State v Maku [2021] PGNC 375; N9080 (30 March 2021)

N9080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 504 OF 20182

BETWEEN:
THE STATE

AND
ENOCH MAKU

Maprik: Rei, AJ
2021: 10^th, 18^th, 19^th, 23^rd, 26^th& 30^thMarch

PRACTICE AND PROCEDURE – Criminal Law – Charge of Murder – Section 300 Criminal Code Act - Acquittal on basis of self defence and provocation.

Case Cited:

State -v- Basa [2011] PGNC 212; N4676
R -v- Kerr [1976] 1 NZLR 335
Chan Kau -v- R [1954] UKPC 40; [1955] 1 All ER 266
State -v- Angela Colis Towavik [1981] PNGLR 140
R -v- Kambe-Pare [1965] PNGLR 321
Tapea Kwapena -v- The State [1978] PNGLR 316
The State -v- Angosiwen No.1 (2002) N2266
Garitau -v- Bonu & Rosanna Bona (1998) SC595
Paulus Pawa -v- The State [1981] PNGLR 498

Counsel

Ms. T. Aihi, for the State
Mr. S. Parihau, for the Defendant

DECISION ON VERDICT

30^th March, 2021

1. REI AJ: BACKGROUND: On 19^th March 2021 I handed down my ruling on a No Case Submission made by the defence.

2. In refusing that application, I ruled that:

“... given the understanding that the defence raises the defence of provocation or self defence, there is evidence that the accused should be put to the witness box to explain what then happened...”

3. The reason for this is that in cross examination, the defence led evidence leaning towards those legal defences and I said:

“... I also note from the line of questions asked by the defence in cross examination that the defence of provocation or self defence is relied on.”

4. The defence called two (2) witnesses – the accused Enoch Maku and his sister Philma Enoch who did give sworn oral evidence from the witness box.

5. They gave evidence in rebuttal to the evidence of Edwin Kambus.

6. The issue to be considered at this juncture is whether, upon the weighing of evidence adduced from the witnesses, there is sufficient credible evidence to return a verdict of guilt.

7. Alternatively, whether the evidence is insufficient to sustain a verdict of not guilty.

STATE WITNESS EDWIN KAMBUS

8. The only witness who gave evidence for the State is Edwin Kambus who says he is related to the accused Enoch Maku and comes from Bongiora Village. A cousin brother from his patrilineal descent.

9. His account is that on the 16^th of December 2017, two (2) groups of people were gambling on the verandah of the accused’s house to raise funds to pay school fee for the children of the accused.

10. Between 7pm and 8pm a noise was heard that Police were in village.

11. In the process, the deceased; Elvis Lurukwe, armed with a one (1) meter grass knife ran to the house belonging to the accused and started cutting the ladder rungs and destroying them.

12. The deceased was intoxicated when he did what he did.

13. My careful assessment of the evidence given in court and recorded by myself in writing did not disclose any reason; legal or otherwise, why the deceased took a grass knife, went to the house of the accused, destroyed the steps, intimidated, harassed and cut some of the people who gathered in that house to raise funds to pay school fees for his children.

14. No valid or scintilla of reason by way of answers to questions put to this witness were given by this witness why the deceased took the grass knife, went to the house of the accused and did what he did.

15. This witness did not give scintilla of evidence in examination in chief of the motive of the deceased.

16. In cross examination, the witness also did not give any evidence as to the motive of the deceased in doing what he did. A question was put to hm in cross examination in the following terms:

Q. Did the deceased and the accused have any arguments?

A. No.

Q. I put it to you that the deceased was drunk at that time.

A. Yes

17. In another question asked in cross examination the witness said he did see the deceased use the bush knife and cut other people. He was asked:

17. Before the deceased cut the steps, he had already cut other people, is that correct?

A. Yes

18. This shows that the deceased did not have any valid or proper reasons to enter the premises of the accused to destroy the steps leading to the house and swing the grass knife; a dangerous or offensive weapon, in the presence and sight of the people in that house amongst whom were children involved in the fund raising for school fees.

19. The deceased did so out of ignorance and disrespect for the people who were participating in the school fee fund raising.

20. It appears the deceased was an uninvited guest whose intention then was “to spoil the party” which the accused hosted for a worthy cause: school fee fund raising.

EVIDENCE BY THE ACCUSED

21. The accused Maku Enoch gave sworn evidence.

22. Mr. Parihau asked the accused the usual question in examination in chief to tell the Court of his involvement in the incident.

23. The accused answered that question in the following manner or words to the same effect:

“I am sorry that I committed the crime. It was not me who committed the crime. It happened in my house. The deceased went to my house and caused the trouble. It was fund raising for school fees for my children in my house. Elvis Lurukwe got drunk at a different place. He held a grass knife, entered the house and cut people destroying market goods for sellers. He cut my sister on the back of the head whose name is Philma Enoch and became unconscious. I called out to the deceased to stop but he ran towards me and cut me with the bush knife. I avoided the first attempt. After avoiding his second attempt, I went underneath the house and grabbed a brace supporting the post which became loose. When he swung the bush knife the third time, I swung the wood and hit him on the body. I do not know which part of the body I hit. He fell down and died”.

24. The accused Maku Enoch then stated that after knowing that the deceased died, he went to the Ward Member of Wakum Village and called the Police the next day who came and arrested him.

25. This evidence was strongly tested by Ms. Aihi in cross examination but the accused did not renege nor did he recant. He stuck to his statement in chief in Court.

26. His evidence was corroborated by his sister Philma Enoch whose evidence also stood the test of relevant cross examination.

RECORD OF INTERVIEW & MEDICAL EVIDENCE

27. The record of interview and medical report tendered in evidence by consent as Ex “A” & Ä1” and Ex “B” respectively are consistent with the evidence given by the accused.

28. The accused was asked during the record of interview to give his account of the incident and stated as follows:

Q.16 What kind of story do you wish to give?

Ans: Yes, boss I am sorry that I have done wrong. That time I did not look for trouble. Trouble came to me and my family at my residence. That time we were raising funds for school children and many people were there and Elvis at some other place. He entered the fundraising area armed with a long grass knife. My sister Philma Enoch also received a cut to her head. She lay unconscious and when I shouted, he ran at me. He swung the grass knife at me and I avoided and he continued the second time and I went under the house. I held a brace and it came loose and he swung at me again and the tip of the grass knife sliced me under the right chest. I cannot tell which part of his body I hit and then he fell down and died. Some men tried to resuscitate him and the small man Alfie Remson went in but they removed him. While they were doing that I went and stood on the cement and watched. After that I went up to the house and got changed. I tried to call the police but couldn’t get them and I went to Walkum and stayed with councillor Bonjang. We called Policeman Collin and the policemen went and took me to Maprik Police Station cell on Sunday 17^th December 2017.

29. I should admit here unreservedly that; although the record of interview and the medical evidence were tendered by consent, I did not read their contents for some reason until I had heard the evidence of both the State and defence witnesses.

30. I only read them at the time I was writing this judgement.

31. The reason why I say this is when I compared the statement of the accused given from the witness box and the statement he gave to the Police in answer to Q16, they are very nearly the same.

32. The main story as it were was not changed by the accused although the words employed to describe the events which then unfolded may appear to some extent different.

ASSESSMENT OF EVIDENCE

33. I have carefully assessed the evidence given by both the State and the accused.

34. I have concluded that although there are inconsistencies in the evidence given by the only State witness, the admissions by the accused himself in his record of interview and from the witness box exposes him to the crime as alleged.

35. I am, however, not convinced by the evidence of the State witness that the accused hit the deceased more than one (1) time because the accused did say very clearly that he hit the deceased once but did not know where he hit him.

36. It was after the deceased died that he realized he had hit him at the back of his head which caused the death of the deceased.

37. The State witness did say that accused hit him on the area of chest a further three times.

38. This evidence cannot and should not be given any credibility for reasons that although the State witness stated in evidence that he was at the scene, he did say he did not see all that happened.

39. I have been given the impression that he only concentrated on the accused hitting the deceased on the back of the head. Both the State and the defence agree that many people were present but none was called to clarify this grey area.

40. The evidence of the accused is that he hit the deceased and ran away and another person by the name of Alfie Remson went underneath the house to see what had become of the deceased.

41. When the accused called out to Alfie Remson to leave the deceased alone, he replied saying that the deceased had died. This person was not called to testify.

42. The medical report says the deceased was also hit in the area of the chest.

43. The question is whether the accused applied those forces or someone else did.

44. This evidence was not clarified in examination in chief or cross examination. The onus of proof of this solely rests with the prosecution.

45. I have therefore formed the opinion that the accused did not apply the blows to the chest area.

46. This is been said because it is not possible for the State witness Edwin Kambus to be seeing all that happened at the scene. It can reasonably be concluded that the blows inflicted to the chest of the deceased were not inflicted by the accused.

47. This conclusion is supported by the admission of the accused that he only hit the deceased once on his body and ran away.

SELF DEFENCE AGAINST PROVOKED ATTACK

48. The test to be applied in this case is whether the accused reasonably believed that his life was in imminent danger when he attacked the deceased in the manner portrayed in the evidence.

49. I was referred to Section 270 of the Criminal Code by both Counsels in Submissions. It provides that:

”Section 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; 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) 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”.

50. It was submitted by both Counsels that the conditions to be satisfied when applying Section 270 of the Criminal Code are that:

(i) the accused was unlawfully assaulted;
(ii) the accused had not provoked the assault;
(iii) the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; and
(iv) the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm than by using reasonable force he can in fact used.

51. This principle was stated in State -v- Basa [2011] PGNC 212; N4676 (23^rd May 2011):

“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 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;

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”.

52. This authority deals with the Section 270 of the Criminal Code and not Section 269 of the Criminal Code. They were referred to myself by Counsels in their respective Submissions.

