N3495

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 280 of 2007

BETWEEN

THE STATE

AND

ROLAND REBON

Kokopo: Lay J
2008: 4, 5 September & 6 October

CRIMINAL LAW─ Criminal Code s267, 269, 300, 302,539 ─ meaning of “likely” in phrase “not likely to cause death or grievous bodily harm” discussed ─ Benny Baki v The State (1983) SC240 discussed.

Facts

The deceased, who had assaulted the accused a week earlier, swore words at the accused sufficient to provoke an assault. The accused punched the deceased twice in the face and kicked him once in the stomach. The deceased died from a ruptured spleen. The accused claimed defences of provocation and self defence.

Held

1.	“not likely to cause grievous bodily harm” means in the eyes of a person from the accused’s social setting, was there a substantial or real and not remote possibility that the force used would cause death or grievous bodily harm;

2.	the prevalence of enlarged spleens is not a matter to be taken into account in determining whether the force used was not likely to cause death or grievous bodily harm because it placed too high a standard on a person who has lost his self control.

3.	The defence of provocation was made out, the accused acquitted and discharged. 

Cases Cited:

PNG Cases Cited

Principal Legal Advisers Request No.1 1980 [1980] PNGLR 326
R v Rumints-Gorok [1963] PNGLR 81 at 83.
R. v Taimbari-Kesa (1966) N397
R v Hand [1963] PNGLR 9 
Benny Baki v The State (1983) SC240

Overseas Cases Cited

R v Trieu [2008] QCA 28

References

Criminal Code
Criminal Law and Practice in Papua New Guinea 3rd Ed

Counsel

J. Sebby, for the State
M. Kadai, for the Accused

6 October, 2008

1. LAY J.: This mild-mannered young man, an elementary school teacher, Roland Rebon, is accused of the murder of Kamu Warpin, a troublemaker by repute and actions, on the 24 September 2006 at Walaur village, Watom Island, East New Britain. That Roland assaulted Kamu and that the assault killed him, was not contested. Roland claimed defences of provocation and self defence.

2. After coming out of church on that Sunday, Roland went to speak to Kamu Warpin about an assault by Kamu and his brothers on Roland, which had occurred about a week earlier. In the earlier assault Kamu had "broken" Roland's hand. His hand was still swollen on the Sunday.

3. When Roland approached Kamu Warpin and spoke to him, Roland demanded an apology. Kamu’s response was to laugh in his face. There may have been a little pushing and shoving. However at that point Kamu walked down to the beach and Roland walked away in another direction.

4. However, as Kamu left he shouted at the top of his voice after Roland "you go home and eat you mother's vagina".

5. Roland once again returned to confront Kamu. What happened next is a matter of some dispute.

6. People had just come out of two churches and the area was crowded. There were a lot of women of all ages spilling down onto the beach.

7. The State witnesses, one of whom was very close throughout, said that Kamu was holding on to a piece of iron bar and a small knife and stood ready for any attack by Roland. As Roland approached Kamu, Roland appeared very angry. A bystander removed the knife and piece of iron from Kamu. Roland then punched Kamu twice in the face and kicked him once in the lower right stomach. It was not a hard kick. Kamu was not knocked down. He did not retaliate. Relatives pulled Roland away and Kamu walked away. It was all over in a minute.

8. Roland's evidence is that he approached Kamu, who was armed with a knife in his pocket, and an iron bar, once again with the intention of demanding an apology. As he neared Kamu, Kamu swung the iron bar at Roland. Because he could not block the iron bar with only his one good hand, Roland tried to use his leg to kick the iron bar out of Kamu's hand, but missed and kicked his body instead.

9. Roland said that when Kamu swore at him in front of the women he was deeply ashamed, but not angry.

10. Tendered by consent were an unsigned medical certificate of death dated 24th September 2006, and an autopsy report dated 11 October 2006 stating cause of death as hypovolaemic shock as a result of splenic injury causing massive bleeding into the abdomen of 2 1/2 litres. Some irrelevant statements were also tendered.

11. Roland’s lawyer contested the State case on the statutory defences of self defence and provocation.

12. Therefore the issues for me to decide are:

a)	Has murder been proven, or alternatively;

b)	Has manslaughter been proven;

c)	Has the accused sufficiently raised a defence not negatived by the State evidence? 

Has Murder Been Proven?

13. On a charge of murder the State must prove that:

d)	the accused killed another;

e)	the accused intended to do grievous bodily harm: Criminal Code s300.

14. On a charge of murder if a necessary element is missing, such as the intention to cause grievous bodily harm, the person charged with murder may be convicted of manslaughter: Criminal Code s539.

15. The State must prove that the accused killed another. It was very unsatisfactory to tender an unsigned certificate of death. It is of no evidentiary value. However the post mortem report signed by Dr Felix Parkop sufficiently establishes that the death occurred by trauma to the spleen, causing six lacerations. The State evidence that there was a kick to the abdomen by Roland with no other intervening circumstances established between the kick and death establishes beyond reasonable doubt that the cause of death was the kick administered by Roland.

16. The second element of the offence (relevantly) which must be proven, is that the accused intended to do grievous bodily harm.

17. "Grievous bodily harm" means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health. The inquiry is directed at the intention of the accused: Criminal Code s1.

18. There appears to have been nothing remarkable about the two punches. The State witnesses report no injury, no bleeding nose or split lip or other facial injury. Nor does the autopsy report. Kamu was not knocked down by either or both of the punches. The kick, according to one State witness, was not a hard one and Kamu was not knocked down by it. There is nothing in the nature of the blows struck from which an inference could be drawn that Roland had an intention to cause grievous bodily harm.

19. I therefore conclude that there is no evidence of that intention and as a consequence murder has not been proven.

Has manslaughter been proven?

20. Where a person kills another under circumstances which are not wilful murder or murder, he is guilty of manslaughter unless there is lawful excuse: Criminal Code ss 302, 539.

21. Subject then to any lawful excuse, manslaughter has been proven to the degree of beyond reasonable doubt by the evidence of the assault, the cause of death, proximity in time of the two events and the lack of any evidence of any intervening circumstances between the assault and death to which the injury to the spleen could be attributed.

The Defences

Provocation

22. Section 267 of the Criminal Code provides:

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.

23. It has been settled for many years in this jurisdiction that a person charged with murder or manslaughter may claim the protection of this section: Principal Legal Advisers Request No.1 1980 [1980] PNGLR 326. It is also established that verbal insults may constitute a sufficient inducement to assault and thus constitute exculpatory provocation: R v Rumints-Gorok [1963] PNGLR 81 at 83.

24. The first question the Section requires answered is, was Roland deprived of the power of self control? This is a question of fact. I must find the answer from all of the evidence and not simply dismiss the defence because Roland said he was not angry.

25. Both State witnesses conceded that what was said to Roland would, if said to them, have made them angry. In the context of having just come out of a combined church service with people from other parts of the Island and the presence of a large number of both younger and older women from his own village as well as other places, the words yelled out by Kamu were a deliberate gross insult and provocation intended to inflict massive humiliation on Roland or provoke a fight. Kamu had a history of assaulting people and damaging property. He was known as a trouble maker. He no doubt observed as I do that Roland is a quiet young man, I hesitate to use the word “meek” but I have said at the outset he is certainly a mild mannered person. I find it very likely that Kamu thought he could get away with his deliberate insult; but once Roland turned back he knew he had miscalculated and armed himself ready to fight. I have no doubt that in the context the words were such as to be likely to deprive an ordinary person living in a village setting, of his self control.

26. On the question of whether Roland was actually deprived of that power, I note the following from the evidence:

f)	Roland said Kamu’s knife was in his pocket, he only knew of its presence by seeing the outline of it in his trousers;

g)	Both State witnesses say Kamu was holding the knife;

h)	Roland said Kamu swung at him with the iron bar;

i)	The State witnesses say Kamu was disarmed before the assault;

j)	Roland said he was not angry but ashamed;

k)	The State witnesses say he looked angry.

27. The inferences of fact I draw from the evidence are these, at some time between turning around and actually come up to Kamu, Roland became angry to the point of no longer being able to be cognisant of the changing circumstances or the changes in his own emotions. That is he had a picture in his mind of what the circumstances were moments before he attacked Kamu but not the circumstances applicable when he did attack him. I accept the State evidence that he was angry, I accept the State witness evidence that Kamu held a knife. He must have taken it out of his pocket but Roland did not observe this, nor do I believe that he observed that Kamu had been disarmed. He had become “blind” with rage. It is a case of “the accused having ceased to be the master of his own understanding”: Rumints-Gorok [1963] PNGLR 81. In this state of rage I conclude that he was in fact deprived of the power of self control.

28. The next issue is whether Roland acted “on the sudden” before there was time for his passion to cool. The whole event was over in a minute. There was some contention in the evidence as to whether Roland walked slowly or quickly towards Kamu but I consider this immaterial as I find it would only be the difference between 10 seconds and 20 seconds in the time it took Roland to come back to Kamu and immaterial in the context of time for his passion to cool. I find that Roland did act on the sudden and before there was time for his passion to cool.

29. There are three more tests to apply to establish the defence:

l)	Was the force used disproportionate to the provocation offered?

m)	Was the force used not intended to cause grievous bodily harm?

n)	Was the force used not likely to cause death or grievous bodily harm?

Was the force used disproportionate to the provocation offered?

30. Once Roland turned back, Kamu took out his weapons. He knew, the State witnesses knew that a physical assault was very likely to the point of inevitability as a result of the provocation. Roland is left handed, it was his left hand that Kamu had previously injured and which was still swollen. As I have previously noted the punches and kick were not marked by any external immediate consequence. A man who has been provoked to the extent that he has lost his self control cannot be held to an exacting standard: R. v Taimbari-Kesa (1966) N397. I conclude that the force used was not excess, no more than could be expected and not disproportionate to the provocation. 

Was the force used not intended to cause grievous bodily harm?

31. I have already found in the context of the elements of murder, at [17-19] that the force used was not intended to cause grievous bodily harm. I adopt that conclusion and the reasons.

Was the force used not likely to cause grievous bodily harm?

32. Two issues of law arise in addressing this question, first what is the meaning of “likely” and second, through whose eyes should it not be likely?

33. In approaching the question of whether an insult is likely to cause a person to lose self control the Criminal Code refers to the person against whom that test is to be applied as “an ordinary person”: s267(2)(a), and that has been held to mean an ordinary person in the social context of the accused: R v Hand [1963] PNGLR 9. I am happy then to rely on that authority and find it is that same ordinary person through whose eyes the test is applied as to whether the force used was “likely to cause death or grievous bodily harm”.

34. What is meant by “likely” in the context of s267? I was not assisted by and I have been unable to discover any case in our jurisdiction ruling on the issue. It was discussed in the context of the whole phrase “not likely to cause death or grievous bodily harm” in Benny Baki v The State (1983) SC240 but there was no consideration of the word “likely”. I will come back to that case shortly.

35. There has been recent discussion of the meaning of “likely” in the Queensland Court of Appeal in the context of self defence under the equivalent of our Section 269(1) which uses the same phrase. In the case of R v Trieu [2008] QCA 28 deJersey CJ, with whom McMurdo & Fryburg agreed, said:

“[61] I have found no case which deals directly with the meaning of “likely” in s 258 or ss 269-271 of the Queensland Code. However in Boughey v The Queen (1986) 161 CLR 10 at 21; 1986 [HCA] 29 the High Court considered the meaning of “likely to cause death” in the Tasmanian Criminal Code. In that context the majority (Mason, Wilson and Deane JJ) wrote:

“In our view, the word ‘likely’ is used in both ss 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a ‘real and not remote’ - chance regardless of whether it is less or more than 50 per cent.” 

Section 157 dealt with the definition of murder, but in my judgment the passage is apposite in relation to s 271.
[62] A similar approach was taken by the Western Australian Court of Appeal in construing the Western Australian equivalent of s 302(1)(b). In Macartney v The Queen [2006] WASCA 29 Wheeler JA said:

“The section also requires that the act be of such a nature as to be likely to endanger human life. That is, it must be found beyond reasonable doubt that there was an act which, regarded objectively, was of such a nature as to give rise to a substantial, real and not remote chance that the life of the victim would be endangered.”
On the other hand Roberts-Smith JA seemed to construe the word to mean “probable”. Steytler P (dissenting on other grounds) was prepared to assume the construction adopted by Wheeler JA.

[63] The approach taken by Wheeler JA is similar to that of Pincus JA in R v Hind and Harwood (1995) 80 A Crim R 105’ [1995] QCA 202. Applying the decision in Boughey to s 302(1)(b), his Honour held that “likely” “conveys the idea that the act in question created a substantial or real chance of danger to human life, regardless of whether that chance was more or less than 50 per cent” :(1995) 80 A Crim R p141.

[64] Darkan v The Queen (2006) 227 CLR 373.concerned the construction of “probable” in s 8 of the Code. The High Court identified four possible meanings (at 382):

“In this case the possible meanings of ‘probable’ which were referred to were, in descending order of likelihood: 

(a) more probable than not; 

(b) a probability of less than 50/50, but more than a substantial or real and not remote possibility; 

(c) a substantial or real and not remote possibility; 

(d) a possibility which is "bare" in the sense that it is less than a substantial or real and not remote possibility.”

(It will be observed that “possibility” (c) is the meaning which the High Court gave to “likely” in Boughey.) The court held that “probable” in s 8 has the meaning set out in sub-para (b). It clearly distinguished this meaning from that in sub-para (c).
[65] It cannot be said that the meaning of “likely” in s 271 is free from doubt. However the weight of authority favours giving it the meaning adopted in Boughey. It may be that after full argument and due consideration, it will be appropriate to adopt some different meaning. We have had no such argument in this appeal - the appellant was unrepresented. We should not depart from authority by holding that "likely" means "probable" in the Darkan sense."

36. Following and applying that authority and applying the conclusion at [35], the question to be asked is, in the eyes of someone from a village on Watom Island, was their "a substantial or real and not remote possibility" that the ‘not hard’ kick would cause death or grievous bodily harm?

37. Before answering that question I come back to Benny Baki v The State (1982) SC240, Pratt, Gayewiez & McDermott JJ the Court discussed the meaning of "likely to cause death or grievous bodily harm" in the context of a "spleen" case as is under consideration by me here. The Court said:

"The accused was charged with manslaughter, the essence of which is an absence of intention to kill. To then find as in this case, the accused excused or justified in making his attack and simultaneously saying he must objectively appreciate the risks of it and be liable for them, introduces an unreal element to the interpretation of the section".

38. With the greatest respect to their Honours, in the context of s267 I have some difficulty in understanding what the Court is saying. I am grateful to the authors of Criminal Law and Practice in Papua New Guinea 3rd Ed. p.281 who put the following interpretation on the Court’s observations:

"Where the accused’s assault was excused or justified on the basis of the provocation, one could not then find that the accused must have objectively appreciated the risks involved in the assault because it is well known that many persons have enlarged spleens. It could not follow that the accused’s assault was "likely to cause death or grievous bodily harm".

39. The difficulty I have with the case is that in my view, an assault is not justified or excused until all of the provisions of s267 are fulfilled. There is therefore a flaw in the logic to say the assault was excused, before the objective test that "the force used…is not likely to cause, death or grievous bodily harm" has been applied. The words used in the case convey the meaning to me that if the circumstances meet the requirements of s267(1)(a) & (b) the objective test which follows in the subsection, cannot be applied, at least not in respect of knowledge of the prevalence of enlarged spleens.

40. Their Honour’s could not have intended to say that the objective test cannot or should not be applied. I conclude therefore that the case must stand for the proposition that to hold the accused to the objective standard of having knowledge of the prevalence of enlarged spleens is too high a standard to apply to a person who has lost his power of self control by reason of a provocation.

41. I should note in this case, that there is no evidence about the deceased’s spleen, as to whether it was enlarged or normal. If on the authority of Benny Baki v State I must ignore on the part of a person from the accused’s social setting any possibility of knowledge of the risk of an enlarged spleen, I find the force applied by the accused was not likely to cause death or grievous bodily harm.

42. If I am wrong in my interpretation of Benny Baki v State I find that in the eyes of a person from a village on Watom Island there was not a substantial or real and not remote possibility that the kick would cause death or grievous bodily harm.

43. The accused has therefore properly established the defence of provocation. I find that the evidence for the State does not negative the defence. Accordingly I acquit the accused.

44. For completeness I find that the defence of self defence was not made out. The State evidence was inconsistent with the accused’s claim that the deceased swung the iron bar at him. And as I have found, in my view the accused did not appreciate the changed circumstances after he lost his self control and did not recognise that the deceased had been disarmed. There was no present threat to the accused by which his actions could be justified as a defence of an unprovoked assault.

_________________________________

Public Prosecutor: Lawyer for the State 
Paraka Lawyers: Lawyer for the Accused