State v Banabu [2005] PGLawRp 11; [2005] PNGLR 369 (8 June 2005)

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CRIMINAL LAW – Criminal Code, Division V.3, Homicide etc – Section 299, Wilful murder – Trial – Accused pleaded not guilty – Domestic dispute –Self-defence raised – Elements of the offence of wilful murder – Elements of the defence of self-defence.

The accused was charged with the wilful murder of a neighbour at Buvussi, West New Britain. It was alleged that the deceased and the accused fought over a land and family related matter. In the course of the fight, the accused hit the deceased on the head with a lump of timber. The deceased died as a direct result of the blow. The accused claimed that he was acting in self-defence as he had been hit first by the deceased.

1. In determining whether the defence of self-defence applies, if the accused adduces sufficient evidence to legitimately raise the defence the prosecution has the onus of proving, beyond reasonable doubt, that at least one of the elements of the defence did not apply. R v Nikola Kristeff (1967) No 445 applied.

2. In this case that onus was not discharged. The defence of self-defence therefore applied.

Cannings J. This is a decision on the verdict for a man who pleaded not guilty to a charge of wilful murder.

The incident giving rise to the charge took place at Buvussi oil palm settlement, West New Britain, in July 2003. It is alleged that an Eastern Highlander, Amos Anaupi, was struck on the head with a piece of timber by the accused during the course of a fight and died as a result of the injuries he received.

On 12 May 2005 the accused was brought before the National Court and faced the following indictment:

Lenny Banabu of Ambasi, Ijivitari, Popondetta in Oro Province, stands charged that he on 17 July 2003 at Buvussi in Papua New Guinea wilfully murdered Amos Anaupi.

The following allegations were put to the accused for the purposes of obtaining a plea.

The State allege that the accused was at his in-laws' block at Buvussi, Section 5, Block No 1202. He was there as a caretaker as the block belongs to the parents of his wife. These people come from the Kainantu District of the Eastern Highlands Province. The accused had for some time been having quarrels with his wife and her wantoks were upset about this. In the late afternoon of 17 July 2003 wantoks of the accused's wife went to the block for the purposes of telling him to leave the block. They had been consuming liquor. Shortly before this happened the deceased had gone to see the accused by himself and the two of them had fought. The deceased had left the accused and gone back to see his wantoks. He convinced them that they should go back to where the accused was staying and ask him to leave the block. When they arrived at the block the accused was sitting on the steps of his house and another argument ensued. During the course of this argument the accused started fighting with the deceased and the deceased's wantoks. The accused, upon being assaulted and feeling pain, got a piece of timber and hit the deceased over the head with it. The deceased fell to the ground and was taken to the local clinic but died soon afterwards. The accused intended to kill the deceased.

The accused responded that some of the allegations were true. He hit the deceased with a piece of timber, but he did not mean to kill him.

(1) 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.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

There are several other provisions of the Criminal Code that might apply in this case:

·Sections 269 and 270 deal with the circumstances in which a killing in self-defence is lawful;
·Section 302 creates the offence of manslaughter;
·Section 539(1) provides that on an indictment charging a person with wilful murder, he may be convicted of the crime of murder, manslaughter or some other offence, as prescribed.

The State tendered six exhibits by consent and called two witnesses to give oral evidence.

Column 1 of the table below gives the exhibit number; column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A	Post-mortem report, medical certificate of death and affidavit: Dr Sammy Thomas, Kimbe General Hospital, 30.07.03	Body of the deceased examined on 30.07.03. Cause of death: subdural haematoma/raised intracranial pressure – significant findings: subdural haematoma; brain swelling/oedema.
B	Affidavit: Tau Archie, investigating officer, CID, Kimbe Police Station, 05.09.03	Obtained confessional statement on 05.08.03 and conducted interview on 07.08.03.
C	Affidavit: Rhema Luckie, CID, Kimbe Police Station, 05.09.03	Corroborated confessional statement and interview of accused on 05.08.03 and 07.08.03.
D	Confessional statement: Lenny Banabu, 05.08.03	States that on 17.07.03 he was preparing dinner and waiting for his children to come home from school – the children came home and they began eating – then Amos Anaupi came onto his block and went straight to the kitchen where he and the children were eating – Amos started punching him and destroying the children's dinner – so he and Amos began fighting – then Amos said he would go and get his brothers and they would come back and fight with him – Amos left the block – then he came back later with his brothers, Iyae Amimi, Benson Iyae and Ruben Raiu – they were all drunk – he was sitting on the steps of the house and they came and surrounded him and began swearing at him – then Amos punched him on his chest so he retaliated by punching Amos on his face – then the others started fighting him – then Amos pulled out a bushknife from the side of his trousers and decided to chop his neck – but Thomas Camillus, who was standing by, held on to the bushknife and threw it into the bush – after the knife was taken from him, Amos got a piece of timber and hit him (the accused) on the head – blood ran down his head and covered his face and he fell down – he saw a piece of timber on the ground so he picked it up and hit Amos on the head – "at the same time I told all these guys that this is my premises and you guys came to kill me, so I will kill any of you too" – he hit Amos on the head the second time and that's when Amos fell down – he, (the accused) also felt dizzy and fell down and was taken to Buvussi Health Centre.
E1/E2	Record of interview: Lenny Banabu, 13.08.03	States that when the incident occurred on Thursday 17 July 2003 he was at his house with his children – he denied that he attacked Amos Anaupi and his relatives – but it is true that Amos Anaupi came with his relatives to his block and they all fought – denied that his friends and the accomplices came to his aid – admitted hitting the deceased on the head with a piece of timber.
F	Medical report: A Ningiura, HEO, Buvussi Health Centre, 12.08.03	States that Lenny Banabu, the accused, was admitted to the health centre on 17.07.03 – on examination, his vitals were stable, laceration on the left side of the eye about 1 cm deep and 2 cm long – also a laceration in the centre of the head, 3 cm deep and 5 cm long – examined and sutured under local anaesgia – x-ray taken.

The first witness for the State was Rodney Iyae. He is 17 years old and attends Hoskins Secondary School. He is in Grade 10 and lives at Buvussi. He is from Ikana village, in the Kainantu District of Eastern Highlands Province.

He recalls the incident of 17 July 2003. He heard that the accused had assaulted his wife and his wife had run away to the village. His wife comes from Ikana. The wife wanted to go to the village so she could bring her parents to sort out the problem with the accused. While she was away, the accused used to talk about hitting his wife in front of her wantoks and them not doing anything about it. He used to say that his wife's wantoks were not fit and could not do anything about it and that is why his wife had to go back to the village to sort it out.

The deceased, Amos, had heard about this and came to see the witness and his people, who lived on a neighbouring block. The deceased was angry with the accused. Amos had said these things on 17 July 2003. On that day, the witness was at the house after coming back from school. He was in Grade 8 at the time. Amos had been drinking alcohol. There were others with him including Ruben Raiu, Amimi Iyae and Martin Iyae. His mother, Avito Iyae, and Rosemary Iyae were also there. They talked about the problem involving the accused, Lenny, and his wife. His father said that they should wait until the owners of the block came back. But Amos said that they should tell Lenny to go away. Then Amos walked onto the road and they followed him to where Lenny stays. He walked with Amos on the side.

They arrived at Lenny's place and he sat on the side of the road and Amos went inside and talked to Lenny. He heard them talking and then he could hear them fighting. He could not see them at first but then they came onto the road and they were still fighting. They were swinging punches at each other. He was about 10 metres away. Then they stopped fighting and Amos told him that Lenny had whipped him with a stick and he could see a mark on Amos.

They were in the process of leaving Lenny's place when he noticed a lot of boys at the junction near where Lenny stays. Then he saw his father, Iyae Amimi, and Ruben and Benson coming along the road to meet him and Amos. He was still with Amos at that stage. He and Amos then met up with his father and the others and they went back to Lenny's place. They passed people standing at the junction. Ruben had been drinking alcohol with Amos. He saw Lenny standing on the steps of the house. He was with his small children and another small boy.

Iyae told Lenny that what he had been saying was not good so he should go and stay at somebody else's block until the owners of the block he was staying on came back. Then Ruben said the same thing to Lenny.

Lenny told them to go away. He was not living on their block so they should go back to their own block.

Lenny's friend, Jonathan, told Ruben: 'you should not talk like that to Lenny – last month you were very ill and Lenny helped you with treatment and you got better'.

Then Amos told Jonathan to shut up and slapped him on the face with an open hand.

Then Lenny folded his fists and punched Amos on his chest and Amos fell down. Then a fight broke out and he (the witness) ran away.

That is when the boys from the junction ran in. They were Thomas Camillus, Jewi Jingi, Ano Jingi and Martin Walter. They ran past him. They were running and shouting "hit them". They were from a nearby block. The witness ran straight back to his house. Lenny's wife's name is Dapite Dao.

In cross-examination Rodney Iyae said that it was correct that in the first fight, between Amos and Lenny, they were punching each other.

He was asked whether Amos, after leaving Lenny's place, had gone to get support from others, as revenge. The witness said that he could only give evidence on what he saw. Nobody told him why they were going back to Lenny's place. He confirmed that his father, Iyae Amimi, was a teacher.

It was put to him that the real reason that the fight started was that his father wanted to get on to the block where Lenny was staying. He replied that that could not happen as the owners of the block were alive and back in the village. He said that his father and the others just wanted to tell Lenny to move off the block because his wife's parents owned it.

He was asked what happened to Lenny's children after the first fight. He replied that they must have run away into the block. His children were a seven old girl, a five year old boy and a three year old boy. He felt sorry for them when the first fight started, as he is their uncle. When the second fight started the children were still around but not too close. The children were scared and crying.

As for the other boys who joined the fight, they were on Lenny's side. They are Lenny's neighbours.

The second witness for the State was Ruben Raiu. He is also from Ikana village, Eastern Highlands Province, and he is the accused's in-law.

On the day of the incident he had been drinking alcohol with the deceased, Amos, and a number of others. They were drinking from one carton and there were about eight drinkers. They decided to go to Lenny's place as Lenny was always quarrelling with their sister. So they went there to tell him to leave the block until the owners came back to sort out the problem with his wife.

Lenny's friend, Jonathan, made a remark to which Amos took offence. Amos slapped Jonathan and told him to shut up and let them talk with Lenny. Lenny then punched Amos on the chest and then Lenny hit the witness and that's when the fight broke out. There were about three fights going on at the same time. He did not see who Lenny was fighting with. He left when the other fights were still going on and went home.

In cross-examination Ruben Raiu stated that it was possible that others who were fighting with Amos may also have injured him.

They were not given authority by anybody to enter the block on which Lenny was staying. Amos had told them that Lenny was always assaulting his wife and that 'all of them from Kainantu are mothers and Ruben is the greatest mother of all'. When they heard that, it made them angry.

He stated that Lenny's children were present. He and the others had fought with Lenny before, but they had always reconcile. The problem was that this time other boys came in and that's why Amos was killed. If the other boys had not come in things would have been different.

Amos fought with Lenny before the larger group arrived. After Amos and Lenny fought the first time, Amos came back to their place and told them that they should go in and ask Lenny to leave the block. He confirmed that the larger group had been drinking alcohol. If Lenny had gone quietly this thing would not have happened, he stated.

He denied that they had used sticks and stones to fight Lenny. He does not know whether Amos hit Lenny with a stone. Both Lenny and Amos went to the clinic for treatment.

I addressed the accused on the options available to him. First he could change his plea to guilty. Secondly he could exercise his constitutional right to remain silent. Thirdly he could make an unsworn statement from the dock. Fourthly he could give sworn evidence and subject himself to cross-examination. He took the third option.

I did not plan to fight and I did not mean to kill anybody. I was on my own lease. I was getting a meal ready for my children when four people came onto my lease. They were Amos, Ruben, Benson Iyae and Iyae Amimi. They came in and started fighting with me. They came with stones and sticks and I was by myself against the four of them. Amos got that piece of timber and hit me on the head and I fell down. Then I got a small piece of timber and I hit him on his head. He fell down and then I fell down too. It was dark and they brought us to the clinic.

Mr Oiveka submitted that the State's case was very weak as neither of the persons put forward as eyewitnesses saw what actually happened.

The first witness, Rodney Iyae, was not even present when the deceased was hit. He was a child, only 14 years of age, and had run away before the major incident erupted.

The second witness did not see the accused hit the deceased. The second witness was one of the persons involved in the fighting, so how could he give evidence as to the exact circumstances in which the accused struck the deceased?

The prosecution has conceded that the accused was assaulted first. It was a very confusing situation. When the accused's "supporters" – the youths who ran in to the yard from the road – came in, one fight became three fights. The incident took place around 5.30 or 6.00 pm. It was in July and it would have been quite dark.

The key point is that neither of the witnesses saw the accused strike the deceased. The accused admits striking the deceased. Self-defence has been raised and it has been raised consistently, beginning with his confessional statements. The evidence is clear that the accused was hit on the head with a piece of timber from the deceased and fell down so he picked up a piece of timber and struck the deceased on the head.

The accused has raised sufficient elements of self-defence for the defence to apply and it is up to the prosecution to disprove the elements of that defence.

Mr Oiveka referred to The State v Albert Gias (2005) N2812, National Court, Cannings J. Like that case, this was an unprovoked assault on the accused and he did what was necessary to defend himself. The defence of self-defence applies and the evidence does not assist the prosecution in disproving it. The accused is therefore entitled to an acquittal.

Furthermore the only tangible evidence against the accused was his own confession. A confession by the accused cannot be used to fill the gaps in the prosecution's case. He relied on the case of Eiserman v Nanatsi [1978] PNGLR 457 in support of that proposition.

Mr Rangan submitted that the elements of wilful murder were present. The key element of the intention to cause death was evidenced by the accused's statement that if people came onto his block 'I will kill any of you too'.

As to self-defence, Mr Rangan conceded that sufficient evidence had been adduced to put the onus on the State to disprove the elements of this defence. However the onus of proof had been discharged.

The accused has been charged with wilful murder. The prosecution therefore has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased;
· the killing was unlawful; and
· the accused intended to cause the death of the deceased.

They are the three elements of the offence. They are subject to two things. First, the defence of self-defence, which exists under s269 of the Criminal Code. Secondly, if the court is not satisfied that the three elements of wilful murder being relied on are proven, an alternative verdict of murder or manslaughter etc can be entered under s 539 if the elements of any of those four prescribed offences are present.

1 Did the accused kill the deceased? If yes, the first element of wilful murder is established. If no, he must be found not guilty of wilful murder.

2 Does the defence of self-defence apply in this case? If yes, the accused is entitled to an acquittal, as the killing will be rendered lawful. If no, the court should consider whether the other elements of wilful murder are established.

3 Was the accused criminally negligent as defined by s287 of the Criminal Code or was his killing of the deceased not authorised or justified or excused by law? If yes, the act of killing the deceased will be unlawful and the second element of wilful murder will be satisfied. If no, the accused is entitled to an acquittal, as the killing will be rendered lawful. (Section 289 provides that the killing of a person is "unlawful" if it is not authorised or justified or excused by law.)

4 Did the accused intend to cause the death of the deceased or some other person? If yes, the third and final element of wilful murder will be established and the court should enter a conviction. If no, the court should consider whether an alternative verdict of murder or manslaughter should be entered (see issue (5)).

5 Have the elements of murder or manslaughter been established? If yes, enter a conviction. If no, enter an acquittal.

The accused was living on an oil palm block at Buvussi. He had been living there with his wife. The block is owned by his wife's parents who come from Ikana village in the Kainantu District of Eastern Highlands Province.

There were two separate incidents on the same day which culminated in the death of the deceased. In the first incident, the accused and the deceased fought a one-on-one fight in the presence of the first witness, Rodney Iyae.

In the second incident the accused and the deceased fought again. This time there were a number of others in support of the deceased and a number of others in support of the accused. There were in fact three separate groups fighting in the one place in the accused's yard. During the course of this incident both the deceased and the accused were injured. The accused struck the deceased with a piece of timber and the deceased died as a result of the injuries inflicted on him.

Neither of the two State witnesses were particularly impressive or unimpressive in their testimony.

I will now address the contentious issues of fact in order of increasing relevance to the legal issues to be determined.

1 Who started the first fight? The first fight between the deceased and the accused took place at the accused's place when the deceased in the company of Rodney Iyae went there to confront the accused over the problem with his wife. I infer from the evidence that the deceased started this fight.

2 What was the chain of events leading to the second set of fights? I accept the witness' evidence and find that the chain of events was:

·The deceased and his wantoks went to where the accused was staying to confront the accused about the problems the accused was having with his wife and to tell him to leave the block on which he was staying.

·The deceased and his wantoks put these matters to the accused.
·A friend of the accused, Jonathan, told the deceased's wantoks to shut up.
·The deceased then told Jonathan to shut up and slapped Jonathan.
·The accused then punched the deceased and punched Ruben Raiu.
·Then a fight broke out.
·Others joined in and the fight became three separate fights.

I refer here to s391 (definition of killing) of the Criminal Code which states:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by hitting him on the head with a piece of timber. The medical evidence supports this finding.

The accused states that he acted in self-defence. Mr Oiveka argues that it is a complete defence under s269(2) of the Criminal Code.

(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.

(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.

The court needs to be satisfied that the following elements of the defence exist:

·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

·the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

If all those elements exist the force used by the accused is lawful even if it caused the death of the assailant. (See The State v Takip Palne of Dumbol [1976] PNGLR 90 and Tapea Kwapena v The State [1978] PNGLR 316.)

Once the accused puts evidence of self-defence the onus rests on the prosecution to disprove the elements of that defence. The leading case is R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, in which Frost J stated:

As to onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present.

That principle has been applied in many subsequent National Court cases, including The State v Angela Colis Towavik [1981] PNGLR 140, Miles J; The State v Misari Warun (1989) N753, Brunton AJ; The State v Leah Tununto (1990) N947, Brunton AJ; The State v Leonard Masiap [1997] PNGLR 610, Sevua J; The State v Rose Yapihra (1997) N1741, Bidar AJ; The State v Michael Nema Melpa (2003) N2450, Jalina J; The State v Matilda Edward (2004) N2726, Davani J; and The State v Albert Gias (2005) N2812, Cannings J.

There is sufficient evidence before the court for the accused to legitimately raise it as a defence. Whether it is a valid defence depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exist.

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?

The prosecution must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

As to question 1 Mr Rangan asserts that the accused was not unlawfully assaulted. There were three different groups fighting and the accused assaulted the deceased first. It was the accused who started the fight by punching the deceased. Mr Oiveka on the other hand argued that the court should not look simply at who threw the first punch but at the wider circumstances. The court must put that punch in the context of everything that happened, including the first fight between the accused and the deceased. I accept Mr Oiveka's submission, which means that the first fight should also be considered. I have concluded that in all the circumstances the aggressor was the deceased. It was him who was fuelled by alcohol, went looking for trouble. He was genuinely aggrieved with the accused but had gone to the accused, prepared to fight. When he went on the second occasion to the accused's place, he went in the company of others. It was reasonably to be expected that a fight would break out. I am satisfied that during the course of the fight, the deceased was the first to hit the accused with a piece of timber. This took the fight onto a new level. Fighting with fists is one thing. Resorting to swinging a lump of timber is quite another. It was that act by the deceased which, I am satisfied, constituted an unlawful assault on the accused. So question one is answered yes.

As to question 2, I am satisfied that the accused did not provoke the assault. In other words the prosecution has been unable to prove beyond reasonable doubt that the accused provoked the assault on him by the deceased. Question 2 is therefore answered yes.

As to question 3 I have considered the medical evidence in exhibit F suggests that the accused suffered deep wounds when he was hit on the head by the deceased. I infer that the nature of the assault on him by the deceased was such as to cause a reasonable apprehension on the part of the accused that he would at least suffer grievous bodily harm if he did not react. Question 3 is also answered yes.

As to question 4 Mr Rangan asked the court to consider that the accused could have defused the situation by running away after being struck by the deceased. Hitting back at the deceased with a piece of timber was not the only way the accused could preserve himself from being killed or suffering grievous bodily harm. On this point I refer to R v Kambe Pare [1965] PNGLR 321. Retreating before employing force is not an independent and imperative condition when self-defence is raised as a defence. Whether a retreat should have been made is a matter for the court to consider in deciding on the reasonableness of the accused's conduct. What the court has to decide is what a reasonable person would have done in the circumstances. If a person is hit on the head by a piece of timber by another person, I consider that it is not unreasonable to respond in kind. The accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm than by returning the deceased's blow with one of similar kind. Question 4 is answered yes.

Now, to the last question, the critical one. The prosecution must prove, the answer to question 5 is 'no, the accused used more force than necessary'. It is at this point that the medical evidence of the injuries to the accused again becomes relevant. The accused suffered a heavy blow and this caused him to believe on reasonable grounds that he needed to do something to preserve himself from being killed or suffering grievous bodily harm. Having incurred one blow, it was reasonable for him to expect that he might soon receive another so he took the action that he considered necessary for his defence. I do not consider that in all the circumstances it can be held against him that in returning a blow to the deceased he used more force than, in fact, was necessary. The fifth element in my view requires the court to apply a subjective test as well as an objective one. That is, the question to ask is whether the accused had an honest and reasonable, though mistaken, belief that the force he used was necessary for his defence. See R v Kaiwor Ba [1976] PNGLR 90. I am unable to conclude that the accused's response to the assault on him was an overly vicious or opportunistic one. I am unable to conclude the accused used more force than was necessary. I am satisfied that he had an honest and reasonable belief that he had to use considerable force to defend himself. The prosecution cannot discharge the onus of disproving this final element of the defence. Question 5 is answered yes.

The result is that the prosecution cannot disprove any element of the defence of self-defence. That defence therefore operates.

· as he used force lawfully he cannot be guilty of murder or manslaughter (the essence of which is unlawful killing) or any of the other offences in Section 539.

The accused is acquitted of the charge of wilful murder and is not guilty of any other offence.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.

Papua New Guinea Law Reports

State v Banabu [2005] PGLawRp 11; [2005] PNGLR 369 (8 June 2005)