State v Panta (No. 1) [2013] PGNC 353; N5168 (19 March 2013)

N5168

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 477 OF 2010

THE STATE

V

EDWARD PANTA
(No. 1)

Alotau: Toliken AJ

2012: 20th September
2013: 19th March

CRIMINAL LAW – Particular offence – Wilful Murder – Trial – Accused admitted to killing wife– Accused struck deceased on right chest with galvanized digging pipe – Carries deceased to the beach, bounds her hands and legs with nylon rope – Anchors a heavy stone to body, puts body in a canoe, paddles out and dumps body at sea - Criminal Code Act h. 262, s 299.

CRIMINAL LAW – Evidence – Circumstantial Evidence – Confession - State's case substantially circumstantial - No eye witness to the crime – Pertinent facts drawn from accused sworn testimony and confessional statement – Truth known only to accused and deceased - Facts peculiar to accused knowledge – Constitution, Section 37(4)(a) provides that a law may reverse the onus of "proving particular facts which are or would be peculiar within the knowledge of the accused" - No reversal of burden of proof on defence of self defence – Constitution, s 37 (4).

CRIMINAL LAW – Plea of Self defence – Belated, raised only at opening of defence case – State deprived of opportunity to put appropriate questions to its witnesses – Breach of rule in Browne v. Dunn – Adverse inference drawn against accused defence of self defence – Self defence rejected - Criminal Code Act Ch. 262, s 269.

CRIMINAL LAW - State fails to prove intention to cause death of the deceased to sustain charge of wilful murder – No evidence to sustain alternative verdict for murder – Alternative verdict for manslaughter returned – Criminal Code Act Ch. 262, 539.

Cases Cited

R v Pari-Parilla (1969) No. 527
R v Paul Maren (1971) N615
SCR No.3 of 1978; Re Inter Group Fighting Act 1977, [1978] PNGLR 421
Awoda v The State [1983] PNGLR 83
Browne v Dunn (1893) 6 ER 67
R v Spurge (1961) 2QB 205

Counsel

D Kuvi and R Auka, for the State
G Pipike, for the accused

JUDGMENT ON VERDICT

19th March, 2013

1. TOLIKEN AJ: The accused Edward Panta is charged with the wilful murder of his wife Julie Asela (accused) on the 12th day October 2010 on Motorina Island, Milne Province.

2. He admitted to killing the deceased but claimed that he acted in self defence.

3. The State called three (3) witnesses – Rose Wilson, Moses Elizah, Margie Army and Chief Sergeant Moses Hilibobo. The accused's Record of Interview and photographs taken of the crime scene were also tendered into evidence by consent.

4. The accused testified on oath. He called no other witnesses.

THE ISSUES

5. The issues for my determination are:

1. Did the accused intend to cause the death of the deceased?
   
2. If not did he kill her in self defence?
   

THE EVIDENCE

The State's Case

(1) Rose Wilson

6. Rose Wilson (Rose) is the eldest step-daughter of the accused and the deceased. She testified that on Sunday the 11th of October 2009 her mother (deceased) was angry with her younger daughter and belted her for bringing her boyfriend into the family home the previous night. She, however, apologised to her daughter before they retired for the night.

7. Rose testified that her mother had wanted her and her sister to sleep in the lounge area that night. The accused, however, did not agree so they slept in their own room.

8. At around 2.00 o'clock in the morning the deceased woke Rose up saying that she wanted to talk her. She, however, refused to talk to her. The deceased gave some medicine to her other daughter and then left. Rose did not know whether she went back into her room or went outside.

9. After a while Rose said that the accused came and woke her up as her infant brother was crying. The accused told her that her mother had gone to the neighbouring village of Panaiwau. He instructed Rose not to open any doors. Then he left allegedly to look for her. However, when he returned he told her that he could not find the deceased and that may she may have gone to Panania instead. He then told her that he will go Panania to look for the deceased. He again told her not to open the doors until he returned.

10. Rose did not know where the accused went to but after a while when she looked out through a window she saw him bending over a canoe on the beach approximately 15-20 meters away. After a while he pushed the canoe down into the water and paddled away into the ocean.

11. At day break Rose went out of the house and found her mother's pair of trousers between the house and the Aid-post. She and her sister began crying, attracting a large crowd. They noticed a trace of blood and traced it to the rubbish pit at the back of the house. They also found an iron digging rod there. They also saw and followed drag marks down to the beach.

12. It was at this time that the accused paddled back in from the sea. He told her to stop crying as her mother was not dead but had been raped instead. He did not tell her where she been raped her though.

13. The villagers then searched for her mother but never found her.

14. On cross-examination Rose said she did not know if her parents had fought that night. When re-examined on this point she said she did not know if they had fought as she was asleep.

(2) Moses Elizah

15. Moses Elizah is the Ward Councillor. He testified to being awoken from his sleep that morning by a Samuel Dewi who reported that the Community Health Worker's daughters were crying for their mother who had gone missing. He went down to the Aidpost, arriving just as the accused was paddling in from the sea.

16. The accused alighted from the canoe and joined his daughters and started crying too. Elizah noticed that as the accused was crying with his daughters on beach he seemed to be rubbing off what seemed to be drag marks on the sand with his feet. On seeing him, the accused asked Elizah to go with him to his house. The village Peace Officer Jeffery Belebele went along too. At the house the accused told Elizah that his wife might have been raped. Jeffery Belebele had to leave them for a moment but when he came back he reported to Elizah that he had seen droplets of blood just behind the house.

17. Elizah and Belebele followed the fresh blood droplets to a fruit tree and then to a pit. In the pit they found a medical gauze with fresh blood on it. Elizah also testified that Village Recorder Mark Stanley found an iron pipe close to the pit.

(3) Margie Army

18. Margie Army recalled going to the toilet at mangroves at around 3.00a.m on 12th October 2009. After returning to her house, situated approximately 30 meters from the accused's, she saw the accused retuning from the mangroves. She went to sleep and was awaken by cries from the accused's daughters. She went over and took the infant from Rose.

19. At that time the accused paddled in from the sea and got off the canoe. Army noticed that there were drag marks on the beach. She further noticed the accused rubbing off drag marks on the sand with feet as he was crying. That time his daughters were in front of the Aid-post.

(4) Moses Hilibobo

20. Chief Sergeant Hilibobo testified of responding to a missing person report from Motorina Island on 12th October 2009 and of having travelled to the Island the following day to investigate.

21. He testified of being shown the traces of blood that other witnesses had alluded to, picking up the gauze from the pit and of being given the galvanized digging pipe, a pair of long ladies pants and a black T shirt with yellow and red stripes and the picture of a bird of paradise in front. The T shirt had blood on it.

22. Chief Sergeant Hilibobo that they went out to sea to search for the deceased as some witnesses had told him that they saw torch light at sea that night. They had to abandon the search though after they found nothing.

23. He testified of unsuccessfully trying to get the accused to tell him where his wife was after an extensive search turned out unsuccessful.

24. As it was then getting late they could not return to Misima so he and his men were offered the Community Hall to spend the night. He called off the search and informed the accused that he was arresting him and then took him into custody.

25. Chief Sergeant Hilibobo testified that the accused confessed to him and Reservist Leonard and the Village Peace Officer about what happened to his wife.

26. At this stage, Defence Counsel, Mr Pipike asked that it be put on record that they will object to this line of the witness' evidence as being hearsay and further asked the Court to note the circumstances under which this alleged confession was made.

27. The matters raised by the defence were noted and Sergeant Hilibobo continued with his evidence.

28. He said that the accused told him that, on the night in question, he and his wife (the deceased) went looking for coconut shells under the coconut trees when they had argument. He said that the deceased charged at him with a bush knife so he ran back to their house and picked up a galvanized digging pipe to defend himself with. The deceased rushed at him swinging the bush knife at him. The accused wanted to block the knife but by mistake hit the deceased on her right ribs. The deceased then ran away from him and fell down some distance along the road to the well. He went over to pick her up but then she ran off again only to fall down again under a fruit tree. She picked herself up again and ran but fell into the rubbish pit. The accused then said that he picked up the deceased and carried her to the beach.

29. He left her lying there and went and took two pieces of green nylon rope. He used these to tie the deceased's two hands and two legs and put her into a canoe. He then paddled out and dumped the deceased in the deep sea.

30. Chief Sergeant Hilibobo said in examination in chief that he cautioned the accused and advised him of his constitutional rights and that he need not say anything to him. He said, though, that he wasn't able to write anything down as it was dark.

31. Chief Sergeant Hilibobo also said that he inspected the canoe and noted some blood stains. However, most of these seemed to have been washed away and he assumed that the canoe must have capsized.

Record of Interview

32. The accused's Record of Interview was tendered into evidence by consent. It is apparent from the interview that the accused volunteered a fair bit of information on events leading up to the demise of his wife then deceased. However, after that, he chose to remain silent and reserved what he had to say about what happened to his wife for the trial.

33. I reproduce below the pertinent questions and answers in the Record of Interview which give a fair bit of background information to events leading up to the deceased's demise.

Q13. Do you remember the incident on the night of the 12th of October 2009?

Ans. Yes.

Q14. What happened on that particular night?

Ans. I had an argument with my wife.

Q15. What was the argument about?

Ans. The argument happened when a boy by the name of Frank Boro entered our resident and spent a night with our daughter and as he was leaving that Sunday morning, we all saw him but I did not take action on him so my wife got angry to me for not stopping the boy and scolding him or hitting him. However, my wife and our big daughter started belting our daughter for allowing the young men into our resident so I took part in also belting our daughter too and that's how the argument developed.

Q16. What happened after that?

Ans. My wife wanted me to see the Peace Officer and bring the3 boy to our house so we can settle the problem but in the afternoon about 2 pm, the boy returned with his 3 brothers and their father without the Peace Officer so when my wife talked to them, an argument developed between the boys and my wife, the argument was a heated one, they were swearing at each other almost fighting while I sat under a tree just watching them but I realized that they were trying to hit my wife so I told them to get out of my yard so they left.

Q17. What happened next?

Ans. After the boys left, my wife started getting angry to me and was scolding me for not supporting her when the boys were arguing with her, she was swearing at me and calling me Geligeli but I kept cool and waited until she stopped talking then I told her that we have reported the matter to the Peace officer and we should leave the matter to the law.

Q18. What happened in the night?

Ans. My wife was still very upset so that night while we were having our dinner, my wife was talking to our children. After dinner, our children went to bed but I stayed on with my son, Brannan Panta and my Health Committee, Heisi Clark. We were preparing to go and dive but I told my wife to give panadol to our daughter, Margaret because she was in pain after the smacking.

Q19. What happened after that?

Ans. We left the house at about 7 pm but when we got to the dive spot, we realised that it was windy and the sea was not very clear so we caught only a few fish and we returned home. My friends made fire and were cooking but I was cold so went straight to bed.

Q20. What happened next?

Ans. When I went into the room, my wife was awoke, she was feeding our baby when I went to sleep. At about 12 midnight after giving our daughter's doze, she woke me up but I pretended to be fast asleep because I didn't want to argue with her again so I got up and asked her what she wanted but she started arguing and getting angry on the same thing we argued with during the day. I was tired so I got up and walked outside, she followed me out into the verandah and scolded me again for not staying and listening to her. She returned into the house and was still mumbling so I went outside the house and that is how the fight started.

Q21. What happened after that?

Ans. I think the main event that happened after that I decided to remain silent but I will present that in Court later.

Q22. What happened to your wife that night?

Ans. I want to remain silent.

Q23. What did you do to your wife that night?

Ans. I want to remain silent.

Q24. Where were you on Monday morning?

Ans. I was at my house with the Councillor, the Peace Officer and the community.

Q25. Why were the Councillor, the Peace Officer and the Community present at your resident?

Ans. They came to search for the body of my wife, Julie who went missing in the night.

Q26. What happened to your wife?

Ans. She went missing.

Q27. How?

Ans. For that I choose to remain silent.

Q28. Were you aware of the fresh pools of blood that were discovered near your resident on the morning?

Ans. Yes.

Q29. What do you say to the fresh blood that was discovered?

Ans. For that I will remain silent.

34. The accused was asked further if he was aware of a galvanized digging pipe with fresh blood on it that was discovered near a rubbish disposal pit near his residence. He chose to remain silent though he admitted that it belonged to his late wife.

35. He was asked about his wife's clothes that were found on the beach near the Health Centre. He remained silent but answered that he didn't know how his wife's clothes were found without her.

36. The accused admitted paddling out to sea to look for the body of his wife. He couldn't find the body and returned at about 6.00 am.

37. When asked what made him think that his wife's body will be out at sea, the accused said he will remain silent. He said that when his children asked him, he said he told them that he had been out searching for their mother and that they should remain calm. He said he didn't know if she was dead but knew that she was just missing or just hiding somewhere.

38. When further questioned as to the type of clothes he was wearing that night, the accused said he was wearing a black collar "T" shirt and blue shorts. He identified the "T" shirt when shown to him.

39. He was asked how blood came about to be on the "T" shirt. He said that the blood was from a cut on his head which he sustained when he started humping his head on the doorsteps when he realized that his wife was dead after they could not find her.

40. As to the fresh blood on the medical gauze that was found on the disposal pit, the accused explained this away as being the blood of a patient, Frank Kabe, who had come in 3 days earlier with knife injuries.

41. The accused chose to remain silent when asked about fresh blood that was found near the rubbish pit and other locations near the big tree near his house.

Photographs

42. Among the ten (10) photographs that were tendered into evidence was a photograph of the galvanized digging pipe (Exhibit C1). The instrument is about 1 ½ metres long with a flat rounded tip on one end.

43. The other photographs showed the various locations were blood droplets or pools were located, the medical rubbish pit, the original position of a missing rock and the accused's house with the Health Centre in the background.

THE ACCUSED'S EVIDENCE

44. The accused testified on oath that on the early house of Sunday, 11th of October 2009, a young man, Stanley Boro had entered the family residence and slept with his younger daughter, Margaret Wilson. As a result, Margaret was beaten up by her mother, the deceased, that morning.

45. The accused said that he reported the matter to the Peace Officer. The Peace officer did not turn up that afternoon but Stanley Boro and his brothers turned up and had an argument with the deceased. The accused said that he stopped his wife and everything seemed alright after that.

46. However, in the night, the accused said the deceased woke him up and demanded that he goes and bring Stanley Boro over so that they could further discuss the matter. The accused said he refused as he had already reported the matter to the Peace Officer. He then went out and sat on the verandah.

47. The deceased came out of the house, armed with a bush knife. She told the accused that she was going out to attack or confront the young man, Stanley and he should not try and stop her. The accused said he stood her way and prevented her from going as she could bring on a lot of problems to herself. This, however, angered her and she swung the bush knife at him trying to cut him.

48. The accused said he jumped off the house and ran towards the beach. She followed him and swung the knife again trying to cut him on his back. She had the bush knife in her right hand and a water proof torch on her left hand. He said that she swung the bush knife at him four times but all missed him.

49. The accused said he could not run fast enough as it was dark. He then remembered the galvanized digging pipe that was lying on the veranda. He turned and ran towards the house. She followed him. When he grabbed hold of the digging pipe, the deceased was already at the doorway to the veranda and was swinging the knife at him. The accused jumped off the veranda and ran off.

50. The accused said, however, that the deceased caught up with him a few metres from the house and that was where what he told Sergeant Hilibobo happened.

51. He said that the deceased swung the knife at him again. He said he lifted the digging pipe to block the knife. At the same time, he swung the pipe in an attempt to knock the knife off her hands. On impact both the knife and the pipe fell off. Suddenly, the deceased started crying. The accused said that he then realized that either the pipe or bush knife may have cut her on the right side of her chest.

52. Realizing that she was injured, the accused said he moved in to investigate but she got up and started running away from him. He said he made several attempts to see what really happened but the deceased kept on running away from him. She first ran towards the Aid Post, then to the rubbish pit. When he followed her, she ran back to the house.

53. At that point, the accused said he left her and went to attend to their baby who was crying. He said that was when he woke their older daughter up as he had differently quietening the baby down. He said he told their daughter to mind the baby while he went out to see where its mother was.

54. When he came down from the house, the accused said that he could not find her near the house or at the Aid Post. But suddenly, he said he saw her lying on the beach. He went over with the intention of assisting her. When he reached her, he, however, noticed that she was already dead.

55. The accused said he was confused, worried and puzzled about what to do with the body, seeing that there were pools of blood all over the beach. He said he knew that something terrible was going to happen to him if the body was found in the situation he found it. He thought of what the deceased's brothers would do to him so he decided to wrap the body up and bury it in the sea where the relatives would never know what happened to her.

56. When asked in examination in Chief, why he told witnesses that his wife was raped, the accused said this was because she was half naked when he found her on the beach.

57. He further said that it took him something like 30 minutes to try and stop their baby crying before he found the body on the beach. When asked how he knew that the deceased was dead, he said that he knew she was dead when he couldn't feel a pulse when he checked her. The accused was the Community Health Worker at the Motorina Aid Post.

FINDINGS OF FACTS

58. At the outset, it must be stated that the crucial and material facts surrounding how the deceased met her death can be inferred from the accused's own testimony and his confession to Chief Sergeant Moses Hilibobo and to some extent his Record of Interview. This is because apart from the accused himself and the deceased who is unfortunately not alive to tell her story, no-one else witnessed what happened on those early hours of the 12th of October 2009 at the Motorina Aid Post.

59. Nevertheless, from the above evidence, I find the following undisputed facts which I might safely say provided the setting to what later happened on those fateful early hours of 12th of October 2009.

60. The accused was at the material time the Community Health Worker (CHW) at the Aid Post on Motorina Island. He lived with his family within the grounds of the Aid Post.

61. On Sunday, 11th of October 2009, the accused's wife (deceased) had hit her younger daughter, Margaret Wilson for bringing a young man, Stanley Boro into their house and sleeping with her there.

62. The accused had reported the matter to the Village Peace Officer. That afternoon, Stanley Boro returned with two of his brothers obviously to sort out the matter but the Peace Officer did not turn up so they ended up having a heated argument with the deceased instead.

63. I find that the deceased was not happy with the accused for what I might say was a perceived disinterest on the matter and for not doing something about it.

64. I find that sometime in the early hours of Monday, 12th of October 2009, the deceased, still very upset with the accused and the whole incident had an argument with the accused.

65. What happened after that is an issue and I will return to this shortly.

66. However, I find that whatever happened resulted in the accused causing the death of his wife, the deceased.

67. I accept that after causing the death of the deceased, the accused tied her hands and legs with a green nylon rope. He then tied two rocks to her bound hands, put the body into a canoe, paddled out and dumped the body in the ocean.

68. I find that sometime during that morning, the accused woke Rose up when the baby started crying. I accept that the accused told Rose that her mother had gone to the neighbouring village of Panaiwan and that he would follow her there. I accept that he told Rose to lock the door after he had left. I accept that he returned after a while and told Rose that he could not find her and that she may have gone to Panania instead. He then told her that he will go and look for her at Panania. He again instructed Rose to again lock the door. I find that around dawn, Rose saw the accused bending over a canoe on the beach and after a while, he pushed off into the water and paddled off sea.

69. Let me now consider the issues.

DELIBERATIONS

Issue No. 1: Did the Accused Intend to Cause the Deceased's Death?

70. The accused is charged with wilful murder. He admitted to killing or causing the deceased's death. However, the State has to prove that he intended to cause the death or kill the deceased.

71. Intention of course is a state of the mind that is hard to prove. However, the requisite intention, in this case, the intention to kill, can be ascertained from an array of outward manifestations. These may include:-

• An admission or confession.
  
• Reasonable inference from the accused's conduct or actions prior to, during or after the commission of the offence.
  
• The degree of force used or the nature of injuries inflicted on the victim.
  

72. As I have already said above, the most direct evidence from which the Court can infer the required intention is the accused's confession to Chief Sergeant Hilibobo and his sworn testimony. Then of course there is the evidence of State witnesses who testified to the accused's behaviour on that morning in question.

73. As I have found, the deceased had been pretty much upset about the incident involving their daughter, Margaret. She was particularly upset with what she perceived as a lack of attention or interest by the accused. So upset was she that she still was able to raise it with the accused sometime after mid night on 12th of October 2009. This obviously resulted in an argument if not an altercation between them that eventually resulted in her demise.

74. The accused's evidence is that she attacked him with a bush knife i.e. a 16" bush knife. She chased him around with the knife swinging the knife at him several times. She allegedly chased him around the house when he ran to arm himself with the galvanized iron digging pipe then towards the Aid Post and to the large tree at the back of the house.

75. The accused said that it was about this time that the deceased caught up with him. She was armed with the bush knife on her right hand while she had a diving torch in the left hand which she was flashing at the accused. When she swung the knife again at him, he swung the digging pipe to block the knife. In his confession to Chief Sergeant Hilibobo which I find to be not captured by the rule against hearsay, the accused said he wanted to block the knife but by mistake hit the deceased on her right ribs.

76. In his sworn testimony, he said as the deceased swung at him with the bush knife, he lifted the pipe to block off the knife and at the same time swung it in an attempt to knock the knife from the deceased's hand. Both the knife and the galvanized pipe fell down on impact. The deceased started crying and he realized that either the knife or the pipe might have injured her somewhere around the right side of her chest.

77. Now, given the absence of any eye witness to the incident, there is no way of knowing whether or not things really happened as narrated to the Court by the accused.

78. Be that as it may, it is incumbent upon the State to negative the accused's version of the facts beyond reasonable doubt.

79. The defence raised a belated plea of self defence. Again, the State must negate the defence or any evidence suggesting self defence (R –v- Paul Maren (1971) N615; R –v- Pari Parilla (1969) No. 527).

80. At this juncture, I must agree with the State that the defence in fact caught the State off guard by indicating that they will rely on self defence only when opening their case. This is a breach of the rule in Browne –v- Dunn (1893) 6 ER 67 as the State had been led to believe all along that the defence will be one of general denial as per the pre-trial notes. And even though a confession was made, every indication was that this will be challenged. As was held in Awoda –v-The State [1983] PNGLR 83, it is desirable in the interest of a fair trial that the defence discloses its case at the commencement of the trial and that it is undesirable that matters to which credit and weight may be accorded be kept secret and raised at the last moment. The rule covers specific defences as well so as to enable the other side to at least anticipate what the opposing case is. This is done by either disclosing the defence earlier on or through appropriate questions during cross-examination.

81. The failure to alert the State during the cross-examination of its witnesses that the defence will be relying on the defence of self defence may result in an adverse inference by the Court on the accused's story or testimony.

82. In the circumstances, it is therefore open to me to draw an adverse inference against the accused for breach of the rule.

83. Now, having said that I think that given the defence of self defence, it is therefore, essential that the issue of whether the accused intended to kill his wife must necessarily be considered with the second issue – whether the accused acted in self defence.

84. For the accused to avail himself of the defence of self defence under Section 269 (2) of the Code must be shown that:-

1. he must have been subjected to an unprovoked unlawful assault by the deceased; and
   
2. the nature of the assault was such as to cause him a reasonable apprehension of death or grievous bodily harm; and
   
3. he believed on reasonable grounds that there was no other way of preserving himself from death or grievous bodily harm; and
   
4. he used such force as was necessary on the deceased for his defence.
   

85. If the above requirements or elements are established by the accused and not negative beyond reasonable doubt by the State, the accused will not be criminally responsible for the death of the deceased.

86. So really, the crucial issue becomes – was the accused defending himself when he caused the death of the deceased?

87. Now, the only persons who knew what really happened in the early hours of the morning of 12th October 2009 are the accused himself and the deceased. The facts are matters peculiarly within their knowledge as correctly submitted by Mr. Pipike for the accused. However, the burden of proof is not reversed as provided by Section 37(4) of the Constitution.

88. Counsel relies upon what Prentice, CJ (deserting) said in SCR No.3 of 1978; Re Inter Group Fighting Act 1977 [1978] PNGLR 421 where the then Chief Justice quoted the following statement by the House of Lords in R –v- Spurge (1961) 2QB 205 at pp 212-213:

"....The facts ... relating to the defence of provocation or self defence to a charge of murder are often peculiar within the knowledge of the accused since the only persons present at the time of the killing are the accused and the deceased. Yet once there is any evidence to support these defences, the onus of disproving them undoubtedly rest upon the prosecution... There is no rule of law that when the facts are peculiar within the knowledge of the accused, the burden of establishing any defence based on those facts shifts to the accused. No doubt there are a number of statements where the onus of establishing a statutory defence is placed on the accused because the facts relating to it are peculiarly within his knowledge. But we are not here considering any statutory defence".

89. What was said there must, however, be understood in the circumstances of the English Law. In our jurisdiction, the Constitution, Section 37(4)(a) clearly provides that a law may reverse the onus of "proving particular facts which are or would be peculiar within the knowledge of the accused".

90. Hence, regardless of the fact that relevant facts in cases of homicide where the defences of provocation or self defence are often matters within the peculiar knowledge of the accused, the burden of proof is not shifted to the accused at the whim of a trial judge or rule of practice. Reversal of the burden may only be sanctioned by legislation.

91. Be that as it may, the State did not in this matter seek to be relieved of its burden so the discussions on this point are therefore merely academic.

92. But having said that the Court is not lost to the fact that the only evidence on crucial facts in issue comes from the accused himself.

93. Now a puzzling aspect of the case is that the couple's daughters, particularly witness Rose Wilson did not hear any commotion at all if what the accused said was true.

94. The deceased had supposedly chased the accused around the yard for quite a while. He accused even ran back up to the veranda of the house to pick up the galvanized digging pipe and certainly would have made enough noise to at least arouse their girls from their sleep. The deceased followed him there. Does it not seem strange and out of touch with or inconsistent with common sense that for a very angry woman who was armed with a bush knife she made no noise or said anything at all?

95. The accused said that he could not run fast enough as it was dark but he was able to say that the deceased missed him with the bush knife at least four times. He said that she had a torch in her left hand which she flashed at him while she was chasing him around. This may have provided him with enough light to see the deceased make those swings at him but he could have only done that if he was facing the deceased and running backwards.

96. Obviously, this would mean that at the critical moment, the accused would have had to stop and faced the deceased at very close quarters. They would have been so positioned for the accused to have been able to fend off the blow by the deceased with the pipe. Now, the sound of metal against metal would have made sufficient clanging noise which would have resonated for some distance – at least it could have been heard by those in the house.

97. The accused said that when he fended or blocked the knife, both the pipe and the knife fell down and in the process the deceased was cut on her right ribs.

98. Now, I do not know if the knife, let alone the pipe, could have caused the injuries in the manner described by the accused. The sharp end of the digging pipe has a flat rounded edge and unless it was very sharp, it would have taken quite a lot of force to inflict a penetrating wound into the deceased's rib cavity. It would, I think in the normal circumstances, have taken a spearing motion or forward thrust to inflict the injury described by the accused.

99. Unfortunately, we are not in any position to say exactly what those injuries were as nobody else apart from the accused had seen the body of the deceased.

100. So, did the accused kill the deceased in self defence? The defence as I said was belated and the State and the Court were only alerted to it when the defence opened its case. No questions were put to the State witnesses during cross-examination to suggest that the accused had acted in self defence. The State was therefore deprived of the opportunity to properly put questions to its witnesses, particularly to Rose Wilson, to negative the defence.

101. I am, therefore, left in a position where I cannot help but draw an adverse inference that the defence of self defence may have may not necessarily be reliable or that the manner in which the accused caused the deceased's death may have been quite different. This is despite the fact that the accused's testimony did not depart very much from his confession to Chief Sergeant Hilibobo.

102. In the final analysis, the accused's story offends against the principles of logic and common sense and the rule in Browne –v- Dunn. I, therefore, reject the defence of self defence.

103. Be that as it may, has the State proved beyond reasonable doubt that the accused intend to kill the deceased?
104. If anything, based on what I have found and discussed above, I cannot safely or reasonably infer from the evidence that the accused intended to kill his wife on that morning of 12th October 2009.

105. The indictment for wilful murder cannot therefore be sustained.

106. But not withstanding that I am satisfied beyond reasonable doubt that the accused unlawfully killed his wife.

107. I have the power to return an alternative verdict under Section 539 (1) of the Code of murder or manslaughter.

108. While there is no evidence to support a charge of murder, I am satisfied in the circumstances that the accused is guilty of manslaughter contrary to Section 302 of the Constitution.

109. I, therefore, return an alternative verdict of manslaughter and accordingly convict the accused.

Orders accordingly.

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Public Prosecutor : Lawyers for the State
Paraka Lawyers : Lawyers for the accused