State v Simbia [2007] PGNC 155; N3398 (16 April 2007)

N3398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 536 OF 2003

THE STATE

V

HANK SIMBIA & ERSON RONSUMBRE

Vanimo: Hartshorn, J.
2007: 9 & 16 April

CRIMINAL LAW – Murder - Trial – Self Defence - s.269, 271 Criminal Code

Facts:

This is a decision on verdict on a charge of murder of the two deceased, David Wambo and Henry Batilom, by the two accused at Pasi Forestry Beach Camp on the East Coast of Vanimo, West Sepik Province. Both accused pleaded not guilty and raised the defence of self-defence

Held:

1. The State has not excluded or negatived each of the elements of self defence in s.269 of the Criminal Code.

2. The accused Hank Simbia and Erson Ronsumbre are not guilty and are discharged accordingly.

Cases Cited:

Papua New Guinea Cases
Tapea Kwapena v. The State [1978] PNGLR 316
The State v. Leonard Masiap [1997] PNGLR 610

Overseas Cases
Palmer v. R. [1970] UKPC 2; (1971) 55 Cr App R 223

Counsel:
M. Ruarri, for the State
D. Sakumai, for the Accused

16 April, 2007

1. HARTSHORN J: Both accused have pleaded not guilty to murdering Henry Batilom and David Wambo on 6th February, 2003 at Vanimo.

2. The undisputed facts are that at about 8–9 pm on 6th February 2003 the two deceased and Anselm Apan went to the house of Hank Simbia near Pasi Forestry Beach Camp on the east coast of Vanimo. On the way to the house Wambo went to look for a torch. Batilom and Apan went ahead to the house. Once there Batilom and Apan shouted for Simbia to come down and give them an outboard engine that Simbia had that belonged to Wambo’s father in law. Simbia came down the ladder from his house. He was carrying a bush knife on his back.

3. When Simbia came down there was an argument over the engine. Simbia was punched by Batilom and then both Batilom and Wambo were punching Simbia. Simbia pulled out his bush knife and started slashing at both deceased. Ronsumbre came down from the house to aid Simbia and cut Wambo with a bush knife. After both deceased were injured they fled the scene and later the deceased were discovered. Both deceased were intoxicated at the time of the incident.

4. The State called one material witness, Apan. He accompanied both deceased to Simbia’s house. In cross examination he confirmed that earlier in the day Wambo had assaulted Simbia in Vanimo in relation to the outboard motor that Simbia was holding for Wambo’s father in law. He also confirmed that both deceased were drinking most of the day and were intoxicated. Apan said that although he was with both deceased throughout the day, he only drank two ice beers and was not intoxicated. He also said that later at Simbia’s place he was not involved in the fighting and was standing back about three metres from the fighting.

5. Both accused gave evidence. Simbia gave evidence that he had in his possession an outboard motor that Wambo’s father in law had given him to repair. He said he had agreed with the father in law that he would keep the engine until the repairs were paid for. He confirmed that he had been assaulted earlier in the day on 6th February 2003 at about 3 pm by Wambo three times in the face and twice in the stomach after Wambo confronted him about the engine.

6. Then at about 9 pm he heard people shouting below his house. Three times they shouted for him to come down. He opened the door and saw that it was a person he recognized, Apan, and another person whom he did not. This person was Batilom. Batilom said that they wanted to take the outboard engine now. Simbia saw that they were drunk and told them to come back tomorrow when they were sober. They were not placated and Simbia had to go down the steps at their insistence. They continued to demand the engine. Simbia told them the engine did not belong to them. Then Wambo came out from the dark behind Simbia and hit him on the back of the head and arm with the frame of an iron chair. After this the other two and Wambo started punching and kicking Simbia. Simbia fell to the ground as a consequence. When on the ground Simbia was hit on the legs with a piece of timber by Apan.

7. As he was being attacked by the three men while on the ground, he got the bush knife and started swinging it. Simbia was not sure who he hit but believes it was the deceased Batilom as Batilom was in front of him when he fell to the ground. In cross examination Simbia said he did not mean to kill or cause grievous bodily harm. He was just protecting himself because he was being attacked by three men whilst on the ground.

8. Ronsumbre gave evidence that he was in the house looking down at Simbia and the two men arguing when he saw a man come out of the dark and hit Simbia on the back of the head and arm with the iron frame of a chair. He later saw the three men hitting Simbia on the ground. After he saw Simbia being hit with an iron chair, he thought that Simbia may be killed so he took a bush knife and went down to defend his son in law Simbia. He cut the man whom he had seen using the iron chair on the arm with the bush knife to intimidate him and them so that they would all leave and go. He also saw Apan hit Simbia with a piece of 2 x 2 timber.

9. It is necessary for me to determine which evidence is more probable by assessing the credibility and demeanour of both accused and the witness Apan.

10. As to the evidence given by Apan, it is acknowledged by him that he was at the scene of the incident. It is asserted on behalf of the accused that he was involved in the incident and both accused gave evidence that he attacked Simbia with a piece of timber. Consequently I caution myself that his evidence may not be reliable. Although Apan is not an accomplice he is a witness who reasonably could be supposed to have been criminally involved in the incident with both deceased.

11. Notwithstanding the above, Apan to my mind was not a credible witness. His demeanour in the witness box was not impressive and he appeared arrogant, surly and at times uncooperative. He failed to mention until cross examination that there had been the assault by Wambo on Simbia earlier that day, failed to mention the two deceased had been drinking all day and failed to mention that the two deceased were drunk. Given that he was with the two deceased all day, his evidence that he only had two bottles of ice beer to drink some six hours before the incident and when at Simbia’s place, did not take part in the assault but just watched from three metres away, I find hard to believe.

12. The evidence of both accused was given in a relaxed and calm manner and both were cooperative and attentive. Both accused raised the defence of self defence.

13. The law on self defence is settled in this jurisdiction. In Tapea Kwapena v. The State [1978] PNGLR 316, the Supreme Court held that where a defence of self defence to murder is raised under the Criminal Code, the questions to be determined beyond reasonable doubt are:

a) whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm;

b) whether the accused believed that he could not preserve himself from death or grievous bodily harm otherwise by using the force that he in fact used, and;

c) whether the accused’s belief was based on reasonable grounds: or whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds.

14. As to the onus of proof once a defence of self defence is raised, I adopt the wording of Sevua J. in The State v. Leonard Masiap [1997] PNGLR 610 where after reviewing the authorities he stated;

"The onus of proof therefore remains with the prosecution throughout ..... The State must prove beyond reasonable doubt that the necessary elements in s.269 averted to in Takip Palne do not exist ... The State must exclude or negative each of the elements of self defence in s.269 of the Code."

15. I now consider and evaluate the evidence in respect of the three questions to be determined. As to whether the assault on Simbia by the deceased and/or Apan was such as to cause reasonable apprehension of death or grievous bodily harm, the evidence of both accused is that Simbia was struck by Wambo with the frame of an iron chair on his head and arm, and then was repeatedly punched and kicked while standing and on the ground by the three men. There is also evidence that Simbia was hit on the leg with a piece of timber. In my view the assaults upon Simbia are such to cause reasonable apprehension of at least grievous bodily harm.

16. As to whether Simbia believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force he in fact used, Simbia gave evidence that he used the knife as he thought he would be killed. Having regard to the nature of the assaults, the fact that initially it was three men against one and Simbia was on the ground, I am of the view that there were reasonable grounds for Simbia to believe that he could not preserve himself from grievous bodily harm otherwise by using the force that he did which consisted of swinging a bush knife.

17. The evidence suggests that when Simbia was standing and on the ground the assaults by the three drunken men were continuous and intensive. Some defensive action was required by Simbia and he should not be expected to "weigh to a nicety the exact measure of ........necessary defensive action". Palmer v R [1970] UKPC 2; (1971) 55 Cr App R 223. I am satisfied that Simbia did hold the belief that he could not preserve himself from at least grievous bodily harm otherwise than by using the force that he did, and had reasonable grounds for having that belief. I am not satisfied that Simbia did not have that belief, or if he did have that belief that he did not have reasonable grounds for having that belief.

18. As stated, I am of the view that Simbia’s beliefs were reasonable and based on reasonable grounds. If I am incorrect in so determining, it is the case that the State has not negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds. That is, the State has not excluded or negatived each of the elements of self defence in s.269 of the Criminal Code.

19. I find then that I am not satisfied beyond reasonable doubt that any of the necessary elements of a plea of self defence did not exist as to Simbia. Accordingly I find the accused Hank Simbia not guilty of murder and discharge him accordingly.

20. As to the accused Ronsumbre; as I have found that Simbia was acting lawfully in defending himself, pursuant to s.271 of the Criminal Code, it is lawful for Ronsumbre acting in good faith in the aid of Simbia to use force of a like degree for the purpose of defending Simbia.

21. The evidence of Ronsumbre is that upon seeing Wambo hit Simbia over the head and arm with an iron frame of a chair he came down and cut Wambo once with a bush knife on the arm. Ronsumbre said that after he saw the actions of Wambo and then Simbia being attacked, he feared for the life of Simbia, their families and himself. I do not doubt that he had that belief and in the circumstances I find that belief to be based on reasonable grounds. I find that Ronsumbre was acting in good faith to help his son in law Simbia and that the force used by Ronsumbre was of a like degree. Again, if I am incorrect in so determining, the State has not excluded or negatived each of the elements of self defence in s.269 and s.271 of the Criminal Code.

21. I therefore find the accused Erson Ronsumbre not guilty of murder and discharge him accordingly.

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