Henry v State [2022] PGSC 75; SC2266 (29 July 2022)

SC2266

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 72 OF 2020

JULINA HENRY

V

THE STATE

Waigani: David, Berrigan, Gora JJ
2022: 24^th May and 29^th July

REVIEW – CRIMINAL LAW - S 269(2) of the Criminal Code – Self-defence from unprovoked attack - Whether State excluded beyond reasonable doubt the possibility that the applicant believed on reasonable grounds that the force used was necessary to preserve herself from death or grievous bodily harm.

The applicant and the deceased were married to the same man. The trial judge found that one morning the applicant went to the settlement where her husband lived with the deceased to look for her son. She did not go there with any ill will. She was not armed. The deceased’s sister-in-law, however, regarded the applicant as “birua meri” (an enemy), and upon the applicant’s arrival at the settlement ran to the deceased, telling her to expect trouble, and gathered up other relatives. The deceased had been drinking. She came out of the house with a knife and tried to stab the applicant. The applicant reacted and disarmed the deceased. By that stage, the deceased’s armed relatives had surrounded her and were calling “pelei” (“fight, fight”). In those circumstances, the applicant swung the knife from side to side to fend off the deceased and her relatives, and then ran away. In the process of doing so she unwittingly stabbed the deceased, once, ultimately causing her death.

Held:

(1) For the purposes of self-defence under s 269(2) of the Criminal Code, the questions to be considered are: a) was there an unlawful assault on the accused (or someone else)?; b) was the assault unprovoked?; c) was the nature of the assault such as to cause reasonable apprehension of death or grievous bodily harm?; and d) did the accused himself or herself believe on reasonable grounds that he/she could not preserve himself/herself (or the person being protected) from death or grievous bodily harm except by using the force that he/she in fact used?

(2) Where the evidence of self-defence has been fairly raised the essential question for the purposes of s 269(2) of the Criminal Code is whether the State has negatived beyond reasonable doubt the possibility that the accused believed on reasonable grounds that the force used was necessary to preserve him or herself (or the person protected) from death or grievous bodily harm: Tapea Kwapena v The State [1978] PNGLR 316 at 319.

(3) The trial judge’s findings did not establish an intention to cause grievous bodily harm on the part of the appellant.

(4) Furthermore, it was not possible, on those findings, for the learned trial judge to conclude beyond reasonable doubt that the applicant did not believe on reasonable grounds that the force used was necessary to preserve herself from death or grievous bodily harm.

Cases Cited:

Mark Bob v The State (2005) SC808
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305
R v Gray (1998) A Crim R 589
Tapea Kwapena v The State [1978] PNGLR 316
The State v James Paru (2021) N9109
The State v Naomi Kerenge (1997) N1623
The State v Pati Kamale and Ors (2004) N2751
Cosmas Kutau Kitawal and Christopher Katau v the State (2007) SC927

References Cited

Section 155(2)(b) of the Constitution
Sections 243, 269(2) of the Criminal Code

Counsel

Mr J. Unua with L. Giyomwanauri, for the Appellant
Mr D. Kuvi, for the Respondent State

DECISION ON REVIEW

29^th July, 2022

1. BY THE COURT: The applicant was indicted with the wilful murder of Naomi Henry, contrary to s 299 of the Criminal Code. The learned trial judge found following trial that the applicant did not intend to kill the deceased but intended to cause grievous bodily harm to her, or at least one of the other persons present at the time. The applicant was convicted of murder and sentenced to 13 years of imprisonment.
   
2. The applicant failed to file her appeal within time but was granted leave to review conviction and sentence pursuant to s 155(2)(b) of the Constitution by a single Supreme Court judge on the basis of the following grounds (verbatim): a) my case is a self-defence case; b) I reacted to provocation by my husband’s second partner; c) I had no intention to kill the deceased; and d) I accepted criminal responsibility by early admittance and confession to the police; and e) my children’s welfare was not considered by the trial judge.
   
3. The Office of the Public Solicitor was directed to act for the applicant. On 22 April 2022 it filed an Application for Review pursuant to Order 5 Rule 4 of the Supreme Court Rules in the following terms: a) the learned trial judge erred in law by not taking into consideration that the applicant was provoked by her husband and his second wife (the deceased); b) the applicant had no intention to kill the deceased; c) the learned trial judge erred in not considering the welfare of the applicant’s children when sentencing the applicant; and d) the learned trial judge failed to consider the applicant’s own facts and circumstances when sentencing the applicant to 13 years of imprisonment.
   
4. It is well established that the discretion to grant a review pursuant to s155(2)(b) of the Constitution when an applicant has lost the right to appeal will be exercised only in exceptional circumstances. Leave for such purposes will only be granted on satisfaction that: a) it is in the interests of justice to grant leave; b) there are cogent and convincing reasons and exceptional circumstances, such that some substantial injustice is manifest or the case is of special gravity; and c) there are clear legal grounds meriting a review of the decision: Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305.
   
5. Having obtained leave for review on all grounds identified on the application for leave, the Public Solicitor appears to have mistakenly omitted the one ground that was clearly arguable, such that this was a “self-defence case”. It is in the interests of justice that we consider, as a ground of review, that the trial judge erred in rejecting the applicant’s claim of self-defence. Both parties were given the opportunity to address this issue on the hearing of the appeal.
   
6. It is our view that on the issue of self-defence, some substantial injustice is manifest on the face of the record and that the review must be allowed.
   

S 269(2) of the Criminal Code: Self-defence against unprovoked assault

7. Section 269 of the Criminal Code provides:
   

SELF-DEFENCE AGAINST UNPROVOKED ASSAULT.
(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.
(2) If–
(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b) the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,
it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

8. Section 243 of the Criminal Code defines assault as follows:

(1) A person who–
(a) directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or
(b) by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,
is said to assault that other person, and the act is called an assault.
(2) A reference in Subsection (1) to the application of force includes a reference to the application of heat, light, electrical force, gas, odour, or any other substance or thing in such a degree as to cause injury or personal discomfort.

9. Section 269(1) of the Criminal Code contains the following elements:
   
   • (a) there was an unlawful assault on the accused;
   • (b) which was not provoked by the accused
     

AND the force used by the accused was:

(c) reasonably necessary to make an effectual defence against the assault;
(d) not intended to cause; and
(e) was not likely to cause, death or grievous bodily harm.

10. The test as to whether the force is reasonably necessary in s269(1) is objective.
    
11. By comparison, none of the three conditions in s 269(1) as to force appear in s 269(2). As such where there is an unlawful and unprovoked assault only two conditions need to be satisfied for self-defence to be available under that subsection:
    
    • (a) The nature of the assault must be such as to cause reasonable apprehension of death or grievous bodily harm; and
    • (b) The accused must believe on reasonable grounds that he or she cannot otherwise preserve the person being defended from death or grievous bodily harm.
      
12. As explained by McPherson JA, with whom Davis JA and Fryberg J in R v Gray (1998) A Crim R 589 agreed, when considering the equivalent provision in the Criminal Code of Queensland, on which ours is modelled:
    

“[T]here is plainly a difference between the mental condition predicated of a defender under s [269(1)] and under s [269(2)]. In the case of s [269(1)], the degree of force used must be “reasonably necessary” to make “effectual defence” against the assault. The criterion in that instance is objective and does not concern itself with the defender’s actual state of mind. In the case of s [269(2)], it is, at least in part, subjective. The defender must believe that what he is doing is the only way he can save himself or someone else from assault. He must hold that belief “on reasonable grounds”; but it is the existence of an actual belief to that effect that is the critical or decisive factor. There is no additional requirement that the force used to save himself or someone else must also be, objectively speaking, “necessary” for the defence.””

13. Accordingly, where an assault on the accused (or the person being defended) is unprovoked, an accused may use such force “reasonably necessary” to make “an effectual defence” against the assault, pursuant to s 269(1). The test in that instance is objective and does not concern itself with the accused’s actual state of mind.
    
14. Pursuant to s 269(2), however, an accused may use force likely to cause death or grievous bodily harm if the nature of the unlawful assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the accused himself or herself believes on reasonable grounds that doing so is the only way to save himself or herself (or the person being protected) from an unprovoked and life threatening assault: Tapea Kwapena v The State [1978] PNGLR 316 at 319; see also Gray; R v Messant [2011] QCA 125. But see The State v James Paru (2021) N9109 at [37] to [42] as to the essential differences between s269(2) and s270 of the Criminal Code, the latter of which applies where the assault is provoked.
    
15. The question to be asked therefore for the purposes of s 269(2) of the Criminal Code is whether the accused believed on reasonable grounds that he/she could not preserve himself/herself (or the person being protected) from death or grievous bodily harm except by using the force that he/she in fact used, and not whether in fact the forced used was reasonably necessary for that purpose: Tapea Kwapena.
    
16. Whilst an accused person must not establish the defence affirmatively, the evidence must point to aspects of it that could induce a reasonable doubt. Where there is none, the defence fails and no further consideration is necessary: The State v Naomi Kerenge (1997) N1623; The State v Pati Kamale and Ors (2004) N2751 adapted.
    
17. Where the self-defence has been fairly raised on the evidence, the State must negative it beyond reasonable doubt: Cosmas Kutau Kitawal and Christopher Katau v the State (2007) SC927 considered.
    
18. In those circumstances, it follows that the essential question is whether the State has negatived beyond reasonable doubt the possibility that the accused believed on reasonable grounds that the force used was necessary to preserve himself or herself (or the person protected) from death or grievous bodily harm: Tapea Kwapena.
    
19. In considering this question it should be borne in mind that a person defending themselves cannot be expected to weigh precisely the amount of force required. Reactions in such circumstances are often made instinctively, and with little time for careful consideration.
    
20. As observed in the following cases referred to by Saldhana J in Tapea Kwapena (emphasis ours):
    

“As Taylor J said in R v Howe [1958] HCA 38; (1958) 100 CLR 448:

“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 albeit in a slightly different context:

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

21. For obvious reasons, a person about to be attacked does not have to wait for his or her assailant to strike the first blow: Beckford v R [1987] UKPC 1; [1988] AC 130 per Lord Griffiths; see also Tapea Kwapena.
    
22. In summary, pursuant to s 269(2) of the Criminal Code, the questions to be considered are: a) was there an unlawful assault on the accused (or someone else)?; b) was the assault unprovoked?; c) was the nature of the assault such as to cause reasonable apprehension of death or grievous bodily harm?; and d) did the accused himself or herself believe on reasonable grounds that he/she could not preserve himself/herself (or the person being protected) from death or grievous bodily harm except by using the force that he/she in fact used?
    
23. Where the evidence of self-defence has been fairly raised the essential question for the purposes of s 269(2) of the Criminal Code is whether the State has negatived beyond reasonable doubt the possibility that the accused believed on reasonable grounds that the force used was necessary to preserve himself or herself (or the person being protected) from death or grievous bodily harm: Tapea Kwapena.
    

Consideration

24. The applicant and the deceased were married to the same man. It was the State’s allegation that at about 6:30 am on the morning of 21 July 2015 the applicant went in search of her son at the Wildlife Settlement at Erima where her husband and the deceased lived. Her husband and the deceased had been drinking. An argument arose between the two women and the applicant pulled out a long knife and stabbed the deceased, intentionally killing her.
    
25. Two witnesses were called in the State case, one was Esther, the deceased’s sister-in-law and resident of the settlement, and the other was the deceased’s daughter, Samantha, who was ten years old at the time of the alleged offence. After careful consideration, the trial judge rejected their evidence as to what happened that morning. He further found that the applicant’s version of events was supported by the medical evidence.
    
26. In particular, the trial judge found that the applicant went to the settlement that morning to see if her son was with her husband. She did not go there with any ill feeling. She was not armed. Esther, however, regarded the applicant as “birua meri” (an enemy), and upon the applicant’s arrival at the settlement ran to the deceased, “provoking her” (in the words of the trial judge), telling her to expect trouble, and then gathered up other relatives. The deceased had been drinking. She came out of the house with a knife and tried to stab the applicant. The applicant reacted and disarmed the deceased. By that stage, however, the deceased’s armed relatives were surrounding her and calling out “pelei”, meaning “fight, fight”. In those circumstances, the applicant deliberately swung the knife from side to side to fend off the deceased and her relatives, and ran away. In the process of doing so she stabbed the deceased, once, which later caused her death.
    
27. In applying s 269(2) of the Criminal Code the trial judge found that the applicant was unlawfully assaulted, and that she did nothing to provoke the assault. Furthermore, he found that the nature of the assault was such as to cause reasonable apprehension on the part of applicant that she would die or suffer grievous bodily harm. There can be no doubt about those matters on his findings of fact.
    
28. The trial judge further found, however, that once the applicant disarmed the deceased there was no longer any threat from the deceased, and no further assault on the applicant. In addition, he found that the force used was not necessary for the applicant’s defence.
    
29. With respect we cannot agree. The applicant had been assaulted by the deceased, and continued to be assaulted by the deceased and her armed relatives, who were surrounding her, calling “pelei”. By their words and gestures they threatened to apply force to the applicant’s person, without her consent, in circumstances where they clearly had a present ability to effect their purpose: see s 243(1)(b) of the Criminal Code; see The State v James Paru at [109]. The threat to the applicant in those circumstances was real and immediate.
    
30. Furthermore, given the findings of fact, the question for the purposes of s269(2) was not whether the force was necessary to her defence but whether the State had negatived beyond reasonable doubt the possibility that the applicant believed on reasonable grounds that what she did, namely swinging the knife from side to side to make good her escape, was necessary to preserve herself from death or grievous bodily harm. With great respect, the learned trial judge fell into error by asking the wrong question.
    
31. Moreover, as the trial judge himself found, albeit in the context of considering provocation (emphasis ours):
    

“She had moments earlier been put under extreme pressure of being killed. Naturally, she would not have been in her right frame of mind, that she was deprived by the provocation of self-control, and she reacted spontaneously and before there was time for her passion to cool, by swinging the knife from side to side to stop the others surrounding her to attack her... There was no actual threat of assault at that point in time. The force she used was disproportionate to the provocation and it was intended to cause and was likely to cause death or grievous bodily harm to those around her including the deceased...

She went to see her husband to find out if their son was with him at Wild Life Settlement. She was not armed. It was the deceased who was armed and tried to stab her. She reacted and disarmed the deceased. She retrieved the knife. As there were armed relatives surround her and calling out “pelei” she swung the knife and in the process stabbed the deceased. Her intention of swinging the knife was deliberate and that was to fend off the would be attackers. The likelihood of those persons to be struck with the knife was real. For the deceased the chances of being stabbed were real given her proximity to the accused.”

32. With respect to the learned trial judge, those findings do not establish an intention to cause grievous bodily harm. On those findings the applicant was trying to “fend off the would-be attackers”.
    
33. Furthermore, on the question of lawfulness, it was not possible, in those circumstances, for the learned trial judge to conclude beyond reasonable doubt that the applicant did not believe on reasonable grounds that the force used was necessary to preserve herself from death or grievous bodily harm.
    
34. Whilst it is not necessary to have recourse to the trial judge’s remarks on sentence, they summarise his findings as to what happened that day succinctly:
    

“What happened thereafter was tragic but a consequence of natural instinct. The offender was surrounded by the relatives of the deceased. To enable her to escape further threats, she swung the knife and unknowingly stabbed the deceased.”

35. Accordingly, the review must be upheld and the conviction quashed.
    
36. We make the following orders:
    
    • (1) The review against conviction is upheld.
    • (2) The finding of guilt is set aside and a verdict of acquittal entered.

_______________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent