State v Bane [1982] PGNC 19; N328(L) (26 March 1982)

N328(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS BANE

Waigani: Greville Smith J
17 March 1982; 26 March 1982

JUDGMENT

GREVILLE SMITH J: In this case the accused is charged with wilful murder By way of arraignment it was put to the accused that he had on the date in question killed a man named Moses Yarram, and that he had intended to kill him. This was clearly and distinctly put in Pidgin by Mr. Vagi the Court interpreter and, thus arraigned, the accused said "It is true". Miss Cox, who appeared as Counsel for the accused, with her Miss Kiviung, immediately then stated that she wished to apply under the provisions of Section 563 of the Criminal Code for leave to enter a plea of not guilty on behalf of the accused person. Miss Cox vouchsafed no basis for this application, as she should have done, and in full. Upon my asking Miss Cox the basis of her application she stated that it was that she had formed the opinion that there was a tenable defence of provocation. She said nothing about any matter of absence of intention to kill. Mr. Byrne for the State did not oppose the application, leave was granted, a plea of not guilty was entered and the trial proceeded. I shall return to the matter of this plea later on.

I am satisfied on the evidence together with what the accused said upon arraignment, beyond any reasonable doubt, that the accused killed Moses Yarram by stabbing him with a knife. These matters were never disputed.

I am satisfied also as follows: The accused and his wife were, at the time of the killing, living in the domestic quarters of a house at Lawes Road, Port Moresby, where the wife worked as a domestic, the accused being employed elsewhere in Port Moresby, in consequence of which he was absent from Lawes Road during business working hours. By the day of the killing the couple had been in Port Moresby, having come from their village at Gumine, for about three months.

After they arrived and settled in at Lawes Road the wife commenced to receive offensive telephone calls whilst working in her employer’s house. These were always from the same person, a man unbeknown to her, who spoke in Pidgin and said his name was John. She always answered the ‘phone when her master was absent because it could always have been he who was ‘phoning. The last of these calls was received on the day of the killing, and there were about six in all. The caller, having discovered from the wife by questions that she was marri with one child - she also told him that her husband had another wife - made suggestions to her that he would come around in a taxi and take her riding in the taxi, and drinking. He also indicated that the child would prove no obstacle as she could easily "throw him in the rubbish". These sorts of things were repeated call after call, and also other things of a more pointed sexual nature which the wife would not repeat in court.

The wife was upset about these calls, and apprehensive being alone all day except for her child, and on each occasion told her husband what had happened and what had been said. She also told her employer, a European, that she was getting offensive calls, but she says he did nothing. Strangely, she continued to listen to what the caller said to her, not adopting the obvious counter measure of hanging up as soon as she heard his voice.

The wife had another anxiety of which she also told he husband, and that concerned a man, apparently the phone caller, who would on occasions come and gaze or stare at her whilst her husband was away and whilst she was working in the yard, such as at hanging out the washing. When he approached she would go into the house of her employer for safety taking her child with her. This man was the person who was on 21st November 1981, killed by the husband.

When told of these things by the wife the husband did not say much, but he did warn his wife to always lock the door of her employer’s house when she was in there working. He said that when he got his leave from work he would find out who the man was.

On the day of the killing the husband was on leave and was assisting his wife in the employer’s house with her domestic duties when the ‘phone rang and the wife answered it. She told her husband that it was the man who had been calling her, and he moved close to the ‘phone and listened. The wife said that he at one stage himself took the ‘phone. He heard, in part at least, the caller speaking in the sorts of terms about which the wife had told him concerning earlier ‘phone calls. The caller made reference again to his intention to come around and take the wife out in a taxi, to throwing the child in the rubbish, and made reference to the wife’s vagina. Such part of this that the accused may not have heard I have no doubt that his wife told him of, and I have no doubt, as I am sure he then had no doubt, if he ever did doubt her, that what the wife then told, and had told him, was true.

A short time after that ‘phone call ended the accused was at the domestic quarters and the wife was in the yard going about her work when the deceased arrived and approached the wife. The accused, thinking that the deceased was or may be the telephone caller, left the domestic quarters and, taking with him a knife commonly known as a "vegetable knife", with a serrated blade about seven inches long, went down to accost him, approaching him from the rear. When the accused was distant from the deceased a short way the deceased, perceiving his approach, started to run back towards Lawes Road. Having his suspicions thus confirmed the accused ran and intercepted him and struck him one blow with the knife. The deceased ran across Lawes Road, a distance of fifteen meters, and the accused pursued him and struck him with the knife again. The deceased ran then a distance of about 150 meters up Lawes Road, to a City Council rubbish van, and asked the City Council employees to drive him to the hospital. The accused had pursued the deceased some distance up towards the rubbish van but then desisted. The Council employees immediately set off with the deceased in the van for the Port Moresby General Hospital but he died enroute from loss of blood. The autopsy report which by consent was received into evidence showed, ‘inter alia’ as follows:

"EXTERNAL EXAMINATION: The body was that of an adult male dressed in slacks and blue trousers and the clothes were soaked in blood. The blood stains were present over the body.

Two wounds were noticed on the body.

(1) A large gaping wound in the supraclavicular fossa on right side just above the right clavicle. The wound was transverse. It measured 12.5 cms in length, starting 1.5 cm away from the medial end of right clavicle, extending laterally. It was an oblong (oval) lacerated wound with clean cut edges. Narrow near the sternomastoid muscle and becoming wider towards the shoulder. The wound was deep in its first portion of 7.5cm length, the depth being 3.5 to 4 cms. In this region the wound measured 3 cms at its widest portion. The remaining part of wound (5 cms length) was superficial, the depth being about 1cm and the width being 4 cms. In the deeper portion of wound, the severed tissues and muscle could be seen.

(2) Another wound at the back in relation to the lower portion of right scapula was noticed. It was horizontal 6 x 2cms in size and 4cms in depth extending upwards. It was in the plane of subcutaneous tissue."

I have at this point to mention that the defence in this case was conducted in a very unusual way. That necessitates my approaching the matter of verdict in a special way, and I must say something about this.

The State, without objection from the defence, called the wife of the accused as a witness. During the cross-examination of the accused by Miss Cox I felt it appropriate to remark and did remark that some answers she elicited might come with greater force if she did not put the words into the witness’s mouth. However, somewhat later, counsel surpassed herself by asking "Isn’t it true that your husband only struck the man with the knife to mark him so as to be able to ‘court’ him?" This question I disallowed on the ground that it was an attempt to elicit what must be either hearsay or opinion evidence. I also reminded Miss Cox that her client upon arraignment had distinctly said "It is true" to the charge, put quite distinctly, that he had killed the accused and had intended to kill him, and that she, as defence counsel, had made no application in respect of this or made any submission that this plea should not be treated at its face value, as it was her duty to do if on her instructions this appeared to be the case. Miss Cox, thereupon, said only that she did not wish to persist with that line of questioning.

The accused was called to give evidence, and in examination in chief Miss Cox asked a question in a form which caused me to enquire as to what she was seeking to elicit. She replied that she wanted to establish that the accused had struck the deceased with the knife only to mark him for identification. I again reminded Miss Cox of what had occurred on the arraignment, and stated that, as matters then stood, I would not permit that line of questioning.

I might say that the accused had been a regular church-goer throughout his life, had been educated at Taweto in Goroka at the Mirima Mission School where he had attended for five years, and had completed Grade VI, having been taught both Pidgin and English. He at all times appeared to pay close attention to what was going on in court.

When prosecuting counsel came to cross-examine the accused, the accused said, in response to a question, that he had only intended to cut the deceased on the outer shoulder so as to ‘mark’ him for identification, and had pursued him and struck him a second time because he thought that he had missed with his first blow.

In her final address Miss Cox submitted that there was nothing before the court to suggest that the statement of the accused which I have just recorded was not true, and that I should accept this statement to the point where I should have a reasonable doubt that the accused had had an intention either to kill or to do grievous bodily harm, that I should therefore consider, before adverting to the matter of provocation, the maximum sustainable charge to be manslaughter and then adverting to the matter of provocation, I should not be satisfied beyond reasonable doubt that the defence of provocation had not been made out, in consequence of which, applying the provocation defence to manslaughter, the accused should be acquitted.

Upon the submission that there was no material before the court which could be regarded as tending to contravert the accused’s statement as to his intention in using the knife, I asked Miss Cox what she had to say about what he had said on arraignment. She said, not answering the question, that what he had said had "surprised" her.

I then asked her why, if this were so, if on her instructions she had had any reason to suspect that there had been some misunderstanding or misinterpretation or something else that might render it unsafe to accept what the accused had said at its face value, she had let the matter stand, and why she had not added this as a ground in support of her application for leave to enter a plea of not guilty. Her only reply was that she had sufficiently supported her application by reference to the defence of provocation, and that that was all she was required to do.

I refrain in this judgment from comment upon counsel’s conduct of the defence. As to how I should meet the problem which it poses in the decision of the case, I think I should first consider the evidence without reference to, and excluding totally from consideration, what the accused said on arraignment.

Approaching the matter in this way, I am satisfied beyond any reasonable doubt, as I have said earlier, that the accused killed the deceased. As to his statement that his only intention was to ‘mark’ him for identification and only aimed for his outer shoulder, I regard this as most improbable in all the precedent circumstances. I have no doubt that when the accused took up the knife and went down to the deceased he had been and was labouring under prolonged and severe affront and provocation in the non-technical sense. I find that he believed, at the time that he struck the blows, that the deceased was the person responsible for the offensive ‘phone calls. I would interpose that if he were mistaken in that belief (a possibility not adverted to by either the defence or the prosecution) then it was, within the meaning of Section 25(1) of the Criminal Code, an honest and reasonable belief, upon which he acted in attacking the deceased.

I take into account the weapon used, the location of the wounds, and the nature of the major wound. It should also be mentioned that on the day of the offence the accused was interviewed by the police and a record of that interview was received into evidence. That record shows that the accused admitted the stabbing and that when asked by the police why he had done it he told the police about the ‘phone calls to his wife, but said nothing about an intention only to mark the deceased or about aiming only at his outer shoulder. It is true that he was not specifically asked about the intention with which he had struck the blows, but I am satisfied that if it had been the fact that he had intended only to mark the deceased he would in the highest likelihood have mentioned this to the police. On 30th December 1981, nine days later, the accused was taken to the scene of the killing by the police, and pointed out to the Officer who made the Record of Interview, certain things such as where the deceased had been standing when the accused first saw him, the direction in which the deceased ran when he first became aware of the approach of the accused, where he had been next stabbed and so on. This was another opportunity to mention to the police the limitations he now says there were to his intentions, but the police evidence contained nothing of such a nature. There was another opportunity at the committal but there is no evidence of anything such said there. If there had been, evidence of it would have been admissible to rebut a suggestion of "recent invention". Defence Counsel did not put to the police witness, or attempt to put to him, either generally or specifically, that apart from mentioning the ‘phone calls the accused on either occasion said anything of such an explanatory or exculpatory nature, nor did she seek to impeach in any way the credibility of the police. Nor did she seek an explanation from the accused as to his reply on arraignment.

Having considered the matters I have mentioned, and observed the demeanour of the accused, I am satisfied beyond any reasonable doubt quite independently of what the accused said upon arraignment that the accused intended to kill the deceased or, at best, to do him grievous bodily harm.

I am thus satisfied beyond reasonable doubt that the evidence he gave that he struck only to would the outer shoulder and only to mark the deceased is a complete fabrication.

Having come to this conclusion in this way I need not discuss the legal aspects of Miss Cox’s progressive "no intent, then provocation" submissions. However I think I should add that I am satisfied that on arraignment the accused did distinctly and intentionally admit an intent to kill.

I am not satisfied beyond reasonable doubt that the defence of provocation which has been raised has been excluded, and I therefore, in consequence of the provisions of Section 303 of the Criminal Code find the accused guilty of manslaughter.

Solicitor for the State: L. Gavara-Nanu Public Prosecutor
Counsel: J. Byrne
Solicitor for the Defence: A. Amet Public Solicitor
Counsel: S. Cox with her P. Kiviung