State v Tamasobo [2021] PGNC 326; N8969 (15 June 2021)

N8969

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 621 OF 2019

BETWEEN:
THE STATE

AND:
KINSFORD TAMASOBO

Aitape: Rei, AJ
2021: 11^th, 13^th &15^th June

PRACTICE AND PROCEDURE – Criminal Law – Charge of murder – What is the appropriate sentence to be imposed – S.267 of Criminal Code Act – Acquittal on the basis – Acquittal on basis of provocation and self defence

Cases Cited:
Papua New Guinea Cases

CR No. 504 of 2018 The State -v- Enoch Maku 10^th, 18^th, 19^th March 2021
State -v- Basa [2011] PGNC 212; N4676 (23^rd May 2011)
TapeaKwapena -v- The State [1978] PNGLR 316
The State -v- Takip Paine of Dumboi [1976] PNGLR 90

Overseas Cases

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

Counsel:

Ms. T. Aihi, for The State
Mr. P. Moses, for the Defendant

15^thJune, 2021
1. REI. AJ: BACKGROUND: Kinsford Tamasobo (“the accused”) was arrested on the 3^rdday of March 2019 on an allegation that on 13^th day of July 2018 he murdered one Job Wapai at OK-Strit Village Nuku District West Sepik Province. He was 22 years of age at the time he allegedly committed the offence. By now he will be 26 years.

2. He has been on bail.

3. He is unmarried. He has a house in Ok-Strit village and stays with his younger brother and younger sister.

ARRAIGNMENT

4. The matter involving the accused came on for call-over on 8^th June 2021 and was set down for trial on 11^th of June 2021. The trial was deferred from that day to Sunday 13^th June 2021 as the hearing in the matter of The State -v- Husum Maika had to be completed.

5. This matter proceeded on Sunday 13^th June 2021 in which the accused was arraigned.

6. At the commencement of the trial Counsels submitted that all evidence, statements of witnesses, the record of interview and medical certificate of death would be admitted into evidence by consent. That the accused would then raise the defence of provocation and self defence pursuant to Section 267 of the Criminal Code Act (“the CCA”).

INDICTMENT

7. Ms. T. Aihi of Counsel, State Prosecutor presented the indictment the contents of which were read out to the accused. It is in the following terms:

“KINSFORD TAMASOBO of Ok-StritNuku West Sepik Province stands Charged that he on the 13^th day of May 2018 at Ok-Strit, Nuku, Papua New Guinea murdered JOB WAPAI.”

8. The brief facts of the matter was put to him in the following terms:

It is alleged that on the 13 of July 2018 at about 11:00 am, the accused was cutting grass at his house when the deceased armed with a bush knife and a slingshot entered his yard. The deceased shot the accused with catapult at the back of his head. The accused, then ran into his house and armed with his bow and arrow came out aimed at the accused and shot at him. The deceased was standing 10 meters away. He threw a 1 meter long bush knife which landed on the left foot of the accused which caused a 2 cm long injury or laceration.

An arrow having 5 spikes was used. The deceased was running away upon seeing the bow and arrow. When he turned around the arrow landed onto the chest of the deceased, penetrated his heart and fatally wounding him. The deceased went home and informed his father of his wounds and who had inflicted them.

The family of the deceased immediately sought medical assistance for him. The deceased suffered from his wounds and died on the 15 July 2018 in Wewak.

PLEA

9. The brief facts were also put to the accused by myself and was asked to make a plea.

10. The accused entered a plea of not guilty raising the defence of provocation and self defence. The matter then proceeded to trial.

EXHIBITS TENDERED BY CONSENT

11. By consent of the defence, the State tendered the following exhibits:

(i) Exhibit “A” – Statement of Canan Malakasis
(ii) Exhibit “B” – Undated handwritten note of Florian Ikimbe
(iii) Exhibit “C” – Undated handwritten note of Philip Wapai
(iv) Exhibit “D” – Medical Certificate of Death
(v) Exhibit “E” – Statement of Detective Sgt Albert Watnawi of 10^th March2018
(vi) Exhibit “F1” – Record of Interview (Pidgin)
(vii) Exhibit “F2 – Record of Interview (English)

EVIDENCE OF ACCUSED

12. In his evidence in chief, the accused said that on the day in question at about 11 am, he was cutting grass in and around his home when he heard a dog barking.

13. At first, he said he did not take notice of the dog barking and kept on cutting grass. When he looked up, he said he saw the deceased approaching him with a one meter long bush knife. He also noticed the accused carrying a dead dog on his shoulders.
14. The accused did not give any oral evidence as to why the deceased carried a bush knife and the dead dog and went to his house.

15. It is not clear from oral evidence of the accused as to the reasons for the approach of the deceased. This evidence is confirmed in the record of interview tendered by consent as Exhibit “F1” (Pidgin) and Ex “F2” (English).

16. The accused stated also that the deceased approached him with a one (1) meter long bush knife and a sling slot or catapult. The deceased fired a shot with the use of the sling shot or catapult. It hit him on the back of the head. In fear of his life, he retreated to his “store house” – a shed where he keeps his tools and bows and arrows. He then returned (and) stood 10 meters away from the accused.

17. He then said that the deceased, about ten meters away, threw a bush knife which swirled and landed on his left foot causing a deep laceration about 2 cm in length.

18. He was then about 10 meters away from the deceased whose back side faced him. The accused said he pulled the bow with the arrow in it and fired it at the direction of the deceased who incidentally turned around and the arrow landed on his chest piercing the heart and protruding through to his back.

19. In examination in chief, he was asked whether time was wasted in him shooting the deceased. He said that when the deceased threw the bush knife, he fired the arrow as he believed on reasonable grounds that his life was in imminent danger.

20. The deceased fell down but regathered strength and speedily went to his house and reported to his parents of what had just happened.

21. After seeing what happened, the accused did not do anything to help the deceased thinking the deceased would be alright.

22. The deceased, however, died two (2) days later at the Wewak General Hospital.

CROSS EXAMINATION

23. The evidence of the accused as given in court was not discredited on cross examination.

INJURY ON THE RIGHT FOOT

24. The accused was asked both in examination-in-chief and cross examination whether there is a medical report on the extent and seriousness of the injury caused to his right foot.

25. The accused responded that there was none. But the undated statements of Philip Wapai, Canan Walakasi and Florian Ikimbe confirm that this is so. These statements were tendered in court by consent.

MENTAL CONDITION OF THE DECEASED

26. The accused also gave evidence that the deceased was an imbecile (person) having had mental fits resulting in harassment in the village of Ok-Strit to the extent that he uses bush knives to scare people and sometimes cuts them causing injuries to their bodies.

27. Questions were asked of the accused whether to his knowledge medical reports exist that would confirm the medical condition of the accused prior to the incident.

28. He could not assist the Court.

29. The undated statements of Canan Walakasi a villager from Ok-Strit Village Nuku, Ex “A”, the statement of Florian IkimbeWaninawo (elder brother of the decease) and the undated statement of deceased’s father Philip Wapaido not contain any evidence of the deceased having mental disorder.

PROVOCATION & SELF DEFENCE

30. Having considered the evidence given by the accused, the question to be asked and answered is: whether there is sufficient evidence of provocation and self defence warranting an acquittal.

31. The oral evidence given by the accused is substantially consistent with the record of interview conducted on the 7^th of March 2019.

32. I have therefore concluded that the accused did not intend to cause grievous bodily harm to cause the death of the deceased with the intention to kill him. He merely wanted to scare him off. But in the course of that the accused shot the deceased with an arrow having 5 spikes which eventually resulted in his death at Wewak General Hospital two (2) days later.

33. This conclusion is drawn from the fact that no evidence has been adduced detailing the motive of the murder. The only evidence is that the deceased killed a dog, went to the house of the accused and uttered threatening words which aroused the anger of the accused.

