State v Basa [2011] PGNC 212; N4676 (23 May 2011)

N4676

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 261 OF 2009

THE STATE

V

SAMUEL BASA

Lae : Batari, J
2011 : 23rd May

CRIMINAL LAW - Murder – Evidence – Sufficiency of – Accused struck deceased in cause of a group fight – Self-defence – Principles of - Whether accused acted in self-defence – Onus to show defence of self-defence – Test – Whether or not the accused believed it was necessary for him to strike the deceased with the iron bar to preserve his own life - Objective test of – Onus to show accused acted in self-defence not discharged.

Case Cited:
Papua New Guinea Cases

R v. Kristeff [1967] No. 445
R v. Korongia [1961] No. 204
R v Kaiwor Ba [1975] PNGLR 90

Overseas Cases

R v Muratovic [1967] Qd R 15
R v Kerr [1976] 1 NZLR 335
Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266

Counsel:

Mr. Simon/Ms Lipai, for the State
Ms R. Yayabu, for the Accused

VERDICT
23rd May, 2011

1. BATARI J: The accused, Samuel Basa stands indicted that on 14th October 2008 at Tent City, Lae he murdered one, Silandum Nure. State alleges that Basa struck Nure with a piece of iron bar on the head intending to cause him grievous bodily harm and because Nure died, Basa is guilty of murder. Basa concedes the killing but raises the defence of self-defence.
   

Issues

2. The issue then is whether Basa killed the deceased in self defence.

Statutory Defence of Self-Defence

3. The statutory defences of self-defence are found in s. 269 and s.270 of the Criminal Code. Section 269 authorizes self-defence against unprovoked assault while s. 270 is a defence against provoked assault. Although it was not clarified which of these two defences the accused relies on, the evidence suggests, he and his group had instigated the fight in which Basa hit him on the head, resulting in his death.

4. Thus, the defence of self-defence under s.269 of the Criminal Code Act may apply. It 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 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."

5. The conditions to be satisfied under this provision are that:

1. the accused was unlawfully assaulted;
2. the accused had not provoked the assault;

100. the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and

4. the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.
   

6. The Court must be satisfied that these conditions are present on the facts to establish self-defence on the balance of probability, the accused having the onus of proof. He or she need not establish such a defense affirmatively but must point to aspects of the evidence which could induce reasonable doubt: R v Kerr [1976] 1 NZLR 335. Once the evidence is shown to have raised a possible defense of self-defense, the onus shifts to the prosecution to negative that defense beyond reasonable doubt: Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266.

7. If that balance of probability is not negative by the prosecution on the requisite standard, the accused would have then acted lawfully and the force he had used in retaliation caused the death of that other person.

The Evidence

8. The evidence is substantially admitted on events precipitating the killing. The two rivalry parties come from the same area of Kabwum, Morobe Province and reside at different parts of Tent City suburb of Lae with their respective relatives. The hostility which had for some time existed between the two groups led to a confrontation on 12th October, 2008. The next day, 13th October, 2008 the accused and his group assaulted 2 young men from their rival's side and destroyed properties belonging to the principal State witness, Jerry Marawong. In response, Jerry Marawong and his group converged at J-18 Circle residential area early the next morning, being the date in question, to avenge the assault on their youths.

9. The fight that ensued spread to neighboring I-16 Circle area where Basa struck Silandum Nure on his head with an iron bar and caused his death. The murder weapon aptly described as a "chisel iron bar," with iron pipe handle and a spade-like end is a gardening implement.

Disputed Facts: Whether the accused Samuel Basa acted in self-defence?

10. Basa testified that, on the early morning of the incident, he was still asleep in his house at J-18 Circle when awoken by a rowdy Jerry Marawong and his mob's shouting, insults and abuses from the roadside. His group did not respond at first, in fear of their rivals who were variously armed with iron bars and bush-knives. The attackers broke into their premises, threatening and assaulting them. Basa said he fled to I-16 Circle with Tony and Taki. Taki was knocked to the ground so, he and Tony stopped to help him. At that point, the deceased swung an iron bar at him. He however deflected the blow and disarmed the deceased and used the same weapon to attack his assailant.

11. This is the highest the accused has put his defence. His evidence is in stark contrast with the State's case that the accused approached from the back and assaulted the deceased in a surprise attack. According to the State's evidence, Basa struck Nure with the handle of the iron bar causing a head injury which led to Nure's death a short time later. Only one of these conflicting versions is highly probable because both cannot be true.

Submissions by Counsel

12. Ms. Yayabu for the accused submitted that the accused has raised a defence of self-defence fairly, in his version of facts which the Court should accept as highly probable. Counsel, urged the Court to find on the facts that, the deceased was about to hit Basa with the iron bar and he had reacted instinctively and in defence of his own life. He had reacted to the violence that was presently being offered and had struck the deceased in self-defence to preserve himself from death or grievous bodily harm.
    
13. The State on the other hand, submitted that the defence of self-defence fails on two propositions, the first being that, the accused has not shown the elements of self-defence as outlined, or some of them, existed at the time of the assault. He has not pointed to aspects of the evidence which on the balance of probability, point to a possible defence of self-defence. Hence, the prosecution is not required to negative that defence beyond reasonable doubt. Counsel's second contention is that, even if the onus is on the prosecution to disprove the defence of self-defence, there is overwhelming evidence to show firstly that, the attack did not occur as recounted by the accused. Second and accepting that the deceased and his party instigated the fight; they were overwhelmed and forced to retreat by Basa's group. The deceased had fled to I-16 Circle when Basa confronted and killed him.
    

Reasons for Decision

14. In evaluating the evidence, the question to ask is whether there is any evidence before the Court on which the Court acting reasonably, would be entitled to find that the killing was done in self-defence or to entertain a doubt whether it was done in self defence: R v Muratovic (1967) Qd. R 15 per Gibbs, J at p. 18. This question must be decided on all of the evidence. If there is no evidence of self-defence, then the defence fails and no further consideration is necessary.
    
15. There is some evidence and I accept that the accused was unlawfully assaulted, at least at some point prior to the killing. I am also satisfied that, the accused had not provoked the initial assault on him on the morning of the incident albeit, the fight was a carry-over from the previous day.
    
16. It is in essence for the accused to show or point out from the evidence that he had not provoked the assault and that, the assault on him was such as to cause reasonable apprehension of death or grievous bodily harm. He must further show that, he believed on reasonable grounds, it was necessary for him to use force which he in fact used to preserve himself from death or grievous bodily harm. As was said in R v Muratovic [1967]Qd R 15 and adopted in R v Kaiwor Ba [1975] PNGLR 90:
    

"The person using force in self-defense 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."

17. The test on whether or not the accused believed it was necessary for him to strike the deceased with the iron bar to preserve his own life is an objective one. He must show the other person was assaulting or about to assault him with such violence which caused him reasonable fear of death or grievous bodily harm. He must show that the violence being offered was current or about to happen and not at some future moment or expectation. He must show that his reaction was to preserve his own life from death or grievous bodily harm; R v. Kristeff [1996] No. 445.
    
18. Basa's story is simply that, the deceased approached from the back and swung the iron digging implement at him. He avoided the blow and disarmed his assailant. He then attacked the deceased with the same weapon. If his story is accepted, then the nature of the assault would have been such as to cause reasonable apprehension of death or grievous bodily harm.
    
19. However, he said nothing about how he felt at the time of the assault. He did not express a belief on reasonable grounds that his life was in danger. Even if he did not expressly state so, such a belief may be reasonably inferred from the proven facts. The closest to that belief is found in his testimony where he said in cross-examination:
    

"Q. So, when you disarmed him, he was harmless. He was not a threat to you.

1. It is true, but the moment he swung, I took it off from him and swung at him".
   

20. In chief he said, "I only wanted to hurt him so that he'll go away...".
    
21. Whilst this evidence suggests the act of the deceased in attempting to strike the accused with an iron bar would cause the accused reasonable fear of death or grievous bodily harm, it did not go far to support the element of reasonable apprehension of death or grievous bodily harm. When the accused avoided the iron bar and wrestled it free, the deceased was no longer armed and hence no longer a threat to him. The condition of reasonable apprehension of death or grievous bodily harm had ceased or was defused when the accused disarmed the deceased.
    
22. It is also apparent from the evidence; the force used by the accused was unreasonable. Once the violence or threat of violence was neutralized, the accused was then facing an unarmed assailant. The nature of the threat had been suppressed and no longer present. The accused was no longer placed in any imminent danger. Hence, it was unnecessary for him to use the iron bar against an unarmed adversary.
    
23. Furthermore, the fact that Nure was hit at the back of the head suggests that, he was either retreating and had his back turned to Basa, or as the state witnesses said, the accused crept up from the back and struck the deceased in a surprise attack.
    
24. I find that on the accused's own evidence, he has not raised the defence of self-defence to the requisite standard. Even if I were to consider the whole of the evicence to decide if the accused had acted in self-defence, I would accept the State's case as highly probable. The State's case is that Basa crept up from behind and attacked the deceased. That evidence of a surprise attack on an unnamed person was not seriously challenged on cross-examination. I would dismiss the defence on that basis also. In the end result, the defence of self-defence fails.
    
25. I have also considered whether the defence of provocation is open on the facts. First the defence did not rely on that as a defence. If successfully raised, it can reduce a conviction on murder to manslaughter. Second, Basa was vague on the attack on him personally. He did not say he was hit or physically assaulted by the deceased or anyone though, he spoke of avoiding stones thrown by his nemesis. That was the nature of the assault on him while attending a relative who had been knocked down by the opposition. Third, Basa did not say or show the circumstances from which it may be inferred he acted under provocation. The defence of provocation in my conclusion is not available to Basa on the facts.
    
26. I find the accused guilty of murder and convict him as charged.
    

___________________________________________________________

Public Prosecutors: Lawyer for the State
Public Solicitors: Lawyer for the Accused