State v Laki [2010] PGNC 260; N4164 (15 October 2010)

N4164

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 802 OF 2009

THE STATE

V

PONDROS LAKI

Bialla: Kawi, J
2010: 14th, 15th July, and 15th October

CRIMINAL LAW – Indictable offence – Criminal Code section 299(1) - Homicide etc......Wilful murder trial - Accused pleaded not guilty to wilful murder- Defence of self Defence raised-defence not available as there was no prior assault by the deceased – accused anticipated that wife would assault him using a stone- anticipatory self defence not known in law and therefore self defence fails- accused also raises killing on provocation as a defence under section 303-no loss of self control- accused failed to establish an act of provocation- retaliation by accused highly disproportionate to alleged provocation- Killing on provocation as a defence fails - accused raised defence of accident- section 24 of criminal code-accused failed to establish that death occurred independently of his will. – death was not accidental- defence of accident not available- Accused found guilty of wilful murder and convicted under section 299(1) of the criminal code.

HELD:

(1) In determining whether the defence of self defence applies, if the accused adduces evidence to legitimately raise the defence, the prosecution has the onus of proving beyond reasonable doubt, that at least one of the elements of the defence does not exist. R-v-Nikola Kristeff (1967) N445 applied.

(2) The essence of self defence is that actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – The State –v- Angela Colis Towavik [1981] PNGLR 140 applied.

(3) Here the accused anticipated that the deceased would throw a stone to hit him or even use a knife to cut him or inflict grievous bodily harm given her past bad record of using knives to cut her husband, the accused. Self Defence as a defence would not arise even where an accused person anticipates that the deceased would hit him with stone and then use a knife to inflict grievous bodily harm upon him. In law, the defence of Self Defence as known under the Criminal Code would not apply to anticipatory situations where an accused person anticipates that the deceased would cause grievous bodily harm upon his person with a knife or assault him with a stone.

(4) Where a defence of self- defence is raised, the questions to be determined beyond reasonable doubt are:

(a) 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 than by using the force that he in fact used; and

(c) whether the accused's belief was based on reasonable grounds; or rather whether the State had negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds: Tapea Kwapena –v- The State [1978] PNGLR 316 applied

(5) In order for the accused to successfully raise the plea of self defence under section 269 of the Criminal Code the court needs to be satisfied that the following elements of the defence exist;

(a) the accused was unlawfully assaulted; and

(b) the accused did not provoke the assault;

(c) 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, and;

(d) the accused believed on reasonable grounds that he could not preserve himself from being killed or suffering grievous bodily harm; and

(e) the accused used such force as was necessary for his defence.

(5) The conduct of the accused that fateful morning after stabbing his wife, the deceased, was that he failed to give aid or show concern for his wife, whom he deliberately stabbed. He was less caring and was not concerned to take his wife to the hospital or the nearest health centre, or to seek help from people who could transport her to the hospital. He was simply less caring. He threw away the murder weapon and ran away himself. His conduct was such that he was more determined to see his wife suffer and more determined to see her die. This proves that he intended to see his wife suffer and die.

(6) This was not an accidental death as it did not occur independently of the will of the accused. The accused intended to see his wife suffer and die.
(7) And the motive for all this can be inferred from the whole circumstances of this case. He wanted to end all his suffering and the instability in his marriage.

(8) Provocation as a defence under section 267 fails. The force used was highly disproportionate to any provocation offered and that the accused did not act in a heat of passion. There was no provocation as defined in section 266 offered. The ill repute and the continuous instability and the turbulent nature of the marriage, characterized by continuous fighting, her avid drinking and gambling habits, coupled with her ill reputation may amount to de-facto provocation, but that is no provocation in law.

(9) There is no such thing as a one touch only with a dangerous lethal weapon such as a kitchen knife. Either you use the weapon or you do not use it. The statement of the accused that "I only wanted to have a one touch only of her body with a knife but she accidently died" means that the accused intended to hurt his wife with the knife. The accused expressed his intention clearly here to see his wife suffer and die.

Cases cited:
Papua New Guinea Cases

The State –v- Angela Colis Towavik [1981] PNGLR 140
Mecklina Kar Poning –v – The State (2005) SC 814
Tapea Kwapena –v- The State [1978] PNGLR 316
The State –v- Takip Palne [1976] PNGLR 90
Tapea Kwapena –v- The State [1978] PNGLR 316
The State –v- Leonard Masiap [1997] PNGLR 610 at page 617
R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23.
R-v- Korongin [1961] N204 at page 8 per Mann CJ
The State –v- Leah Tununto (1990) N947 per Brunton AJ,
The State –v- Rose Yapihra (1997) N1741 per Bidar AJ,
The State –v- Michael Nema Melpa (2003) N2450, per Jalina J,
The State –v- Mathilda Edward (2004) N2726 per Davani J, and
The State –v- Albert Gias (2005) N2812 per Cannings J
The State –v- Lenny Banabu N2871" title="View LawCiteRecord" class="autolink_findcases">[2005] PNGLR N2871 per Cannings J
The State –v- Michael Linas [2008] Unreported and Unnumbered Judgment of Paliau AJ dated 29th October 2008
The State –v- Alex Gasi (2010) cr 875 of 2008 Unnumbered judgement of Kawi J dated 23rd April 2010.

Overseas Cases

R-v-Muratovic [1967] Qd R 15

Counsels:
Mr. F. Popeu and Mr. D. Kuvi, for the State
Mr. R. Awalua and Mr. P. Paraka, for the Accused

DECISION ON VERDICT

15th October, 2010

1. KAWI, J: Pondros Laki of Kitikum Village, Maprik, East Sepik Province, is accused of wilfully murdering his wife one, Veronica Pondros at Area 8 Bialla, West New Province on Saturday the 24th January 2009. He has therefore been indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code.

1. ARRAIGNMENT

2. On arraignment the accused pleaded not guilty to the charge that he wilfully murdered his wife one, Veronica Pondros. Although no specific Defenses were indicated by his counsel in the opening address of the Defence case, Counsel raised the following defenses during submissions:

1. Self Defence under section 269;
   
2. Provocation under section 267
   

100. Accident under section 24.
     

3. As a rule of practice, defence Counsel must outline the defences being relied upon in the opening of the defence case. During cross examination, the basis of the defence must be put to the State witnesses in compliance with the rule in Brown –v- Dunn.

2. STATE ALLEGATIONS

4. The accused Pondros Laki and the deceased Veronica Pondros were husband and wife. They were married for eight (8 years). On the 24th of January 2009, the deceased and another women were returning home from an all night dance which was held at Ulamona the previous night. When the accused approached the deceased and her friend, Theresa Julius, he asked the deceased if she had repaid some monies which she had borrowed from other people. Soon thereafter an argument broke out between the accused and his wife the deceased. A scuffle then took place between the accused and his wife, the deceased, while Theresa Julius was standing in between the two trying to stop them. During the struggle the accused stabbed the deceased on her lower back. After stabbing her, the accused ran away. Theresa Julius then tried to assist the deceased. However after crossing the road onto the other side, the deceased who was by now leaning very heavily on the shoulders of Theresa Julius let go off her hands and collapsed to the ground and died there and then. The State alleges that when the accused stabbed the deceased it was his intention to kill her.

3. STATE EVIDENCE

5. To sustain its allegation; the State called Theresa Julius. Her evidence in a nutshell is that:

1. Theresa Julius and the deceased left for a dance on Friday afternoon the 23rd January 2009. The dance was being held at Ulamona some two to three hours drive away from Bialla. The deceased had left for Ulamona without notifying her husband, the accused. They spent the whole Friday night dancing until the next morning when they returned to Bialla. Both were dropped off at Bialla Area 8.
   
2. As they were walking to their houses they saw the accused approach them. When the accused approached them he told his wife (deceased) that he did not come to argue with her, but only to enquire with her if she had repaid moneys she borrowed from other people.
   

100. These questions from the accused provoked a heated argument between the accused and his wife the deceased, which ended up in a scuffle. Theresa Julius found herself standing in the middle trying her best to stop the scuffle between a husband and his wife. During this scuffle, the accused slapped his wife so hard, that the impact of his slap forced the deceased to push and fall on top of Theresa Julius, who both fell to the ground. As they were falling Theresa Julius's laplap came loose and she had to force the deceased away to get up and tightened her laplap.
     

4. She faced the opposite direction and gave her back to the accused and the deceased and did not know what was going on between them while she was tightening her loose laplap. When she turned around the deceased leaned forward on her and held her on both her shoulders for support. At the same time she saw the accused holding onto a small kitchen knife "covered in blood." She was still trying to bear the weight of the deceased leaning on her for support and at the same time trying to help her walk across to the other side of the road. The accused did nothing to help Theresa Julius and the deceased but had walked away from them leaving the deceased and Theresa Julius behind.
   
5. While the deceased and Theresa Julius were on the other side of road, the deceased let go of her grasp of Theresa on her two shoulders and fell to the ground. She collapsed onto the ground and died instantly.
   

4. OTHER STATE EVIDENCE.

6. The other materials which constituted the State's evidence in this case were tendered in by consent of both counsels. They are as follows: -

(a) The Record of Interview dated 3rd February 2009
- Original handwritten Pidgin version State Exhibit 1 (a).
- English version State Exhibit 1(b).

(b) Affidavit of Dr Amos Joseph of the Kimbe General Hospital dated 23rd March 2009. Dr Joseph conducted an autopsy on the body of the deceased on the 23rd of March 2010.- State Exhibit 2

(c) Postmortem Report dated 20th March 2009- State Exhibit 3(a)

(d) Medical Certificate of Death – State Exhibit 3(b)

After tendering into evidence these materials, the State then closed its case.

5. THE DEFENCE CASE

7. At the close of the prosecution, case I addressed the accused on the following options open to him:

(a) First he could change his plea of Not Guilty to guilty;

(b) Make a no case to answer submission;

(c) He could exercise his constitutional right and remain silent in the dock;

(d) He could make an unsworn statement from the dock;

(e) He could elect to give sworn evidence, in which case, he could subject himself to cross-examination and be questioned by the court as well.

6. DEFENCE WITNESS- PONDROS LAKI

8. The accused elected to give sworn evidence and this is a summary of his evidence. The accused gave evidence of having a very rough and turbulent marriage to the deceased over an eight (8) year period. This unstable marriage was characterized by, the continuous drinking and gambling habits of his wife the deceased, continuous fights and arguments, distrusts and the continuous unfaithfulness and illicit affairs of the deceased. In all this turbulent years of marriage the accused says he has been a very forgiving husband always forgiving and counseling his wife, the deceased, to repent and change her dirty ways and habits, something which the deceased found very hard to do. The accused described his wife, the deceased as a woman of "ill repute in Bialla". The accused himself says he was silently suffering over the last 8 years. In cross-examination he said he was "in hell" over the last 8 years.

On Friday the 25th April 2009, the deceased and her friend Theresa Julius left for a disco party being held at Ulamona. The deceased never informed the accused nor sought his permission, before leaving for the dance at Ulamona.

9. They were at the dance party all night until the next day Saturday the 26th April when they were dropped off at Area 8 at Bialla. When the deceased and her friend Theresa were dropped off at Area 8, they were walking to their house in the compound when the accused spotted them and walked towards them. The accused saw the deceased pick up a stone and held it in the palm of her right hand in anticipation of him fighting her. When the accused approached them he told the deceased that he did not come to argue with her but to enquire if she had repaid all the monies she had borrowed. This comment prompted an angry response from the deceased which ended up in a scuffle between husband and wife. During the scuffle the accused slapped his wife and she fell onto the road next to where the accused was standing. When she fell, a small kitchen knife which she was hiding in the back pocket to her jeans and covered with her shirt fell out of her pocket beside her. On seeing this the accused picked up the knife and stabbed her on her lower back. The accused says that he never intended to kill his wife. He says that it was an accidental death. As he puts it; "I meant to have a one touch only with the knife, but she accidently died".

7. MEDICAL EVIDENCE

10. The Medical Findings on the cause of death are contained in a Report of Dr Karl Samuel who conducted the autopsy on the deceased. His report attributed the cause of the death to the stab wounds sustained by the deceased from the stabbing with the knife. The autopsy concluded that the knife had penetrated the 4th and 5th ribs for some 4-5 cm and punctured the lungs. The deceased died from massive shock occasioned by the heavy loss of blood.

8 ADMISSIONS BY THE ACCUSED.

11. The Record of Interview of the accused contained significant and unequivocal admissions by the accused of what appears to be the motive of the killing as well as the killing itself as follows:

Q 24. After you fought with your wife, you got a knife and stabbed her. What would you say?

A. Yes.

Q.25. That time when you saw your wife you were furious, is that true?

A. Yes, that is true.

Q 26. You were angry because she had gone to the dance, what would you say?

A. Yes that is true.

Q 27. So you have the intention to murder your wife, is that correct?

A. No I stabbed her, but somehow she died.

Q. 28. So you stabbed her with a knife, is that true.

A Yes.

Q. 29. How did you kill her?

A.I held the knife and I thought I would get her on some parts of the body, that she would not die, but somehow she died.

Q. 30.What did you use to kill her with?

A. Knife.

Q. 31. Where is the knife you stabbed her with?

A. That I wouldn't know.

Q. 32.How big is it?

A. It is a kitchen knife.

Q. 33. Where on the body did you stab her?

A. At her back.

Q.34. How many times on her body, did you stab her

A. Only once.

Q.35How would you stab your wife for just a trivial matter?

A. Because her attitude is not the first time, as I have mentioned in my statement.

Q. 36 Are you sorry for murdering your wife?

A. Yes, am very sorry for her, because I didn't mean to kill her.

Q 37. Did you know that killing another person is an offence?

A. Yes.

These admissions were sufficient to warrant this case from proceeding as a plea matter.

9. CREDIBILITY OF WITNESSES

12. A total of two people gave evidence. Theresa Julius gave evidence for the State and the accused gave evidence in his own defence. Having observed the demeanor of both witnesses, I can say that both Theresa Julius and the accused were able to express themselves with sincerity and frankness. However I am more inclined to accept the evidence of Theresa Julius then that of the accused who at times appeared to be quite shifty and evasive. I also take into account the fact that the defences raised by the accused were not put to State witness in cross examination until the final submissions.

10 THE LAW

Did the accused Kill the deceased?

13. There is absolutely no doubt in my mind that the accused killed the deceased by stabbing her with a kitchen knife. I refer here to section 291 of the Criminal Code which states:

"Subject to the succeeding provisions of the code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed that other persons."

Section 299(1) of the Criminal Code states:

299. Wilful murder

(1) Subject to the succeeding provision of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

14. The Criminal Code has several provisions which may also apply in this case.

• Sections 269 and 270 deal with circumstances in which a killing in self defence is lawful or justified.
  
• Section 267 deals with circumstances in which a killing is justified by an act of provocation;
  
• Section 24 deals with accidental killings.
  
• Section 302 creates the offence of manslaughter
  
• Section 539(1) provides that on an indictment charging a person with wilful murder, he may be convicted of the crime of murder, or of the crime of manslaughter or some other offence, as prescribed.
  

11. ELEMENTS OF THE OFFENCE CHARGED UNDER SECTION 299(1).

15. The accused in this case is charged with wilful murder and so the onus is on the prosecution to prove beyond reasonable doubt that:

(a) The accused killed the deceased;

(b) The killing was unlawful; and

(c) The accused intended to cause the death of the deceased.

16. The above three elements of the offence prescribed under section 299(1) are however subject to two things:

(a) First is the defence of self defence which exists under section 269 of the Criminal Code; and other defenses provided by law, viz, the defence of accident under section 24 and the defence of killing on provocation under section 303

(b) Secondly if the court is not satisfied that the three elements of wilful murder being relied on are proven, an alternative verdict of murder or manslaughter can be entered under section 539 if elements of any of the four prescribed offences are present.

12. THE LEGAL ISSUES

17. There are a number of legal issues which arise here.

(1) The First is did the accused kill the deceased?

If yes, the first element of wilful murder is established. If no then he must not be found guilty of wilful murder.

(2) Does the defenses of self defence, Killing on provocation, and the defence of accident apply here.

If yes the accused is entitled to an acquittal, as the killing will be rendered lawful. If no the court should consider whether other elements of wilful murder are established.

(3) Was the accused criminally negligent as defined by section 287 of the Criminal Code or was his killing of the deceased not authorized or justified or excused by law?

If yes, the act of killing the deceased will be unlawful and the second element of wilful murder will be satisfied. If no, the accused is entitled to an acquittal, as the killing will be rendered lawful.

(4) Was the accused provoked into taking the life of another person namely his wife, the deceased? Was he provoked to such an extent such that he acted in the way he did in the heat of passion?

(5) Was the stabbing of the deceased accidental?

Section 289 provides that "the killing of another person is unlawful if it is not authorized or justified or excused by law".

(6) Did the accused intend to cause the death of the deceased or some other person?

If yes, the third and final element of wilful murder will be established and the court should enter a conviction. If no the Court should consider whether an alternative verdict of murder or manslaughter should be entered.

(7) Have the elements of murder or manslaughter been established?

If yes then I should proceed to record a conviction. If no, then I order an acquittal.

13 THE ISSUES IN THIS CASE.

18. It is not disputed that the deceased died from the stab wound on her lower back caused by her husband stabbing her with a kitchen knife. The issues are really this:

(1) When the accused stabbed the deceased, whether he did so to defend himself from possible death or grievous bodily harm to himself.

(2) Furthermore was he provoked to act in the way he did? And that when he stabbed the deceased he acted the way he did in a heat of passion.

(3) Did the accused act in self defence and whether he has established self defence by satisfying the test laid down for establishing this defence?.

14. DISCUSSION OF ISSUES

1. The defence of Self Defence

19. The defence of self defence is prescribed under section 269 of the Criminal Code.

Section 269 of the Criminal Code 'Self Defence against Unprovoked Assault' states:

(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 reasonably necessary to make an effectual defence against the assault, if 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.

15. SELF DEFENCE AGAINST UNPROVOKED ASSAULT.

20. Section 269 of the Criminal Code deals with self defence against unprovoked assaults while section 270 deals with self defence against provoked assaults.

Under section 269 the essence of self defence is that violence is presently being offered. An actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – See The State –v- Angela Colis Towavik [1981] PNGLR 140.

21. The principles of law relating to self defence is discussed in the Supreme Court case of Mecklina Kar Poning –v – The State (2005) SC 814 wherein the Supreme Court adopted and followed the principles of law pronounced in the Queensland case of R-v-Muratovic [1967] Qd R 15 which was followed by an earlier Supreme Court in Tapea Kwapena –v- The State [1978] PNGLR 316

22. The Supreme Courts made the following comments:

"Where a defence of self- defence is raised............. The questions to be determined beyond reasonable doubt are: (a) 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 than by using the force that he in fact used; and (c) whether the accused's belief was based on reasonable grounds; or rather whether the State had negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds".

16 ELEMENTS OF SELF DEFENCE

23. In order for the accused to successfully raise the plea of self defence under section 269 the court needs to be satisfied that the following elements of the defence has been established;

(a) the accused was unlawfully assaulted; and

(b) the accused did not provoke the assault. and

(c) 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, and;

(d) the accused believed on reasonable grounds that he could not preserve himself from being killed or suffering grievous bodily harm; and

(e) the accused used such force as was necessary for his defence.

24. The National Court has held that if all these elements exists the force used by the accused is lawful even if it causes the death of the assailant; - See The State-v Lenny Banabu, [2005] N2871, The State –v- Takip Palne [1976] PNGLR 90, Tapea Kwapena –v- The State [1978] PNGLR 316, The State –v- Leonard Masiap [1997] PNGLR 610 at page 617. R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23. R-v- Korongin [1961] N204 at page 8 per Mann CJ.

17. ONUS OF PROOF

25. Once an accused raises self – defence in his evidence, the onus rests on the prosecution to negative the elements of that defence. The leading case on this issue is the case of R –v- Nikola Kristeff [1967] N445. This was a decision of the pre-Independence Supreme Court, in which Frost, J made the following comments:

" As to onus of proof, so far as the defence of self defence and provocation are concerned, there is no onus on the defence to establish these defenses, once a ground is disclosed by the evidence upon which a plea of self-defence may, arise or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all the ultimate facts which establish these pleas are not present".

26. What is important to note here is that the accused bears the burden to establish self defence as a defence on a balance of probabilities, but the prosecution has to negative the existence of the elements of this defence beyond reasonable doubt.

27. The principles pronounced in R –v- Nikola Kristoff has been applied in many subsequent National Court decisions such as The State –v- Angela Colis Towa Viic [1981] PNGLR 140, per Miles J, The State –v- Misari Warum [1989] N753 per Brunton AJ, The State –v- Leah Tununto (1990) N947 per Brunton AJ, The State –v- Leonard Masiap [1997] PNGLR 610 per Sevua J, The State –v- Rose Yapihra (1997) N1741 per Bidar AJ, The State –v- Michael Nema Melpa (2003) N2450, per Jalina J, The State –v- Mathilda Edward (2004) N2726 per Davani J, and the State –v- Albert Gias (2005) N2812 per Cannings J. The State –v- Lenny Banabu N2871" title="View LawCiteRecord" class="autolink_findcases">[2005] PNGLR N2871per Cannings J and The State –v- Michael Linas [2008] Unreported and Unnumbered Judgement of Paliau AJ dated 29th October 2008- The State –v- Alex Gasi cr 875 of 2008.per Kawi J

28. Is there evidence before the Court for the accused to legitimately raise this defence? In his Record of Interview the accused never mentioned anything about stabbing his wife in self defence. However in his evidence in chief the accused stated that as he walked along the road he saw his wife pick up a stone presumably to hit him. Then when he slapped her she fell onto the road near her. Initially he maintained that the knife was hidden in the back pocket of her jeans. When she fell to the ground she pulled out the knife and held onto it. There is however no evidence to suggest that she used the knife on him. In cross examination he stated that when his wife fell onto the ground the knife which was hidden in the back pocket of her jeans spilled out onto the road.

29. Upon seeing this he picked it up and stabbed her. There is no evidence to show whether the deceased hit him with the stone in her hands and also used the knife to attack him such that a reasonable apprehension of death or grievous bodily harm being done to him is created in his mind. The accused simply anticipated that the deceased would throw the stone to hit him or even use a knife to cut him or inflict grievous bodily harm given her past bad record of using knives or any other missiles or instruments on hand or nearby to cut her husband . During their argument the accused pushed his wife to fall when she fell onto the road, he then picked up the knife from her pocket and stabbed her or as he puts it "to have a one touch with a knife on her"

30. I will restate the elements of this offence by taking the approach taken by his Honour Cannings J in The State –v- Lenny Banabu [2005] N2871. His Honour had asked a number of questions to establish each of the elements of the defence of self defence which I will adopt and ask here myself. I took that approach in the case of the State –v- Alex Gasi CR 875 of 2008.

Was the accused unlawfully assaulted?

31. I will look at the whole circumstances of this case to answer this question. I have already outlined the evidence in this case.

In the State –v- Angela Colis Towavik [1981] PNGLR 140 it was held that there must be prior assault by the victim for the defence of self defence to become available. See also R-v- Korongia [1961] N204. I find that there was no prior assault by the assailant, the deceased on the accused. So question one is answered No.

Did the Accused not provoke the Assault?

32. Again looking at the whole circumstances of this case, I am satisfied that the deceased never provoked any assault. In fact I find that the accused only stabbed the deceased in anticipation that the deceased would assault him with the stone or further she would use the knife to inflict injuries upon him. The question is answered Yes.

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.

33. There was no actual assault upon the accused that would leave him or cause a reasonable apprehension on his part that he would die or suffer grievous bodily harm at the hands of his wife the deceased. The only apprehension the accused had was a fear that given her past history of her using violence, including using knives and other weapons or objects to fight him during arguments and fights in their house, she would resort to the same violence.

The Accused Believed on Reasonable Grounds that he could not Otherwise Preserve himself from Being Killed or Suffering Grievous Bodily Harm

34. Again looking at the whole circumstances, I have already found that there was no reasonable grounds at all for the accused to believe that he could not otherwise have preserved himself.

35. In the context of pure self defence, the case of R-v- Kambe Pare [1965] PNGLR 321 stands for the proposition that retreating before employing a force is not an independent and imperative condition when self defence is raised as a defence. Whether he should have retreated or run away is a matter for the court to consider in deciding on the reasonableness of the conduct of the accused. Here the court finds that the accused could have simply retreated before employing a deadly force.

I would answer question 4 No

Did the Accused Use Only Such Force as was Necessary for His Defence?

36. This is a very critical question. If the prosecution proves that the answer is no; i.e. the accused used "more force than necessary" than self defence as a defence cannot be established. Clearly the use of a knife against a woman who was unarmed and therefore helpless is more force than necessary. The use of a knife is highly disproportionate.

37. This fifth element in my view requires the court to apply both a subjective and an objective test. That is to say that the question to ask is whether the accused had a honest and reasonable, though mistaken belief that the force, he used was necessary for his defence- See R-v- Kaiwor Ba [1976] PNGLR 90. I am able to conclude that the accused used more force than was necessary. I am not satisfied that he had an honest and reasonable belief that he had to use considerable force to defend himself. The prosecution has discharged the onus of disproving the final element of the defence. I would answer No to question five. There was no need to use a knife at all.

18 COURT FINDINGS

38. The Court makes a finding that self defence as a defence under section 269 fails. An accused person anticipates that the deceased would hit him with a stone or use a knife to inflict grievous bodily harm upon him. He takes a pre-emptive action and assaults her first by stabbing her with a knife. The deceased died from the stab wound due to massive loss of blood.

39. The defence of self defence does not arise in anticipatory situations where a person anticipates being assaulted and strikes the other person peremptorily and in that strike kills her.
The accused here was never unlawfully assaulted by the deceased nor did the deceased provoke an assault. There was never any reasonable ground to cause apprehension in the accused that he would die or suffer grievous bodily harm. He simply had no basis to entertain those thoughts. The plea of self defence raised under section 269 fails.

40. Even if the accused had relied on and raised self defence under section 270, it is doubtful that he would succeed as the force used here was not necessary for his own preservation.

41. The upshot of this is that the Court finds that self- Defence under Section 269 and 270 are not available to the accused.

2. Defence of Provocation.
   

42. The accused also raised provocation as a defence to the charge. He argues that his late wife, the deceased was a woman of ill-repute who had a reputation of being a gambler, drunkard and who has been engaged in so many illicit extra-marital affairs previously. Her ill-reputation in town was the cause of much of the instability in their marriage. As the accused himself says, he was living in "hell for the last 8 years".

43. Provocation as defined in Section 266 and Section 267 provides the defence.

44. Killing on Provocation is provided for under Section 303.

45. Under Section 303, a person who kills another person under circumstances that would constitute wilful murder, or murder does the act that causes the death:

(1) in the heat of passion caused by;

(2) sudden provocation as defined by Section 266; and

(3) before there is time for his passion to cool.

46. In R –v- Kopal Wamne (1974) No 809 it was held that where provocation under Section 303 is raised as a defence the prosecution must discount three elements:

(a) an act of provocation;

(b) the loss of self-control, actual and reasonable;

(c) retaliation proportionate to the provocation.

47. The evidence before the Court here does not disclose or show any act or insult offered by the deceased to the accused, that would deprive him of the power of self-control. A knife was then used by the accused to stab his wife, the deceased. It is a finding of this court that the use of a knife as a lethal weapon is highly disproportionate to the provocation offered (if any at all).

48. In fact the court finds that no provocation as defined in Section 266 was offered. The ill-repute of the deceased may have amounted to de facto provocation only, but that is not provocation in law. For these reasons the court finds that provocation as a defence fails.

3. Defence of Accident
   

49. I should say something about the defence of accident. The prosecution bears the burden to negative that defence. Section 24 of the Criminal Code provides:

"s.24: Intention: Motive

50. It has been held that this section is intended to make it clear that, subject to the express provisions of the code relating to negligent acts and omissions, where a person is charged with the commission of a Crime, criminal liability shall not attach, where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused, there has occurred some accidental event, which has substantially brought about the final result – See Mamote Kulang of Tamagot (1964) 111 CLR 64

51. Under Section 24, a person is not criminally responsible for;

(a) an act or omission that occurs independently of the exercise of his will; or

(b) an event that occurs by accident.

INTENTION

52. The evidence of accident raised by the accused was far from feasible and is in the court's opinion never to be believed. If the stabbing had happened accidently, as the accused would have us believe, then the overwhelming probability would have been for the accused to stay around and assisted his wife get to the nearest hospital or health center to seek medical attention or better still seek help from people who could transport his wife to the nearest health centre or hospital.

53. Instead the accused threw away the murder weapon (ie the knife) and then ran away himself leaving a bleeding helpless wife behind to fend for herself. His conduct that fateful morning after stabbing his wife, was that he failed to give aid or show concern for his wife, whom he had deliberately stabbed. His conduct was such that he was more determined to see his wife suffer and more determined to see her die.

54. In the case of The State –v- Raphael Kuanande [1994 PNGLR 512 at page 514, Injia AJ (as his Honour then was) stated that "Intention is a matter which goes to the state of mind of an accused person. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence".

55. Examining his conduct prior to and after the incident leaves me with one unavoidable conclusion: The accused intended the death of his wife and was more determined to see her suffer and die.

56. Motive can be easily inferred from all the circumstances of this case. The Question and Answers contained in the Record of Interview especially Questions 14,19, 23, 25, and 26 clearly show that the accused and the deceased had a very unstable, turbulent and rocky marriage characterized by his wife's ill repute, avid drinking and gambling habits, illicit adulterous affairs with many different persons and continuous fighting which was almost a daily activity. As the accused puts it, "I was living in hell for the last 8 years. Even on that fateful morning, the accused says he was furious, because his wife had gone off to Ulamona without letting him know, and spent the whole night, drinking, dancing and partying only to be dropped off the next morning. The accused was more determined to end his own personal suffering and put an end to his "8 years of living in hell." The court finds that there is sufficient evidence to prove that there was a motive for the killing which can be inferred from all the circumstances of this case.

57. The accused argues here that the deceased carried a kitchen knife in her back pocket when he pushed her down onto the road, the impact of the fall was heavy and such that she fell onto the sharpened end of the knife which pierced her ribs leading to her losing a lot of blood. The court finds that the sheer weight of evidence is against the accused here.

58. The following evidence completely render this theory insignificant or baseless:

(1) The unequivocal admissions of the accused contained in the Record of Interview where he freely admitted stabbing his wife.

(2) The accused stated that when she fell on the road, the knife fell out from her back pocket and he got hold of the knife and "wanted to have a one touch only with the knife, but she accidentally died." There is no such thing as a one touch only with a dangerous lethal weapon like a kitchen knife. Either you use the weapon or you do not use it. A "one touch only of her body with a knife" means that the accused intended to hurt his wife with the knife. The accused expressed his intention clearly here to see his wife suffer and die when he said " I only intended to have a one touch of her body".

(3) He was seen holding a small kitchen knife covered with blood by Theresa Julius who turned around to see him holding the bloody knife after tying her loose laplap.

59. On the basis of this evidence this court finds that this was not an accidental death. Neither was it a death that occurred independently of the exercise of the will of the accused. The court finds that the accused intended this death.

60. The defence of accident relied upon by the accused fails.
The upshot of these findings is that the accused cannot avail himself to all three defences he raises.

19. VERDICT

61. The court finds that the accused has not established any of the defences he relies on. The court finds that the accused wanted to end his own personal sufferings, where he was subjected to a marriage that was characterized by his wife's ill reputation of having continuous adulterous affairs, avid drinking and gambling habits, distrusts, fighting. The turbulent nature of this marriage may amount to de-facto provocation only but that is not provocation in a legal sense. This court is satisfied that the accused intended and was more determined to see his wife suffer and die.

62. The consequences of finding that all the defences are not available to the accused are that:

The second element of the offence of wilful murder has been established. The killing in this case was deliberate and intentional. The accused is found guilty and convicted of the wilful murder of his wife Veronica Pondros.

Verdict - Guilty and convicted of wilful murder as charged.

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