34. In the ensuing events, the deceased threw a one (1) meter bush knife at a distance of 10 metres and injured the accused on the right foot which caused a 2 meter laceration. The accused then instantaneously pulled bow and arrow and shot the deceased at a distance of 10 meters with a spiked arrow which penetrated his chest and pierced the heart of the deceased resulting in his death two days later. The medical evidence tendered by consent as Ex “D” espouses this conclusion.

35. Do the actions of the deceased amount to provocation therefore the accused was entitled to use force to defend himself? Was the life of the accused in immediate and eminent danger such that he was entitled to defend himself in the manner in which he did resulting in the death of deceased? Was the force employed by the accused to inflict wounds proportionate to the danger caused to his life by the deceased?If it was disproportionate, can a conclusion be still drawn that his life was in imminent danger when the bush knife was thrown at him and he instantaneously fired the arrow?

36. The important facts is this matter are that:

(i) When the deceased threw the 1 meter bush knife, he was standing 10 meters “away” from the accused and
(ii) When the accused shot the arrow at the direction of (the deceased) he was standing at a distance of 10 meters “away” from the accused
(iii) These actions occurred almost or very nearly at the same time with the accused not retiring to prepare himself for the attack launched at him by the deceased.

37. These evidencepoint to the inevitable factual conclusion that the accused had no time to escape any attack aimed at him by the deceased. It is not a situation where the accused retreated and came back to fire the arrow. A reasonable man would conclude that his (the accused) life was in immediate imminent danger.

38. I consider that although the accused did not have any intentionto inflict wounds into the deceased causing his death, the intention to cause injury was instantly formed in his mind once he decided to shoot the deceased with an arrow which had five spikes at the point (of the arrow)when he noticed that a bush knife had been thrown at him.

39. I therefore conclude that the accused has proven beyond reasonable doubt that he reacted in provocation for his own self defence as his life was in immediate danger.

SECTION 267 DEFENCE OF PROVOCATION

40. In his submission Mr. Moses cited Section 269 and relied on it.

1. “(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.”

41. He then submitted that:

(3) If all those elements exist the force used by the accused is lawful even through it has caused the death of the assailant (The State -v- Takip Paine of Dumboi [1976] PNGLR 90, TapeaKwapena -v- The State [1978] PNGLR 316). The elements of the defencecan be summarisedby posing five questions:

1. was the accused unlawfully assaulted?

2. did the accused not provoke the assault?

3. was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

4. did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

5. did the accused use only such force as was necessary for his defence?

42. Miss Aihi of the State relied on Section 270 of the CCA. It reads:

“270. Self-defence against provoked assault.

(1) Subject to Subsection (2), when

(a) a person has unlawfully assaulted another person, or has provoked an assault from another person;

(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 forceas 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) endeavored 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.”

43. It is clear in this case that the accused did not initiatethe assault. He was lawfully on his premises. He was not in the premises of the deceased and that the accused was not trying to shoot the arrow to kill the deceased. He did so to scare him off and to protect himself. There was no intention to kill.

44. I refer to the case of CR No. 504 of 2018 The State -v- Enoch Maku 10^th, 18^th, 19^th March 2021, a case which I presided as Judge in Maprik where I referred to and relied on State -v- Basa [2011] PGNC 212; N4676 (23^rd May 2011) in which it was said:

“1. It was decided in that case that

1. To establish self-defence within the meaning of Criminal Code section 269 the following factual matters must be proven:

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 reasonableapprehension 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;

2. 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 defence 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 defence of self-defence, the onus shifts to the prosecution to negative that defence beyond reasonable doubt: Chan Kau v R [1954] UKPC 40; [1955] 1 All ER 266;
   3. If that balance of probability is not negatived by the prosecution on the requisite standard, the accused would have then acted lawfully in the force he had used in retaliation which caused the death of that other person”.
      

45. I am satisfied that the defence has proven that the accused fired the arrow because he was provoked as he did not waste time to do so. He did so in self defence.

46. Although the deceased died, the evidence of the accused can be excused given that he did not initiate the assault, that he was provoked in his own premises.

47. I therefore order that the indictment be dismissed, and the accused discharged.
_______________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant