–

(a) unlawfully wounds another person; or

(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or to be taken by, any person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years."

The defence of self-defence and provocation are provided for as follows:

"270. SELF-DEFENCE AGAINST PROVOKED ASSAULT.

(1) Subject to Subsection (2), when–

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

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

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

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

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

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

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

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

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

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

266. PROVOCATION.

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done–

(a) to an ordinary person;or

(b) in the presence of an ordinary person to another person–

(i) who is under his immediate care;

(ii) to whom he stands–

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) in the relation of master or servant,

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(3) A lawful act is not provocation to any person for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

267. DEFENCE OF PROVOCATION.

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he–

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not–

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control;or

(c) any force used is disproportionate to the provocation,

is a question of fact".

The Issues

The Court is of the view that there are two issues;

1. Whether the State has discharged the criminal standard of proof, that is beyond reasonable doubt; and
   
2. Whether the Accused has proved his defence of self-defence or provocation so that he could be excused by law.
   

The Onus of Proof

This is a criminal case, and as usual by law the standard of proof is beyond reasonable doubt. The State’s task is made easier by the fact that the accused is not denying the charge but is raising a defence of self-defence or provocation. I am of the view that after the prosecution has closed their case; they have discharged that duty to prove the State’s case against the Accused beyond reasonable doubt. The burden now shifts to the Accused or defence to prove the defences which they are raising to the satisfaction of the Court. The question is, have they proved that defence?

The Defence of Self-Defence or Provocation

According to the state evidence, the victim Manuel Naruos was at his house which was estimated to be 70 - 100 meters away from the main road where the fight occurred. The victim, Manuel was in the company of his wife, William Yadabut and Gabriel Worihun who was called as a defence witness. According to the state evidence, the victim who was in the company of these three persons went to the road to investigate the commotion on the main road. According to the defence, the victim ran to the road with a bush knife, which he denied. Manuel when arriving at the scene decided to assist the Yadabut brothers to fight with the Accused, Nick Sarr. Nick on the other hand was carrying a bush knife when he went to talk to Rachael on the road. According to Rachael, Nick had a short knife while Manuel Naruos had a 1 metre knife.

According to Greg Sarr, the brother of the accused who was at the scene saw Manuel swung his bush knife at Nick Sarr and Nick blocked it with his knife and Manuel’s knife slide and landed on his own forehead. The fight stopped thereafter. According to this witness there was a first fight and then later there was a second fight. The first fight was between the Yadabut brothers and Nick Sarr and the second fight was between Manuel and Nick Sarr. It was estimated to be about one (1) minute before the first fight and the second fight.

Rachael Yadabut, who her brothers fought over with Nick Sarr told the court that she was talking with Nick that night on the road when her brothers got angry and started a fight with Nick using bush knifes and other weapons they could lay their hands on. She denied that Manuel (victim) stood in any relationship to her, but got involved with the fight on his own accord.

She told the Court that Manuel came with a 1 metre knife and threw his knife at Nick at and slashed his shirt. The second time he threw his knife Nick blocked it with his own knife and the knife slide and hit Manuel on his face. All this events happened in the night with only the full moon as the source of light. She told the Court that she did not see Sakias and Robert Yadabut because it was dark.

The third witness was Gabriel Wariun (uncle to the Accused) was at Manuel house (100 meters away). He told the Court that Manuel went to where the fight was. Manuel who was drinking home brew whole day got his knife and ran. He tried to stop the fight but could not because it was dark. He stood 7 meters away when he saw Manuel threw his knife the first time and then the second knife. The second time Nick blocks it with his knife and Manuel’s own knife slide and slashed himself on his own face.

Application of the Law

In order to for the accused to prove his defence, the question of whether Manuel was armed with a bush knife should be answered. The State has not produced the two knives used as exhibits nor was there any list of exhibit produced to the court as part of the State’s evidence, but they are merely relying on the testimony of their witnesses. Further to that there was never any mention of Manuel been armed with a bush knife by the State (Prosecution) for the obvious reason.

The Court is of the view that Manuel was not armed with a bush knife. The facts that go against the defence view that Manuel was armed with the bush knife are:

1. There was only one witness who saw Manuel had a bush knife that of Gabriel Wariun, an uncle to the Accused with no corroboration from the other witnesses, including the Accused who elected to remain silent and only call his witnesses.
   
2. Besides that, all the other witnesses’ evidence is hearsay in relation to the bush knife as they did not see Manuel with the knife.
   
3. It was about 8 o’clock in the night and the place was dark.
   

Having said that and in applying the law on self-defence under Section 270 of the Criminal Code to the facts, the defence of self-defence would not stand. This is not a case where the victim assaults the Accused with such violence as to cause reasonable apprehension of death or grievous bodily harm; and to induce the accused to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence. This in my view is not an act of self-denfence because according to the State evidence the Accused was outnumbered by the Yadabut brothers and had retreated to his house some 25 meters away from where the fight was. It was upon his return to the scene that he according to state evidence he slashed the victim, Manuel above his right eyebrow at the same time stating to the victim in pidgin, "yu wanpela blong ol?"(Are you one of them?).

The defence evidence that there were two fights: one between the Nick and the Yadabut brothers and the other between Nick and Manuel could not be true as there was evidence to support that. Nevertheless, as to how and when Manuel got his injuries remains unanswered.

The State version was that Nick had a meter long bush knife and after clashing with the Yadabut brother, Nick retreated to his house and after some times sneaked up behind some hibiscus flowers and before Manuel could be warned he struck Manuel on his right eyebrow which according to the medical evidence tendered the wound was about 4 cm in length which was stitched inside and with another 11 stitches on the outside.

The defence version which was restated by all the defence witnesses called was that, Manuel surprised Nick with his knife, and when Nick blocked Manuel’s knife Nick’s knife slide on Manuel’s knife and landed on his face. The court is of the view that since all the witnesses are related to Nick, they may have all been couched to come up with the same explanation as to how Manuel received his injury which this court will not believe or accept because of the likelihood of bias and want for independence and impartial witnesses in order for the Accused to prove his defence.

Finally, if the defence of self-defence could not stand, the same would also apply to the defence of provocation under section 267 of the Criminal Code, because the accused, in my view, and according to the evidence, was not deprived by any provocation from Manuel of the power of self-control and to have acted suddenly to that provocation before there is time for his passion to cool. The Court found no evidence on the deprivation by any provocative act by the victim of any power of self-control. On the contrary, there is evidence that Nick had retreated to his house and upon his return ambushed and slashed the victim on his face or forehead, thereby unlawfully wounding him.

The court found no evidence to prove these defences raised and we found the Accused carried his assault on the victim beyond the permissible limits of self-defence and provocation and thus should be criminally liable for his action. The Court returns a verdict of Guilty.

________________________________
For the State: Sgt. John Huaembandi.
For the Defense:Accused for himself.