State v Katu [2009] PGNC 35; N3609 (23 April 2009)

N3609

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 603 OF 2008

THE STATE

V

EDDY KATU

Lae: Manuhu J
2009: 21, 22 & 23 April

JUDGMENT ON VERDICT

CRIMINAL LAW – Murder – Self-defence – Unprovoked assault – Deceased charged at accused with kitchen knife – Both women fell – Deceased was over accused – Accused disarmed deceased and swung knife at her – She feared for her life – State did not call eye witness evidence – State failed to disprove self-defence.

Cases cited:
The State v Mathilda Edward (2004) N2726.
The State v Albert Gias (2005) N2812.

Counsel:
Ms. N. Lipai, for the State.
Mr. A. Bino, for the Accused.

23 April 2009

1. MANUHU, J.: The accused is charged for the murder of Veronica Alu on 4 November 2006 at Payawa, Morobe Province.

2. The State alleged that between 5:30 and 6:30pm on the said day, the accused had an argument with the daughter of the deceased. The deceased, who was in the kitchen, overheard the argument and came outside. The deceased had a kitchen knife. When she reached the accused they fought and fell onto the ground. The accused removed the knife from the deceased and stabbed her once under the left shoulder. She died as a result of that wound.

3. The State did not call any witness to testify. The only evidence is the accused answers in the Record of Interview, which had been tendered by consent with the medical evidence. According to the Record of Interview, the argument between the accused and the deceased person’s daughter had stopped when the deceased came out with the kitchen knife and jumped on the accused causing both women to fall onto the ground. The accused said she wasn’t sure where she stabbed the deceased but she was scared the deceased would stab her. With no other evidence, I accept the evidence in the record of interview as the only account of what took place.

4. The only legal issue in this case is self defence. In that regard, I am satisfied that the accused did not provoke the deceased because the initial argument had stopped. The accused was unlawfully assaulted when the deceased jumped on her armed with a kitchen knife. The accused was in a vulnerable position when the deceased was hovering over her after they fell. The deceased had a knife in her possession. I accept that she reasonably feared at that point in time that the deceased would use the knife to stab or injure her. She, for the purpose of preventing injury or grievous bodily harm disarmed the deceased. She was still awkwardly positioned in relation to the deceased. In that position, she swung the kitchen knife not knowing where it landed. Was her action in swinging the knife at the deceased in the circumstances reasonable?

5. Ms Lipai submitted that the actions of the accused were unreasonable because the subject of fear had been removed when the accused disarmed the deceased. The submission is meritorious because there are cases in the past that support that view. However, in the recent past, the Courts appear to be more sympathetic towards accused persons. This could be because in certain instances, the deceased is usually the main instigator and aggressor. There is some sense in this sympathetic approach.

6. In the case of The State v Albert Gias (2005) N2812, for instance, there was an argument between two brothers. The accused had a motorbike that was provided to him by his employer. He was in the process of tying a grass knife to the motorbike when his deceased brother, who was drunk, approached him to use the motorbike. He demanded that the accused give the motorbike to him but the accused refused. The deceased brother said that if the accused did not give the motorbike to him he would damage the fuel tank with the knife that he was holding, and burn the motorbike. The accused still refused to give in to his brother’s demands. The brother got angry and tried to cut the accused with a knife he was carrying. The accused responded by getting his grass knife and cutting him on the neck, the face and the leg. The brother fell down and lost a lot of blood because of the cuts he had received. He died later that day. The accused was charged for murder.

7. In considering the evidence, the Court noted that the State did not call oral evidence and there was no eye witness account of the fight.

8. In relation to whether the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm, the Court found:

"There were no eyewitnesses other than the accused, whose story all along has been that he reasonably apprehended (i.e. thought or believed) that he would be killed or seriously injured by he deceased."

9. As to whether the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm, the Court found in the negative for the same reason above.

10. As to whether the accused used only such force as was necessary for his defence, the Court said:

"I am unable to conclude that this was an overly vicious or opportunistic response. I am unable to conclude that the accused used more force than was necessary."

11. It was found that the State had failed to disprove self-defence and the accused was acquitted.

12. In the case of The State v Mathilda Edward (2004) N2726, where the accused was also charged for murder, it was alleged the accused and her husband went to Ponderosa Hotel. She 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 arrived and they had an argument. Subsequently, on 21st June 2003, 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 wounds caused her to bleed heavily leading to death.

13. Self-defence was also raised and the Court found eventually as follows:

"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.’"

14. Both of the cases are parallel to this case, especially the second case where the deceased was also disarmed by the accused who stabbed her three times. In this case, the deceased was disarmed and the accused stabbed her only once. The accused was scared and didn’t know where the knife had landed. The deceased was over her when she swung the kitchen knife at her direction. The deceased was the main aggressor. The argument between the accused and the deceased person’s daughter had ended without physical confrontation. It was unnecessary for the deceased to arm herself and start a fight with the accused.

15. In the circumstances, I am satisfied that the accused action in swinging the knife at the deceased in the circumstances is reasonable. The State has, therefore, failed to disprove self-defence and I acquit the accused.

Verdict: Not guilty.

___________________
Jimmy Wala, Acting Public Prosecutor: Lawyer for the State
Paul Paraka, Paraka Lawyers: Lawyer for the Accused