N2726

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 324 OF 2004

THE STATE

V

MATHILDA EDWARD
of Dom Village, Gumini, Simbu Province
(‘Accused’)

Waigani: Davani, .J
2004: 6, 7 October

Criminal law – Practice and procedure – charge of murder – defence of self-defence against unprovoked assault – s. 300(1) (a) and s. 269 (2) (a) (b) of Criminal Code Act.

Practice and Procedure – Cross-examination – States case to be put to accused in cross-examination.

Practice and procedure – Defence of self-defence – prosecution bears the burden of disproving self-defence.

Cases cited:
 Browne v Dunn (1893) 6 ER 67
 R. v. Pari Parilla [1969] No. 527
 R. v. Paul Maren [1971] N615
 R. v. Kaiwor Bar [1975] PNGLR 90

Counsel:
T. Ai for the State
M. Norum for the Accused

DECISION
(on Verdict)

7th October 2004

Davani .J:	The accused Mathilda Edward (‘accused’) is charged with 1 count of murder under s. 300 (1) (a) of the Criminal Code Act (‘CCA’). This section reads:

"300.	Murder

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder –

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person; or
….
Penalty: Subject to section 19, imprisonment for life."

The accused pleaded not guilty to this charge, necessitating a trial.

State’s allegations

The State alleges that the murder occurred on 21st June, 2003. However prior to that the accused, who is normally resident in Simbu, travelled to Port Moresby. The State alleges that on 18th June 2003, on a Thursday, she met her husband and they went to the Ponderosa Hotel together where she then learnt that the room that her husband booked for him and her had earlier been used by him together with another woman. Whilst they were in the room, this other woman Nancy Kuta (the ‘deceased’) arrived and they had an argument.

On 21st June 2003, at the 5 Mile ridge settlement, the State alleges that the accused fought with the deceased where she stabbed her once in the right side of her neck, once on the right shoulder region and once on her right upper arm. 

The State alleges that the wounds caused her to bleed heavily also forcing her to go into shock, leading to death.

State’s case

The State did not call any witness to give oral evidence but only tendered by consent the following;

1.	Dr Philip Golpak’s affidavit sworn on 7th October 2003. To this affidavit, attached and marked annexure "A" is the autopsy report of the deceased dated 15th July 2003;
2.	Accused’s record of interview with the police, both the pidgin & English version, interview conducted on 5th December 2003;
3.	Statements of Senior Sergeant Ulagis Mantu, the corroborator to the record of interview, statement dated 20 January 2004;
4.	Statement of Robert Volo, policeman, dated 20 January 2004, the police interviewer.

I should state here that in all, thirteen witnesses were named on the indictment to give evidence for the State. The State only called three, whose evidence I refer to above.

Defence’s case

The accused’s Defence is that of self-defence against unprovoked assault, which is provided for in s. 269 (2) (a) and (b) of the CCA which reads;

"269.	Self-defence against unprovoked assault

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause and is not likely to cause death or grievous bodily harm.

(2)	If –

(a)	the nature of the assault is such as to cause reasonable apprehension or death or grievous bodily harm; and
(b)	if the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm."

The accused was the only one called to give evidence. She chose to rely on the evidence contained in her record of interview with the police. 

The accused was also not cross-examined by the State on the contents of the record of interview. 

Analysis of evidence

In attempting to prove that the accused intended to cause the deceased grievous bodily harm, subsequently causing her death, the State submitted that the accused had travelled to Port Moresby from Simbu after she learnt her husband was having an affair with the deceased. Mr Ai for the State submitted that the 3 stab wounds inflicted on the deceased by the accused is an indication of the accused’s intention to cause grievous bodily harm after she learnt of her husband’s affair with the deceased. But the State did not call any evidence to that effect. Nor were these facts put to the accused in cross-examination. If this was the State’s case, then the accused should have been asked these questions in cross-examination, effectively putting the State’s case to her (see Browne v Dunn (1893 6 ER 67). But this did not occur.

As evidence, the accused in the record of interview at question and answer 23, gave a very detailed description of the events of 18th June 2003 and 20th June 2003. Because the State did not put its case to the accused by cross-examining her, although it had the opportunity to do so, the fact remains that the accused’s answer to question 23 in her record of interview, is the sole and only evidence before the court of the events of 18th and 20th June 2003. 

This evidence is that on 18th June 2003 about 5pm that afternoon, the accused’s husband met her at Gordons Market and told her that he had booked a room for them at the Ponderosa Motel. At Ponderosa Motel, room 41, the accused noticed that the room had been slept in. She saw that the bed was wet, that there was a packet of condoms on the television set, the ashtray was full of ashes and cigarette butts, in the shower room was a small string bag containing 4 cassettes which had the name "Jayden Kuta" written on them and that in the toilet were 2 used condoms. Whilst they were in the room, a woman came to the door and started calling her husband’s name. Her husband then told her to leave because he was with his wife, the accused. However the woman insisted that he open the door, failing which she threatened to open it with a spare key. This was when the accused opened the room door and recognized the woman to be a prostitute known to her who used to reside in Kundiawa. This woman then verbally abused the accused, using sexually derogative, insulting language.

Further on, in her answer to question 23, she said on 20th June 2003, she spent the night at the 5 Mile ridge settlement with her husband’s aunt Anna Bole. On the morning of the 21st June 2003, she said she was walking on the road when she heard a woman call out to her and again abuse her. Some of the abusive words used by this woman and as set out in the record of interview were; 

"So you think you are the only wife of Eddie, you should be back home, (Chimbu), eating garbage, why did you come to the city and she spat me."

The accused saw that behind this woman was the other woman she had seen at Ponderosa Hotel on the 18th June 2003. This woman (the deceased) then abused the accused, using sexually connotative and derogatory language, describing her sexual prowess with the accused’s husband. She also indecently gestured with her fingers at the accused. The accused in her record of interview said at this time, the deceased had a knife and was about to stab her with it. The accused warded off the blow and managed to pull the knife off her. She said "I put it back on her. Which part of her body the knife got I wouldn’t know." She also said further that she was sorry for what she did, that she did not mean to kill her, that if she had wanted to kill her she would have done that at the Ponderosa Family Motel. She said she was "only trying to give her some injury when I was trying to defend myself because I was one against two women." 

In submissions, Mr Ai for the State pointed out to the court that when the accused removed the knife from the deceased, that she then had the opportunity to stab her on three occasions. Again, there is no evidence to that effect before the court.

S. 269 of the Criminal Code Act is the defence available to an unprovoked assault. In this case, the evidence is that the deceased was armed with a knife. That the deceased was with another woman and that she (the deceased) assaulted the accused. In R. v. Paul Maren [1971] N615, the court held that, where the evidence suggest self defence, the onus is on the State to show the absence of any one of the requirements of s. 269. It is the prosecution that bears the burden of disproving self-defence where the evidence discloses self-defence as a defence (see R. v. Pari Parilla [1969] No. 527).

The two statements of policemen Ulagis Mantu and Robert Volo, tendered into court by consent, are to the effect that it was the deceased and another woman who were verbally abusing the accused, that the accused then twisted the deceased’s finger and that at this time, the deceased then took out a knife and attempted to stab the accused with it. In the two statements, the accused stated that this was when she disarmed the deceased and in the process stabbed her. She said she was "only trying to injure her".

Prima facie, this is evidence of self-defence. The prosecution now bears the burden of disproving self-defence. However, it has not done that. Mr Ai has asked that I infer from the circumstances that the accused intended to cause grievous bodily harm to the deceased. However because of the fact that the State has not or did not cross-examine the accused, the court is not in a position to know if the accused believed on reasonable grounds that she could not otherwise preserve the person defended from death or grievous bodily harm. That is in doubt. This is because, on this hypothesis, I, sitting as the court, cannot be satisfied, that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm. To find against the accused, the court must be bound to find beyond reasonable doubt that;

1.	The nature of the assault on the accused was not such as to cause reasonable apprehension of death or grievous bodily harm; or

2.	The accused did not believe that she could not preserve herself from death or grievous bodily harm except for using the force in the manner used; or

3.	If the accused had such belief, it was not based on reasonable grounds.

(see R. v. Kaiwor Bar [1975] PNGLR 90).

Again, the medical evidence is inconsistent in itself. I say this because although the autopsy report shows there were three stab wounds to the deceased’s body, the doctor’s summary states the following;

"The cause of death in this case is a bit problematic because any one of these incision wounds could not cause her to die directly. However all 3 wounds could cause her to bleed heavily causing her to go into shock and die." (my emphasis)

Further, at pg. 2 of his report on the cause of death it states that the condition directly leading to death is "undetermined".

As it is, the report was tendered into court by consent. The doctor’s contradictory inconclusive conclusions, being the cause of death as "undetermined", the cause of death being "a bit problematic", does not assist the State at all.

Although the State has asked that the court infer from the circumstances that there is no other reasonable hypothesis but guilt, I find the evidence tendered in by consent has been that the nature of the assault upon the accused was to cause reasonable apprehension of death or grievous bodily harm and that the accused believed that she could not stop death or grievous bodily harm from occurring to the deceased. As stated in Chalmers Weisbrot, Injia and Andrew’s "Criminal Laws and Practice of Papua New Guinea," at pg. 283:

"If the jury is left in doubt on those matters, the issue must be decided in favour of the accused and the verdict of acquittal must be entered. This is because on that hypothesis the jury could not be satisfied that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm."

Clearly, the evidence, based on both the statements of the two policemen and the record of interview is that;

1.	The accused was attacked by the deceased, who wielded a knife and that she was supported by one other woman and that the accused believed she was either going to suffer serious injury or die; and

2.	 That she was only defending herself.

Furthermore, although the evidence is that the deceased had suffered three stab wounds on her body, the State had not put its case to the accused by cross-examination to show how those wounds were inflicted, whether they were inflicted in quick succession when the accused was fighting off the deceased and the other woman or whether the stab wounds were done by the accused to inflict grievous bodily harm. The undisputed evidence is that she wanted to protect herself. And that it was the deceased who held the knife and who was out to injure the accused.

Based on s. 269 of the CCA, the accused was unlawfully assaulted, she did not provoke the assault, that it was lawful for her to use such force as is reasonably necessary to defend herself against the assault and that this force was not intended to cause grievous bodily harm or death. The situation was such that the accused believed when she disarmed the deceased, that she could not prevent the wounds from being inflicted upon the deceased. It was therefore lawful for her to use the force she did use to defend herself "even if it causes death or grievous bodily harm." (s. 269 of CCA).

Verdict

I therefore find that the State has not proven beyond reasonable doubt that the accused intended to do grievous bodily harm to the deceased, thereby committing the act of murder. I dismiss the charge of murder against the accused and acquit her of those charges.
_____________________________________________________________

Lawyer for the State			:	Public Prosecutor
Lawyer for the Accused		:	Public Solicitor