Queen v Kristeff [1967] PGSC 56 (29 September 1967)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Frost, J.

BETWEEN

THE QUEEN

v.

NIKOLA KRISTEFF

Friday September, 1967

1967: September 15,
19, 20, 21, 22,
25, 26, 27, 29

PT MORESBY

Frost, J.

JUDGMENT

The accused man is before this Court on an indictment that on the 28th May, 1967, he wilfully murdered one PIPILUA KEWA.

It is not disputed that at the defendant's trade store on the Sunday afternoon of the 28th May, 1967, the deceased who was a Native from Mt. Hagen in the Highlands, working here in Port Moresby, was killed as a result of shots fired by the accused from a shotgun. The defences relied upon by his Counsel are self defence and provocation. Mr. Pratt did state that he relied on the killing being accidental but did not pursue it.

On his behalf, Mr. Pratt claims that the accused is by reason of these defences entitled either to an acquittal or to a verdict of manslaughter. It is accordingly necessary for me to set out the principles of law which must be applied in this case, and I do so at this stage.

Under the Code Section 291 it is unlawful to kill any person unless such killing is authorised or justified or excused by law.

Under Section 293 Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

Under Section 300 Any person who unlawfully kills another is guilty of a crime, which is called wilful murder, murder, or manslaughter, according to the circumstances of the case.

Under Section 301 Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder.

Section 302 provides: - Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say, -

(1) If the offender intends to do to the person killed or to some other person some grievous bodily harm;

Under Section 303 A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter.

The defence of self defence against an unprovoked assault is provided in Section 271 as follows:-

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 effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and 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 any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

Section 273 deals with aiding another in self defence and provides:-

In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.

Mr. Pratt relies on this Section taken with Section 271 because he submits that it was for the purpose of defending his wife and small son that the accused man acted.

I should at this stage refer to two of Mr. Pratt's submissions concerning the defence of self defence for which he relied upon the second paragraph of Section 271. He submitted that where the two conditions provided for in that Section have not been excluded by the Crown:-

(1) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm;

(2) A person using force by way of defence believes on reasonable grounds that he cannot otherwise defend the person from death or grievous bodily harm,

then by reason of the extreme emergency existing under these two conditions, than the act which causes the death of the deceased in those circumstances must always be justified on the ground that the force could not be excessive. This argument seems to me to be contrary to the provisions of the section. It is always an issue of fact whether the force was, in the circumstances necessary for defence.

Mr. Pratt went on further to submit that if the Crown had not excluded those two conditions if the tribunal of fact is satisfied beyond reasonable doubt that excessive force had been used, the verdict should be manslaughter, and could never be wilful murder or murder.

This is the position at Common Law R.v. Howe (^[1]) the relevant head note of which reads:-

"Where a plea of self-defence to a charge of murder fails only because the death of the deceased was occasioned by the use of force going beyond what was necessary in the circumstances for the protection of the accused or what might reasonably be regarded by him as necessary in the circumstances, it is, in the absence of clear and definite decision, reasonable in principle to regard such a homicide as reduced to manslaughter."

I shall return to this matter of law later.

Killing on provocation is provided for under Section 304 which is as follows:-

When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

Mr. Pratt also relied on Section 31(3) and (4) of the Code but it seems to me that the general words of that Section are inapplicable to this case.

As to the onus of proof, defence and provocation are concerned there is to establish these defences. Once a ground is disclosed by evidence upon which a plea of self defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or other or all of ultimate facts which establish those pleas are not present.

Chan Kau & The Queen (^[2])

R. v. Howe (^[3])

R. v. Johnson (^[4])

It is for the Crown to exclude these defences of self defence and provocation and exclude them beyond reasonable doubt. If I am left in doubt after hearing the whole of the evidence, that this man was lawfully acting in self defence or that he was provoked within the meaning of Section 304 he must have the benefit of the doubt, so that in the case of self defence, he must be acquitted or if I am left in doubt whether he was provoked under Section 304, then it is my duty to reduce the crime of what otherwise may be wilful murder or murder to manslaughter.

So far as self defence is concerned, the Crown has to exclude beyond reasonable doubt any of the following matters:-

(1) That the deceased was one who had joined in an assault on the accused and his wife,

(2) That the accused or his wife did not provoke the assault.

(3) The nature of the assault was such as to cause the accused reasonable apprehension of death or grievous bodily harm to himself or his family,

(4) That the accused believed that he could not otherwise preserve himself from death or his wife except by shooting the deceased,

(5) That this belief was based on reasonable grounds,

(6) The force used was not excessive.

This trial has not been an easy one. Interpreters were required both for the native witnesses and also for the accused and his wife, who speak Yugoslav. The accused and his wife speak little English, although in the conduct of their business they used to speak in broken English and Pidgin. Further the deceased has very poor vision to which I shall later refer.

Turning to the facts of the Case, the Crown called five witnesses who were present in the Trade Store when the shots were fired. These men were not wild bushmen. The deceased had been employed in Port Moresby for several years as a bar man.

Pundori, the deceased's friend was also employed as a barman. The witness Kik, also a young man, had got on in the world and was the operator of his own truck in which he used to carry passengers about Port Moresby. Andrew, also a young man, was a warder at a corrective institution. All of them originally came from the Highlands in the vicinity of Mt. Hagen. The other two witnesses Paraka and Kara, a brother of the deceased, had come down from Mt. Hagen to Port Moresby a couple of days previous to the shooting. All of them knew each other. All, except Kara, had attended the Lutheran Mission in the Highlands and had enough appreciation of its significance to take the oath.

On the day in question Pundori and the deceased had been together since early in the morning. They had taken some village elders from Mt. Hagen on a tour of Port Moresby and later in the afternoon they had gone out to Goldie River by truck. They left the truck and were walking back towards Port Moresby when Kik, also returning from Goldie River offered to give them a lift. He stopped his truck adjacent to the accused's trade store, which is in open country on the corner of the Brown River Road and the road to Nazareth Mission, about ten miles from Port Moresby. The road is in frequent use especially on Sunday afternoons which the accused found a busy time for business. When the truck stopped, Pundori and the deceased did not immediately climb on the truck because they wanted to buy some biscuits, having had no food since early morning. So Andrew, Paraka and Kara who were with Kik, waited on the truck and Pundori followed the deceased into the trade store.

The trade store, of which there are good photographs in the exhibits, consists of a small building with a store room at the back and at the front a kiosk opening onto a verandah over a concrete floor, the frontage being about 20' by 9' deep with a low concrete wall at the back. Behind the wall there are trees which provide shade in the apex of the triangle made by the junction of the two roads. When the store is open for business, as it was on the 28th May, 1967, the shutters are pulled back and hinged to the ceiling, but there is strong Cyclone wire netting over the entire open space above the counter and firmly fixed to the ceiling, counter and both sides. To enable a customer to receive his purchases and pay over his money, there is a small gate about
20" by 20" fitted in a wooden frame work in the wire. The gate can be locked by means of a padlock over the metal clasp between the gate and the frame. The clasp fits tightly and even if it is unlocked, to remove the clasp from its fitting a sharp tap or tug may be required.

Pundori gave evidence that on the day in question at about 4 p.m. he and the deceased, whom he called 'Kiap', went into the accused's trade store, leaving the other men outside on the truck - Kik, Paraka, Kara and Andrew. Their purpose was to buy some biscuits and lemonade. The deceased asked could he have some biscuits and lemonade, and the accused asked for the money .first! Apparently the conversation took place in mixed English and Pidgin. An argument developed; the deceased said I've got the money, give me the food first. Accused said Probably you haven't got any money, so I can't give you the food. The deceased who was then angry took his purse from his pocket and slapped it on the counter. The accused said Why do you have to hit the counter like this. The accused then got a knife from under the counter and said don't be hard on me like this I have got a knife with me. I cut people hard with my knife. When accused said this, the deceased said we don't use the knife to kill people. Apparently both men were shouting at each other, and this caused the others to come in from the truck to the trade store. The deceased was standing with one hand on the post supporting the roof and the other on the wire. At some stage of the argument, accused and Pundori were pushing and pulling the little gate in the wire. Then accused then shouted to his wife. Pundori did not see whether the woman brought the gun or not, but without warning the accused then raised the gun as he stood behind the counter and behind the wire, and aiming at the deceased, fired the gun. Pundori threw himself to the side and upon the cement floor and he heard a second shot; and then another. As soon as the gun was fired, all the men fled from the store to the truck. In cross-examination, Pundori said that when the knife was produced, he said "Don't hold the knife, we know the law of the Government we don't use the knife to strike people with." Asked why the accused fired the shots, Pundori's answer was, "Because accused and 'Kiap' were arguing over the counter, and that's the only reason I know why accused fired the gun. He denied that the other men were shouting and shaking at the wire.

The next witness was Paraka who stayed on the truck whilst Pundori and the deceased went into the trade store. He heard the argument between accused and deceased. He could hear in Pidgin the accused demanding money and Kiap saying give me the biscuits and lolly water before I give you the money. He then went into the store with the others. As he watched the accused and deceased arguing, the accused picked up a knife and he was trying to "poke" the deceased - he thrust the knife through the wire at deceased who was standing close to the wire and this caused him to draw back. He then saw the accused's wife bring him the gun. The accused put it to his shoulder and aiming at the deceased, he fired three shots. The second immediately after the first, and on the third shot the deceased fell down. He said none of the others was involved in the argument, nor was anyone trying to get through the wire in any way.

Kik, who as Mr. Pratt submitted, was a reluctant witness, stated that he stayed outside in the truck whilst Pundori and deceased were inside the store. He heard the quarrel, went in and heard the man speak to the woman and then saw her bring the gun and hand it to the accused, who then aimed at deceased and shot him. He denied that anyone tried to get through the wire netting or tear it down in any way.

Kara gave more detailed evidence of the quarrel. He said he went into the store when they were quarrelling. Deceased said you give me flour and lolly water, accused said give me the money first. Deceased said I am not going to steal, what I want you give me and I shall pay for it. The accused said you are a "rubbish man", (a familiar Pidgin expression) you have no money in your pocket. Deceased said why do you call me a rubbish man. I haven't stolen your goods or money, and that was the beginning of the quarrel. He did not see deceased produce any money. While they were quarrelling, the accused got angry and he took a knife and tried to stab the deceased, but deceased moved back. However he did not poke the knife through the wire. The deceased then said to accused I am a black man you are a white man, does the Government say you can kill people. After that the accused called to his wife. She brought the shot gun and the accused shot the deceased. He saw no one trying to break through the wire netting. He denied that whilst he was there anyone touched the little gate. Asked whether the words were spoken "Me Chimbu, you know me killing everyone and piccaninny", he said Yes I heard this talk, the deceased said it. The witness amplified this, and said it was the accused who said I will kill a lot of people. Deceased was saying we are from Chimbu and Hagen ("Chimbu" being used on occasions as a general name for Highlanders) why do you want to kill me.

The final witness as to the facts was Andrew. From the truck he said he heard Pundori and deceased call them in Pidgin, accused was trying to cut them with a knife. He and Kik went to the store, and he saw accused trying to stab deceased with a knife. The rest of the men in the store said who are you trying to cut, are you trying to cut meat. The accused then called out, his wife appeared and told them to shut up. The accused got the gun from the right corner of the store and shot the deceased. In cross-examination, he said the men were angry, and when the woman said shut up, they said shut up too, the five of them. He didn't see anyone shake the wire.

Dr. Robert Arthur Cooke conducted a post mortem examination of deceased's body. He found two large bullet holes, the first in the left upper quadrant of the thorax; the path of this shot appeared to be directed approximately horizontally from front to back. The other large hole was in the left upper arm, and the direction of this shot appeared to be slightly upwards and backwards. These wounds naturally caused severe organic damage and the cause of death was acute blood loss from bullet wounds to the heart and both lungs. The doctor thought that death would have occurred very rapidly indeed. It was however reported by an experienced ambulance officer that he could feel the pulse 30 minutes after the shooting. The man's height was not measured, but the doctor noted that he was of average build, which would mean he was in the range of 5' to 5'4".

Inspector Edgar Cameron Miles, the Officer in Charge of the Scientific Bureau of the C.I.B. gave evidence that from tests carried out when the shots were fired, the distance between the muzzle of the gun and deceased was not less than three feet nor more than four feet, which would indicate as the Crown witnesses said that the gun was fired from behind the counter when the deceased was standing close to the wire. The hole found in the wire, which was caused by shots was to the accused's right of the little door in the wire. At this range, even without any pellets in the cartridge, the cartridge wads which were found in deceased's body would have been lethal. Two shots struck the deceased, a third left a gouge mark in the counter, but there was no evidence as to where the fourth shot was fired.

Inspector Dyer went first to the trade store very soon after the shooting. He was followed by Inspector Bellis who made an examination of the store. Later at the Police Station, after the usual caution, in answer to questions put by the Sub-Inspector, the accused made certain answers which were reduced to writing and signed by accused. The accused's answers were given in very broken English, and obviously the interview was conducted with great difficulty. Indeed the Sub-Inspector felt it necessary to ask a friend of the accused who spoke Czech, to read out the record of the interview in that language, although the accused did not speak that language very well. But it does seem to contain the gist of the defendant's account.

Sunday, 28th May, 1967. Police Station, Port Moresby. Cautioned:

"You realize that you will go to Court over what happened today. You do not have to tell me anything. What you do say I will write down and give in evidence later at the Court.

He said: "I have to tell you, the Police."

Bellis: "You tell me only if you want to, that is the law, I must tell you that."

He said; "I want to explain it to you."

Dellis: "I will write it down."

He said:" I ploughed today at the back of my house, and finished at 3 o'clock. I brought the tractor to the Mental Hospital. I came back in my truck. I came back after 3 o'clock and started to cut paper for tobacco and put lolly water in the fridge, and the boy said, "Give me this one bloody bastard." The boy I shot."

Dellis: "Who did he say that to?"

He said: "This boy. I went to the back room where the fridge is and took some box. My wife went in and I heard, "Missus I fuck you." I looked and saw three boys at the wire and one of them had a moustache."

Bellis said: "Yes, go on."

He said: "I heard, "Me Chimbu, you know me killim everybody, you and picannini." This boy I shootim. Pushed the little door in the wire on the shop and he said, "Missus I fuck you now." He tried to get inside. When he saw the gun he got back but I lifted the gun and shot him".

Bellis said;" How many shots did you fire?"

He said: "I all the time keep four and I shot them all. I sell cartridges so I put four more in."

Bellis said; "You are going to be charged and taken to Court for killing this man, do you understand?"

He said: "I can't do nothing."

Bellis said: "You do not have to say anything to me at all."

He made no reply.

Bellis said; ".Why did you shoot this man?"

He said: "We had trouble before at 16 Mile. My wife is afraid. I lifted the gun, I did not point it."

Bellis said: "Why did you take the gun into the shop?"

He said: "My wife started to cry and I took it."

Bellis said: "Did you think this man was going to go inside?"

He said: "They were all trying to get inside; they had hold of the wire and my wife called out to me."

For the defence, the accused and his wife gave evidence and also Dr. Loschdorfer and a native employee named Kila-Hilai. Dr. Loschdorfer, who is a specialist ophthalmic surgeon, gave evidence as to the accused's eyesight. On 7th July, 1967, after the accused's arrest when the accused complained of very poor eyesight, he examined the accused's eyes and found that he was suffering from bilateral cataracts, his visual acuity being such that he would be generally regarded medically as a blind person. Be this as it may, the accused could distinguish the number of figures held within a distance of four metres. At certain distances he could pick up outlines and objects depending on the background. At a distance up to 12 feet he could distinguish the outlines of a human body. If the background were light he could see less than if the background was dark, and he would have very great difficulty in making out precise shapes and forms. If a lot of people were moving and speaking, said the doctor, he would be completely confused. .When, however it was put to the doctor that apparently the accused drove a truck, the doctor said he had known several with the same visual acuity who drove cars, but they were naturally a danger to traffic. The accused's evidence was that on the day in question, he had been ploughing until about 3 o'clock in his small farm. He then took the tractor with which he had been ploughing to the Bomana Mental Hospital, from which he had borrowed it. He drove the truck, towing the tractor, and then drove his truck back to the store. He went in and started to use a knife which he usually kept under the counter, to cut newspaper to make sticks of tobacco. The deceased then walked in from the left side of the road and came to the counter. Apparently he saw it, and said "what these bloody fucken." The accused told him they were scones the same as you get in a Chinese Shop. Deceased said: "Give me scones, I haven't got money". Accused told him "When you haven't got money, you haven't got scones". Deceased said "You whites have money, we blacks haven't give them to me without money." The deceased was talking to himself, and walking up and down in front of the counter. The accused then busied himself with some stock in the back room. His little son was with him. His wife then came towards the store from the house. He asked her to come into the store because after his work, he wanted to take a bath. She said to him "There is someone, he is talking, does he want something?" The accused said, there is a black there, he hasn't got money, but if he has money, you open the little door and give him scones, because he wants scones. The accused prepared to leave the store with some boxes, and when he was at the back door, he heard a rattling noise at the wire. He turned around and with some boxes in his hands saw his wife next to the counter opposite the small door – he could see a person from in front of the counter, and saying Missus I fuck you know. The accused dropped the boxes straight away, walked around into the shop itself, and this is when he saw all the other boys at the wire. He heard their voices, particularly one, saying Me Chimbu me killim you and piccaninny. When he walked in he saw a man with a beard on his left hand side and a lot of other ones, one with a moustache and a hat or something else on his head, all at the wire and all shouting. When he saw this and heard all this shouting, he knew where the gun was behind the freezer. After that he didn't see what was going on any more - he went for the gun and heard his wife calling and screaming out "Nick, I'm finished!" The gun was loaded and he had to pull the mechanism once that is done, the cartridges go into position and the gun is ready for firing and he did that. This happened very quickly apparently the little gate was opened. He just got the gun pulled the mechanism, turned around, and not walking, with one leg below the little step from the back room into the store and the other on it, he turned around and started firing, with the gun at his hip.

He was very frightened at the time and he fired all the cartridges in the gun. Asked why he fired the gun, he said he fired the gun because he was frightened they would come in. Some time before a man with a knife came to the back door and broke his son's arm and nose, and his wife's ribs. He didn't aim at anyone, he didn't want to kill anyone, he only wanted to frighten them, he fired over their heads. It all happened very quickly, he turned around and re-loaded his gun and went straight to the back door because some time before natives came to the back door with a rifle. When he saw there was no one at the back door, he went back to see if there was anything wrong with his wife - it was possible that she had been hit with a knife - but with his help she stood up from the floor where she was lying. His wife then looked over the counter and said, Nick what did you do, you killed a man. He then rang the police.

Accused then went on to say that although he had a knife (he said 8" - 9" long), and kept it under the counter, he had not poked at the deceased or waved it about. He said he wasn't doing anything like that at the wire, the deceased came and wanted scones, he knew he couldn't come in, so he was not worried.

Asked what he was thinking just before he fired the gun, he said he was thinking of frightening the lot of them, because he thought they were coming in, his wife and son were crying and he thought they may do something to them. They were pulling at the wire, that was what made him think they were coming in. He heard the rattling at the wire, and he said he knew the wire was not properly nailed. He said he aimed above the mens' heads, because for about six months he found he wasn't able to aim a gun. As soon as he aimed, tears came to his eyes and his vision got foggy. He was all excited and shaking, he noticed afterwards that he hit the counter. As to the small door, he didn't touch it, it was shut. After the shooting he noticed that it was pushed in and bent inwards and half open. He also said that when he heard the offensive words spoken to his wife, he went to help her with his bare hands to pull her away and push him out. Later he said when he came with the gun at the moment his wife fell to the floor, all he saw was all of them in front of the wire, and holding it and shaking it; in front of the small door there were people there and he couldn't recognize any faces. The arms were not there any more.

In answer to questions put by me to the accused concerning his eyesight, the accused stated that although he drove a truck on occasions, he had hit a man when driving his truck, and also collided with another car. Men standing at the counter, he said he could not see a man at the door, but at the counter he could. He could see a man but he couldn't see little things. He could see a man standing in front of the small door.

Mrs. Kristeff gave evidence that on her husband's return he came to the shop and she went to the house. Later she went to the store, and the accused came and he said I am going to the shower, would she go and look after the store. She went to the store and saw this native. He was saying something at the small door. She said, too much talk talk – shut up. She could speak a bit of Pidgin mixed with English. She was talking to the accused who was fixing up the boxes at the back. When she spoke to the native, he said Me chimbu, me killim everybody, me strong me killim piccaninny everything, husband, piccaninny store and everything. All the time the others were all shouting - they would kill them, and throw stones to break up the shop and they were all pulling at the wires. When he was saying this he grabbed hold of the small door and he shook it and the others ran up to the counter. They all came to the wire and grabbed at the wire. The native in front of the small door pushed at it. He was still shouting he was going to kill piccaninny and everybody. She got very frightened when she saw them all running to the wire. This native opposite the door pushed the door down and leant over the counter and put his arm through and she fell down. She realized that she was fainting. All black was coming and she screamed out Nick I'm finished.

When she came to herself again, she was the first to notice the deceased. She noticed him before the accused did. The accused said, I went mad when I saw him grabbing at you. She denied she handed the shot gun to her husband. She said the small door was strong before this incident, and afterwards it was broken.

In cross-examination she said the deceased said many other things, but she didn't understand them. The native who was speaking when she went there was the one who was killed. He was talking all the time and saying I kill everyone and I am strong. He went to jump in over the counter - that is, through the door. She was asked whether she had tampered with the little gate since the commencement of the trial and she said no. Asked to describe what the native did who went to jump over the counter, she said he grabbed the inside of the counter and pulled himself up, and that's when she screamed, Nick I'm finished.

The final witness was Kila Helai an employee of the accused. He was not present at the time of the shooting. He was called to give evidence as to the condition of the little gate in the wire. He said it was strong and all corners joined together when he left the store on the Saturday before the shooting. On the Monday he saw that it was crooked and the frame timber was broken and the wires were not tight enough.

At the request of the Crown Prosecutor and Mr. Pratt, on two occasions in September, 1967, I visited the trade store and had the benefit of a view and was thus able to better appreciate the evidence which had been given, particularly as to the security of the store.

I have now reviewed the evidence in this case and have now to decide what has been proved beyond reasonable doubt as to the situation of fact. In the first place I must assess the witnesses as best as I can from their demeanour in the witness box and decide upon which witnesses I can rely.

The evidence of the Crown witnesses I am satisfied is substantially true and such that I can rely upon it. As to the accused man, having regard to his demeanour in the witness box even with the language difficulty, I am unable to accept his evidence nor am I able to accept the evidence of the accused's wife. But that is not the end of the case.

Apart from the credibility of the witnesses, the account given by the Crown witnesses, it seems to me, is much more probably true than that by the accused and his wife. The deceased and the witnesses were not wild bushmen. As I have said, two of them were barmen who had worked in Port Moresby for substantial periods, Kik is a self employed truck driver and the men from the Highlands seem to me to be quite decent and reliable men. None of these men had known the accused or his wife before. None had any reason for hostility or cause for hostility against the accused and his wife. They did not even know that a woman was on the premises. Now the accused's account is substantially that the deceased came in and was offensive, was left alone at the counter, no-one else was there. There was rattling at the wire, and then his wife merely saying too much talk talk, an unprovoked attack on the wife. One put his hands through the door and all the men were at the wire calling out "Me Chimbu, me killim everybody, you and piccaninny", and the wife finally calling out "Nick I am finished." The account given by the accused man and his wife is that these strangers, men decently dressed in shorts and shirts, who had no grudge against them, and no reason for hostility should have come in and preceded only by an offensive conversation initiated by one of them, like wild men, one of them should grab at the wife while the husband was in the store at the back and hanging on the wire calling out the expressions I have referred to. In short this was a completely unprovoked attack, a threatened attack by strange men who had no reason to attack the accused at all; an attack of one on the wife, a general attack by a group of strange men upon the accused. Well, quite apart from the demeanour of the witnesses, the accused's case is so improbable that I am just not able to accept it. It is very significant that accused should deny the knife incident. It seems to me that this is an account which not only I am not able to accept because of the way in which it was given and the demeanour of the witnesses but it seems to me quite improbable. Some of the things which accused alleged the men said were completely out of character. "You whites have money, we blacks haven't. Give it me without money" would they be likely to have said "Give me scones I haven't got money." Coming from a man employed in the town, this seems to me most improbable. There is also the fact that the man had money on him; there was money found in his purse after his death. I was not impressed with the way the wife gave her evidence. In evidence in chief she gave evidence that the man at the wire made a grab at her like a clasping motion. When second occasion, and before she was cross examined, I attempted to see whether I could myself get through the opening and was able to do so and I put my hands through the counter. In cross examination when asked she demonstrated this different action. Further she said the door was in the same condition when she was cross examined as when it was at the time of the incident. When the first view was held on 19th September, 1967, the nails were in the door, but not tightly driven in; at the time of the second view the door had been wrenched apart and the nails pulled out. It had obviously been tampered with. It seems to me that the account of the accused and his wife is so improbable that I must reject it.

The evidence of the Crown witness had a ring of truth about it. The way the argument developed is convincing - the money or the food first, the purse slapped on the counter, the production of the knife by the accused who had been using it to cut paper and tobacco. Some of the things said, according to the Crown witnesses, as Mr. Shaw submitted certainly have a ring of truth about them. "You are a rubbish man and you have no money in your pocket." "Why do you call me a rubbish man. I haven't stolen your food or money." There was a body of evidence that the knife was produced. Pundori said "We don't use a knife to kill people. Don't hold the knife, we know the law of the Government - we don't use the knife to cut people with." Kara said "I am a black man, you are a white man, does the Government say you can kill people." "We are from Chimbu and Mt. Hagen, why do you want to kill us." Andrew said "What do you want to cut with the knife, are you trying to cut me." I found this having a ring of truth. These are people from the Highlands. They are being taught by the Missions and the Government that killing is wrong, it is against the law of the Government, and especially that axes and knives must not be used as weapons to kill people. Therefore I accept the framework of the evidence that was given by the Crown witnesses and I repeat it. There was the argument over whether money or food should be handed over first; a knife was produced by the accused and then a chorus of voices raised in protest. The accused called his wife from the store, she brought him the gun and he shot the deceased. I have not overlooked certain inconsistencies such as to the position of the witnesses at the wire, the movements of deceased with the knife and the order in which they came in and where they stood and the fact that two witnesses did not say the gun was brought by the wife. Andrew denied that it was brought by the wife, and Pundori could not see how it was brought.

The next question is how did the altercation after the knife was produced lead to the accused shooting the deceased. The first argument between the deceased and the accused had been conducted so loudly that the men left the truck to come into the trade store. When the knife was produced and pointed at the deceased, this was a most serious affront. It was quite contrary to all the teachings that they had received in the Highlands and for the village visitors to receive such treatment at Port Moresby would have caused great indignation.

Although I have substantially accepted the evidence of the Crown witnesses, I am however certainly satisfied that there was more noise and excitement than they admitted to.

The accused was thus faced with a group of excited Highland Natives standing at the wire and shouting out their protests. Certainly the deceased was holding the wire, and Pundori admitted to pushing the little gate back whilst deceased was handling it and several others may well have been rattling it. The accused man said he saw two and three arms raised up.

Now the accused man was not an ordinary individual. He is a Bulgarian and his wife is a Yugoslav. They have been at the trade store for three or four years. They conducted the operations at the trade store in mixed Pidgin and a little English. I do not believe that either spoke much Pidgin or English. The accused had cataracts in both eyes, so that according to Dr. Loschdorfer, in the medical sense, he would be regarded as a blind person. But of course he had some vision. He drove a truck from time to time, (not without hazard to himself and other road users), and indeed immediately before the shooting incident he had driven his truck to the Bomana Mental Hospital. He could certainly see persons at the trade store and he had been able to detect Paraka's beard and Kara's moustache. But people moving rapidly before him, he would have found most confusing.

Then there were his experiences in this Territory. His wife had been attacked by a native as she walked 20 - 30 yards from the house to the shop, and on another occasion had been robbed with violence. On that occasion in 1965 she had suffered broken ribs and their little son suffered a broken nose and arm. On two other occasions the accused had reported attacks or threatened attacks by natives at the Police Station, but no action had been taken. After he bought the trade store he had caused cyclone wire netting to be placed over the counter of the trade store and a little gate inserted. He wanted to secure his wife from molestation and also to make the store more secure against entry. The trade store had been broken into before he came, entry having been made by prising open the shutters. Inspector Bellis said in his experience in the Territory he had not seen a trade store protected as this one was, or any such elaborate attempt to obtain security.

He used to keep a loaded shot gun in his bedroom at night, and by day he took it over to the store. He left it in a condition so that all that was required to be done was to pull back the actuator thus enabling each round to be fired merely by pressing the trigger.

I am satisfied that both he and his wife were apprehensive of the Native people of this Territory. He was a man who was living in isolation, and feared attacks. One cannot understand the situation unless one appreciates his make up, his experience and his attitudes. This was the man standing behind the counter of the trade store facing these Highlanders, frequently called "Chimbus" after the most populous of the Highland peoples. There were four or five of them at the wire, angry and excited, shouting and rattling the wire. They were protesting about him using the knife and thus threatening to kill them. So they were using the words "Chimbus" to describe themselves and the word "killim" also. With his poor knowledge of Pidgin he could mistakenly have supposed that they were threatening him and his wife.

He had been ploughing his land. He was here in this strange distant land far from Central Europe. He was weary and hot. It was in panic and rage, that he called for his wife to bring the gun. He reached for it, took it from her, pulled back the actuator and, standing behind the wire, he fired at the deceased standing only three or four feet away and thus killed him with two rounds, one in the chest and the other in the upper arm.

Turning to the defence of self defence, Mr. Pratt relies on Section 271, and for the purposes of this submission I am prepared to assume that the deceased had not provoked any assault despite the production of the knife by the accused.

Did these men assault or threaten an assault on the accused and his wife so as to cause a reasonable apprehension of death or grievous bodily harm? They were quite unarmed. I am satisfied that they were quite sober. They were strangers to him, there was no background of hostility. None of them had even a stick in his hand. The accused and his wife were protected by a strong barrier of wire, which was most firmly fixed. The arms had disappeared from the small door. When they saw the gun they were frightened. The deceased got back. On the accused's own admission to Inspector Bellis when the deceased saw the gun he got back, but the accused lifted the gun and shot him. I am satisfied that there was no assault actual or threatened, on the part of the deceased and the others, but it would be sufficient for the accused man if he had an honest and reasonable belief that his family and he were about to be assaulted. Criminal Code Section 24 R. v. Chisam (^[5]). I feel that I must give the accused man the benefit of the doubt that he did believe that these men wanted to attack him. The accused may well have thought that he and his family were threatened but that of course is not the test. The test is whether the nature of the assault was such as to cause a reasonable man apprehension of death or grievous bodily harm. He was faced with unarmed men who had no grudge against him. He and his family were perfectly safe against any supposed attack by these natives behind the wire. I do not accept his evidence that he thought it could be pulled down, indeed in his rage and panic he did not even give it a thought. As Mr. Shaw submitted he was "trigger happy". I am accordingly satisfied beyond reasonable doubt by the Crown that there was no assault here such as would cause reasonable apprehension that he or his family were about to be killed or caused grievous bodily harm. In shooting this unarmed man he had acted in rage and panic and most unreasonably.

I am satisfied also beyond reasonable doubt that he had no reasonable grounds for believing that he could not otherwise preserve his family or himself than by shooting the deceased. I am also satisfied beyond reasonable doubt that the force used was excessive. The accused told Mr. Bellis that the deceased got back when he saw the gun. As Mr. Shaw submitted the mere production of the gun would have been sufficient to cause the men to disperse.

I have given the accused the benefit of the doubt that, the flashing of the knife from behind the wire by the accused had not provoked an assault by the deceased and his friends. If Section 272 applies on the basis that accused had provoked the assault by using the knife, that defence fails for the same reasons. Further the accused acted before the necessity arose.

Thus I am satisfied beyond reasonable doubt that the Crown has excluded each of the elements of self defence.

I must now turn to the question of the intent with which accused fired this shot. He has maintained in this Court that his only intention was to frighten, that he fired over the heads of the group and that he only shot the deceased because in his fright and because of his poor vision he shot too low. But there is strong evidence the other way. Nearly every witness called by the Crown said that the accused aimed at the deceased. The deceased was the man he had argued with. One shot would have been enough to frighten. Four shots were fired, one into the counter in front of the deceased, one into his chest, another in his upper arm, the direction of the other is unknown. Immediately after that he re-loaded and then went to the back door to see if someone was there. So I am satisfied beyond reasonable doubt that he did at least intend to injure the deceased or the man whom he could see standing there.

The final question then is whether he intended to cause the death of the deceased or to cause him grievous bodily harm. I can be quite brief on this point. He acted in panic and on the spur of the moment. He called for his gun which was already loaded. The Crown has failed to satisfy me that he had any intention of killing or causing grievous bodily harm. The accused man is accordingly guilty of manslaughter.

I should add that even if he did not intend even to injure and his purpose was merely to frighten this would be manslaughter under Section 289. To fire a loaded gun four times with men standing 3 or 4 feet away in that confined space would satisfy me beyond reasonable doubt of criminal negligence "going beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment." Bateman's Case (^[6]) and Evgeniou v. Reginam (^[7]).

Although it is not necessary for my decision I desire to mention Mr. Pratt's argument that assuming that the two conditions as set out in the second paragraph of Section 271 have not been excluded, but that excessive force had been used, then, by reason of Section 283, the use of that force being more than is justified by law under the circumstances is unlawful and that that Section taken with Sections 291 and 303 require a verdict of manslaughter. He argued that the act was rendered unlawful under Section 283 as the use of excessive force, and was thereby specially provided for so that the general provisions of Sections 300, 301 and 302 of the Code did not apply. Consequently it was manslaughter pursuant to Section 303.

He did not deny that there are very great difficulties indeed in this view as a proper construction of the code, particularly having regard to the words of Sections 301 and 302, which provide that except as thereinafter set forth a person who unlawfully kills having in the case of Section 301 an intent to cause the death of the other etc. is guilty of wilful murder and in the case of Section 302, inter alia intending to do to the person killed some grievous bodily harm, is guilty of murder. Further, having regard to the provisions of Section 291 it is difficult to avoid the view that Section 271 in its second paragraph either provides a complete defence or if the defence fails by virtue of the matters therein provided for, being excluded, the verdict must be either wilful murder, murder or manslaughter, according to the intent proved. Reading these sections, in their logical sequence, the Full Court of Queensland came to the conclusion that the doctrine accepted in Regina v. Howe (^[8]) was not incorporated under any Section of the Code or upon its proper construction. R. v. Johnson (^[9]). It seems to me that the Full Court's view is the only one open on the construction of the Code. (See also "The Codes and the Judicial Process" (R.W. Baker) University of Western Australia Law Review Vol VI p. 449 and Excessive Force in Self Defence: A Comment - E.J. Edwards ibid. 457.

Solicitor for the Crown: S.H. Johnson, Crown
Solicitor for the Accused: W.A. Lalor, Public Solicitor.

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^[1] (100) C.L.R.448.
^[2] (1955) A.C.. 206.
^[3] 100 C.L.R. 448.
^[4] (1964) Q.S.R. 1, per Stanley J. at page 11.
^[5] 47 Cr. App R. 135.
^[6] 19 Crim App.R. 28.
^[7] (1964) P. & N.G.L. 46.
^[8] 100 C.L.R. 448.
^[9] (1964) Q.S.R. 1.