53. I think the effects of both Section 269 & Section 270 of the Criminal Code is the same. Whilst one deals with unprovoked assault (Section 269), the other deals with provoked assault (Section 270) resulting in either serious injuries or death and their application to facts should be the same.

54. It is my view those two provisions should be read to complement each other. They can be read together in that both deal with provocation and self defence.

55. In the case of the State -v- Angela Colis Towavik [1981] PNGLR 140 which case deals with Section 269 it is said that there must be some act on the part of the victim which itself can be regarded as an assault to constitute the plea of self defence.

56. The evidence given by the accused and Philma Enoch satisfactorily explain that the accused reacted not only for his safety but for the safety of his sister and those gathered in his house for the occasion of raising funds to pay school fees. The conditions of self defence have satisfactorily been proven. The State failed to negative them.

57. It is clear from the evidence adduced in Court that the attack by the deceased on the accused was an unlawful assault and he was unlawfully on premises with no real reason. The accused did not provoke the attack in any way or at all. That the deceased repeatedly assaulted the accused three (3) times by swinging the grass knife to his body. The accused reasonably believed his life was in imminent danger. He reacted and retaliated by hitting the deceased with a piece of wood without knowing which part of the body he had hit and the type of injuries sustained by the deceased.

58. This all happened because the accused personally believed on reasonable grounds he could not preserve himself from death. The important action executed by the accused was he did not retire or retreat to arm himself with a dangerous or offensive weapon then returned to inflict the blow. He acted instantaneously or at the spur of the moment. Even the Court may consider the defence of self defence favourably when it is evident the accused retreated then returned and inflict injury resulting in death. It was said by Mann CJ in R v Kambe-Pare [1965] PNGLR 321; quote:

“To retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is made out. Whether a retreat could or should have been made is merely an element for the jury to consider as entering into the reasonableness of the conduct of the accused”.

59. See also the case of Tapea Kwapena -v- The State [1978] PNGLR 316 where the accused was in danger of his life as the victim was armed with a gun.

60. I am of the view therefore that these conditions favour the accused as I have ruled earlier.

CREDIBILITY OF WITNESSES

61. Having considered the evidence of the only State witness and that of the accused and Philma Enoch, I find that there is a serious inconsistency in the evidence of the State witness.

62. The remarkable inconsistency is his statement that, when the deceased was hit at the area of the back of the head, he fell forward.

63. This evidence was repeated in cross examination and re examination.

64. Logic and common sense has it that when force is applied forward, the impact of such forward movement involuntarily pushes forward the matter that has been hit.

65. The evidence of the State witness is that the deceased fell backwards when he was hit at the back of the head.

66. This evidence is against the most basic principle of the science of physics, as acceleration of a forward force does not move backward the matter struck.

67. The other inconsistent statement is that when everybody fled for fear of their lives, he said he stayed back and saw everything happen. In a volatile situation like this: a man wielding a grass knife which is a dangerous and offensive weapon, everybody would naturally be scurrying for their lives. This statement is hard to believe and is inconsistent to the background facts of this matter.

68. In The State -v- Angosiwen No.1 unreported decision delivered 15^th May 2002 N2266 Kandakasi, J (as he then was) said:

“In so far as is relevant here, one of the applicable

tests or principle is consistency in a witness own

evidence and other evidence called by a party”.

69. These principles have been applied in Garitau Bonu & Rosanna Bona (1998) SC595 and Paulus Pawa -v- The State [1981] PNGLR 498.

70. Applying these overt principles to this case, I ask myself the question; how can a thing or a matter let alone a human being move or be forced backwards when the force that was applied to hit was in the forward motion?

71. The State’s case must fail on this hypothesis alone.

72. I have, however, considered all other evidence in this matter and have drawn the inevitable conclusion that it is not safe to conclude that the accused be exonerated because of these time isolated inconsistencies.

73. The State witness gave evidence seeing the accused hit the deceased and the accused unreservedly confirms this in his own evidence in the witness box and the record of interview and said he was provoked without any reason as a result he retaliated almost instantaneously.

74. Based on these analyses of the evidence I cannot convict him by operation of Section 269 or 270 of the Criminal Code because the accused acted in self defence which he did not himself provoke. He clearly stated in his evidence that when the deceased cut him on the third occasion the blade tip of the instrument landed on his body and he immediately applied force with the use of the wood which was already in his hand and struck the deceased not knowing on which part of the body the blow landed. All these happened on the spur of the moment and instantaneously - no time was wasted by the accused to react in retaliation.

75. The accused also stated, clearly in the witness stand that after the deceased died, he did not run away but tried to see whether the deceased was alright. This clearly demonstrates that the accused was willing to assist if the deceased was merely injured.

76. When he realized the accused had died he reported the matter himself to the Police with the assistance of Ward Member.

77. This evidence shows that there was no intention on the part of the accused to strike the deceased with intent to kill as such I hold that the State did not prove beyond reasonable doubt that the accused hit the deceased with the intention of killing him.

78. He did strike him for his own safety.

79. I therefore find that the accused Maku Enoch be acquitted. I make a further Order that all bail monies be refunded forthwith.
__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant