The State v Ephraim Ria Boa (2008) N3436

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Citation: (2008) N3436
• Docket Number: CR NO 112 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3436

Full Title: CR NO 112 OF 2007; The State v Ephraim Ria Boa (2008) N3436

National Court: Cannings J

Judgment Delivered: 22 August 208

N3436

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 112 OF 2007

THE STATE

V

EPHRAIM RIA BOA

Kimbe: Cannings J

2008: 21, 22, 24 July,

22 August

VERDICT

CRIMINAL LAW – trial – wilful murder – defence of self-defence – elements of defence – whether accused intended to kill deceased – whether the accused intended to do grievous bodily harm.

The accused was indicted for the wilful murder of a fellow villager, the State’s case being that the accused staged an unprovoked attack on the deceased and cut him with a bushknife. The accused admitted cutting the deceased, thereby killing him, but says he acted in self-defence. There were no eyewitnesses to the incident, other than the accused, who gave sworn evidence.

Held:

(1) The medical evidence showed that the deceased suffered two separate and serious injuries and the reasonable inference is that each one was, by itself, sufficient to disable a person and prevent a further attack by him.

(2) The State proved beyond reasonable doubt that the accused did not believe on reasonable grounds that he could not otherwise defend himself and that he used more force than was necessary. Therefore the defence of self-defence was not available.

(3) There was no other defence available to the accused. Therefore his killing of the deceased was unlawful.

(4) The State failed to prove that the accused intended to kill the deceased but proved that he intended to cause him grievous bodily harm.

(5) Accordingly the accused was convicted of murder.

Cases cited

The following cases are cited in the judgment:

R v Kaiwor Ba [1976] PNGLR 90

R v Kambe Pare [1965] PNGLR 321

The State v Albert Gias (2005) N2812

The State v David Yakuye Daniel (2005) N2869

The State v Lenny Banabu (2005) N2871

The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07

The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07

Abbreviations

The following abbreviations appear in the judgment:

cm – centimetres

CR – criminal case

J – Justice

K – Kina

N – National Court judgment

No – number

PMV – Passenger Motor Vehicle

PNGLR – Papua New Guinea Law Reports

v – versus

TRIAL

This was the trial of an accused charged with wilful murder.

Counsel

F Popeu, for the State

R Awalua, for the accused

22 August, 2008

1. CANNINGS J: Ephraim Ria Boa, the accused, from Garille village in the Talasea area of West New Britain, is charged with the wilful murder of a fellow villager, Ben Hole, at Garille, on the afternoon of Wednesday 16 November 2006. The State’s case is that the accused, aged in his 20s, staged an unprovoked attack on the 40-year-old deceased man.

2. The accused admits to cutting the deceased with a bushknife but says that he was acting in self-defence as Ben Hole was attacking him. There was no eyewitness to the incident other than the accused, who gave sworn evidence.

ISSUES

3. The offence of wilful murder is created by Section 299 of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

4. There was no suggestion that Ben Hole died from any cause other than the bushknife wounds inflicted on him by Ephraim Boa. The first element of the offence has been proven: Ephraim Boa killed Ben Hole.

5. It is the second and third elements that are contentious. The defence case is that the killing was lawful as Ephraim acted in self-defence, as prescribed by Section 269(2) of the Criminal Code, so the second element is not satisfied. If that defence is rejected and, as it is the only defence put forward, the killing will be regarded as unlawful and the second element will be proven.

6. The court would then proceed to the third element. If the State proves beyond reasonable doubt that Ephraim intended to kill Ben Hole, Ephraim will be convicted of wilful murder. If that is not proven, an alternative verdict of murder or manslaughter can be entered.

7. The three principal issues before the court therefore are:

· Did Ephraim Boa act in self-defence?

· If not, did he intend to kill Ben Hole?

· If he did not intend to kill him, should Ephraim Boa be convicted of some other offence?

DID EPHRAIM BOA ACT IN SELF-DEFENCE?

The accused’s evidence

8. Ephraim Boa gave sworn evidence that he went to his block to collect coconuts and was about to climb a tree. He was caught by surprise when Ben Hole came from behind, swore at him (saying bad things about his mother) and said that he was going to kill him. Ben ran towards him with a knife, to cut him, and was aiming at his neck. Ben was a big man, physically. Ephraim said he tried his best to run away but Ben was rushing at him and was only five or six metres away. He realised at that moment that if he kept on running it would be easy for Ben to cut him on his back and kill him, so he turned around and faced him.

9. He moved to Ben’s side and cut him on the back of his neck. That did not stop Ben who swung his knife again, this time at his head. He (Ephraim) avoided the bushknife again and then cut Ben again, this time on the face. Ben fell and he (Ephraim) ran away.

10. It was put to Ephraim in cross-examination that he could have easily run away as Ben Hole is a big man. He replied that if he ran away it would have been easy for Ben to cut him on his back as Ben was very close to him. That is why he turned around to fight.

11. Asked how Ben could have possibly come at him again after copping a serious cut to the back of the neck, Ephraim was adamant that Ben had fought back. It all happened in the space of 10 or 20 seconds. Ephraim denied that Ben died instantly after copping the first cut.

12. Ephraim said that Ben Hole was a well known bighead, a violent man, who had caused a lot of problems in the village over many years. People were afraid of him. Ben had moved on to land that he did not own and grown coconuts on it. There was a long running dispute between Ephraim’s lain and Ben’s lain about who owned the land. The village people had complained to the police about Ben Hole’s violent conduct but nothing had been done. The disputed land was next to a block that Ephraim owned, which was not in dispute. To get to his own block, Ephraim had to walk through the disputed land. The coconut tree that he was about to climb is on the disputed land.

13. Ephraim denied when it was put to him in cross-examination that he had gone to the scene, specifically to wait for Ben Hole to come along so that he could kill him.

Elements of the defence

14. As the accused has given evidence in support of self-defence, the onus is on the State to disprove one or more elements of the defence beyond reasonable doubt, those elements being that:

· the accused was unlawfully assaulted; and

· the accused did not provoke the assault; and

· the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and

· the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

· the accused used such force as was necessary for his defence.

15. If the State cannot disprove at least one of those elements – ie where all of them exist – the defence of self-defence will succeed. The force used by the accused will be regarded as lawful, even if it caused the death of the assailant. (Authorities for these principles are in my decisions in The State v Albert Gias (2005) N2812, The State v Lenny Banabu (2005) N2871 and The State v Sailas Anjipi (2007) CR No 1483/2006, 16.03.07 (where the defence of self-defence succeeded) and The State v David Yakuye Daniel (2005) N2869 (where the defence failed).)

Questions to be answered

16. I will restate the elements of the defence by posing five questions:

1 was the accused unlawfully assaulted?

2 did the accused not provoke the assault?

3 was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

4 did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

5 did the accused use only such force as was necessary for his defence?

17. The State must prove that the answer to one or more of these questions is ‘no’. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

18. I will now address each question in turn.

1 Was the accused unlawfully assaulted?

19. This cannot be ruled out as a possibility. There was long running animosity between Ephraim’s lain and Ben Hole, which would explain Ben being angered when he saw Ephraim about to collect coconuts from the disputed land – coconuts that Ben believed, rightly or wrongly, were his own. There was also evidence from Ben’s widow, Placidia Meta, of an incident the day before Ben died in which she caught Ephraim trying to get an oil palm harvesting pole from their oil palm block. She told Ephraim to leave it there and he did that and went away. However, that incident...