Unreported National Court Decisions
N947
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR.944/90
THE STATE
V
LEAH TUNUNTU
Goroka
Brunton J
11 November 1990
14 November 1990
CRIMINAL LAW - Criminal Code s302 - manslaughter - brief facts for purpose of arraignment - self-defence raised - domestic argument - threat by deceased “do you want to die”?
Order
Declaration filed. Accused discharged.
Cases Cited
State -v Misari Warun [1989] Unreported Judgement N753.
R -v- Kristeff [1967] Unreported Judgement SC.445A
Statutes Cited
Criminal Code ss.269, 270, 302, 562
Counsel
Mrs Ashton-Lewis for the State
Mr C Inkisopo for the Accused
DECISION
BRUNTON J:  The State presented an indictment alleging that the accused had unlawfully killed her husband, by stabbing her in a domestic argument, (Manslaughter) s302 of the Criminal Code. Counsel had indicated that the accused would plead guilty to the indictment.
For the purposes of the arraignment the State Prosecutor gave the brief facts of the case, as follows:-
“On the 9th of July 1990 the accused discovered her husband, the deceased, was having an affair with another woman. At about 11am she had to meet her husband at the Kainantu Service Station. When her husband arrived a domestic argument ensued; they fought; the accused took a kitchen knife out of her bilum during the fight and cut the deceased’s arm. The deceased hit her back across her face and the accused hit him again with the knife, the knife wound penetrated the deceased’s groin and severed an artery”.
The Court asked counsel whether a defence of self-defence was raised on these facts. The State Prosecutor replied that the retaliation by the accused was disproportionate and that the accused assaulted her husband first. There was an adjournment while both counsel considered their position.
When the Court resumed, the State Prosecutor said:-
“The sequence of events are these;
·         Firstly, there was verbal abuse started by the accused;
·         The husband moved towards her and said “do you want to die?”
·         In the record of interview she said that “he was coming towards me to hit me”.
·         She then took out her knife from her bilum.
·         He hit her across the face.
·         She cut his arm several times.
·         He grabbed her to restrain her
·         She stabbed him in the groin - not purposely in the groin - but stabbed out at him.”
The State Prosecutor submitted that s270 of the Criminal Code did not apply in this situation, and that the words “do you want to die” could be viewed as merely an intention that the husband was going to beat-up his wife. “To come within s270, for self-defence to apply her husband would then have had to assault her with such violence to cause a reasonable apprehension of death, or grievous bodily harm, or to be so violent to lead her to believe that to stop her being killed, or (suffering) grievous bodily harm she should stab him”.
The State Prosecutor also told the Court that there was no eye-witness to the killing, and that the State could not dispute the accused’s version of events.
Counsel were referred to my judgement in the case The State -v- Misari Warun [1989] Unreported Judgement N753, and there was a further adjournment. In Misari Warun I followed R -v- Kristeff [1967] Unreported Judgement SC445A. In that case it was said.
“Once a ground is disclosed by the evidence on which a plea of self-defence may arise, it is essential to a conviction of murder that the jury be satisfied beyond reasonable doubt that one or other or all of the ultimate facts which establish those pleas are not present”.
When the Court resumed the State Prosecutor sought to distinguish this case from Misari Warun on the basis that it was decided under s269 of the Code. Counsel for the accused submitted that self-defence had been raised. He submitted that it was evident that the accused was “a mildly built lady” - that is she was short in stature, and there was evidence on the record of interview that the husband was described as being tall and bigger than the accused.
After listening to the State Prosecutor in reply, in which it was properly conceded that the State carried the onus of negativing any self-defence, and that the State could not do that, the Court ruled that a defence of self-defence could be raised on the basis of the words used “do you want to die”. If the accused pleaded guilty, the Court could be obliged to enter a plea of not guilty on her behalf, after listening to Mr Inkisopo, under section 562 of the Criminal Code. On the basis of that section either the accused should plead to the indictment, or the indictment should be withdrawn. If she pleaded not guilty there would be a trial. If she pleaded guilty, Mr Inkisopo may have to make an application under s563 of the Code.
The State Prosecutor then applied to withdraw the indictment and undertook to file a declaration, on the basis that the State was not in a position to refute the version of events put forward by the accused, and because the Court had indicated that self-defence had been raised. The indictment was returned to the State Prosecutor, and the accused who had spent five months in custody, was released on her own recognizance, pending the formal filing of the State Prosecutor’s declaration. A declaration was filed by the State on the 14th of December 1990 and the accused was formally discharged.
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor