State v Les [2005] PGNC 171; N2950 (18 November 2005)

N2950

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1568/2005

THE STATE

AND

HENRY JUDAH LES

LAY, J: LORENGAU
2005: 11th, 12, 14th and 18th November

CRIMINAL LAW ─ attempted murder ─ whether provocation available as a defence ─ whether alternative verdict of grievous bodily harm within intent available ─ whether alternative verdict of grievous bodily harm simpliciter available ─ Criminal Code ss267,303,304,542, 547.

Cases Cited:
McGhee v The Queen [1992] HCA; 183 CLR 82;
R v Bauoro-Dame [1965-1966] PNGLR 201;
The State v James Pah [1985] PNGLR 188;
State v Leonard Masiap [1997] PNGLR 610;
State v Wanaepe Wanara [1977] PNGLR 458;
R v Kiki Kau’Au (1970) N557;
R. v Morrison [2003] EWCA Crim 1722;
(2003) Crim. L.R. 801;
R v Ben Forepe [1965-1966] PNGLR 329.

Facts:

The Defendant had chased his wife, whom he had seen with another man, and inflicted 3 axe wounds, one on the left ear, one on the left upper chest and one on the left upper arm. A defence of provocation was run on the basis of allegations of affairs by the Defendant’s wife coupled with finding the wife and another man lying down together clothed and kissing in the dark.

Held:

The evidence that the wife and other man were lying down was rejected. A defence of provocation was not available on a charge of attempted murder. The wounds inflicted appeared to be restrained, they were not the horrific injuries which come before the court which show an unequivocal intention to kill. The words "em I dai bilong yu" spoken by the Defendant did not represent his true intention. The State had not proven beyond reasonable doubt the intention to kill, which is an essential element of the offence. The evidence proved grievous bodily harm. An alternative verdict of grievous bodily harm with intent (s315) or grievous bodily harm simpliciter (s319) is not available to a charge of attempted murder. There was no alternate count included in the indictment. Defendant acquitted and discharged.

The State v James Pah [1985] PNGLR 188 followed an applied.
State v Leonard Masiap [1997] PNGLR 610; State v Wanaepe Wanara [1977] PNGLR 458 not followed.

Counsel:
P. Kaluwin for the State
L. Siminji for the Defendant

LAY J: The Defendant is charged with one count of attempting to murder his wife Fredericka Tote contrary to s304 of the Criminal Code. The State called two witnesses, Frederick Tote ("Fredericka") and Joe Parapakipak ("Joe"). The Defendant gave evidence and called one witness, Ciprian Simesa.

Fredericka’s gave evidence that on the night of 9th July 2005 she was with a cousin. She went to leave fish for her uncle and then went to the village called Matakai to collect money from the sale of Spear cigarettes. Then she went to another village to Phillip Kalepa to collect more money from the sale of Spear cigarettes. At the time she and Phillip were standing near the kitchen behind the Peace Office Joe’s house while speaking with Phillip about money from the sale of Spear. The kitchen was a low building built on the ground with low walls, about a metre high. There were three people in the kitchen, 1 female and 2 males. There was a small hurricane lamp in the kitchen. Outside at the front of the main house there was a Coleman lamp hanging where a group of people were playing cards. This was about 3.5 metres from the kitchen. Both the light from the hurricane lamp and the Coleman lamp could reach to where Fredericka and Phillip were standing.

The Defendant approached with an axe and chased Fredericka. Fredericka was about 3 metres from Henry when she saw him. He was running towards her. They ran 4 times around the house of Peace Officer Joe’s house. As he was running the Defendant said in pisin "this is going to be your death". He spoke loudly and Fredericka was afraid. When the Defendant got close to Fredericka he swung the axe and cut her left ear, the lower part of the upper left arm and then higher on the upper part of the left arm. Then when the Defendant swung the axe for the 4th time the head of the axe came off. The Defendant continued to attack Fredericka and squeezed her by the neck. Fredericka felt faint, she sat down and people came to help her. Her brothers rushed her to Lessau Health Centre where the two arm cuts were sutured. Early the next morning she was taken to Lorengau Hospital where her ear was repaired.

In cross examination Frederick said she had been married to the Defendant since 1983.They have 6 children. Her father died in early 2000 and Frederick came home to Bipi. She said it was because the Defendant had no work. In 2002 Frederick had problems with the Defendant. The Defendant was suspicious that she was having affairs with other men in the village. She denied that was true. Fredericka also denied having an affair with the head teacher of the Bipi primary school. She knows Phillip Sipu, he is a cousin, he is the man she was talking to when she was attacked.

In January 2004 the Defendant sent the village magistrates to see Fredericka to find out if she still loved the Defendant. Fredericka said she told the magistrates she did not like him any more because of their constant arguing over no money and no food and other domestic issues. She agreed that without the Defendant her life would be alright.

She lived with the Defendant in Mt. Hagen for 9 years while he worked for PNG Drillers until he left in 1999. Then in 2000 he went to work with Bishop Brothers in Porgera. This was changed to 1998. The whole family went to Porgera. In 2000 the Defendant had no work and no house. They lived with wantok’s in Lae for some time. Then in December 2000 Fredericka and the children went to Bipi. The Defendant stayed in Lae with one of his cousins.

Fredericka knows Jerry Silah. He was the principle of Bipi Primary School. It is true that the Defendant complained against Jerry that he was having an affair with Fredericka. Its not true that she was having an affair with Jerry Silah in 2002-2003 or 2004. Nor is it true that he had to leave Bipi because of an affair with Fredericka.

Fredericka denied:

• that her alleged affairs coming to light was the reason the Defendant went to the village elders. She also denied that the Defendant went to welfare in Lorengau to solve their marriage problems
• that she admitted an affair with Phillip to the Defendant and asked for his forgiveness, but the Defendant did not want to speak to her;
• that Phillip pushed Fredericka away when the Defendant approached them at the commencement of the attack;
• that the Defendant said "now I have seen you committing adultery with my own eyes";
• that the Defendant said "I will put a mark on you as proof of your adultery";
• that she was struck first on the arm;
• that after one blow Fredericka grabbed the Defendant.
  

Joe Parapakipak gave evidence, he is related the Defendant, calls him his brother. He is also related to Fredericka. He is a Peace Officer in the village. On the night Fredericka was attacked he was outside his house. He put on his battery light for the group of men and women playing cards. He heard a noise of people running coming from the back of the house. The first person who appeared was Phillip, then Fredericka then the Defendant running after Fredericka holding an axe. Philip was wearing short trousers, no shirt. Fredericka was wearing a black T shirt and blue sports short. Fredericka and the Defendant ran several times around the witness’s house then changed directions continuing to run around the house until they ran towards his sisters house and he could no longer see them. He heard Fredericka shouting. He and Abraham went to investigate. The Defendant was holding Fredericka. Abraham separated them and took the Defendant to the road and he took Fredericka and sat her on the steps to his house. He then noticed the cuts on Fredericka. Then the women came and washed the blood. Then Fredericka’s own sisters came and took her to the health centre.

From where he was prior to the incident he could not see Phillip and Fredericka. His wife Salome was in the kitchen at the back of the house. The kitchen is about 20 metres from where people were playing cards in the front of the house.

The following documents were tendered into evidence without objection:

Medical report dated 1st August 2005─marked exhibit "1";

Record of interview dated 17th August 2005─pisin─marked exhibit "2A";

English─marked "2B".

At this point the State closed its case.

The Defendant gave evidence. He has six children of his marriage to Fredericka, the eldest a boy studying medicine, 2 girls at high school and, 2 boys at primary school and a girl aged 4 years. He lived in Lae, the family came over to Bipi Island, Manus in early 2000. He came over to Bipi in mid October 2002. He came over purposely to sort out problems between his wife and himself. He heard that Fredericka was having affairs with men in the village. He had trouble solving the problem. He asked for the assistance of village elders, church groups, Community Services officers, sought village court mediation and advice from the Welfare Dept. This support was helpful but Fredericka was not co-operative and not prepared to "get our marriage together."

The Village Court made a mediation order. The Defendant sought the order because Fredericka had several affairs with men in the village and he wanted to know if she was still his wife. The Village Court order was tendered (exhibit "3"). It was served on Fredericka. He also gave her a letter from Welfare (exhibit 4). Fredericka was very upset that he had gone to Welfare, she said it was not fair that the Defendant had gone to Welfare for legal advice. The letter did not help.

The Defendant took one of the alleged adulterers to court. That was the school teacher. He left the island when served with the notice to appear in the Village Court. Of the other two alleged one was a brief affair when Fredericka and the man both came home to Bipi for their fathers funeral’s. The Defendant was not on Bipi at that time. The other person is Philip Sipu.

On 9th July 2005, Saturday night between 10-12 pm the Defendant was on his way to the middle village Potika. He decided to take the short route, the back road. When he was about 20 metres from his destination he came across Fredericka and Philip on the ground in a small clearing in the act of foreplay. They were immediately in front to him only a meter away. He got a shock, they got a shock. As soon as they saw him they struggled to part, jumped up and ran, Philip first and Frederika following. The Defendant said "I took my axe out of my small bag I always carry and as Fredericka was running I said to her now that I have seen you with my own eyes I will put a mark on your body as proof of evidence. I will take you to court for adultery." He started chasing her. They ran around the Peace Offices house twice. When he caught her he said "now I will put a physical mark". He did not say "nau em I dai bilong yu". The Defendant says he swung his axe to lightly put a mark on her left arm. Fredericka grabbed him in a bear hug. He tried to pull the axe head from between them. In the struggle the axe head came loose. That might have been how Frederika sustained cuts on her chest and ear. The Defendant threw the handle to the ground. Fredericka put her head on his left shoulder and began to sob. The Defendant says he gently said to Fredericka: "Freddy, if only you would stop all of your evil ways earlier on none of this would have happened."

When he came upon Philip and Fredericka he felt as anyone would feel if you see your wife making love with someone. He was shocked, surprised, but at the same time pleased. For the last 4 years he wanted to have a good evidence to put this matter to court. He was a little hurt, but not really because this was a continuous situation for the last 4 years.

In cross examination the Defendant said he spends his time fishing and gardening. He has no house. He didn’t build one because he was out of the Province. The materials are available but construction hasn’t started. His wife was staying with her family because that is what they normally did when they came home. He carries his bag with the axe in it all the time. He did not set out specially with the axe to look for Fredericka. He came home from fishing and went to his mother’s house where he has been staying then changed to go to the village coffee house.

The Defendant was only about 1 metre from Phillip and Fredericka when he saw them. They were 20 metres from the main house. Phillip was dressed in short trousers with no shirt. Fredericka was dressed. They were surprised, he was surprised and they started to run. He only cut Fredericka once with the axe. The other cuts to Fredericka might have come from when he was struggling to pull the axe out from between them. The axe was kept sharp as it was used to fashion timber for the canoe. The Defendant didn’t tell the police what happened because he knew he had the right to stay silent so exercised his right to do so. He was charged and confused and decided to remain silent until he had some advice.

Ciprian Simesa was called by the defence. He knows both the accused and his wife. He comes from Bipi and stays in the village. On the night of 9th July 2005 he was at the place where people go to have coffee in the village. He was sitting at the kitchen where the coffee was being sold. He was with 2 others and Phillip Sipu. Philip Sipu said he wanted to see Ciprian about the problem of Fredericka and Henry. Ciprian said "I cannot speak with you because I came to drink coffee. I could see you on Sunday." Philip agreed and he left. Ciprian does not know where he went.

Fredricka came to the kitchen while Ciprian was sitting there. He asked her what she was doing there and she said she came to see Phillip Sipu and that Henry was on the road. Ciprian said to her "you must go, something wrong might happen." And Fredericka replied "No, I want to see Phillip." After that they went behind the Kwila tree on the road towards the bush. The Kwila tree is about 10 metres from the kitchen. Fredericka lied when she said Philip and she were near the kitchen. Ciprian was at the kitchen and they were not there. Ciprian first said the light from the people playing cards would reach the Kwila tree then changed his mind and said it would not because of some banana trees in between.

After a long time after he had finished his coffee and chewed a betel nut Ciprian saw the two of them, Fredericka and Phillip running out of the bush towards the side of the kitchen where he was. Henry was chasing them.

The accused is Ciprian’s nephew. Ciprian said he came to court to help his nephew. When Henry was chasing Fredericka Ciprian heard him say in language "I am going to put a mark on you."

Ciprian had told Henry what he saw and Henry had told Ciprian what he saw, prior to coming to court.

Submissions
Defence counsel submitted the history of the marriage showed that the accused and his wife Fredericka, who had been married for over 20 years, had been having problems since their return to the village from Lae. The accused had taken a number of steps to try and save the marriage which was breaking down, but this was all one sided. When the accused caught his wife making love with Phillip, that was too much in the face of her continual bare denials. It was enough to make any ordinary person lose self control. He referred to Criminal Code s267. Counsel submitted that any person would have acted as the accused did. The force used was not disproportionate to the provocation used. If the court finds the defence of provocation is not applicable then it was submitted the State has not proven the element of intent.

The State prosecutor submitted that provocation is not available as a defence in attempted murder and referred to R v Bauroro-Dame [1965-1966] PNGLR 201 at 204. As to the existence of provocation in fact, it was submitted that the accused own words indicated he had not in fact lost the power of self control. The words "em I dai bilong yu" were evidence enough of an intention to kill. The injuries were serious and an inference of intention to kill can be drawn from them. The victim hospitalized for 5 days. The evidence of the accused could not be believed because:

• the evidence was the victim was clothed not naked. Therefore the case that the victim and Philip were caught having sexual intercourse, which was put to the State witnesses, could not be sustained.
• An inference should be drawn that the Defendant changed his story when he realized there was evidence Fredericka was clothed;
• The demeanour of the accused was of a man who could to be believed;
• There was no evidence the Village Court settlement order related to the accused as it was not in his name;
• It isn’t believable that anyone would carry an axe in the night after a fishing trip. Why not leave it home. The story was just made up to cover that his mind was made up to kill Fredericka if he found her with any of the men she was alleged to have been with including Philip.
• The three wounds cannot be caused by dragging the blade all three wounds were consistent with a blow from the blade.
  

Ciprian’s evidence was biased. He came to court to help his nephew. He was trying to improve his evidence. Said the light would reach the Kwila tree then when he realized it did not assist the accused changed to say the banana’s blocked the light.

An alternative verdict of grievous bodily harm is available s315 if the Court is not satisfied the intention to kill has been proven beyond reasonable doubt.

PROVOCATION AS A DEFENCE

The provisions on provocation are s276 and 303.

S267 is subject to the proviso that:

"...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...".

In my view the section is inapplicable to attempted murder because an intention to kill is an essential element of the charge of attempted murder and intention to kill involves an intention "...to cause death..."

S303 (killing on provocation) provides a partial defence, lowering of the crime committed to manslaughter where there is provocation. The opening words of s303 are:

"Where a person unlawfully kills another..."

The Tasmanian Code is worded somewhat differently to our own and combines the effect of ss267 and 303. Relevantly s160 provides:

"1) Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation."

In Steven John McGhee v The Queen [1992] HCA; 183 CLR 82 Brennan, Toohey, Gaudron and Dawson JJ (Deane J dissenting) held that s160 could not be applied to the offence of attempted murder because, in the words of Dawson J:

"the answer to the question raised by this appeal must be found in the language of the Code. In particular it must be found in a Code where the role of provocation is limited by s.160 to reducing the crime of murder to that of manslaughter. It has no other role to play."

The same reasoning applies to s303 (Killing on Provocation). There must be a death for the section to come into play. There is no room for any other interpretation notwithstanding the views to the contrary expressed in many decisions from non Code States referred to in Steven John McGhee v The Queen. S304 has no operation where a person does not unlawfully kill another.

Frost J, as he then was, came to the same conclusion by a somewhat different route in the case of R v Bauoro-Dame [1965-1966] PNGLR 201. And so I agree with the result in that case that provocation is not a defence available to an indictment for attempted murder contrary to s304 of the Criminal Code.

ALTERNATIVE VERDICT

The State Prosecutor submitted that if the court is not satisfied that there is evidence of an intention to kill an alternative verdict is available of a conviction under s315─(acts intended to cause grievous bodily harm or prevent apprehension). That is not correct. The Supreme Court clearly held in The State v James Pah [1985] PNGLR 188 (Kidu CJ, Bredmeyer and Cory JJ) that on a charge of attempted murder an alternative verdict under s315 is not available. That remains the law in Papua New Guinea. Therefore I would not follow State v Leonard Masiap [1997] PNGLR 610 (Sevua J) where his Honour convicted of "intent to do grievous bodily harm pursuant to s315(b) and (d)..." after a trial on an indictment for attempted murder. His Honour there followed the obiter comments in State v Wanaepe Wanara [1977] PNGLR 458 (Prentice DCJ) which were held to be in error in The State v James Pah. In that case the reasoning of their Honour’s, who delivered separate reasons, was twofold;

1. that s542(1) (Charge involving specific result) deals with the situation in which the charge has an element of causing a specific result whereas s315 creates an offence of intending a specific result. S542(1) therefore does not authorise an alternate conviction under s315;
   
2. S542(2) deals with a charge of intending a specific result. A charge of attempted murder has no element of a specific result in the sense of a specific injury. The specific result intended is death, which is not an element of a charge of grievous bodily harm with intent.
   

In R v Kiki Kau’Au (1970) No557 it was held that the position in Papua New Guinea was the same as in England and that no alternative verdict was available on a charge of attempted murder under s304. However the true position as it has always been in England is explained in R. v Morrison [2003] EWCA Crim 1722; (2003) Crim. L. R. 801 (Wolfe LJ, Roderick-Evans and Rogers JJ) where it was held an indictment for attempted murder includes an attempt to do grievous bodily harm which is available as an alternate verdict.

S542 is in the following terms:

(1) ...

(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.

An indictment for attempted murder includes an element of intention to kill: R v Ben Forepe [1965-1966] 329; R v Kiki KauÁu (1970) No557. That is the only element. And as Bredmeyer J said in State v James Pah "...death) is not an element of causing grievous bodily harm with intent". Likewise there is no element of intention to cause death in the offence of causing grievous bodily harm simpliciter under s319. It simply is not possible to make the provisions of s542 encompass an alternative verdict of grievous bodily harm contrary to s319. S319 is not available as an alternative verdict to attempted murder. The proper course is to place all of the possible alternate counts in the indictment: State v Wanaepe Warara [1977] PNGLR 458.

Analysis of the Evidence
Commencing firstly with the provocation evidence; if I am wrong in the view that the provocation is not available as a defence, I record that the I disbelieve the Defendant’s evidence that he came upon his wife and Philip lying on the ground in the act of sexual foreplay. My reason for doing so is that the Defendant said he was only a meter from the couple when he saw them. They got up and ran. He painted a picture of Philip and Fredericka struggling to separate from each other. The evidence of other witnesses was that Philip ran out to the Peace Officer’s house first, then Fredericka, followed by the Defendant who eventually caught up with Fredericka after several rounds of the house. It does not stand logical scrutiny that a couple lying down only a meter or so from a person standing would be able to stand up, run off and have a head start on their pursuer. If what the Defendant said was true, he would have been upon them before they had a chance to make good their escape. I therefore accept Fredericka’s evidence on the issue that she and Philip were both standing when the Defendant came upon them, because it is the only version put forward which would enable Philip and Fredericka to be ahead of the Defendant in his pursuit and attack.

I therefore find that Fredericka did not offer provocation to the Defendant on that occasion, even considering the history of the marriage and the Defendants pre-existing suspicions. It is not necessary for me to find and I leave open the issue of whether foreplay, as distinct from an admission of adultery or finding a spouse in the act of adultery, is sufficient to establish provocation.

On the issue of whether the Defendant was deprived of the power of self control I find that he was not. On his own evidence he was a little hurt and shocked, but his motivation for cutting Fredericka with the axe was a calculated one of marking her as an adulteress. In the actual execution I find the Defendant was less calculating and more driven by anger than he intended. However, I infer from the words he spoke in the witness box and the nature of the injuries, to which I will refer later, and which I find are not of the extreme nature one would expect of a person who has lost the power of self control, that the Defendant was angry but had not lost the power of self control.

That only leaves the issue of whether the State has proven beyond reasonable doubt that there was an intention to kill. The State relies upon the words allegedly spoken by the Defendant "em i dai bilong yu" which the Defendant denies uttering. I find he did utter those words. As I say above, I prefer the evidence of Fredericka. The Defendant is an intelligent well spoken man with an extensive English vocabulary. But I consider that his evidence has been tailored to fit defences which might be available to him. I distrust the evidence of Ciprian as he was quite obviously partisan to the cause of the Defendant.

Not every word spoken in anger is meant literally. Some are meant to frighten, as the Defendants words did. The task for me is to decide from the over-all picture of the events were the words spoken a true reflection of the Defendants intention.

The State also relies upon the nature of the injuries. There were three cuts inflicted on Fredericka. The medical report describes them as:

"10cm laceration of the left mid arm posteriorly, 10cm laceration of the left posterior upper chest and a 12 cm laceration of the left face from the temporal-mandibular joint to the zygoma region. The ear was divided and the wound bleeding. The other wounds were sutured at Lessau Health Centre while the 12cm wound was repaired here at the hospital...She has hearing impairment of the left ear and will require attention for this."

On the trial the witness Fredericka indicated generally the areas in which she received the blows from the axe. The medical report was submitted by consent. No oral medical evidence was called.

Fredericka said the first blow was received to the side of the head. Again I prefer her evidence to that of the Defendant who said there as only one blow to the left arm. As I noted during the trial the head of the axe was 9cm wide. It was a smallish axe, a tomahawk. Without the assistance of expert medical opinion my view is that the most likely explanation for two wounds of consistent width and one a little wider, is that they were made with blows from the same instrument, namely the axe. I reject the Defendant’s explanation that the head and upper chest wounds were made by the dragging of the axe from between them during a struggle. There is no logical way that could happen with the wound to the ear.

No medical evidence was tendered as to the depth of the wounds. Nor whether ligaments, major blood vessels and bone were involved. I infer that they were not. I was not asked to observe any scarring to the arm or chest or disfigurement to the ear whilst Fredericka was in the witness box and I infer that there is no significant scarring or disfigurement.

The evidence then in summary is that the Defendant struck Fredericka three blows with the axe which resulted in the wounds described but did not involve any severing of major blood vessels, the severing of any ligaments or the chipping or breaking of any bone. Fredericka was hospitalized for 5 days. She has been left with some impairment of hearing in the left ear but no significant scarring or disfigurement.

Against the background of truly horrific injuries which come before the court caused by axes and bush knives wielded by persons unequivocally intending to kill; and recognizing that any blow to the head can be very dangerous, yet I am unable to say solely from the injuries themselves that they evince an intention to kill.

There is evidence from Fredericka, which I accept, that the Defendant intended a fourth blow which was prevented by the axe head flying off the handle. There is no evidence to suggest that this blow would have inflicted any injury more severe than those actually inflicted.

The overall impression I have from the evidence is that the blows inflicted and the blow intended but prevented were restrained to an extent. The evidence does not go so far as to show that the blows were the type inflicted with ferocity and savagery which by themselves speak clearly of the intention to kill. Being of the view that the blows were restrained I consider that the words spoken "em I dai blong yu" were not a true statement of intent. That leaves me with a reasonable doubt as to the intention to kill. I find the State has not proven the intention to kill beyond reasonable doubt.

I consider that the evidence established that the accused is guilty of the offence of grievous bodily harm. However he has not been charged with that offence and it is not available as an alternate verdict by reason of s542. Nor does s547 assist. That section is designed to permit conviction of the less serious charge with which a person has been charged if the evidence shows that they actually committed a more serious charge.

For these reasons I acquit the Defendant.

Before I leave this matter I should say that all of the allegations of unfaithful behaviour against Fredericka made in this court were simply that. Allegations. No evidence was offered which I accepted which proves any of those allegations to be true.

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