State v Kerenge [1997] PGNC 108; N1623 (5 September 1997)

Unreported National Court Decisions

N1623

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 609 OF 1997
THE STATE
v
NAOMI KERENGE

Waigani

Batari AJ
1-3 September 1997
5 September 1997

CRIMINAL LAW - Particular Offence - Murder - “Intent to cause Grievous Bodily Harm” - Whether constituted on evidence - No evidence - Medical evidence of wound.

CRIMINAL LAW - Murder - Self Defence - Unprovoked Assault - Conditions to be satisfied - Belief on reasonable grounds that cannot otherwise preserve oneself from death or grievous bodily harm.

Cases Cited:

R v Muratoric (1967) QdR 15

R v Kaiwor Ba [1975] PNGLR 90

The State v Takip Palme [1976] PNGLR 90

This was a trial on a charge of murder. Pleas of self-defence and provocation were made to the charge.

Counsel:

P Kaluwin for the State

P Tusais for the Accused

DECISION

BATARI AJ: The chagainst the accused used is that she murdered the deceased Saina Kerang Cleophas on the morning of 17 January, 1997 at Morata No. 2 in the National Capital Dist

The State’s case was that when the accused sted stabbed the deceased, she intended to cause grievous bodily harm and as the deceased died due to the stabbing, the accused is guilty of murder pursuant to s. 300 (1) (a) of the Criminal Code.

The accused conceded that she stabbed the deceased with a knife. However, she pleaded thatsshe stabbed the deceased in self-defence under s. 269 of the Criminal Code or alternatively she acted under provocation pursuant to s. 267 of the Code. Tsues ial were thus: whethwhether or not the accused had strd struck the fatal blow with an intention to cause the deceased harm and wr she struck in self-defence or under provocation. The third ishich in my viey view, iew, arose directly from the evidence is whether or not the State has proven beyond reasonable doubt the element of “intent to cause grievous bodily harm” und 300 (1) (a) of the Criminaiminal Code.

The following facts were uncontested:

1. & T60; The accused was the first and the deceased the second wives of one, Cleophas. They alginated from Chimbuhimbu Province.&#160Janua 1997 resit Moro. 2 where Cleophasophas owned a trade-store.

2. #160; t The ed bore 3 rhn from them the relationship.&#1p. The third child was about a month old on 17 January 1997. On the other hand, it seemed the sed dt hav child fro marriage. The deceasedeased and and the athe accuseccused would have been about the same build. I accee accused’sion;sion that the deceased was heavier and tougher.

3.&#13. ;ټ On 17 J 17 Januarynuary, 1997 the accused stabbed eceased with a knife and death followed. The khafe had a black hand handle with stainless steel blade.

4. ҈&&#160 Margarargaret Jiet Jimmy wmmy was at Cleophas’ store before the stabbing. She was present when the deceased was stabbed.

Theumstasurrounding the stabbing was contested. The State’s case hat that at t at aboutabout 8.00am on the morning of 17 January 1997 Margaret Jimmy came to Cleopha’s store. After she haght her drinksrinks she saw the accused, “gave the kno Saina”. I infI infer she meae accu accused stabbed the deceased. She was the only person present besides an old mo was inside the store.&#16. She carried ved the deceaseceased to the side of the store and a short while later, the deceased was pua government vehicle and taken to the hospital.

The >The defence case was that the accused and the deceased had lived harmoniously as co-wives from January 1996 until 13 January 1997 when they had their first fight. On thning of that day, the, the deceased who had slept out the previous night accosted the accused at the family store. Their husbanervened and tond told the ded to leave the matrimonial home. Onday in questquestion, thn, the deceased returned with two others and confronted the accusedhe kitchen or “ples bilong cook” at the back ofck of the store, while she was preparing her children’s meal. The ded told the accused hsed her role was to stay home and rear children while she and their husband went out, spent their money andy themselves. The accused felt iated by d by those remarks and retorted. At that that point, tceaseceased struck her on the eye followed by two more punches. I got the impression from her evidence, the deceased struck the accused again once and afte second punch, she stabbed the deceased with the knife shee she held in her hand.

The burden of proving all the elements of tfence beyond reasonable doue doubt in a criminal trial is on the State. In this case, it has beoveproven beyond reasonable doubt, death of the deceased followed the stabbing.

I consider first, whether or not death resulted from the stabbing. three after the incident, ent, a post-mortem was conducted.cted. Thert concluded the deceaseceased died from ‘haemorrhagek’ but did not state the cause of that finding. The report als out a summasummasummary of abnormal findings which revealeong surgical incision extenextending from the depression of the sternum down to the pubic bone. Ther also evidence of surg surgsutures on bowl loops.&#160 There wamention of the knie knife wound. The statement of Max Umba, attested to presence of baround the deceased’s abdominal region and protrudinguding intestine. This was consistent with Margaret Jimmy’s evidence the deceased was stabbed in her stomach. However, whr, what was it that actually caused the “haemorrhagic shock” aed by Dr. Babona?

The post-mortem report suggested tted the deceased died sometime after the stabbing. She appeared to heen oed uted upon to enablenable stitching of the bowl loops which further suggested the operation was necessary for her survival.&#1hat evidence was there to prove beyond reasonable doubt the possibility of “haemorrhaorrhagic shock” being connected to the subsequent operation on the deceased, was highly improbable? The possibility of erratic medical operations leading to subsequent deaths is in my view not remote. Dr Babona who conduche pose post-mortem was not present to explain his findings0; Dr Morewaya who was called on his behalf was also of litf little assistance.

There were other aspects of the evidence.&#160 alleged murder weapon was was described as pointed and sharp on both sides. It was invariablyribed as d as a kitchen knife in the record of interview and in the evidence of Margaret Jimmy. None of the witnesses however, described the length of thee. WI am prepared to find thed the knife had a black lack handle with stainless steel blade, on the balance of probabilities inrder where the accused face the prospect of a long seng sentence, I am not prepared to find beyd beyond reasonable doubt in absence of the production of the knife that it had a pointed end with sharp edges.

Because I do not have the evidence of the length of the knife and because I do not have the evidence beyond reasonable doubt as to the depth of the wound and the extent of penetration to the internal organs and because I am not sure whether the stitches on the bowl loops were connected with the stabbing, I am unable to easily infer the force behind the fatal blow. Both Margaret Jimmy and the accused, however demonstrated moderate blows in their evidence. Met Jimmy showed a downwarwnward thrust with a twisting action at the end of the thrust.&#16got the impression the deceased was in a lower position to n to the accused. The evidence however, wat that both were in standing positions. I think the accused&#8 evis evidence is more probable on this aspect. I accept her st#160; I am I am also u to find the knife was twisted upward upon impact as the dehe demonstrations differed when the witness was asked to repeat the action.&#16think she had tried to improve on her evidence.

In t>In the light of those matters I have raised, I would convict the accused of unlawfully causing the deceased grievous bodily harm under s. 539(4) of the Criminal Code.

That is however not the end of the matter. The accuse pleaded the defe defence of self-defence and in the alternative, provocation. Counsel for the ce relied lied first on the defence of self-defence under s. 269 of the Criminal Code. He submie defence comes faes fairlyin the terms of ss (2) conceding that ss (1) does not apply.

Where a defence of self self-defence is raised, the first step thght to be taken is to inquire whether there is any evidencedence before the Court on which a jury or other tribunal of fact acting reasonably, would be entitled to find that the killing (if the charge is homicide) was done in self-defence or to entertain a doubt whether it was done in self defence. This guide is contain the the judgment of Gibbs, J in the case of R v Muratovic (1967) QdR 15 at p. 18. The jury ibunal of fact muct must decide on all of the evidence if there is evidence of self-defence0; Where there is none, the, then the defence fails and no further consideration is necessary.

Under s. 269 (2), there must be evidence on the following matters:

(1) ـ that thu accused waed was unlawfully assaulted;

(2) ;&#16at the accu accused haed had not provoked the assault;

(3) ҈ that that the natf theultawch as to cause reasonable apprehension of death or grievous bodily harm, and

(4

(4)&#16) tha accuseievedeasongroundroundsounds that he could not preserve himself felf from drom death or grievous bodily harm otherwise than by using the force which fact.

he fotion ese conditions are are adoptadopted fred from thom the case case of R v Kaiwor Ba [1975] PNGLR 90.

There is in my view some evidence on each of the matters I have set out as will appear from what I say shortly in this case. I must however evaluateevie evidence in relation to each of the matters bearing in mind that before I convict, I must be persuaded beyond reasonable dohat the elements of self-defence as I have outlined, or some of them, did not exist. (See TSee The State v Takip Palne [1967] PNGLR,90 by O’Leary, AJ at p. 93).

The evidence of Margaret Jimmy is the only State evidence of any relevance on the issue of self-defence. It conflwith that of the athe accused on the events before and during the stabbing. She denied hearing ommotiomotion or seeing anybody else present prior to or at the time the deceased was stabbed. ave the impression, thack hack on the deceased was sudden and unprovoked. This evidence is incoent went with herh her own statement to the police given sh after the incident and in which it was stated she heard thrd the accused and deceased arguing before the stabbing. I am not imed wie demeanoueanour of thof this witness. She seemed to find the pdiceeding amusing. At times sheed while givingiving as and occasionally spoke inaudibly to herself after answering questions. id not not appear to be a be an honest witness.

As to the quhe question of whether the accused was the first assaulted, I accept her evidence that this was so. tated the deceased at the the time of the incident was living away from the family home. She hrposely returned to t to thse and taunted the accused over her relationship with their husband. The remarks she she made were inferentially sarcastic, anogatory. I infer she felt angry and humiliated over tver this when she spoke back at the deceased. nk any reasonableon in hern her situation would have reacted the same way. 160; At that point ss assa assaulted. The assault iopinion was nwas not ped. This fied the second questquestion of whether or r or not the accused provoked the assault.

The third question of wh the e of ssault ault was such as to cause reasonable appreapprehension of death or grievous bodily hily harm and the fourth question of whether the accused believed on reasonable grounds that she could not preserve herself from death or grievous bodily harm otherwise than by using the force which she in fact used, will be considered together.

The deceased, as I have inferred from the accused’s evidence, was stronger and tougher (“skin-tight”). I note this desive Pidgin dgin words, “skin tight” may literally mean tight skinned person or it may refer to persons with strong, masculine physiques. It colso m person who is n is not submissive or easily pushed ared around and probably with a short-fuse to his temperament. It is ariateake the comparomparison at this point also of the accused. She ightly builtbuilt and and stands around 150cm. She h fits the n descriptiription of ‘skin-tight’ in her physical built and appearanearance. Neith she a weakling.& She& She d a quiet personarsonality with poise not uncommon in most women of her stature.

I cp>I conclude from the accused’s evidshe was assaulted from the kitchen to the gate, which I infI infer to be nearby. There was no ece whether ther the accused fought back before the stabbing. I the only time she resporesponded was when she stabbed the deceased at or near the gate.&#1 further infer that the deceased was the aggressor all alon along. Sd recently been spurned bned by their husband and I think that was sufficient motive for reprisal against the accused.

On 17 January, 1997 the accused was one month into her post-natal d. I think at that stat stage, her physical and mental condition were still fragile and vulnerable. This was because she would still be recuperating from the effects of child birth. It is rably expected that that a woman in that state would have sud weight loss, strength and susceptible to trauma or depression. Shet be easily sily irritarritated or provoked. These obtions are because ause the the accused spoke of her loss of weight after giving birth and gave evidence of feeling weak and “rg outreath” when when assaulted. I believed that she had tired easily and quickly frly from the deceased’s attack due to her condition. State has not p beyond read reasonable doubt the accused’s claim and the possibilities I have mentioere not highly probable.

The deceased, as I have concluded was stronger than the accused. She attacked the accused in a confined area in the presence of two others, who no doubt provided the deceased support and encouragement. In her evidence saidfelt welt weak after being assaulted and when the deceased was about to hit her again,gain, she swung the knife at her. Ins-exaion she said she wahe was running out of breath from the assault. I infer that that the assault and the accused’s coon put her in immediate and desperate peril so that some defensive action by her was necessecessary. In the very least, I am noisfied that the accused did not hold the belief that she cohe could not preserve herself from death or grievous bodily harm otherwise by using the force she did and that she had reasonable ground for that belief.

I fi>I find the accused not guilty of murder. She is acquitted and discharged forthwith. It is not nece to considersider the defence of provocation.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor