State v Towavik [1981] PGLawRp 577; [1981] PNGLR 140 (21 May 1981)

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CRIMINAL LAW - Particular offences - Unlawful wounding - Intruder in house - No assault or threat of assault - Defences available - Justification - Self defence - Mistake of fact - Justification by compulsion - Criminal Code ss. 24, 31(c)[ccxxv]¹, 270, 274.

On a charge of unlawful wounding, where the victim is an intruder in the house and no assault or threat of assault is made by the intruder:

N1>(1) If the facts proved indicate that the offence was committed by an act or acts which constitute an assault, then those acts do not constitute an offence if they were authorized, justified or excused by those provisions of the Criminal Code which define the circumstances in which an assault may be authorized, justified or excused.

N1>(2) Where there is evidence to support such authorization, justification or excuse, the onus is on the State to exclude that claim beyond reasonable doubt.

N1>(3) The defence under s. 270 of the Code, namely, that the accused was acting in defence of a dwelling-house occupied by him is not available when the breaking and entering of the dwelling-house by the victim is already completed.

N1>(4) The defence under s. 274 of the Code, namely, that of self defence is not available unless there has been a prior assault on the accused by the victim.

N1>(5) The defence under s. 24 of the Code, namely, mistake of fact, is not available where the belief of the accused is merely a belief (possibly accurate) that he is in possible danger of attack by the victim.

N1>(6) The defence under s. 31(c) of the Code, namely justification by compulsion is a subjective one and extends to acts which are not covered by the provisions of the Code relating to self defence.

N1>(7) The defence of justification by compulsion on a charge of unlawful wounding requires proof that the accused did not believe that the only way he could protect himself (or some other person) was by assaulting the victim, thereby causing the wounding, or, that if the accused had such a belief it was not based on reasonable grounds.

N1>(8) In the circumstances, the accused having a fear of a threat of attack, the State had not excluded justification and excuse by compulsion in accordance with s. 31(c) and the accused ought to be acquitted.

MILES J: The accused is charged with unlawfully wounding a man called Alphonse Tataik on the night of 18th April, 1981. The facts, as it has transpired, are relatively simple.

The accused is a married woman of some thirty-four years of age who was living apart from her husband at the time in a village called Aratavul in the Vunadidi area of the East New Britain Province. On the night in question she shared her house with her sister, Anna, and her child. The house consisted of one room which was mainly occupied by a raised bed with one door and one window. During the night, whilst the occupants were asleep, the victim, Alphonse Tataik, broke through the locked door and the accused woke up to find him next to her bed. She recognized him. He was, from what was translated into an English record of interview, from a different “tribe”, or, as it was expressed in the original Pidgin record of interview, a different “business”. She had, during the course of the afternoon or evening earlier, heard singing from the house of a man called Gulim who was a clansman of Alphonse and, realizing that it was Alphonse who had broken into her room, she assumed that he was drunk. She took a bush knife which she had with her on the bed, and she struck Alphonse on the head. He fled and almost immediately was attacked by other villagers near the house. Soon afterwards, that same night, he was found dead on the roadway near the village. His death is not connected with the blow received from the accused.

The issue is whether the wounding was unlawful. There is no definition of the word “unlawful” in the Criminal Code. However s. 249 of the Code states that an assault is unlawful and constitutes an offence unless it is authorized or justified or excused by law. In accordance with the views expressed by the Supreme Court: Principal Legal Adviser’s Reference No. 1 of 1980[ccxxvi]², it seems to me that if the facts proved to support a charge of unlawful wounding indicate that the offence was committed by an act or acts which constitute an assault, then that act or those acts do not constitute an offence if they were authorized, justified or excused by those provisions of the Code which define the circumstances in which an assault may be authorized, justified or excused. The so-called defences to a charge of assault which establish justification or excuse, such as provocation, self defence and the like, are available as defences to such a charge of unlawful wounding. That is to say, if there is any evidentiary material to support a claim of justification, for example, by way of self defence, the onus is on the prosecution to exclude that claim beyond a reasonable doubt. I expressly acknowledge the onus being on the State and the standard of proof being to the degree of beyond reasonable doubt because it is easy in delivering an ex tempore judgment relating to issues such as these, to use terms which suggest that it is incumbent upon the defence to prove its case. This, of course, is not true.

N1>Whether the act of the accused in this case in wounding the victim was unlawful, depends in the ultimate upon the state of her mind in the circumstances that existed. I find beyond a reasonable doubt that, at the time of delivering the blow with the bush knife, the accused acted out of a fear that unless she did something to prevent him, there was a possibility that the intruder might cause some serious physical harm to her or her sister, indeed that he might even kill her or the sister.

N1>In the circumstances at the time the fear held by the accused was a reasonable one, and reasonable despite the complete absence of any act on the part of the intruder which could be said to amount to actual hostility displayed towards her. Put simply, at the time of her attack on the intruder, the accused was actuated by a reasonable fear induced in the circumstances by the mere discovery of the intruder in her proximity, that he would possibly do her or her sister some serious physical harm. The question is whether such fear provides legal justification for assaulting him.

N1>It has been put by Mr. Maraleu on behalf of the accused that the prosecution has not excluded the defence available under s. 270 of the Code, namely that the accused was acting in the defence of a dwelling house occupied by her. This defence is not available to the accused in the circumstances of the present case, because it is available only where force is used to prevent forcible breaking and entering. In the present case it has been established that when the wounding of the intruder occurred the breaking and entering was already completed and it could not be said, on any view of the facts, that what the accused did was done in order to prevent a breaking and entering about to take place.

N1>Alternatively, it has been put on behalf of the accused that the prosecution has not excluded the provisions of s. 274 of the Code, namely that the accused was acting in her own self defence. I have had some considerable difficulty in coming to a decision as to whether s. 274 applies. In the end I have come to the conclusion that it does not because of the specific provision at the commencement of the section that the defence is available “when a person is unlawfully assaulted”. Apart from that aspect, I would have found that the other elements of self defence have been made out or, to put it more accurately, have not been excluded by the prosecution.

N1>In the time available to me I have been able to look at some of the cases referred to in Andrew Chalmers and Weisbrot Criminal Law and Procedure in Papua New Guinea (1979), pp. 142ff. Unfortunately the cases seem to be contradictory. The first, The Queen v. Nicola Kristeff[ccxxvii]³ a decision of Frost J. (as he then was) is referred to for this proposition, that “for the purpose of utilizing this section, even in the absence of an actual assault, it is sufficient for the accused man if he had an honest and reasonable belief that he was about to be assaulted”. I have read the case itself and it seems that the section referred to was s. 24 and not s. 274. For reasons to which I will refer, s. 24 of the Code, that is, the section dealing not with self defence but with mistaken belief, does not apply to the present case. Furthermore his Honour placed reliance on the English decision, Colin Chisam[ccxxviii]⁴, which was decided not on the Criminal Code but on the common law. It may well be that the common law does support the proposition stated, namely, a person may rely upon the defence of self defence if he has a belief that he is about to be assaulted, regardless of whether the suspected assailant has done anything amounting to assault. However, the provisions of the Criminal Code are quite distinct from the provisions of the common law. Further, the context suggests that Frost J. may not have meant to state the proposition as broadly as in the words already quoted because later in the same paragraph, he says this[ccxxix]⁵:

“The accused may well have thought that he and his family were threatened but that of course is not the test. The test is whether the nature of the assault was such as to cause a reasonable man apprehension of death or grievous bodily harm.”

This latter passage would seem to indicate that his Honour was dealing with a case of self defence against an actual threat which itself (at least in the belief of the accused) constituted an assault. Not all threats constitute assault.

