State v Pritchard [2015] PGNC 213; N6117 (11 November 2015)

N6117

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 289 OF 2015 & CR 290 OF 2015

BETWEEN:

THE STATE

AND:

TAITA SARAH PRITCHARD AND JAMES PARU

Waigani: Salika, DCJ
2015: 16, 17, 18, 20 March; & 11 November

CRIMINAL LAW – Practice and Procedure – Sections 269 & 270 of Criminal Code – Defence of self-defence – Defence not available under Section 270(2).

Cases cited:
R v David Daure (1967-68) PNGLR 1
The State v Godfrey Edwin Ahupa (1998) N1789
The State v Raphael Kuanande (1994) PNGLR 512

Counsel:
D Kuvi, for the State
P Kaluwin, for Taita Pritchard
J Mesa, for James Paru

11th November, 2015

1. SALIKA DCJ: INTRODUCTION: The accuseds are charged with one count of wilful murder. The brief allegations are that Taita Sarah Pritchard is a naturalised citizen of Australia and lives in that country but often comes to PNG her original place of birth and citizenship to visit relatives and friends. She befriended John Hulse the deceased in around 2008. The friendship soured which led to this case. One reason for the friendship becoming sour was that the deceased borrowed money from Taita which he never repaid and the other reason was that the deceased now had a new Cambodian girlfriend. He "dumped" Taita and Taita felt she had lost John and also her money.

2. On 20 July 2011 she came to PNG and upon her arrival went to Royal Papua Yacht Club marina where the deceased's boat was berthed. It was on her visit that the deceased's passport and the passport of the deceased's Cambodian girlfriend went missing. The deceased reported the missing passports to the Police at the Town Police Station.

3. The State alleged that on Saturday 23 July 2011 the deceased received a telephone call from a person requesting the deceased to meet him along the Napanapa road to collect his missing passports. The deceased before going to Napanapa informed a few of his friends of the meeting along the Napanapa road to collect the missing passports.

4. It was alleged that the deceased drove to Napanapa and upon his arrival was shot dead with a shot gun by the co-accused James Paru. It was alleged that both accused had planned and orchestrated the murder of John Hulse.

5. Both accused denied the charges.

ISSUE

6. The issue for the court to determine is whether the two accused conspired to murder one John Hulse and whether they killed John Hulse.

THE LAW

7. The accused are charged with wilful murder under Section 299(1) of the Criminal Code Act. It reads:

"Section 299 ..... a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder."

The elements of the charge of wilful murder are:

1. A person.
   
2. Unlawfully kills another person
   
3. Intending to cause his death is guilty of wilful murder
   

The State has the burden of proof to establish all the elements of the charge beyond reasonable doubt.

8. In relation to the first element of the charge there is no dispute that John Hulse was shot by James Paru. There is plenty of evidence of that fact from James Paru. The other two elements of the charge are in dispute and the court needs to look at all the evidence in relation to those two elements.

EVIDENCE

9. The following evidence was tendered into court by consent:

1. Affidavit of Dr Seth Fose
2. Affidavit of Joyce Sandi

100. Record of Interview of Taita Pritchard

4. Confessional Statement of James Paru
5. Statement of Joseph Numbos
6. Statement of Raymond Mojica
7. Statement of Nao Kila
8. Statement of Lawrence David
9. Statement of Agnes Taita Haurama
10. Statement of Kobua Dabada – with photographs.
    

The Confessional Statement of James Paru was tendered into evidence after a voir dire hearing. A piece of lead found in John's body was also tendered into evidence together with a Mossberg pump action shot gun.

UNLAWFULLY KILLING ANOTHER PERSONS

10. There is evidence, both direct and circumstantial, that James Paru shot John Hulse with a shotgun and that as a direct result of the shotgun wound John Hulse died. There is no contention on how John Hulse died because James Paru shot him dead. The medical report tendered into evidence by consent (Exhibit A) which was prepared by Dr Seth Fose says in his opinion "he died from excessive blood loss due to shotgun wounds". There is no contrary evidence as to the cause of death and so I accept that the cause of death of John Hulse was excessive loss of blood due to the shotgun wounds.

11. Accordingly I am satisfied beyond reasonable doubt that James Paru shot John Hulse.

12. The next question is; whether the shooting and killing of John Hulse was unlawful?

SELF DEFENCE

13. The accused raised a defence of self-defence under Section 269 and Section 270 of the Criminal Code. Section 269 says:

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.

Section 270 says:

(1) Subject to Subsection (2), when –

• (a) a person has unlawfully assaulted another person, or has provoked an assault from another person; and
  
• (b) the other person assaults him with such violence as-
  
  • (i) to cause reasonable apprehension of death or grievous bodily harm; and
    
  • (ii) to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self defence;
    

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

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

• (a) where the person using force that causes death or grievous bodily harm.
  
  • (i) first began the assault with intent to kill or to do grievous bodily harm to some person; or
    
  • (ii) endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or
    
• (b) unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.
  

14. Primarily the State has the burden of proof first to prove beyond reasonable doubt the guilt of the accuseds on the charge of wilful murder and second to negative the defence of self defence also beyond reasonable doubt. See R v David Daure (1967-68 PNGLR 1)

15. The defence of self defence under Section 269 covers situations:

(i) Where an assault is directed at the persons acting in self defence; and

(ii) Where death or grievous bodily harm is directed at the person acting in self defence.

16. The elements of Section 269(1) are:

(a) The accused is unlawfully assaulted, i.e. there was a bodily act or a gesture to constitute an assault.

(b) The accused did not provide the assault.

(c) The accused used such force as was reasonably necessary to make an effectual defence against the assault; and

(d) The force used was not intended to cause death or grievous bodily harm.

It is clear from the above elements of Section 269(1) that the facts of this case do not fall under Section 269(1).

17. The elements of Section 269(2) are:

(i) The accused is unlawfully assaulted.

(ii) The accused did not provoke the assault on the deceased.

(iii) The nature of the assault on the accused such as to cause the accused reasonable apprehension of death or grievous bodily harm.

(iv) The accused believed on reasonable grounds that he could not save himself from death or grievous bodily harm, other than to do what he did or other than the force he in fact used.

18. Again the facts in this case in my respectful opinion do not fall or support a defence under Section 269(2).

19. I now go to Section 270 of the Code. The elements of Section 270 are:

(a) Where a person no. 1 unlawfully assaults a person no. 2, that is person no. 1 must do some bodily act or a gesture to person no. 2; or

(b) Where person no. 1 provokes person 2 to assault him or her; and

(c) As a result person 2 assaults person 1; and

(d) The violence used by person 2 on person1 caused person 1 to have a reasonable apprehension of death or suffer grievous bodily harm; or

(e) The violence used induced person 1 to believe on reasonable grounds that it is necessary for his or her preservation from either death or grievous bodily harm to use force in self defence.

(f) Person 1 is not criminally responsible for using such force as is reasonably necessary for such preservation, even if such force causes death or grievous bodily harm to person 2.

20. Sections 270(2) says that Section 270(1) does not:

(a) Apply where person 1 first began the assault with intent to kill or do grievous bodily harm, to person 2; or

(b) Person 1 endeavoured or tried to kill person 2 or do grievous bodily harm to person 2 before the necessity of so preserving himself for herself arose; or

(c) Person 1 before the necessity arose did not decline further conflict and quitted (stopped) it or retreated from it as from as was practicable.

21. Section 270 of the Code in my respectful opinion are applicable to the facts of the case in this matter. The defence of self defence under Section 270(1) has been raised however the State's position is that James Paru set out with intent to kill John Hulse and or to cause grievous bodily harm to him and therefore the defence under Section 270(1) is no longer available under Section 270(2) to him.

DID JAMES PARU ACT IN SELF DEFENCE?

22. In this case person 1 was James Paru while John Hulse was person 2. This is because the evidence clearly shows that James Paru called John Hulse from Kone Mobil Service Station opposite Hubert Murray Stadium and told him to go to Napanapa to meet him there and get his passport. There was never any intention to give John Hulse his passport. There is no evidence James Paru in fact had John Hulse's passport with him. The mention of the passport and to get his passport back was enough motivation for John Hulse to go to Napanapa. James Paru went to Napanapa and waited for John Hulse to arrive. When John Hulse arrived in a green Honda CRV sedan and came out James said he "could see that the white man had a pistol tucked in his beach wear" James Paru then said; "I took aim at him and told him to stand and turn around. Instead I saw the white man reached for his pistol so I pressed the trigger of my gun and I saw the white man fell to the ground. I did not stand around to check. I went quickly down to the white man's car got on and drove off"

23. The description of events as described by James suggests James was already pointing his gun at John. James told John to stand and turn around. I pause here to remind myself that in the first place James was at Napanapa to give John his passport and John is there to collect his passport from James. Why couldn't the passports be given to him in the city at a restaurant, hotel, house or office. Why in the bush in an isolated place? The return of the passports was just a ruse to get John to an isolated place so that he could be dealt with there without any one witnessing the event.

24. James knew why he was at Napanapa – to kill John. This killing was pre-planned between him and Taita. He never had John's passport with him to give to John. He went to Napanapa armed with a deadly weapon – a gun. For John, he was there to get his passport. The court does not know if John left his car keys in the ignition and whether the engine of his vehicle was still running. This is because after James fired his gun, John fell down, James did not check him, he simply got into John's vehicle and drove away. The presumption from James description of events is that John left his car key in the ignition. John's pistol must have been left with him there if he ever had one. We do not know what became of the pistol.

25. James in his statement said he took aim at John and told him to turn around. Instead he said John reached for his pistol. James then pressed the trigger and fired his gun and John fell down. First of all John's back was to James and James was already pointing a gun at him. James had an opportunity to fire a warning shot or shoot John on his legs to maim him only but not to kill him.

26. In any case James was the aggressor. He already had John covered by aiming the gun at him. John did not provoke the assault on him. There is no independent evidence that John in fact had a pistol and that he in fact "reached for the pistol". James said John reached for his pistol. There is no evidence John drew his pistol such that James had to press the trigger.

27. In this case there is sufficient evidence from James himself that he by his bodily act or gesture in this case aiming his gun at John threatened to apply force on John without John's consent, under such circumstances that he (James) had the ability to effect his purpose, that is shoot to kill. When James took aim at John he assaulted John. There is also evidence that, that assault by James on John was unlawful. (See Sections 243 and 244 of Criminal Code)

28. Moreover this court notes the specific provision under Section 270(2) which says that the protections provided under S270(1) does not apply where the person using force that causes the death first began the assault with intent to kill or do grievous bodily harm to a person. The facts in this case are that James went to Napanapa armed with a loaded gun with the intention to "terminate" that is to kill John. James did "terminate" and "get rid" of John. As stated earlier this was a pre-planned killing. It was pre-mediated. James went to Napanapa to simply kill John; to execute the plan. See The State v Godfrey Edwin Ahupa (1998) N1789 James in his confessional statement said while driving back Taita called him to confirm if he had completed the task and he said or told her that "her will had been done". To me the admission there supports the proposition that James went to Napanapa with the intention to kill or cause grievous bodily harm to him.

29. The defence under Section 270(1) of the Criminal Code is therefore not available to James Paru.

WAS THERE AN INTENTION TO KILL?

30. The prosecution must prove beyond reasonable doubt that the accused had the required intention to kill John Hulse. Intention is a matter that goes on in the mind of a person. What was in the mind of the accused when he got dropped off at Napanapa. Intention can never be proven by another person other than the person through his or her own admission. This is because what is in the mind of a person is not known by another person. Intention however may be inferred from that person's conduct before, during or after the commission of an offence. If the accused made any statements before, during or after the commission of an offence, these can be taken into account in determining intention. (See The State v Raphael Kuanande (1994) PNGLR 512.

31. To intend is to have a plan, result or purpose in your mind when you do something. Intention is the noun of the word intend which is a verb. Therefore intention is where you mentally intend or plan to do; intention is your aim mentally to do something. Taita planned to kill John and discussed her pleas with James to execute and James did execute.

32. In this case I take into account James Paru's actions before the commission of the offence. He was given K100 by Taita. James went back to Sabama and bought 3 cartridges from youths. On 23 July 2011 James Paru packed his Mossberg pump action gun into a bag and went to the bus stop. At the bus stop Taita picked him up and Taita drove to Konedobu Mobil Service Station. From there James called John to go to Napanapa to collect his passport. Taita then drove him to Napanapa and dropped him off there. The events at Napanapa have already been alluded to. After the shooting of John, James got into John's vehicle and abandoned it at Koukou. Taita called him to confirm if he had completed the task to which he told her "your will has been done".

33. From all that evidence before, during and after the commission of the crime I am satisfied beyond reasonable doubt that James Paru intended that John Hulse should die. He and Taita had agreed that John Hulse should die. Their combined and individual actions before, during and after the killing in my respectful opinion lead me to conclude that they intended to kill John Hulse. This finding is also supported by the independent evidence of Joyce Sandi, the IT Billing Manager of Digicel (PNG) Limited. Her evidence consists of records of phone calls and text messages that went out from mobile phone numbers 73376082 which is Taita Pritchards mobile phone number. From the text messages from number 73376082 one can tell whose mobile phone number that is and that's Taita's.

34. Having now found that James and Taita intended to kill John Hulse, it follows that the defence of self defence against provoked assault under Section 270(1) is not available to the accused under Section 270(2).

35. The accused Taita Pritchard in her statement to the court that she had no intention of killing John Hulse. Who drove James Paru to Napanapa? What was James Paru to do at Napanapa? Did she give John's missing passport to James Paru to give to John? Why was she arranging for the handover of the passports at Napanapa and not at the Yacht Club? All these plans and arrangements and executing them is to me enough evidence to provide a strong backup to the State's case.

36. Apart from all those questions posed above there are other important matters which should not be lost sight of and they are that Taita thought she had a good thing going with John Hulse. She invested in John her money, time and her love. Her idea of a long happy ever after life with John came crashing down when John dropped her for a new Cambodian girl. This did not go down well with Taita. Taita therefore reasoned that John must be gotten rid of. Thus the plan was hatched by Taita to unfortunately involve James Paru. James did ask Taita if she was sure this is what she wanted and Taita said to go ahead with it. What are brothers and uncles for? James was loyal to Taita. Taita's will became James command which James perfectly executed.

37. Having said those things I am satisfied beyond reasonable doubt that James Paru carried out the will of Taita Pritchard with military percussion. This was the wilful killing of John. Taita wanted John dead and James Paru carried out that will of Taita. Accordingly I find each of them guilty of the wilful murder of John Hulse beyond reasonable doubt.

38. Having now found that James and Taita intended to kill John Hulse, it follows that the defence of self defence against provoked assault under Section 270(1) is not available to the accused under Section 270(2) and since the State invoked Section 7 of the Criminal Code each of them is equally responsible for what each of them did, that is Taita is also responsible for what James did and James is responsible for what Taita did.

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