State v Ambrose [1997] PGNC 12; N1505 (14 February 1997)

Unreported National Court Decisions

N1505

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1027 OF 1996
STATE
V
BOLOK KIK AMBROSE

Mount Hagen

Akuram J
10 February 1997
14 February 1997

CRIMINAL LAW - Murder - Self-defence - Tests to be applied - s. 269 Code.

Accused is charged that on the 10th June 1996 he murdered one Namba Kik (brother) after an argument over land, fight broke out and he stabbed his brother with a small kitchen knife measuring 10-12 inches. Ac alleged that deceased ased attacked him first with a bush knife and accused retaliated in self defence.

Held:

1. &##160;e herefe de ofcself-self-defence to murder is raised, sed, the questions to be determined beyond reasonable doubt are:

(a0;҈&&#160ther the assault on the accused by the deceased was such as t as to cauo cause rese reasonaasonable apprehension of death or grievous bodily harm;

(b) &##160; Whetherether the ac usedevelieved that he could not preserve himself from death or grievous bodily harm otherwise then by using the force that he in fact used; and

(c) ҈& Whethe ethe accu82ccu8217;s belief wasf was base based on reasonable grounds, or rather whether the State has negatived beyond reasonable doubt the possib thataccused so believed on reasonable grounds.

C>Cases Cited:

Tapea Kwapena v The State [1978] PNGLR 316

Turner v MGM Pictures [1950] 1 All ER 449

Palmer v The Queen [1971] 1 All ER 1070

Status Cited:

Criminal Code Act Ch 2662 s. 269

Counsel:

Aipe for the Accused

Kumo for the State

14 February 1997

AKURAM J: The brief factalleged eged by the State are that the deceased, after attending to the mourning of a deceased relative preparing firewood, came to the market, and then came over to the house of the deceased ll him about the land the gthe garden is on. Then fight broke od accuseccused stabbed the deceased three times with the kitchen knife (Medical Report Ex. “B3”).

The accused’s evidence is that he came to Hagen, left about 3 o&#8217k and arrived at home aboutabout 4 pm. As he was asked by some o e to catch some eels (fish), he went to his home and got hooks and string and his bag and a lamp to go fishing at night. Whilwas preparing the hook hooks and the fishing line, deceased and got angry with him form for not coming to the market as people are waiting for him to pay his K30.00 for the school fees of his . The deceased then shen struck him with a long bush knife (Exhibit “A”) two times - once on the left hand wrist and second time on the shoulder joint of his left arm. The accusealiated in self-self-defence and swung the kitchen knife he held towards the deceased then second time and third time and many times thereafter but inflict only three wounds. They then hnto ether.

It w>It was then the second State witness (Oki) arrived and deceased told Oki to retrieve the knives from bothhem. Witness Oki got the knife from deceased but accused did not give his knife straistraightaway but sometime later.

At the conclusion of evidence of State and Defence, Counsel’s made submissions. The Defenceitted that the the accused acted in self-defence when deceased attacked him without any warning twice and when he was about to attack the third time, the accustaliated by attacking him with a small kitchen knife. #160; Accu8217;s evidence ince is that he swung the knife at random not knowing where it landed as his left arm was paralysed by a chop at the shoulder of his left hand.

There is no eye witnesseshe fight. Witness Okis Oki camehe sche scene after they finished attacking each other and were holding onto each other.

So it is the word of accused above as to how the fight started and ended. The accused in his Reof Inof Interview (ROI) said this:

“On Monday morning I came to the main road to get a bus to come to Hagen town. e afternoon some thing 3.0g 3.00 pm I went back. I went home I y shirt and and and trouser I got a hook from the drum and string and a bag and a knife.& I saw sun was from east to west and it is getting dark so k so I got a lamp ready to go down to the creek. And in the night I want ok hook fish. When I was ready I heard eard a noise look like a man coming. When I saw Namba ame he wahe was weatinding a bush knife came close to me he told me that all men at the market told you to come.&ome. He came ta bush knife to m to me.&#1hen he threw a bush knife I lift my left hand up to preventevent me he chopped my left hand with the bush knife. I asked him wh you y hand hand when I say that he cut me second time ther there I felt pain and bloods run over me bleeding and I was weak so I wasing a pocket knife I stabbed him on his stomach. I felt my handgetting wors worse I se I stabbed the second time on his stomach or backside I am not sure. Thed time I stabbed him I im I am not sure whether stomach or backside. We both fought ehere Oki came and stopped uped us.” (emphasis added).

His statement on attacks by deceased coincides with the Medical R and the scars on his left wrist and shoulder. There is no other evi to t to the cont contrary so I had to believe the accused.

As to whether his actionctions were in self-defence against an unprovoked assault (s. 269 of Code) I have to look at the facts suring the attack. AgainAgain Stat no evidencidence to contradict what the accused had said as quoted above in the ROI. I therefolieve the accusedcused that this was an unprovoked assault on him. He reacted after the second attack on him by the deceasth the bush knife. I am not saying the allegallegations of land dispute is not a poss possibility of the cause of the fight.&#1hat I am saying is that no one witnessed the fight from begm beginning to the time when Oki arrived. When Oki arrived the deceased and accused were clinging onto each other’s body. They wer fighting.

>

As to the tests to be applied in sucuations on the question of self-defence, from the facts I do not know who provoked the assa assaults first, But accepting the adsve7; version as I have have said above, if the deceased had provoked the accused first by attacking him, then the next question hould the accused have retreated. I do not think so. He was si down when ahen ahen attacked and if he did do anything to defend himself, the next blow could have been fatal on him. So he coot retreat and thed therefore reacted by swinging the thingad in his hand.&#nd. 160; He did not for anythinything else. He hadpocket knife so he u he used it. Then next quests whether he used it to exco excess or not. I the view that there is e is no niceties in such situations. Whu are attackd youe is inis in danger, yer, you have no time to think and decide whether to run away, to avoid nexd next blow or to find another object to defendself. You have to use whatever as nearest to you to d to defend yourself whether it be a gun, another knife, and so on. So the thing he had was a as a pocket knife which he held at the time. As said in Tapea Kwapena v The State [1978] PNGLR 316 at hat:

“If you are attacked with a deadly weapon you can defend yourself with a th a deadly weapon or any other weapich motect your your life. The law dot concern iern iern itself with niceties in such matters. If ye attacked by a pfightfighter you are not bound to adhere to the Queensberry’s rules in your self-defence.&nce.” (Q from Turner v MGM Pic [Pic [1950] 1 All ER 449 at 471.)

The Privy Council in P in Palmer v The Queen [1970] UKPC 2; [1971] All ER 1077 at 1088 said of the Common law pon and quoted in Kwapena’s case that:

“I220;If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.”

As to the question whether the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm except by using the force that he did and not whether what he did was reasonable necessary to preserve him from death or grievous bodily harm (see Kwapena at 324), I use this here and say that the accused did in the circumstances what he believed was reasonable. The State had not negatived beyond reasonable doubt with evidence the possibility that the accused so believed on reasonable grounds.

I therefore find the accused had acted on what he believed was reasonably necy and do not find him guiltguilty.

The accused is therefore acquitted and discharged forthwith.

Lawyer for the Accused: Public Solicitor

Lawyer for the State: Public Prosecutor