I have also read the other case referred to in the practice book, namely R. v. Yambiwato and Apibo[ccxxx]⁶ where Clarkson J. said that the common law doctrine of self defence “could not be applied in a case such as the present where the excess of force was applied not in defence against an assault but to forestall a possible future assault.” Although excess of force is not relevant in the present case, the principle of law is implicit that where a person is in fear of some future assault on him by another person (for example by way if sorcery practices), that fear does not constitute lawful justification by way of self defense for an assault on the person feared.

I have taken into consideration the possibility that I should apply the sort of approach that was adopted in Principal Legal Adviser’s Reference No. 1 of 1980[ccxxxi]⁷ (see particularly the judgment of Wilson J.), that approach being that I should apply any literal interpretation to the provisions of s. 274 of the Code but that I should apply some broader principle to the effect that it would have been the purpose of the legislature to include the set of circumstances in the present case within the concept of self defence to an assault. Speaking for myself, I find some considerable difficulty in reaching a conclusion that the legislature had as its purpose something different from what it has said in the legislation, so long as the language employed does not lead to a ridiculous or totally unreasonable result.

The actions of the accused cannot be excused under s. 24 of the Code because what she did was not based on any sort of mistake either in the general sense (the intruder may indeed have intended to kill her) or in a legal sense, that is a belief in facts which if true would afford a defence. The accused did not believe that the deceased intended to attack her: her belief was in a danger that he might attack her.

Glanville Williams in his Criminal Law—the General Part (1960) 2nd ed., London writes at p. 168 that a person who kills one who is wrongly supposed to be a burglar may be acquitted of homicide, but the author does not elaborate on the reasons. The learned writer discusses a series of English decisions in which it was held that a person is not guilty of maliciously killing an animal if he believes, mistakenly, that this is the only way of preventing it from doing damage. He goes on to discuss the effect of a mistaken belief that the law permits the shooting of a human trespasser and concludes at pp. 425 to 426 that “the superior importance attached by the law to the safety of the person” prevents such a belief providing a defence of justification to a charge of battery or of unlawful wounding. None of this, to my mind, sheds any light on the provisions of the Criminal Code of Papua New Guinea as they relate to the present case.

The accused acted in what she perceived to be a situation of danger. She foresaw the possibility of attack from a man who had broken into her room in the middle of the night. She was alone except for the sleeping sister and the child. She thought he was drunk. She did not wait to see what he did or would do. For her it was not worth running the risk. She attacked him there and then—whether to disable him or to force him to flee is not clear. What is clear is that she was motivated by the fear of the threat of attack. However I cannot see that fear, engendered by something falling short of an assault and not resulting from any mistake, can provide sufficient basis for a plea of self defence under the Code. Suppose two traditional enemies are walking along a path, each armed. One sees the other; that other remains unaware of the presence of the first. Is the first entitled to say, “If he sees me he is likely to attack me; I am therefore entitled to attack him now?” Contrary to what I suspect may be the position at common law, the Criminal Code provisions as to self defence do not excuse the pre-emptive blow unless there is some act on the part of the victim which itself can be regarded as an assault. There was no such act of the victim in the present case.

A person is not criminally responsible for an act or omission, if he does or omits to do the act under any of the following circumstances, that is to say

(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence.”

FROST J: (as he then was) expressed the view that s. 31(c) only excuses an act done for the purpose of defence and its provisions cannot derogate from the specific provisions relating to self defence appearing elsewhere in the Code: R. v. Lupalupa-Sisarowe[ccxxxii]⁸. With respect to his Honour and bearing in mind that what he said was obiter, it seems to me that s. 31(c) may be regarded as extending to acts which are not covered by the provisions of the Code relating to self defence. With particular relevance to the present case, s. 31(c) specifically refers to threatened violence whereas s. 274 requires prior assault by the victim for the defence of self defence to become available. Of course a threat of violence may constitute an assault (but not a battery) depending on circumstances. The word “actual” in s. 31(c) is somewhat confusing but I accept what Mr. Kitchin submitted, namely that it means “physical”. It is so used in other sections of the Code, for instance in s. 396 in relation to the definition of robbery. The word “actual” only makes sense in these provisions if it means “physical”, it cannot mean “existing in fact, real; present, current” because that would take the violence beyond the stage of a threat. “Actual ... violence threatened” may encompass circumstances where a person is convinced that he faces the threat of a future assault but where that threat itself does not constitute an assault.

N1>There are some cases on s. 31 referred to in the textbook Herlihy and Kenny Introduction to the Criminal Law in Queensland and Western Australia (1978). They are R. v. Parker[ccxxxiii]⁹, which report is unavailable to me here at Rabaul, and R. v. Pollock and Divers[ccxxxiv]¹⁰. I have had the opportunity of reading this latter case but it does not shed any light on the question at all because the threat in that case arose from robbery by threat of blackmail, and not by threat of violence at all.

N1>In construing the words “reasonably necessary” in s. 31(c), I take the test to be a subjective one. The Supreme Court has decided that the test is subjective in cases of self defence: Tapea Kwapena v. The State[ccxxxv]¹¹. The same test should be applied in cases of compulsion under s. 31(c). To apply an objective test would be to “put some terrified person who has been violently attacked or thinks he has, or is about to be, in an unfair position at his trial if the arrogance of hindsight later reveals that his instinctive, defensive action did not actually need to be as extreme as it was”: per Raine Dep. C.J.[ccxxxvi]¹². I would paraphrase the words of Prentice C.J.[ccxxxvii]¹³to postulate the two following questions as being decisive in the present case, namely whether the State has proved beyond reasonable doubt:

N2>1. that the accused did not believe that the only way she could protect herself and/or her sister from physical attack was by striking at the victim with the knife, which she in fact did, or

N2>2. that if the accused had such a belief it was not based on reasonable grounds.

It has been held in Queensland that the proviso appearing under s. 31(d) applies to all the circumstances dealt with in s. 31 and is not limited to cl. (d); see R. v. Silk[ccxxxviii]¹⁴ per Kelly A.J. Whether this is so or not (and regardless of what constitutes the difference between justification under s. 31(c) from justification under s. 31(d)), the proviso applies only where the offence charge is punishable by death, or is an offence in the definition of which, or in the commission of which the causing or intention to cause grievous bodily harm is an element. The offence of unlawful wounding is not punishable by death and the facts of the case take it outside the proviso.

N1>I would also observe that s. 31(c), despite the heading of the section in the terms “Justification and Excuse: Compulsion”, is not restricted to an act compelled by actual or threatened violence in the sense of an act of the accused directed towards the victim and carried out under duress brought about by violence or threats on the part of a third party directed towards the accused. For what it is worth, I think that par. (d) should be read in the same way.

N1>My findings of fact, as previously stated, lead to the conclusion that neither of the questions that ultimately need to be answered under s. 31(c) may be answered in the affirmative. In those circumstances the prosecution has not excluded justification and excuse as provided for under s. 31(c) and the accused will be acquitted.

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[ccxxv]Infra p. 145.

[ccxxvi][1980] P.N.G.L.R. 326.

[ccxxvii]Unreported pre-Independence Supreme Court judgment No. 445 dated 29th September, 1967.

[ccxxviii](1963) 47 Cr. App. R. 130.

[ccxxix](1963) 47 Cr. App. R., at p. 22.

[ccxxx][1967-68] P. & N.G.L.R. 222, at p. 230.

[ccxxxi][1980] P.N.G.L.R. 326

[ccxxxii] [1967-68] P. & N.G.L.R. 445.

[ccxxxiii][1919] N.Z.L.R. 365.

[ccxxxiv][1966] 2 All E.R. 97.

[ccxxxv][1978] P.N.G.L.R. 316, at p. 321.

[ccxxxvi][1978] P.N.G.L.R. 316, at p. 321.

[ccxxxvii][1978] P.N.G.L.R. 316, at p. 321.

[ccxxxviii] [1973] Qd. R. 298.

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Papua New Guinea Law Reports

State v Towavik [1981] PGLawRp 577; [1981] PNGLR 140 (21 May 1981)

Papua New Guinea Law Reports - 1981