N11221

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 665 OF 2023

BETWEEN:

THE STATE

V

MIRRIAM NOBERT
Accused

BULOLO/LAE/BUIMO: POLUME-KIELE J
2, 5, 13, 16, 17 OCTOBER 2023; 20 MARCH 2024; 7 JANUARY 2025

CRIMINAL LAW - Verdict- Charge of murder - s 300 (10 (a) – Criminal Code – Plea of not guilty – trial – onus on State to prove beyond reasonable doubt the allegations against the accused –relevant considerations

CRIMINAL LAW - Defence - Self-defence and de facto provocation - relevant considerations

Cases cited

State v Galasboi [2012] PGNC 375
The State v Namaliu [2020] N8284
State v Doma [2010] N4536
Beng v The State [1977] PNGLR 115
State v Nara [2007] N3198
State v Basa [2011] N4676 
The State v  Kevin Anis & Martin Ninigan  (2003) N2360
The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266
The State v Paka [2016] N6914 
State v Maliaki [2022] N10341
Brown and Dunn (1893) 6 R 67 (HL) 
Hallet -v- R [1969J SASR 141 (at p 149) 
R v. Kristeff [1996] No. 445

Counsel
Ms. S Joseph for the State
Mr. J John for the accused

VERDICT

1.	POLUME-KIELE J:  On 5 October 2023, the accused, Miriam Norbert appeared before the Court, charged initially with one count of wilful murder contrary to Section 299 (1) of the Criminal Code. The charge was reduced to murder (s 300 (1) (a) as a result of plea bargaining.

2.	Upon the presentation of the indictment, the accused changed her plea. She entered a "not guilty" plea to one count of murder contrary to Section 300 (1) (a) of the Criminal Code.

Charge of Murder

3.	Section 300 (1) (a) of the Criminal Code states:

“(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—
(a)	 if the offender intended to do grievous bodily harm to the person killed or to some other person. Penalty: Subject to Section 19, imprisonment for life”

4.	The State has the onus to prove beyond reasonable doubt the allegations brought against the accused, Miriam Norbert.

Background facts

5.	At the material time of the alleged offending, the accused, Miriam Norbert was married to the deceased, Judas Amui. Both were employees of the PNG Forest Products Compound situated at Bulolo.  They were also residents of the PNG Forest Products Compound, Bulolo.

6.	On Saturday, 17 December 2022, between 10.00 p.m. and 11 p.m.; the deceased returned to the matrimonial home after a weekend of drinking bout. An argument ensued between the accused and the deceased. 

7.	During the course of the argument, the accused stabbed the deceased multiple times on his back and leg with a kitchen knife. 

8.	 The deceased was taken to the Bulolo Rural Hospital but succumbed to the injuries sustained. The deceased subsequently died as a result.

Facts in dispute 

9.	The accused in her defence to the charge stated that the deceased attacked her using a jug of boiling water and a bottle of beer which he had in his hand. So, in order to defence herself, she stabbed the deceased on his back twice and again twice on his thigh. She acted in self-defence. She also raised the defence of defacto provocation, given the marital problems that she endured during her 15 years of marriage to the deceased.

Issue(s) for determination

10.	Whether the accused killed the deceased in self-defence and or whether she was provoked into stabbing the deceased resulting in his demise?

The State’s case 

11.	The State in its endeavour to make a case against the accused relied on documentary and oral evidence. 

12.	The following documents and physical exhibits were tendered into evidence by consent and through its witnesses:

No.	Document Physical
Exhibits	Produced by	Date	Tendered and Marked	
1	Affidavit in Notice	by
Lazarus Busil	Consented	30/03/2023		
2	Affidavit of Dr. Joshua Kwam	Dr. Joshua
Kwam	19/04/2023		
3	Autopsy Report	Judas Amui	22/12/2022		
4	Statement	First Constable Busil	07/02/2023		
5	Statement	Reserve Police
Constable Nimo Robbie	07/02/2023		
6	Record of Interview ROI	Miriam Norbert	31/12/2022,		
7	Record Of Interview (ROI) English Translation		21/03/2022		
8	Photographs. – Pages 14, 14a, &14b which are contained in the Committal
Depositions		18/12/2022	“F1”,  “F”2” & “F3”	
9	Physical Exhibit: Weapon, a Kitchen Knife				

Sworn Oral Evidence From State Witnesses

13.	The oral evidence were called through the following state witnesses 

Evidence in chief

14.	The first witness called by the State is:

Dean Peu

15.	Mr. Dean Peu is the first witness called by the State. In his sworn oral testimony, given in the Pidgin language and translated to English, he testified that he is a resident at PNG Forest Products Compound. He is here to give evidence against the accused for the death of Judas. In his testimony, he states that, the accused, Miriam is Judas’ (deceased) wife. He testified that during that night; an argument arose between Miriam and Judas and the deceased died. He testified further that the incident occurred around 10 to 11 p.m. on 17 December 2022. The incident occurred at the residence of the accused and deceased, which is situated at PNG Forest Products Compound, Bulolo.

16.	Mr. Peu recalls the date and time because he and others including the deceased, Judas had done some mechanical work on 17 December 2022 and thereafter they had a few drinks. Afterwards, they returned to the company compound through the company gate, but Judas was talking a lot, so he and the others left Judas at the gate and went ahead. He then went to his friend’s house and sat down and waited for Judas, but he did not see Judas, so he continued on to home to his house. He states further that whilst walking down to his house, he saw that the flowers and plants growing around Miriam's house were cut down and all her cargoes were packed. It appeared like they were packed and ready to leave the home. 

17.	He states further that he lives next door to the accused and her deceased husband. Their homes is separated by wall. He also testified that sometime after he arrived home, he heard Judas’s talking and he thought that Judas might have been dropped off by security. Afterwards, he heard Judas and Miriam arguing in their house and thought that it was normal for couples to argue so he settled in. 

18.	When asked if he witnessed the incident, he states he did not see it with his eyes, but he confirmed that he heard the couple fighting in his house. He heard Judas and his wife Miriam fighting in the house. He also said that he saw some person named Ken standing in front of Miriam's house which he says normally happens wherever there is a fight between the accused and the deceased,  Miriam's brothers would rushed into their house. He also testified that after the fight, they heard that Judas was injured so they called the security, and they rushed Judas to the Bulolo Hospital, but he died.

Cross Examination

19.	In cross-examination, Mr. Peu confirmed that Miriam and Judas do argue sometimes. He does not know the reasons for their argument because it’s their married life. But on the night of the incident, he confirmed that Judas had been drinking and was drunk.

Re-examination

20.	There was no re-examination.

Michelle Amui

21.	Mrs. Michelle Amui is the second witness called by the State. She gave sworn oral testimony in pidgin which was translated to English. She was cross-examined. In her testimony, she testified that she is from East Sepik Province and is married to Peter Amui. They have five (5) children. Judas Amui is their son, He died after his wife stabbed him with a knife. Judas is married to Miriam Norbert Amui. She did not see Miriam stab her son with her own eyes.

Cross – Examination

22.	In cross-examination, she states that the accused, Miriam is her daughter in law and is familiar with the kind of life they were living. She states that the accused is not happy living with her son. They always argue and have been for the last fifteen years of their marriage.  Mrs Amui states further that they were not happy with their son because he does not listen to them. He is not faithful to his wife so whenever they argue and fight, Judas would hit her, and she used to go to them. Miriam always run to her and her husband’s house. The court asked her, whether she was happy when her son died? She replied, "no", she will not support her son's behaviour. In addition, she also identified a statement that she gave to the police bearing her signature and her husband about the incident. 

Re- Examination

23.	In re-examination she re- affirmed that she does not live with them in the same house and therefore she will not know what happens in their house every day. However, she and her husband counsels their son, apart from counselling they didn't do anything else. Essentially, she does not know how her son died. She was not there when her son was killed. She did not go to the hospital when her son was taken to the hospital. She saw her son only after his death. 

Peter Amui

24.	The third witness called by the State is Mr. Amui. He gave sworn oral testimony in the pidgin language which was translated to English. He was cross-examined on his evidence. In his testimony, he said that he is from East Sepik Province and is married to Michellle Amui. As to how long they have been married, he does not know. They have five (5) children. His son Judas is dead. He does not know how his son died because he was at his house.

Cross Examination

25.	In cross-examination, Mr Amui stated that he knows, the accused, Miriam Norbert because she is married to his son. They have three (3) children and one (1) died. They were married for twenty (25) years, he does not know the age of Judas only his father would know. Judas is his brother's son. He does not know the age of his grandchildren. He also does not know what grades in school of his grandchildren. He knows they have problem in their marriage life  He states that Judas was going around with other woman. He reported to the Police, but He does not have a police report. He stated that he enquired for a copy at the police station, but they did not give a copy of the report. He could not recall the date he enquired at the police station. No police report is adduced in evidence to support this statement. In regard to the incident of the night of Saturday, 17 December 2022, he stated that he was at his house when Miriam went to tell him that she stabbed his son with a knife so and was taken to the hospital.

Re-examination

26.	In re- examination, he re-affirmed that he is employed as a forklift driver at PNG Forest Product. He has been employed for 30 years. As to the date of his report to the police station on the family problems between the accused and the deceased, he stated that he could not recall the date he enquired at the Police Station. When re-examined as to which part of East Sepik Province, he is from, he states that he does not know which district he is from. Also re-examined as to where, the accused, Mirriam Norbert is from, the witness stated that he also does know which part of the East Sepik Province, the accused is from. 

27.	Overall, when put to him that all of his years and the 25 years that his son, Judas has been married to the accused, he still does not know where (which part of the East Sepik Province) the accused, Miriam is from. Nor does he know how long he is married to his wife. He also does not know the age of his children nor his grandchildren. When asked whether he was present when his son was killed, he states that he was not present and that he does not know how his son died as he was at home in his house

DEFENCE CASE

Evidence in chief

28.	The defence called only the accused, Miriam Norbert to give oral evidence in her defence.

Miriam Norbert

29.	The accused, Miriam Norbert gave sworn oral evidence in pidgin which was translated to English in her own defence.  She was also cross-examined. In her oral sworn evidence, she states that she is 36 years old and married to the deceased Judas Amui. They have been married for the last 15 years. She had 3 children with the deceased, but one died. Both her children are in school, grades 3 and 5 respectively. 

30.	She states that on 17 of December 2022, her husband late Judas was drunk. He had been drinking from Thursday, Friday until Saturday night when the incident occurred. She gave evidence that her husband went home drunk, swore at her while she was cutting onion. Then he got a jug of hot water with one hand and held a bottle of beer with the other hand, hit her with the jug of hot water, resulting in the hot water pouring all over her body. He then threw the bottle of beer on her back, hitting her. She got up with the onion in one hand and the knife in the other whilst the deceased held her up. She then stabbed the deceased twice on the back. The deceased then kicked her, so she stabbed his thighs.  She was rescued by her brothers and ran to Peter and Michelle Amui's house. She gave evidence that she knifed the deceased because they argued for 15 years. 

31.	When asked why she kill her husband, she replied, she didn't mean to kill him. Every time they argued he always hurt her and showed to the Court the scars on her eyebrows. She said she reports to police and receives medical attention at the Company hospital. Court asked whether she had a copy of any reports, she replied that they never type it because Police say they don't have ink. 

32.	She states further that the deceased, Judas Amui fought with her, and she was trying to defend herself and she stabbed her late husband. She states further on that night she was in the kitchen cutting onion when he went inside the house and swore at her, he had a jug on one hand and a bottle of beer on the other hand. The jug contained hot water that she boiled earlier. He took the jug with the hot water inside and hit her on the head, causing the hot water to pour all over her. He further took the bottle beer and hit her on her neck. He had his arms wrapped around her, so she used the knife to stab him twice on his back. After that, he wanted to kick her, so she further stabbed him on the thigh twice. He sat down, her little brother came into the house, and she ran straight to his father and mother's house, Michelle and Peter Amui. 

33.	In their 15 years of marriage, he does not assault her using only his hands but anything he could find he used it on her skin. It was 15 years of unhappy marriage, but she did not leave because she loved him. She wanted him to change so she stayed. Her late husband is from Siassi and Biwat, Angoram, East Sepik Province. She further states that she never left the house for that 15 years because she loved him. She did not mean to kill her husband; every time he assaulted her; he used objects to assault her.

34.	At this juncture, the Court enquired as to whether there were any medical proof of her evidence that he cuts her all over her body using knives and axe? Any proof of medical report, police report of all these incidents that she used to be beaten to death? Any reports from company? In response to the query, the accused, Miriam Norbert stated that she does report to her workplace but right now she does not have the documents. If there is any, it should be in the Court file.

Cross Examination

35.	In cross-examination, the accused stated that she was married to the deceased for 15 years. On the 17th of December 2022, the accused was drunk and attacked her first. with a jug with hot water to strike her on her head, then used a bottle of beer to hit her. In her attempts to defend herself when her late husband attacked her, she stabbed him twice on the back and twice on the thighs. When it was put to her that if he had done that, she would have sustained injuries, she said she did sustained injuries to her face, but she was locked up immediately after and did not go to the hospital. 

36.	Her late husband had his arms wrapped around her from the waist so in order to free herself she stabbed him twice on his back with the kitchen knife she was holding. She further stated that after he released her, he tried again to kick her and that was when she stabbed him twice on the leg using the knife. When it was put to her that her husband was stabbed three times on the back and further stab wounds on the deceased thigh, she said that she only stabbed him twice on his back and twice on his leg only because she was defending herself. It was put to her that her husband was very drunk as per her evidence in chief, and so she took advantage of that and stabbed her late husband multiple times because he was vulnerable and defenceless, but she dismissed this saying he was too strong and violent.

37.	Further, when it was put to her that she was angry with her late husband therefore that night she took out her anger on him and stabbed him multiple times, she admitted she loved her husband, and she did not meant to kill him. She further admitted that she only intended to cause grievous bodily harm to her late husband, but he died as a result of the injuries he sustained. She also that she was quite young when she got married to the Deceased and had 3 children. She came to Court to tell truth because she went to church and believed in God. She recalled the first knife wound and said she was not angry but defended herself. He was over drunk and fighting with her. 

38.	She confirmed that the deceased poured hot water on her and she was burnt but did not get medical attention as she surrendered to police. She said it was true that her husband, deceased, poured hot water. She also maintained that her husband threw the SP beer bottle hitting her. She said she did not receive blood. She said the deceased held her, so she stabbed him twice at the back. She also said of stabbing the deceased on his thighs because he kicked him. She went on saying that she stabbed him on the calf muscle because he was continuously kicking her. 

39.	She further responded that they had so many problems for the last 15 years of their marriage. She went to the deceased's parents and reported to police, family sexual violence unit and even to the District Court about the problems but no help. She said she went to the family sexual violence four times but to no avail. She never obtained any copy of the report. Defence interjected that lay persons do not know such processes so State should stop irrelevant questions, but the Court refused the objection. 

40.	With reference to seeing the family sexual violence unit, Defence raised that there was evidence of seeing the Police and family sexual violence unit as per Senior Constable Lazarus Busil, the investigating officer's statement dated 07/02/2023, Document Number at page 9a of the Police HUB, EXH # 1, Q & A 14 but Court allowed State to continue questioning the accused with regards to the Accused seeing police and sexual violence unit for remedy. 

41.	Towards the end, she said all the stories she told in Court were all truths and she had no intention of killing the deceased but to distract his attention on her. She said she was not angry, but the deceased kept on fighting her so used what she held in her arms to free herself from ensuing dangers. She didn't take advantage of the Deceased being drunk or intended to cause grievous bodily harm. She maintained that she only wanted to give him mark and distract him but agreed that he unfortunately died. 

Re-examination

42.	At re-examination, she concluded that she was only trying to distract his attention to make way for her to run out from the continued kicking by the deceased.  In that, she was very truthful in every step she had taken for an amicable solution to their ongoing marriage problem. The jug of hot water and beer bottle were not invented to divert the Court's attention. She truthfully said she loved her husband and didn't intend to kill him given all the steps she had taken to have a peaceful marriage life, and saying in Court, she loved him so endured that unfortunate marriage life. She was truthful in saying she intended to distract him from attacking her, but the deceased unfortunately died. Surrendering to police, reporting to the deceased's parents and approaching the family sexual violence unit in Bulolo are evident and these are all reflections of truthfulness. 

Submission

43.	Ms Joseph for the State submits that in consideration of the charges, the onus lies on the State to prove the element of the offence of murder under s 300 (1) (a). I am referred by Counsel for the State to the case of State v Galasboi [2012] N375, in which the Court sets down the elements of the offence of murder as follows:  

(i)	the accused killed the deceased; and
(ii)	the accused intended to cause grievous bodily harm

44.	Regarding the first element, the accused killed the deceased. This element is non-contentious. Here, the accused admitted that she on 17 December 2022 between 10:00 p.m. and 11 p.m. she did stabbed her-husband using a kitchen knife twice on his back and twice on his thighs. The deceased was rushed to the hospital but died as a result of the knife injuries he sustained. 

45.	The death is confirmed in the Autopsy Report (Exhibit B2) dated 22 December 2022. The Autopsy Report confirms that the late Judas Amui died from acute blood loss as a result of multiple stab wounds. The external injuries revealed multiple stab wounds to the back (x3) measuring 6cm x lcm x 2cm depth and a stab wound to the lower left medial thigh, right calf and right thigh. The autopsy report states that the wound were so deep that the late Judas Amui lost a lot of blood. He died as a result in the early hours of the 18th of December 2022. 

Date of death

46.	In this present case, the deceased died in the early hours of 18 December 2022, to determine the date and time of death, the State relied on the case of The State v Namaliu [20201 N8284, a case where the deceased had passed away sometime after an assault occasioned on her, the Court in that case stated:

"Causation is not a philosophical or scientific question. It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991JHCA 27; (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161. See also Sharp (supra)."

47.	Further in State v Doma [20101 PGNC 228; N4536 (14 October 2010). the Court expressly stated the following involving a homicide of a young girl who was raped and died after three days.

"Essentially causation arises when there is an intervening act or event in the cause of the death. The question therefore is whether the accused's conduct was so connected with the deceased's death that it must be said to be a substantial cause of the death. Could infection from her sexually transmitted infection be said to have supervened between the time the decease started bleeding and the time when she died? The State -v- Jimmy Bellam [1979J N192 followed."

In Hallet -v- R [1969J SASR 141 (at p 149) the issue was stated as follows:

"The death of the deceased is the material event. The question to be asked is whether an act or series of act (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event, that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of event, without being spent or without being in the eyes of law sufficiently interrupted by some other act or event. "

48.	The question, in this present case, therefore, is whether the accused's conduct was so connected with the deceased's death that it must be said to be a "substantial cause" or a major precipitating cause of the death"

49.	In this case, the evidence adduced do not show that there were other intervening cause of death. The evidence adduced point to the fact that the deceased died from acute blood loss as a result of multiple stab wounds. The external injuries revealed multiple stab wounds to the back (x3) measuring 6cm x lcm x 2cm depth and a stab wound to the lower left medial thigh, right calf and right thigh. The wounds as per the autopsy report were so deep that the late Judas Amui lost a lot of blood and died 

50.	As regard the second element of the offence, “the accused intended to cause grievous bodily harm”. 

51.	Ms Joseph submits that this element appears contentious (purportedly) due to the fact it is a personally charged environment. It is visible that the accused, in her evidence during her oral testimony appears tearful. She also expressed her love for her late husband

52.	Mr. John for the defence submits that in this case relies entirely on circumstantial evidence and the onus is on the State to show a prima facie case to convict the accused safely. He invites this Court to be mindful of the flow of the circumstantial evidence and draw a reasonable inference to convict the accused following the guidelines set out in Beng v The State [1977] PNGLR 115 and restated categorically in State v Nara [2007] N3198.  In these cases, the Court stated that: “If the circumstances under which the evidence flowed from all four corners, failed to paint the whole picture of the accused committing the offence with intention to murder the deceased, but the result of defacto provocation and that of self-defence, the accused must be acquitted” 

53.	Furthermore, and if the challenges put by the State to Defence witness had no grounding, then it is a breach of Brown and Dunn (1893) 6 R 67 (HL) rule, so the accused be acquitted also. 

54.	Mr. John submitted further that, from the flow of evidence, it is undisputed that there was an ongoing marital problem between the accused and the deceased in the 15 years of their marriage. It was also undisputed that the deceased went home drunk and had an argument with the accused in their house, situated at the PNGFP compound at Bulolo, Lae Morobe Province. 

55.	It is also submitted that evidence adduced during trial indicate there was an ongoing domestic issues. This is also noted in the Arresting Officer, Senior Constable Lazarus Busil statement where he did attest to some domestic issues between the couple (Exhibit Number 1, Q & A 14).  As to what remedial measures were offered either at the work place or by the police, there is lack of evidence available to the Court. It may as well be considered as hearsay evidence. However, in this case, someone was fatally wounded, and death did occur thereafter.

56.	The evidence of the accused is that the death is unplanned action on her part which she took to defend herself; however, this resulted in the death of the deceased, her husband. 

Analysis of the evidence

57.	Given this scenario, the question to be asked and for the Court to address is, from the flow of evidence of the accused, was there de facto provocation resulting and self-defence to cause the death of the deceased. 

58.	Here the accused maintained that she did not intend to kill the deceased but inflicted the knife wounds to flee to safety given the attacks on her by the deceased. She invites this Court to believe that she is a truthful witness and to find that the deceased went home drunk and swore at her, pouring a jug of hot water on her and throwing a SP beer bottle, hitting her on the back. She then stood with an onion she was preparing for meal in one hand and the knife she was using to cut that onion with the other to stab the deceased's back. Her explanation is that because the deceased had grabbed her by the waist and held her up, in her attempts to free herself from his grip, she knifed him on his back twice and when he kicked her, she also stabbed him on his thighs to prevent him from kicking her. 

59.	This then leads to the next question is to consider whether the actions of the accused give rise to the defence of defacto provocation and self-defence. 

60.	At the outset, the Court is minded noting that the evidence adduced infers that there is some marital issues between the deceased and the accused.

61.	Let me start with the evidence adduced that in a situation where the deceased had not been home for three nights, this would have caused a lot of anxiety for the accused. I am not a psychologist so would not be in a position to say exactly what was going on in the mind of the accused, however, assuming that it is really a situation where one in that situation would be angry and at edge. I also gather from the evidence of Mr. Peu where he states that when he was on his way home, he saw that the accused was packed and ready to leave the marital home. She had cut down all the plants and flowers around her home. I find that the actions of the accused shows that she was going away and that perhaps there is no point to putting up with the behaviour of the deceased. Thus, given this highly charged environment. She had plenty of time to think about her situation and as she had already pack and intended to leave, she should have left the marital home then and there would be no issue. However, she chose to stay on and waited for the victim to come home and this is where I accept the State’s submission that the attack was a planned attack, or a surprising one. There was plenty of time for the accused to leave the home as she had already packed and ready to leave and she should have left if she did not have any plans at all to attack the deceased.

62.	Furthermore, although, it was not put to the accused, I am of the view that from a common sense and logic point of view,  the evidence of the accused that the deceased did grab her by the waist and struggled with her, the question to ask is, how did she manage to stab him three times on the back (according to medical evidence), if she was grabbed by a very drunk man and lifted up off the floor? 

63.	In addition, I am also puzzled as to how this person was stabbed three times on the back and was still able to continue to stand upright and manage to kick the accused, which led to her stabbing him again, twice on the thighs? It beats common sense and logic. 

64.	I reject the arguments raised by the defence that this was not a planned attack, and it was the result of a defacto provocation where there had been an ongoing domestic argument because of adulterous conduct of the deceased. This is contrary to the evidence of the accused who maintained that she did not intend to kill the deceased but inflicted the knife wounds to flee to safety given the attacks on her by the deceased

65.	With defacto provocation, it can be inferred that there was an ongoing domestic problem, but the accused elected to remain in the relationship, because she claimed to love him and wants him to change. If this is her story than I am of the view that having arrived at that decision, it is quite difficult to accept that this issue can be raised as a defence at this late stage. 

66.	I therefore reject the submission of counsel that the element of intentional grievous bodily harm had not been made out against the accused and a guilty verdict shall not be returned, and the accused be discharged. 

67.	This is a situation where the accused, Miriam Norbert stabbed the accused, three times on the back, and twice on the thighs (according to the medical report as contained in the Autopsy Report). Her evidence is that she stabbed the deceased twice on the back and twice on the thighs as self-defence and as a result of defacto provocation. After stabbing the deceased, she immediately ran away and went to the home of the deceased’s parents and told them about the stabbing.  She herself did not stop to assist her husband who needed her help. She failed to show any emotions of love during this encounter which she is now displaying.  She instead ran away to the home of the deceased parents and left the deceased to his own demise. I must also add that the parents of the deceased also in their evidence did not show any remorse for the deceased. They also failed to attend to him whilst at the Bulolo Rural Hospital that fateful night. He passed away alone without any family members being by his side.

68.	In this case, the accused failed to stop or make any attempts to take the deceased to the hospital. Some other good neighbour did so. I also gather that even the parents also were not concerned about the condition of the deceased. They all failed to make any attempts to rush the injured Judas Amui to the hospital or even attended at the hospital to enquire as to his condition. This conduct is contrary to her evidence that on that night; she stabbed' her late husband not intending to kill but “long putim mark long skin" however he succumbed to the injuries and died.

69.	Furthermore, no evidence was adduced to show that she did attend at the hospital when he was taken to the hospital, This lack of emotion is also contained in the evidence adduced during trial which goes to confirmed that even the parents, Mr and Mrs Amui did not even attend at the hospital. They only heard of his passing (emphasis added). She was not concerned about his welfare after the stabbing. This conduct speaks otherwise of the emotions shown before the Court. 

70.	I now refer to the case of State v Basa [2011] N4676, where the Court stated at paragraph 16:

"it is in essence for the accused to show or point out from the evidence that he had not provoked the assault and that, the assault on him was such as to cause reasonable apprehension of death or grievous bodily harm. He must further show that, he believed on reasonable grounds it was necessary for him to use force which he in fact used to preserve himself from death or grievous bodily harm. As was said in R v Muratovic [19671Qd R 15 and adopted in R v Kaiwor Ba [19751 PNGLR 90:
"The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if—
(i)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and

(ii)	the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm. "

71.	The test on whether or not the accused believed it was necessary for him to strike the deceased with the iron bar to preserve his own life is an objective one. It must show the other person was assaulting or about to assault him with such violence which caused him reasonable fear of death or grievous bodily harm. He must show that the violence being offered was current or about to happen and not at some future moment or expectation. He must show that his reaction was to preserve his own life from death or grievous bodily harm; R v. Kristeff [1996] No. 445."

72.	In this case, I accept the State submission that it is apparent from the evidence from accused herself and the Autopsy Report that the use of the knife to stab the deceased on the back was not to preserve her own life. Here the force used was unreasonable.

73.	The violence or threat of violence by the deceased ought to have been neutralised, when the accused stabbed the deceased with the kitchen knife on the back. However. the accused did not stop there. she went on further to stab the deceased more than once on the back and further inflicted multiple stab wounds on the thighs (leg). These wounds were measured to be deep stab wounds.

Assessment of Credibility

I now address the issue of credibility of the witnesses and their evidence. In determining the question as who to  believe , I am required to assess the credibility of each witness. In the case of The State v  Kevin Anis & Martin Ninigan  (2003) N2360 where his Honour Justice Kandakasi (as he was then) stated that common sense and logic plays a major role in determining credibility of a witness's evidence. Further, in The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266, again his Honour  Justice Kandakasi (then) also stated that Logic and Common sense play a major role in determining credibility of a witness’s evidence and rejection or otherwise of evidence or not an accused person should be found guilty". 

74.	Furthermore, in the case The State v Paka [2016] PGNC 425; N6914 the Court considered that to determine which version of the stories is credible depends on a number of factors: 

“To determine which version of the stories is credible depends on a number of factors. Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their story and appearance and yet be telling the truth (see Andrew Palili v The State (2006) SC848. Similarly there is also no rule of law which states that the more witnesses called by a party and the more consistent or identical stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness (see The State v Jacob Dugura Roy (2007) N3137)” 

75.	In this case, a man was murdered in his own home by his wife, the accused. The State witness Dean Peu, who I accept was honest in his evidence states that on the night of the alleged offence, he came home after some few drinks with deceased. He saw that the accused had packed all her stuff and appeared to be leaving as the house she was living in was cleared of all the flowers and plants growing around the house. This is because she had cut down all the flowers and planted that were growing around her house. It seems like she was leaving town. However, sometime later that evening, whilst he was at his home, he heard the accused and the deceased arguing and after a short while the deceased screamed for help. He assisted the late Judas to the hospital, but Judas died. He did not see what happened, he only heard. He said that later Miriam, the accused told him that she stabbed Judas.  Mr Dean Peu also in his evidence also stated that the accused had resigned from her work, packed her belongings and did not tell her husband and intended to leave town prior to the assault on the deceased.

76.	With regard to the witnesses Michelle and Peter Amui, I find that their evidence mostly unbelievable. They were only concerned with the allegations of ongoing domestic issues and their allegation that the deceased was a ‘womaniser” and that irrespective of their counselling about his conduct, the deceased did not change and had not changed at all. In spite of all these innuendo, they failed to adduce evidence to substantiate, matters of disharmony or any attempts by them as parents to settle the disharmony as parents to pay compensation or make attempts to at least pay ‘some token of a bride price or something according to our PNG Custom. 

77.	 In any event, they themselves did nothing to resolve. In this case, if there were any mediation undertaking or some compensation made to appease the accused and her family members. I say this because we in Papua New Guinea have a way to settling disputes amongst our own family members, they would be in a better position to adduce evidence of such nature either by making bride price payments or something related to some contribution towards familial resolution rather than standing by and allowing the dispute to continue which in this case resulted tragically in death. They failed in their duties as parents to resolve the disharmony in an amicable way. Their evidence is therefore unreliable.

78.	In this case, whilst I note that the accused has been clear what happened that night and the manner in which she stabbed the deceased is contrary to the principle of common sense and logic:

(i)	Firstly, the accused gave evidence that her late husband swore at her then attacked her, but she failed to provide any evidence of the assault to support her evidence.

(ii)	Secondly, in her evidence, she says that she attacked him twice on the back and twice on the thighs, but her evidence is contrary and contradicts the autopsy report.  

(iii)	The autopsy reports reveal that there were three wounds to the back and two wounds to the thighs. The wounds are deep wounds it therefore shows that extraordinary force was used to stab the deceased on the back including multiple stab wounds to the thighs sustained by the deceased. These wounds indicate that the deceased was not in any position to defend himself. It defeats the notion of logic and common-sense principle. 

79.	Considering the evidence adduced so far, I find that the first dent in the overall credibility of this accused as a witness in her legal defence. I am minded to accept the State submission that the defence of self-defence offends the principle of logic and common sense as held in the case of State v Basa (supra) which states

(i)	the accused was unlawfully assaulted.
(ii)	the accused had not provoked the assault.
(iii)	The nature of the assault was such as to the 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 otherwise than by using the force which he in fact used. 

80.	I also accept the State’s submission that the accused has not fully established the conditions under Section 269 of the Criminal Code for the following reasons:

(i)	 the accused was unlawfully assaulted.

•	 the only evidence was from the accused that she was assaulted by the deceased however, she had not provided any medical report, nor the statement of the investigating officer confirmed that the accused sustained bruises as per her evidence of being attacked with a jug of boiling water or hit with a bottle of beer. 

(ii)	 the accused had not provoked the assault.

•	even though State called the witness who was present during the altercation between the accused and the deceased, for reasons only known to the witness he did not show up during trial.

81.	Regardless, the accused confirmed in her evidence that the accused swore at her. Then the deceased attacked her with a jug of hot water and bottle of beer. She did not provoke the assault. 

82.	However, the evidence of Dean Peu suggests that the accused resigned from her work, packed her belongings and did not tell her husband and intended to leave the matrimonial home. I accept that this evidence stands alone. It confirms that the accused was ready to leave and therefore she had plenty of time to just walk away. 

83.	However, she remained and waiting for the deceased to return home and she assaulted him as she did. The assault was pre-planned. Further, no evidence of physical confrontations was adduced during trial of any injuries sustained by the accused during the altercation which occurred on the night of 17 December 2022.

(iii)	the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm; and

•	overall, there is no evidence adduced from State nor produced by the accused of assault or bodily harm as such to cause reasonable apprehension of death or grievous bodily harm.

(iv)	the accused believed on reasonable grounds that she could not preserve herself from death or grievous bodily harm otherwise than by using the force which she in fact used.

•	again, there is no evidence adduced from State nor produced by the accused to establish that the accused believed on reasonable grounds that she would not preserve herself from death or grievous bodily harm otherwise than by using the force which she in fact used.

84.	The autopsy report clearly shows multiple knife stab wounds inflicted on the body of the deceased. The wounds were deep and caused the deceased to die as a result of loss of blood. Assessing the nature of the wounds and the story that the accused was grabbed around the waist and lifted off the floor and still manage to stab and inflict wounds on the back of the deceased beats the common sense and logic test. 

85.	The accused on the other hand failed to establish before the Court that she was severely assaulted, and that assault could not preserve herself from death or grievous bodily harm. Consequently, I am of the view that the defence raised by the accused should fail. She had has not satisfied and prove to this Honourable Court that these conditions in the case of State v Basa (supra) were present to establish self-defence on the balance of probability.

86.	In addition, regarding the submission relating to the issue of circumstantial evidence as to whether, what happened in their house was that of self-defence and defacto provocation. I must say that evidence adduced during trial, more so that of the accused is that she did stab the deceased multiple times on the back and thighs. This evidence is not circumstantial evidence. It is direct evidence given by the accused as to what actually happened to the deceased. I therefore find that the accused has not satisfied and prove to this Honourable Court that these conditions were present to establish self-defence on the balance of probabilities. 

87.	Overall, I find that the State has proven beyond reasonable doubt that the accused Miriam Norbert on 17 of December 2022 did stabbed her husband, Judas Amui,  the deceased multiple times on his back and legs using a kitchen resulting in his death. The accused's conduct was so connected with the deceased's death that it must be said to be a "substantial cause" or a major precipitating cause of the death" I refer to the case of State v Maliaki [2022] N10341 in that case the accused, Berry Maliaki was charged with the wilful murder of one Amos Yasep, which the Court stated at [58, 60]:

“58.	Consequently, in my view, the combined conduct of the accused at the time of and after the assault as referred to above are sufficient from which an inference could be drawn conclusively that the accused intended to cause the death of one, Amos Yasep.

“60.	From his conduct it could be inferred that the accused made an error of judgment that the deceased would not die from his assaults. The accused’s relentless assaults were sufficient to draw an inference that he intended to cause the death of the accused. Hence, his conduct subsequent to the assaults reveals actions from which an inference could also be drawn that intention to cause death of the deceased was present. There is therefore no doubt that the accused did intend to cause the death of the deceased” 

88.	In conclusion, I find that the accused, Miriam Norbert’s relentless assaults were sufficient to draw an inference that she intended to cause the death of the accused. Hence, her conduct subsequent to the assaults reveals actions from which an inference could also be drawn that intention to cause death of the deceased was present. There is therefore no doubt that the accused did intend to cause the death of the deceased.

89.	In light of the above findings, I return a verdict of guilty of murder against the accused, Miriam Norbert contrary to s 300 (1) (a) of the Criminal Code and enter a conviction against the accused accordingly. 

Verdict accordingly
________________________________________________________________
Lawyer for the State: Public Prosecutor 
Lawyer for the accused: Public Solicitor