State v Kuvi [2008] PGNC 165; N3525 (19 November 2008)

N3525

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 810 OF 2008

THE STATE

- v -

VICTOR NARERE KUVI

Kimbe: Salika J
2008: 19 November

CRIMINAL LAW – particular offences – grievous bodily harm – assault on a person – defences available – self-defence – provocation – Whether self-defence negatived – no necessity to use force – no evidence that accused believed on reasonable grounds that he could not preserve his own life other than to strike the victim.

Cases cited

Papua New Guinea Cases
R v Kaiwor BA [1975] PNGLR 90
R v Korongia (1961) No. 204.

Overseas Cases
R v Muratovik (1967) Qd R 15

Counsel:
Mr T Ai, for the State
Mr R Awalua, for the defendant

19 November, 2008

1. SALIKA J: The accused in this matter was charged with one court of unlawfully causing or doing grievous bodily harm to one George Mara.

2. He entered a plea of not guilty.

3. The brief facts were that after midnight on the 1st January 2008 George Mara, his father and some boys were celebrating the New Year at Kulungi village near Kimbe town. They were drinking beer and making noise to welcome the New Year. They were drinking in front of Martin’s Store which is near their own house and near the main road and throwing bottles on the road. The accused and his uncle came upon the scene and his uncle, whose name is also Victor Narere, told George not to throw bottles on the road and make a lot of noise.

4. George Mara being drunk responded by saying "kaikai kan" which literally means "eat vagina" or "suck the vagina". This angered the senior Victor Narere and he came and hit George with a stick three times on his body. Upon being hit George got an empty bottle and threw it at the senior Victor Narere. The bottle missed him and George got another empty bottle and threw it at Victor Narere, at the same time swearing at him with obscene language. George then went towards the back of the store to look for stones and bottles to throw at Victor Narere.

5. The accused seeing this decided that he would stop George from throwing bottles and stones at his uncle. He went around the other side of the house armed with a bush knife to stop George.

6. In the meantime George’s mother Mary or Maria Linge had also heard the commotion and came and asked her son what the matter was and what was happening. She tried to stop her son from doing anything by standing in his way and talking to him.

7. The accused came from the other side of the house and confronted George armed with a bush knife.

8. George saw the accused with a bush knife and so he got his own grass knife to challenge him. George’s mother came in between George and the accused to stop and separate them. George was the more aggressive, talking, swearing and pushing his mother out of his way. He was by then armed with his grass knife. He was able to get around his mother and swing his knife at the accused, missing him, but still holding on to his knife.

9. I pause to note here that George was drunk and what he was doing is a behaviour commonly associated with drinking beer and being intoxicated.

10. He was still aggressive and his mother was still trying to stop him. The accused then retaliated and cut George’s right hand thereby fracturing the bone of his hand.

11. This ended the confrontation as George cried in pain holding his broken hand with the other hand.

12. The accused raised a defence of self-defence and relies on Section 269 of the Criminal Code. He said he only retaliated in self-defence against an unprovoked assault.

13. The issues are whether or not the accused was provoked and whether he acted in self-defence when he struck George with the bush knife.

14. Section 26 of the Criminal Code says that, acts done on compulsion, or provocation or in self-defence, a person is not criminally responsible for an act done under such circumstances of sudden or extra ordinary emergency that an ordinary person possessing ordinary power of self control could not be expected to act otherwise.

15. I will try to deal with the first provocation. At this juncture I note that in the excitement of celebrating New Year George, his father, and other boys with him were making a lot of noise. They may have been breaking bottles on the road as well. Victor Narere (Senior) and his boys came and told George and his company not to make noise and throw bottles on the road. George in reply said "kaikai kan" to him. Victor Narere (snr) got offended by that and he came and hit George with a stick three times.

16. Victor Narere (snr) is a village and community leader and a businessman. He may have had the best of intentions to come and tell George and his group not to make any noise and thereby disturb the peace. It could be argued or said that he was acting in compliance with Section 258 of the Criminal Code. In other words his actions amounted to prevention of a breach of the peace. The method he used as to whether the force he used was reasonable in the circumstances is an issue to be determined in itself but I will refrain from determining that issue because he is not on trial here. His nephew is on trial here.

17. I will go back to the issue of whether or not Victor Narere Kuvi (Jnr) was provoked when he struck George in self-defence. I am mindful of the cardinal requirements of the criminal law that the prosecution or as in this case the State, has the burden of proof to negative self-defence where that defence is raised. In this case the accused raised the defence of self-defence and the State must negative self-defence by adducing relevant evidence. In that regard the State called George Mara, the victim and his mother Maria Linge.

18. The defence of self-defence is provided for under Sections 269 & 270 of the Criminal Code Act. Sections 269 and 270 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 reasonable necessary to make an effectual defence against the assault, 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 of death or grievous bodily harm; and
  
• (b) 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."

270. Self-defence against provoked assault.

(1) Subject to Subsection (2), when –

• (a) a person has unlawfully assaulted another person, or has provoked an assault from another person; and
  
• (b) the other person assaults him with such violence as –
  

(i) to cause reasonable apprehension of death or grievous bodily harm; and

(ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm,

(2) The protection provided by Subsection (1) does not apply –

(a) Where the person using force that causes death or grievous bodily harm –

(i) First began the assault with intent to kill or to do grievous bodily harm to some person; or

(ii) Endeavored to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or

(b) Unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable."

19. First of all is the accused covered or entitled the cover under Section 269 above. That is the only provision he relies on in his defence.

20. Was the accused unlawfully assaulted? The evidence shows that the accused was not assaulted physically. His uncle assaulted George and George retaliated by throwing bottles and stones at the uncle. The accused was only meant to stop, suppress or prevent George from further throwing bottles and stones at his uncle.

21. As it turned out it was not to be. George turned his attention from the uncle to the accused because the accused was armed with a bush knife and had come to confront him. How the accused was going to stop George with one hand holding a knife and one hand free I do not know and cannot understand. The logic in going to try and stop a man who was drunk with one hand holding a knife and with only one free hand to me does not make sense. George only got his grass knife after the accused confronted him with a bush knife. I would have expected someone in the accused position, sober, and full sense to act some other way than in the way he did. Even when George swung his grass knife at the accused, he missed the accused and the grass knife did not land on any part of his body. Moreover the evidence is that George’s mother was in between them stopping George. This is confirmed by the accused’s uncle that George at that time was already being attended to by his mother to quell and restrain him from further aggression.

22. I am mindful of the definition of assault which is defined under Section 243 of the Criminal Code to include directly or indirectly striking at or applying force at another person or by any bodily act threatening to apply force to a person. In this case George did act in that manner towards the accused after the accused came after him to the back of the store or house. This was in the form of using insulting and abusive language. But I am also mindful of the evidence that the accused brought about this on himself as there was no need for him to do what he did, that is confront George armed with a bush knife. His intention might have been to stop George but George did not see it that way. As far as George was concerned he had come to fight him.

23. The next question is who provoked the assault (swinging of the grass knife by George) to the accused? Did George provoke the assault or was it the accused who provoked the assault on himself.

24. The evidence is that the initial argument was between George and Victor Narere (snr). The accused came to the back of the store with the intention to stop George. But the accused came armed with a bush knife. This provoked George to get his grass knife and confront the accused. In the scenario described I am of the view that George did not initially provoke the assault on the accused. The accused provoked George by going to George armed with a bush knife. George then swung his grass knife at the accused. George’s mother at the same time was trying to stop her son. If I am wrong in that it may be argued that, George by swinging his grass knife at the accused first, provoked the accused to do what he did, that is strike back at George with his bush knife.

25. In the time available to me I have only been able to obtain assistance from Andrew Chalmers and Weisbrot Criminal Practice and Procedure in Papua New Guinea (pages 282-286):

"The essence of self defence is that violence is presently being offered. An actual assault in terms of Section 243 is required... ." R v Korongia (1961) No. 204.

26. George continued to use threatening words and gestures and his body language at the time, (being drunk) speaks of a person who was intent on fighting with the accused. On the other hand he was being in my view adequately managed by his mother and the accused’s continued presence was not helping the situation.

27. George after swinging his knife at the accused was stopped by his mother and as she attended to him there was a time of retreat of may be 2 minutes (evidence of the accused’s uncle, Narere (snr) before the accused cut George with the bush knife.

28. Was there a situation of self-defence? I quote again from Andrew Chalmers, Weistrot from page 287:-

"The degree of force which it is lawful for the accused to use for the purpose of defence is set out in R v Muratonik (1979)Qdr 15:

"The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self- defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm"

29. The above quote is from Frost CJ in R v Kaiwor BA (1975) PNGLR 90, wherein he quoted from Gibbs J in R v Muratovik (1967) Qd R 15.

30. The facts in the case of R v Kaiwor BA can be distinguished from the facts in this case in that, in that case the accused had disarmed the victim and therefore the danger was removed. A situation for self-defence did not exist in that case.

31. In this case the accused did not disarm the victim but the victim was being managed by his mother. The attack by the accused on the victim was not spontaneous in that there was a break. George did not continue swinging his grass knife at the accused. He swung it once but his mother stopped him from further swinging the grass knife and had him under control although George was still swearing and trying to ward off his mother. At the time the accused struck, there was no cause for him to preserve himself from death or grievous bodily harm because the victim’s mother was attending to him and stopping him and managing him. His mother was standing between them but it appeared that the accused was able to come from the side to strike George. In my respectful opinion the danger to the accused was effectively removed.

32. Once the mother of the victim came in between the accused and the victim the danger was removed. Moreover, there is no evidence that the accused had reasonable belief that he could not do anything else to preserve his life other than to cut the victim. Evidence is to the contrary the accused had an opportunity to withdraw or retreat. He did not have to stay around and listen to the abuse from the victim. He was always at liberty to retreat and leave. The potential danger that threatened the accused was removed and the need for self-defence at the material time did not exist.

33. For these reasons I am satisfied beyond reasonable doubt that the State has excluded self-defence.

34. I therefore find the accused guilty as charged.

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