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Kwapena v The State [1978] PGSC 4; [1978] PNGLR 316 (1 September 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 316 - Tapea Kwapena v The State

[1978] PNGLR 316

SC133

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TAPEA KWAPENA

THE STATE

Waigani

Prentice CJ Raine DCJ Saldanha J

1 August 1978

1 September 1978

CRIMINAL LAW - Murder - Self-defence - Tests to be applied - Criminal Code ss. 274, 275[dxxi]¹.

CRIMINAL LAW - Murder - Self-defence - Provocation - Definition of - Whether s. 271 definition of provocation governs ss. 274, 275 of the Criminal Code.

On appeal against conviction on a charge of murder the evidence revealed that the appellant (accused) who had removed a sheet of iron from the victim’s (being his brother’s) house to repair the roof of their sister’s house, was threatened at the top of a flight of stairs by his victim with a shot-gun which unknown to the appellant was unloaded, that the accused went inside, grabbed a billhook, a bush knife slotted into a long handle, with which he then struck the victim with great force cutting a deep wound in the victim’s neck from which the latter died,

Held

N1>(1) Where a defence of self-defence to murder is raised either under s. 274 or the first paragraph of s. 275 of the Criminal Code, the questions to be determined beyond reasonable doubt are: (a) whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm, (b) whether the accused believed that he could not preserve himself from death or grievous bodily harm otherwise than by using the force that he in fact used, and (c) whether the accused’s belief was based on reasonable grounds: or rather whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds.

R. v. Muratovic [1967] Qd. R. 15, and Marwey v. The Queen [1977] HCA 68; (1978) 138 C.L.R. 630 followed.

N1>(2) Semble (per Saldanha J; Prentice CJ querying) the meaning of the word “provoke” used in ss. 274 and 275 of the Criminal Code must be governed by the definition of provocation in s. 271 of the Criminal Code.

N1>(3) Accordingly, the finding of the trial judge that in his opinion the blow as aimed and struck by the accused was not reasonably necessary, was an incorrect application of the law.

N1>(4) Applying the tests, it was not possible to come to the conclusion beyond all reasonable doubt that in the circumstances obtaining the appellant (accused) did not have the requisite belief on reasonable grounds and accordingly the conviction and sentence should be quashed.

Appeal

This was an application to appeal against conviction on a charge of murder, on certain questions of fact and an appeal against conviction on certain questions of law.

Counsel

M. Kapi, for the appellant (accused).

J L. Cagney. for the respondent (State).

1 September 1978

PRENTICE CJ: Leave is sought by the appellant to appeal to this Court against his conviction of murder, on certain questions of fact (in addition to appealing as of right on questions of law), and I would be in favour of such leave being granted.

The conviction arises from an incident in a village in February 1978. Apparently the appellant had prior thereto, removed a sheet of iron from the victim’s house to repair a hole in the roof of their sister Geno’s house. The victim, the appellant’s true brother, feeling aggrieved at this, confronted the appellant at the latter’s house and threw sticks at him. The victim, who had been carrying a shot-gun which (though apparently this fact was not known to the appellant) was unloaded, then advanced threateningly or at least argumentatively, up the stairs of the appellant’s house. The appellant appears to have gone inside the door from his verandah, and to have come out of the house holding something resembling a billhook; a bush knife slotted into a long handle. He went forward and struck a swinging blow at the victim with great force cutting a deep wound in the victim’s neck from which the latter died. He also delivered a second blow cutting the victim on the left leg. The deceased was struck as he came up the stairs and toppled to the ground. A charge of murder was laid in relation to the first blow. The only substantial evidence against him, was provided by the admissions of the appellant himself. The defence raised was that of self-defence, under ss. 274 and 275 of the Criminal Code.

His Honour the trial judge came to the conclusion that the appellant had been put in real fear for his life, and in the circumstances had a reasonable apprehension of grievous bodily harm, and reasonably believed it was necessary to use force in self-defence (a conclusion with which I think all would agree). But his Honour, considering as he did, that the appellant had provoked the attack, went on to find that the force used by the appellant was in the circumstances excessive, involved an actual intent to do grievous bodily harm to the deceased, and was applied prematurely and before opportunities of retreat were exhausted. That is to say he regarded the limited rights of self-defence provided by the second paragraph of s. 275 of the Code to be available rather than the more liberal rights provided by s. 274, or by the first paragraph of s. 275.

PROVOKED OR UNPROVOKED ASSAULT

During the argument on this appeal, a question was raised as to whether the definition of “provocation” in s. 271 was to govern the meaning of “provoked” and “unprovoked” in ss. 274 and 275; the self-defence sections. Both counsel assumed that it did. I have been unable to find any authority which would assist construction of the sections in this regard, but I find myself by no means persuaded that the definition of “provocation” is so to be used. One notes that both s. 272 “defence on provocation”, and s. 308 “killing on provocation”, make careful use of the actual word “provocation”. Each of these last-mentioned sections refers not only to an inducement or causation, but to deprivation of self-control. It does not seem to me illogical that the phrase “has provoked an assault from another” could be seen to contemplate the causation of a mental disturbance less than loss of self-control.

If the latter kind of mental disturbance, something less than the statutory “provocation” of s. 271, be enough to establish a “provoked assault”, I consider the facts put before his Honour sufficient to have established beyond reasonable doubt (the standard that would be necessary to cut down the available defence from that in s. 274 to that in s. 275) that the appellant had “provoked” the deceased to assault him.

But if the “provocation” of s. 271 be required to constitute the deceased’s actions in threatening with a rifle a “provoked assault”, then, with respect, I consider his Honour could not have been satisfied on the standard beyond reasonable doubt, that provocation had been shown. It could not I think be said that the removal of a sheet of iron from his house to mend a joint sister’s house, was such an act that when done to an ordinary villager in the deceased’s position would have deprived that villager of the power of self-control and induced him to assault the person who had effected the removal of the iron.

However, for reasons that will appear below, I do not regard it as necessary to decide whether this was a “provoked” or an “unprovoked” assault.

NECESSITY FOR RETREAT

His Honour appears to have proceeded from the conclusion that the appellant had provoked the deceased’s assault on him, to the finding that the appellant’s actions came within the second alternative of the second paragraph of s. 275, viz. that the appellant “endeavoured to kill or to do grievous bodily harm ... before the necessity of so preserving himself arose”, before he had retreated from the conflict as far as was practicable. His Honour inferred such an intention in the appellant to cause grievous bodily harm to the deceased, from the nature of the weapon used and the nature of the blow delivered. With great respect I consider his Honour to have erred therein. The appellant was not to know the gun was unloaded. He was, as the judge found, in fear of his life. Faced with such a weapon, the possibility of retreating even a few feet (from a man with a “loaded” weapon) might well have put him in greater jeopardy. The only effective defence may well be considered to have lain in closing with the attacker and striking quickly. The only effective weapon of defence to hand may have been the billhook.

It has been stated (in a somewhat different context), “If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensberry rules in your defence.” (Oaksey L.J as he then was: Turner v. M.G.M. Pictures)[dxxii]². And again in the advice of the Privy Council as to the position in common law in Palmer v. The Queen[dxxiii]³ —”If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.” A factual example that an accused person’s having also been motivated by a desire for revenge or an intention to kill, is not necessarily sufficient to exclude beyond reasonable doubt that he was nevertheless in the circumstances acting in self-defence, is to be found in R. v. Worobi Dese[dxxiv]⁴ — a decision of the pre-Independence Full Court.

Excessive Force

Counsel for the respondent on this appeal conceded that the second provision of s. 275 was clearly inapplicable to this case, and I agree in his concession in that regard. But he contended that, contrary to the appellant’s first ground of appeal, the attack by the deceased had been “provoked” by the appellant, and that the matter fell to be governed by the first paragraph of s. 275. He submitted that the test to be applied was the same whether the defence relied on s. 274 or on the first paragraph of s. 275. That the questions to be asked were:

N2>(a) Was the appellant assaulted with such violence as to cause reasonable apprehension of death or grievous bodily harm;

N2>(b) Did the appellant believe on reasonable grounds that it was necessary that he use therefore the force that he in fact did use; and

N2>(c) Was that belief reasonably held by him?

In thus putting his case, counsel adopted the remarks of Hart J in R. v. Muratovic[dxxv]⁵. And he supported the trial judge’s finding, as I understood his argument, on the basis that a reading of the appellant’s admissions showed that the appellant formed his conclusion that the force actually used was in fact necessary, not on reasonable, but on outrageous grounds.

The judgment of Gibbs J (as he then was) in which Lucas J concurred, in Muratovic’s case[dxxvi]⁶, has been followed in other judgments of the Courts of Criminal Appeal in Queensland, and approved by the High Court of Australia (with some expressions of doubt as to his Honour’s application of s. 24 of the Queensland Code) in Marwey v. The Queen[dxxvii]⁷. It has also been adopted with approval in a number of decisions of the pre-Independence Full Court, which were cited herein in argument. Gibbs J, as he then was, in Muratovic’s case[dxxviii]⁸, declared that if (a) the assault on the accused had been such as to cause reasonable apprehension of death or grievous bodily harm; and (b) the accused believed on reasonable grounds that he could not defend himself otherwise than by using the force that he in fact used; that it was unnecessary then to consider a third question, namely (c) whether the force used was in fact necessary for defence.

Both Gibbs J, and the Justices of the High Court in Marwey’s case[dxxix]⁹ analysing his judgment, see the element of factual reasonableness as being supplied by the need for the accused’s belief being founded on reasonable grounds. As Barwick CJ said (at p. 83), “If there are such reasonable grounds — a matter for the determination of the jury — the self-defence will itself have been reasonable”. And (at p. 84), “... if it be accepted that the accused believed on reasonable grounds that what he did was necessary for his defence against the deceased’s attack, it could scarce be denied that what he did was in fact” (emphasis mine) “reasonably necessary for his effectual defence”.

Section 275 contains the additional word “reasonably” before the phrase “necessary for ...” (defence). I agree with the opinion of Hart J in Muratovic’s case[dxxx]¹⁰, that the effect is the same in both the second paragraph of s. 274 and in the first paragraph of s. 275 (of our Code). And this is the way apparently, that the matter was dealt with in this trial. The decision would not appear to hinge therefore on the question of whether this particular assault was a provoked or unprovoked one.

Adapting the tests set out by Gibbs J the question I consider before the trial judge here, was to have decided whether he could find beyond reasonable doubt:

N2>(i) that the assault on the appellant by the deceased was not such as to cause reasonable apprehension of death or grievous bodily harm; or

N2>(ii) that the appellant did not believe that he could not preserve himself from death or grievous bodily harm except by slashing the deceased with the billhook as he did; or

N2>(iii) that if the appellant had such a belief it was not based on reasonable grounds.

His Honour made positive findings that the assault put the appellant in real fear of his life and that this fear was based on reasonable grounds. He found that the appellant reasonably believed the use of force was necessary in his self-defence. He has made no specific finding as to whether the appellant believed on reasonable grounds that such force as he did use was actually necessary for his own defence. His Honour made a finding that, in his own opinion, the blow as aimed and struck was not reasonably necessary. But in coming to this conclusion, his Honour, in my opinion, asked himself the wrong question. The essential matter was whether the appellant so believed on reasonable grounds — or rather whether the State had negatived beyond reasonable doubt the possibility that the appellant so believed on reasonable grounds.

For the reasons I have advanced earlier in my judgment when referring to the facts, I consider that if his Honour had applied this test of whether the appellant so believed on reasonable grounds, on the tenuous facts put before him, he could not safely have come to the conclusion beyond all reasonable doubt that in the circumstances obtaining, the appellant did not have such a belief on reasonable grounds.

For this reason I am of the opinion that the appeal should be allowed and the conviction and sentence quashed.

RAINE DCJ: In my respectful opinion my brother the Chief Justice is correct in his conclusion that the learned trial judge posed the wrong question, when he asked himself, as it seems he did, “Was the blow with the knife reasonably necessary?” I agree that the critical question his Honour should have asked himself is as stated by the Chief Justice.

To ask the question that it seems was asked of himself by the trial judge puts some terrified person who has been violently attacked, or who thinks he has, or is about to be, in an unfair position at his trial if the arrogance of hindsight later reveals that his instinctive, defensive action did not actually need to be as extreme as it was.

The Chief Justice has quoted two passages from a judgment of Oaksey L.J (as he then was) and from an advice by the Privy Council. If I might say so, with very great respect indeed, these passages contain very good law and very sound commonsense. What fell from their Lordships well suits conditions in this land, where, as happens rather too often, an “agony of the moment” situation comes about.

I note what the Chief Justice has said by way of “obiter” as to the possible inter-relation of s. 271 with ss. 274 and 275. In all frankness I have found it very hard to think this problem through, and would prefer to leave it for another day.

Finally, I agree with the Chief Justice that this was hardly a “retreat” situation. The billhook held by the appellant is not of use against a shot-gun unless one gets at close quarters. It is not much use running away. How far can one run before being shot down like a dog?

I agree that leave should be granted to the extent needed. Having said this, I observe, in view of findings made by the trial judge, that we are not, as an appellate court, particularly disadvantaged, if disadvantaged at all, by reason of the fact that we have not seen or heard the witnesses and the accused. It is not a case where I feel inhibited, having only the appeal book to look at. As to this generally, see the judgment of Barwick CJ in Edwards v. Noble[dxxxi]¹¹.

I am of opinion that the appeal should be allowed and the sentence quashed.

SALDANHA J: The learned trial judge assumed that in the absence of any eye witnesses what the appellant said in his record of interview had to be accepted as being a correct version of the facts. These facts have been summarized in the Chief Justice’s judgment which I have had the advantage of reading in draft form and it is not necessary for me to repeat them except to add, that according to the appellant’s account the deceased advanced towards him up the stairs pointing a gun at him and threatening to shoot him.

The appellant set up the plea of self-defence under ss. 274 and 275 of the Criminal Code. The trial judge took the view that the appellant believed that the gun that was pointed at him was loaded and he was put in real fear for his life, that he had a reasonable apprehension of grievous bodily harm and reasonably believed it was necessary to use force in self-defence. He found that as the appellant had provoked the assault upon himself, s. 274 did not apply and that the defence under s. 275 was not available to him because he had used excessive force, that in attacking the deceased with the billhook he intended to cause grievous bodily harm, that he attacked the deceased before the necessity of preserving himself arose and that he did not retreat as far as was practicable.

With great respect I am unable to agree with most of these findings. Normally an appellate court for obvious reasons is loath to interfere with a trial judge’s findings of facts. But in this case there were no eye witnesses, the appellant did not give evidence, the short unsworn statement he made from the dock had little or no significance and the facts had been gleaned from the record of interview. In these circumstances this Court is in as good a position to assess the facts and to draw inferences from those facts as the trial judge was.

Both counsel are agreed that the meaning of the word “provoke” used in ss. 274 and 275 must be governed by the definition of “provocation” in s. 271. I agree with this view. There is only one definition of “provocation” and if the word “provoke” is not interpreted according to this definition how else can it be interpreted?

Whether a person was or was not provoked must be decided by reference to an ordinary man. An ordinary man would not have been provoked into pointing a gun at and threatening to shoot a brother who he had found had removed an iron sheet from his house to repair the roof of a joint sister’s house. For these reasons I find that the deceased had not been provoked and therefore the plea of self-defence was open to him under s. 274.

But even on the assumption that the deceased had been provoked into assaulting the appellant, if the circumstances mentioned in the second paragraph of s. 275, which, if they existed would deprive the appellant of the protection of s. 275, did not in fact exist then that paragraph would have no application. Mr. Cagney who appeared for the State both at the trial and at the hearing of the appeal concedes this and I am in agreement with him, because, there is no dispute that the appellant had not first launched a murderous attack upon the deceased, in my opinion he had not acted prematurely and the only place to which he could have retreated was his bedroom where he would have been a sitting duck to a person armed with a gun. (The appellant was not to know that the gun was not loaded.)

If the second paragraph of s. 275 has no application then for present purposes the defences under both the first paragraph of s. 274 and the second paragraph of s. 275 are almost identical and Hart J had this in mind when he said in R. v. Muratovic[dxxxii]¹²:

“... there will not be many circumstances in which a person could raise a defence under s. 272 and in which he could not also raise one under s. 271...”

The conclusion which the trial judge finally arrived at was as follows:

“The question is whether what he did was reasonably necessary to preserve him from grievous bodily harm ... I consider it is clear beyond reasonable doubt that the blow, as aimed and struck was not reasonably necessary for that purpose.”

In R. v. Muratovic[dxxxiii]¹³ Gibbs J cited the following passage from the judgment of Stanley J in R. v. Johnson[dxxxiv]¹⁴:

“In Reg. v. Johnson (supra) at p. 13, Stanley J described the effect of the second paragraph of the section as follows: ‘The second paragraph of s. 271 deals with major unprovoked assaults. In repelling them, 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 (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and (2), 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.’ ”

Referring to this passage Gibbs J went on to say, at p. 19:

“... if the two conditions specified in the paragraph are satisfied, it does not become necessary for practical purposes to consider a third question, whether the force used was in fact necessary for defence.... Moreover, if the nature of an assault was such as to cause reasonable apprehension of death or grievous bodily harm, and the accused believed (which must mean honestly believed) on reasonable grounds that he could not preserve the person defended from death or grievous bodily harm otherwise than by using the force that he did in fact use, it must follow that the force in fact used was no more than the accused honestly and reasonably believed to be necessary for defence. In other words, if the jury consider that the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm, and that the accused believed, on reasonable grounds, that he could not otherwise preserve the person defended from death or grievous bodily harm, or if they are left in doubt on those matters, the issue must be decided in favour of the accused and a verdict of acquittal must be entered, since on that hypothesis the jury could not be satisfied that the force used was more than the accused reasonably believed to be necessary to preserve the person defended from death or grievous bodily harm.”

This statement of Gibbs J was approved in Marwey v. The Queen[dxxxv]¹⁵.

In the light of R. v. Muratovic[dxxxvi]¹⁶ and Marwey v. The Queen[dxxxvii]¹⁷ the question to be asked is whether the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm except by using the force that he did and not whether what he did was reasonably necessary to preserve him from death or grievous bodily harm.

Earlier in his judgment the trial judge had found that:

“The accused in the circumstances, had a reasonable apprehension of grievous bodily harm and reasonably believed it was necessary to use force in self-defence.”

Upon that finding and in the light of the two abovementioned cases he should have acquitted the appellant. Unfortunately he went on to ask the wrong question and thus fell into error.

In the instant case the appellant was faced with the situation where a gun which he did not know was not loaded was pointed at him accompanied by a threat to shoot. The billhook was the nearest weapon to hand and its use with such deadly effect must have been intuitive. As Taylor J said in R. v. Howe[dxxxviii]¹⁸:

“Moreover action in self-defence is instinctive and does not wait upon a precise appreciation of the exigencies of the occasion or upon the formation of a belief concerning the precise measures which are necessary.”

And Holes J said in Brown v. United States of America[dxxxix]¹⁹ albeit in a slightly different context:

“Detached reflection cannot be demanded in the presence of an uplifted knife.”

I find that the force used was not excessive. I agree that the appeal should be allowed, the conviction quashed and the sentence set aside.

ORDER OF THE COURT.

Leave granted as sought. Appeal allowed; conviction and sentence quashed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the State: K. B. Egan, Public Prosecutor.

R> R>

[dxxi]Infra p. 318.

[dxxii] [1950] 1 All E.R. 449 at p. 471.

[dxxiii][1970] UKPC 2; [1971] 1 All E.R. 1077 at p. 1088.

[dxxiv][1974] P.N.G.L.R. 23.