State v Raphael (No 1) [2002] PGNC 142; N2180 (14 February 2002)

N2180

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 907 of 2001

THE STATE

-V-

THEO RAPHAEL

WEWAK: KANDAKASI, J.
2002: 8th, 11th, 14th of February

CRIMINAL LAW - Verdict – Wilful murder – Dispute over land – Deceased planting sago on accused land – Accused went looking for deceased at deceased house armed with a spear and a bush knife – Deceased not found – Accused chopped down deceased banana tree into pieces and told deceased wife and mother in-law he would kill the deceased – Upon deceased returning to the village accused attack him with two spears and a bush knife – Deceased died shortly from wounds received - State evidence not destroyed by cross-examination – No doubts or questions raised on State witnesses’ credibility – States evidence accepted - Guilty verdict returned – s.299(10) Criminal Code.

FACTS

The accused was charged with one count of wilful murder of a Ronald Ikiakdu of the 10th of July 2000. The charge was denied and the defence of provocation was raised. Evidence produced by the State showed that the accused and the deceased had an on going dispute over a piece of land. Just before his murder, the deceased planted some sago on the disputed land. The accused uprooted them and set out to kill the deceased armed with a bush knife and a spear. However, he did not find the deceased at his house so he cut down a banana tree into pieces and told the deceased wife and mother in law who were there that, he would kill the deceased.

When the deceased returned to the village, the accused started to attack him armed with two spears and a bush knife. The deceased started to run away from the accused and the accused shot him from the back with on of the spears. That caused the deceased to fall to the ground. Then when he was on the ground the accused shot him the second time with the spear and used the bush knife to cut the deceased on his head. The deceased died from the injuries shortly after his attack.

Held:

1. There was no provocation within the meaning of sections 266 and 303 of the Criminal Code in circumstances where the deceased did nothing to provoke the attack on him that day but the accused did.
2. The accused planned and executed his plan to kill the deceased because of his motive to eliminate the deceased competing with his claim of ownership of the disputed land.
3. Accused therefore found guilty on the charge of wilful murder beyond any reasonable doubt.
   

Cases cited:

Browne v. Dunn (1893) 6 R 67(HL)

The State v. Francis Natuwohala Laumadava [1994] PNGLR 29
The State v. Gigere Undamu [1990] PNGLR 151
The State v. Simon Ganga [1994] PNGLR 323
Allan Oa Koroka v. The State and Mariano Wani Simon [1988-89] PNGLR 131
Garitau Bonu & Rosanna Bonu v. The State SC528
Rosa Angitai v. The State [1983] PNGLR 185.

Counsels:

Mr. M. Ruari for the State

Mr. M. Mwawesi for the Accused

15th February 2002

KANDAKASI J: The State presented an indictment on the 8th of this instant charging you with one count of willful murder of one Ronald Ikiakdu ("the deceased"). The State alleged that you willfully killed the deceased on the 10th of July 2000, at Kawanga settlement, Wosera, East Sepik Province. That was over a land on which the deceased had planted some sago. The State further alleged that, on the said date, you went to the deceased house to kill the deceased but he was not home. So you cut down a banana tree and chopped it into pieces and told his wife and mother in-law that you will kill the deceased. It was further alleged by the State that, when the deceased returned to the village you attacked him with two spears and a bush knife. You speared the deceased twice from his back and used the bush knife to cut his head. The deceased shortly died from the injuries you inflicted upon him with intend to kill him.

You denied those allegations and that necessitated a trial. The State called two eyewitnesses, Agnes Ikiakdu, the widow of the deceased and her mother in a bid to prove the allegations against you. Agnes said she was at the house with her mother, Kuale Bisik, on the relevant date, when you turned up armed with a spear and a bush knife and asked for the deceased. You told them to go and call for the deceased so that you could spear him to death for planting some sago on your land. The deceased was not home so you cut down a banana tree and had that chopped into pieces and you went away.

Later that day about 5:00 pm, the deceased returned from hunting in the bush only with a catapult which he used for hunting. When you saw the deceased, you took two spears and a bush knife and chased him and he ran toward his younger brother, Soni Kapuk’s house. As he was running away, you shot him from the back with one of the spears and he fell to the ground. You speared him again at the back when he was on the ground. You then took the bush knife and cut the deceased on his head. Soon after this, the deceased died.

This witness said she and her mother were outside the house when you attacked the deceased in the way described. She also says the distance between where you were attacking the deceased and her and her mother was very close, about 4 to 5 meters away. She was therefore, able to see clearly your attack on the deceased and his eventual death.

Cross-examination of this witness failed to cast any doubt on her evidence. There was no suggestion put to her that she was either lying or was mistaken in her recollection of the incident. No reason has been presented for me to find her other than a truthful witness and that she was giving an accurate account of what really happened. I was given the impression that she was a truthful witness. I therefore, accept her evidence in full.

The State’s second witness, Kuale Bisik confirms most of the first witnesses evidence. Under cross-examination however, she answered yes to suggestions that the deceased got to his house where he was informed of what you did earlier on. This angered him to a point that he picked a stone, put it in his catapult and threw it at you. The stone landed on your chest causing you to fall down. Whilst you were down, he came with a bush knife and tried to cut you but he missed you. You then retaliated by taking two spears and the deceased own bush knife and attacked the deceased.

In re-examination, this witness testified of their being no prior argument or fight between you and the deceased before you attacked him resulting in his death. She specifically stated that, the deceased did not throw a stone at you using his catapult causing you to fall. She also stated specifically that, the deceased did not use a bush knife and attempted unsuccessfully to cut you. The Court tried to get the witness to state which of the two versions were correct and she spoke only of there being an attack on the deceased by you when the deceased returned to the village and none other.

There was no suggestion put to this witness of she was either mistaken in her recollection of the events leading to and the eventual death of the deceased or that she was lying. The suggestion in cross-examination to the witness that the deceased went to his house first upon returning from the bush and being informed of what you did and said to his wife and mother in-law which caused the deceased to attack you, is inconsistent with your own evidence. You stated that the deceased attacked you upon returning from the bush on you telling him that you had pulled out the sago he had planted on your land. It is settled law that, the defence case must, in fairness be put to the prosecution witnesses in cross-examination. A failure to do so would amount to a conclusion that any evidence introduce by the defence which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). For examples of authorities on this see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323.

In your case, your claim of you telling the deceased of your having pulled out the sago and that caused the deceased to hit you with a stone from his slingshot or catapult was not precisely put to the State’s second or even the first witness. Hence, based on the authorities, I find that the question on this aspect put to the second State witness was most unfair and has no effect whatsoever on the entirety of her evidence. Besides, this witness was an ordinary old village woman. The questioning of the witness, both under her evidence in chief and cross-examination as well as my questions, gave me the clear impression that, the quality of the translation from the English language to Pidgin language and vise versa was poor. Also, I got the clear impression that, she did not clearly understand the questions put to her given her background and the poor quality of the translation. Overall, however she maintained her story that, the deceased did not start any fight between him and you. Instead, when the deceased returned from his hunting trip, you attacked him, being armed with two spears and a bush knife. He therefore, tried to run away from you toward his younger brother Soni’s house and you shot him from the back with two spears and later cut him with a bush knife.

A close examination of the following questions and answers in cross-examination and re-examination makes this apparent:

[cross-examination]

"Q. I also put it to you that when your son in-law returned, one of you told him of what the accused had earlier done and told you?

A. Yes.

17. Because of the threats and banana tree cut down, your son in-law was very angry?
1. Yes.
17. He was so angry that he got a stone put it in his slingshot and shot the accused on his chest?

A. No.

17. And the accused fell down and your son in law swung a knife at the accused but he missed?

A. Yes.

17. And the accused got his spears and knife and chased your son in law?
1. He did not go. He returned from the bush he (the accused) got his spears and attacked him (the deceased)."
   

(Emphasis supplied and this is where the clearest example of misunderstanding is)

[re-examination]

"Q. Did the deceased, Ronald fight with the accused?

1. No.
17. Did he (the deceased) shot at the accused with the slingshot?
    1. No.
    17. This lawyer (pointing to the defence counsel) asked you about the accused fighting the deceased and the deceased got a knife and swung it at the accused but missed?
1. No.
17. Why did you say earlier yes to that question?
1. I did not say that. All that I said is in the paper."
   

The State also admitted into evidence a post mortem report on the deceased as to the cause of his death and your record of interview with the police dated 3rd August 2000. This evidence was admitted as exhibit "A" and "B" respectively without any objection from you.

The record of interview is in agreement in most parts with the evidence of both the first and second State witnesses. It differs only in the following areas:

1. The deceased started the fight upon your telling him as soon as he was returning to the village that you had uprooted some sago he had planted on your land;
   
2. The deceased died near your house and not Soni’s house; and
   
3. At the time of the incident, the State witnesses were not present but your father, a Yuanis, an in-law, Alphonse and your wife and children were.
   

The medical report confirms that the deceased died from the injuries you inflicted upon him consisting of penetrating injuries to his back and two cuts to his head. The cuts to the head resulted in a fracture of the deceased’s skull. That injury and one of the penetrating injuries to the back of the deceased, resulted in the deceased death.

At the close of the State’s case, you decided to go into evidence in your defence. You stated under oath that you had argued with the deceased over the land on which he planted some sago about four times before. Despite that, he went ahead and planted the sago.

On that fateful day, when the deceased returned from the bush, you shouted to him softly, saying "I pulled down the sago you planted on my land." That made him to get his catapult, put a stone into it and shoot you with it. The stone landed on your chest and you fell down. You did not provide this Court with any description of the stone to enable me to determine how it could have made you to fall, given that usually only small stones are put into a catapult or a slingshot and that you are a big man. Going on, you said, once you fell down, the deceased got a bush knife and tried to cut you but he missed you. You say you were close to the steps of your house. So you took out two spears and speared the deceased twice on his back. The first made him to fall on the ground and the second was thrown at the deceased when he was already on the ground. You then used his own bush knife and cut him on his head. This aspect of your evidence was not put to the State’s witnesses. So on the basis of the principles I have already mentioned, I reject this part of your evidence.

You say that your anger finished in the morning. Therefore, you had no intention of fighting or killing the deceased. However, you were provoked to do what you did by the deceased. Again, these claims were not put to the State’s witnesses in cross-examination. I therefore, also reject them for reasons already given. You say your attack on the deceased happened straight after the deceased just missed cutting you.

When asked in cross-examination by the prosecutor as to what was the deceased doing when you first speared him, you avoided that question a number of times and later said he came to attack you and you speared him. This runs contrary to your answer to a subsequent question, when asked as to which part of the deceased received the first spear. You said it was the deceased back. In answer to the next question you said you did that as the deceased was trying to run away. Further, you answered, ‘yes,’ to the prosecution’s suggestion that the deceased was afraid of you and was running away from you when you first speared him. You also answered, ‘yes,’ to a suggestion that the deceased did not go to your house and tried to cut you. This part of your evidence clearly shows that you attacked the deceased as he was running away and not in the course of a fight between you and him.

Your record of interview, which was admitted into evidence without any objection from you, confirms and makes this clear. This is so particularly in answer to questions 22 and 23, which reads, in relevant parts as follows:

22. "Roland made an attempt to chop me with a knife but I avoided it and he hit the soil. I then ran into my house, got a knife spear and another wire spear (supsup) and came out. He, when seeing that turned around and was about to run away, I shot him with the knife spear and hit him on his left side.
    
23. "When he fell down I threw the other spear on his body."
    

You did not say anything about the allegation of you going to the deceased house earlier on and cutting down one of his banana tree, and chopping it into pieces and told the deceased wife and mother in-law that you would kill the deceased, in your evidence in-chief. But when raised in cross-examination, you admitted to cutting down a banana tree with a knife. Apart from that, you answered other questions in relation to that aspect in the negative. In your record of interview you admitted to being angered by the deceased planting sago on your land and so you cut a banana tree down and chopped it into pieces (question and answer 32).

Omitting the parts of your evidence that I have decided to reject, I find that your oral evidence as well as those set out in your record of interview, supports the State’s evidence.

Undisputed Facts

A number of facts are not in issue. First, that you seriously injured the deceased and thereby caused his death. You speared him twice with two spears and cut him on the head with a bush knife. Secondly, that was over a land on which the deceased had planted some sago. Thirdly, in the earlier part of 10th July 2000, you went to the deceased house looking for him. Fourthly, on finding that the deceased was not home, you cut down a banana tree and chopped it into pieces. Fifthly, you then returned to your house and stayed there. Finally, when the deceased returned to the village, you attacked him.

Main Issue

What is in dispute is whether the deceased started a fight with you and therefore provoked your fatal attack on the deceased? An answer to this question will also help determine whether you are guilty or not guilty of the charge against you.

Submissions

You urged me to find in this way. There was a fight between you and the deceased on the 10th of July 2000. The deceased started that fight because he was angered by your actions in the morning. You only retaliated by using force, which was sufficient to prevent him from attacking you again. You therefore claim the defence of provocation within the meaning of sections 266 and 303 of the Criminal Code. Based on these submissions, you have asked for a not guilty verdict to be returned on the charge against you.

You submitted that, I should accept this version of the incident because there is inconsistencies in the State’s evidence. In support of that submission you point out to the State’s second witness, Kaule Bisik’s evidence under cross-examination where she gave evidence supporting your version of the incident. That submission was made despite the witness correcting herself under re-examination and maintaining her evidence in-chief that, there was no fight between you and the deceased before you attacked the deceased.

On the other hand, the State asked me to find that, the deceased did not start the fight with you before you attacked and killed him. Instead, you set out to kill the deceased. The motive for killing him was the land on which the deceased had planted some sago. You visited his house earlier to do just that. Unfortunately, he was not home so you showed your anger by cutting down a banana tree and chopping it into pieces and said to his wife and mother in-law that you would kill him. You then went to your house and waited for the deceased to return, which is confirmed by your stay only in your house and not going any where else according to your record of interview. When the deceased returned, you armed yourself with two spears and a bush knife and attacked and killed him.

In relation to the second witness’ evidence, the State submitted that, the witness was an old village woman and did not fully understand the questions. Nevertheless, she knew what happened and she told the court what she saw and heard herself.

Further, the State submits in the alternative that, even if the deceased started the fight, you were not provoked within the meaning of sections 266, and 303 of the Criminal Code. This submission is based on a number of reasons. First you had opportunity to cool off. Secondly, the provocation if any offered by the deceased was not sudden within the meaning of section 266 of the Criminal Code. Thirdly, you set the fight in motion at the first place by visiting the deceased house, cutting and chopping to pieces a banana tree and telling his wife and mother in-law that you would kill the deceased. Finally, the amount of force you used against the deceased was disproportionate to the force used by the deceased.

Other Issues

This presents a number of issues for me to decide. First, which of the versions of what happened in relation to the charge against you is correct? The next issue is, whether you were provoked within the meaning of sections 266 and 303 of the Criminal Code? This issue has four sub-issues to it. They are:

(1) Whether you were deprived of your power of self-control?
(2) Whether you acted in the heat of passion?
(3) Whether the provocation was sudden within the meaning of section 266?
(4) Whether the amount of force used was proportioned to the deceased’s force?

The first issue is a factual question and must be answered on the evidence presented. The conflict in the evidence or any missing evidence can be resolved by the facts themselves including any reasonable inferences that can be drawn from the established or primary facts applying a logical and common sense approach: See Allan Oa Koroka v. The State and Mariano Wani Simon [1988-89] PNGLR 131 and Garitau Bonu & Rosanna Bonu v. The State SC528.

The next issue with the sub-issues is a legal issue that must be decided on the basis of the wording of the provisions of section 266 and 303 of the Criminal Code. Regard must of course, be had to past decided cases on point for assistance as to the meaning to be given to the words used by the sections in question. These must then be applied to the facts as I may find them.

Findings of Fact

I find as primary facts the facts that are not in dispute. That is to say I find that the deceased died from injuries consisting of two spear wounds and a fractured skull caused by a bush knife. The deceased was attacked from the back as he was trying to run away from you. You caused these injuries and the eventual death of the deceased. That was over a land on which the deceased planted some sago. The incident took place about 5:00 pm at Kuwanga, Wosera, in the East Sepik Province on 10th of July 2000. Further, I find that you went to the deceased house, looking for the deceased earlier the same day. On finding that the deceased was not home, you cut down a banana tree and chopped it into pieces and told the deceased wife and mother in-law that you would kill him. You then returned to your house.

It is reasonable to infer and I so find that, you were very angry with the deceased over him planting some sago on what you claimed to be your land. This I do, based on your own evidence that you have argued with the deceased over the land about four times already and this was the fifth time over the same issue because the deceased had planted some sago. Your cutting down of the banana tree and chopping it into pieces using a bush knife is demonstrative of the level of your anger. If the deceased was home at that time, you could have either seriously injured him or killed him. In these circumstances, I also find in acceptance of the prosecution’s evidence and submission that, you were armed with a spear and a bush knife. You intended to use those weapons to kill the deceased as you indicated to his wife and his mother in-law.

In relation to the facts in issue, I accept the State witness’ version of what happened for reasons already given. Those reasons in summary were that there was no cross-examination on the possibility that the witnesses could have been mistaken or even a suggestion that they were lying under oath. Their stories were consistently that, when the deceased returned to the village you immediately attacked him with two spears and a bush knife. I noted that the second witness agreed to suggestions under cross-examination by your counsel that, there was first a fight between you and the deceased before you seriously injured the deceased causing his death. However, she had that corrected under re-examination. I accepted the prosecution’s submission that, this witness did not clearly understand the questions put to her partly because she is an old village lady and partly due to poor translation. Such a misunderstanding of the questions is apparent when the sequence in which the questions were put to her in cross-examination and re-examination and their answers are closely examined. I clearly got the impression generally that, this witness by reason of her background and age, was not able to clearly understand the questions put to her and answer them accurately. Your oral evidence, omitting the parts I rejected, and your record of interview support the State’s version of what happened.

Further, overall, no doubt whatsoever was created by any cross-examination as to the truthfulness of the State’s witnesses account of what happened. The story beyond any reasonable doubt to my mind based on the primary facts as found and the inferences that can reasonably and logically be drawn from them by applying a common sense approach is this. There was an on going dispute between the deceased and you over a piece of land. You had argued with the deceased on four (4) occasions before. The deceased planted some sago on the disputed land. That angered you so much that you armed yourself with a bush knife and a spear and went to the deceased house to kill him after having pulled out the sago he had planted on what you claim to be your land. When you got to his house, you found out that he was not home. So you cut down a banana tree and chopped it into pieces and told the deceased wife and mother in-law that you would kill the deceased and returned to your house.

You then waited for the deceased to return to the village. Around 5:00 pm the deceased returned from his hunting trip with only a catapult or slingshot. The post mortem report confirms that the deceased had some small stones in the pockets of clothing he wore that time. Upon seeing the deceased, you ran into your house, got two spears and a bush knife and started to chase him. On realizing that you were fully armed he run away from you toward his younger brother, Soni’s house. There, you speared him with one of the spears and he fell down. You then shot him the second time with the second spear and cut his head with the bush knife. When asked in cross-examination as to why it was necessary to spear the deceased the second time and cut his head with the bush knife, you answered, "I feared he might attack me." From this and the fact that you were very angry and did state that you would kill the deceased for planting some sago on your land, I infer that you wanted to kill the decease so as to end the land ownership dispute and the risks of him attacking you. Going by the medical report, I find that, of the injuries you inflicted on the deceased, the injuries to the back by one of the spears and the injuries to the head were the serious ones and they caused the deceased death. It is not clear whether it was the first spear or the second spear’s wound was one of the serious injuries that resulted in the deceased’s death. But the injuries to the head were the last of the injuries you inflicted upon the deceased. This is indicative of the determination with which you wanted to kill the deceased over the disputed land after he was already disabled.

In so finding, I reject your claims of having finished your anger in the morning. I also reject your claim of the deceased first attacking you for the reasons already given. Following on from that, I find there is no evidence of the deceased being told of what you had done to the sago he had planted and what you said to his wife and mother in-law. Of course, I note that the mother in-law of the deceased who was the second State witness did say under cross examination that the deceased went to the house and he was informed of all of that and then started the fight with you. Again for reasons already given, I found the relevant suggestion was unfairly put to her and as such her response to that has no bearing or weight to the case against you. I have already explained that, this particular witness appeared not to fully and clearly understand the questions that were put to her by your counsel. In any case, she corrected herself under re-examination and she maintained that there was only one story. The story was that you attacked the deceased as soon as he was returning from the bush where he had gone hunting. If indeed, he first attacked you, I fail to see how he could have chosen only to use his catapult. Similarly, I fail to see how a small stone put in a catapult would cause you, who is a big man, to fall down. You did not describe how the stone from the catapult made you to fall down.

Further or in the alternative, even if the deceased started the fight with you, there is no dispute and I find that you attacked the deceased most fatally after he was starting to run away from you. The later fatal blows were unnecessary after you had shot him and he fell down and was thereby prevented from attacking you. You continued to attack him because, in your own evidence, you wanted to make sure that the deceased did not attack you again.

You raised the defence of provocation within the meaning of sections 266 and 303 of the Criminal Code. The relevant provisions dealing with the defence of provocation are sections 266, 267 and 303. These provisions read in relevant parts:

"266. Provocation.

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

(a) to an ordinary person; or

(b) ...,

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) ...
(3) ...

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault."

"267. Defence of provocation.

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not—

(a) any particular act or insult is likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact."

"303. Killing on provocation.

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only."
(Emphasis supplied)

Section 266 defines provocation in terms of an "unlawful act or insult of such a nature" by one person toward another and that other person is deprived "of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered." At the same time, it provides by subsection (4) that, if the person assaulted himself incited the assault or the act of the other at the first place, it is not provocation.

The next section, 267 then states that provocation as defined in section 266 is a complete defence if all of the elements mentioned under section 267(1) exist in an assault case. The Supreme Court in Rosa Angitai v. The State [1983] PNGLR 185, identified those elements in this way from the position of the person claiming the defence of provocation:

"(1) is deprived by the provocation of the power of self-control; and

(2) he acts on the provocation on the sudden; and

(3) before there is time for his passion to cool; and provided further that the force used by the person charged —

(4) is not disproportionate to the provocation; and

(5) is not intended to cause death or grievous bodily harm and

(6) (the force used) is not likely to cause death or grievous bodily harm."

The Supreme Court said these circumstances must exist side by side. They are not alternatives. It expressed that position in these terms:

"The circumstances are such, that, in our view, it cannot be said that they form a list of alternatives. The circumstances refer to one type of conduct and, therefore, the conjunctive "and" cannot be regarded as hendiadys. In our view, it is, therefore, clear that all six circumstances listed in s. 267 must co-exist to afford the defence of provocation in appropriate cases"

In a wilful murder or murder case, the defence of provocation is not a complete defence. It is only a partial defence pursuant to section 303. If the elements under that section are met, the accused may be convicted of manslaughter and not wilful murder or murder. The Supreme Court again in the Rosana Angitai (supra) held that:

"When construing s.303 and the reference to s.266 contained in it, it is helpful to bear in mind that s.266 defines what "provocation" is; it does not offer a defence to a person "responsible for an assault committed on a person who gives him provocation for the assault." That defence is given by s.267(1)."

The Supreme Court then identified the following as the elements that must be present for the purposes of section 303:

"The accused must do the act which causes death,

(i) in the heat of passion which must be caused by
(ii) sudden provocation within the meaning of s.266; and

(iii) before there is time for his passion to cool.

The Court then went on to say:

Under s.303 —

"(a) the force used by the accused may be disproportionate to the provocation;
(b) it can be intended to cause death or grievous bodily harm; and
(c) it may be likely to cause death or grievous bodily harm."

As with the defence under section 267, the Court also said, these elements must all exist in order for the defence to operate. They are not a set of alternatives. I am also of the view that the provisions of section 266(4) must always be borne in mind when considering whether on not a claim of a defence either under sections 267 or 303 is claimed. It follows therefore that, if the provocation was incited by the accused at the first place, then by reason of section 266(4) there is no provocation within the meaning of section 266. As such, there would be no defence of provocation either under sections 267 or 303.

Also in the same case cited above, the Supreme Court noted that the words "in the heat of passion" are not found either in s.266, or in s.267. It also noted that use of the word "sudden" is different in s.267 and s.303. In so noting, it explained that in s.267 it is the accused that must act on the provocation on the sudden. On the other hand in s.303 it is the provocation itself which must be sudden. It held the view that the use of the word in s.267 is a noun and its use in s.303 is an adjective. Therefore the word is used in different senses. It means

"... two different sets of circumstances were meant to apply and two different sets of criteria were enacted by which the accused’s acts were to be tested for the purposes of s.303 and s.267. The circumstances, or criteria reducing wilful murder or murder to manslaughter under s.303 are different from and less stringent than those applicable to s.267. Quite apart from the maxim, generalia specialibus non derogant, which in our view should apply here, obviously an accused charged with wilful murder or murder must be allowed to take advantage of the less severe criteria enacted in s.303."

The Court went on to hold that the effect of s.303 is

"... that a person charged with murder cannot be found guilty of manslaughter if he had the intention to cause grievous bodily harm to the deceased. Nothing is said in s.303 about such intention. The accused may have had such intention and, provided that all the circumstances set out in s.303 to which we referred earlier are established by the evidence, the accused will be guilty not of murder, but of manslaughter only. Intention to cause grievous bodily harm is mentioned in s.267 and if the accused had such intention he is criminally liable for his acts."

In your case, I find the following factors relevant to determine whether you were provoked so as to bring your case within the ambit of section 303:

1. You set out to kill the deceased by arming yourself with a spear and a bush knife and went to his house earlier on the 10th of July 2000. That was for the deceased laying claim to your land by planting some sago;
   
2. You found that the deceased was not home so you cut down a banana tree and chopped it into pieces and told the deceased wife and mother in-law that you would kill the decease;
   
3. You waited for the deceased to return to the village;
   
4. When the deceased returned to the village, you attacked him after arming yourself with two spears and a bush knife;
   
5. The deceased was not armed, he only had a catapult or a slingshot;
   
6. You run to your house and armed yourself with two spears and a bush knife;
   
7. The deceased was trying to run away when you first shot him with one of the spears you had armed yourself with;
   
8. The deceased fell down after the first shot. He was therefore in no position to attack you;
   
9. Yet you speared the deceased the second time with the other spear;
   
10. You even used the bush knife to cut the deceased twice on his head fracturing his skull (medical evidence);
    
11. The deceased died from the bush knife injury to the head and from one of the spear wounds on his back (medical report);
    
12. You stated in your evidence that you wanted to ensure that the deceased will not attack you again, when there was nothing to indicate that the deceased was in a position to do that right away or soon after your attack on him.
    

These factors in my view do not disclose a case of provocation on any account whether the deceased started the fight or you did. You set the whole incident in action when you went to the deceased house and cut down a banana tree and told his wife and mother in-law that you would kill the deceased. If for argument sake, that was too remote, your telling the deceased that you pulled out the sago he had planted started the fight, if there was a fight, between you and the deceased. Even if the deceased started the fight, he did not seriously injure you and in any case, he was starting to run away from you when you attacked him from behind. According to your record of interview, you went to your house and armed yourself with two spears and a bush knife. In these circumstances, I find that your power of self-control was not deprived and that you had time to cool off. You therefore, did not act in the heat of passion. Further, I find that there was no sudden provocation. Instead you executed your stated intention to kill the deceased over the land on which the deceased had planted some sago. That is why you went on to use the second spear and the bush knife, even after the deceased was disabled. These forces were uncalled for and were disproportionate to the force or threat exerted against you by the deceased.

In the ultimate, I find beyond any reasonable doubt that, there was no provocation within the meaning of sections 303 and 266 of the Criminal Code. I also find beyond any reasonable doubt that, if there was any provocation, you incited it by your own actions. Further, I also find beyond any reasonable doubt on the evidence before me, that you wilfully murdered the deceased. Your motive for that was a piece of land, which was the subject of a dispute between the deceased and yourself. You set out to kill the deceased and did so in the end to ensure he was not around to compete with your claim of ownership over that land.

I hence, return a verdict of guilty against you on the charge of wilful murder contrary to section 299 of the Criminal Code. You are now a prisoner of the State and shall be held in custody awaiting your sentence.
_______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor