The State v Jefferey Bijuma

• Jurisdiction: Papua New Guinea
• Judge: Barnett J
• Judgment Date: 16 August 1989
• Citation: (1989) N765
• Court: National Court
• Year: 1989
• Judgement Number: N765

National Court: Barnett J

Judgment Delivered: 16 August 1989

N765

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR: 1039/87

THE STATE

-V-

JEFFEREY BIJUMA

Popondetta

Barnett J

7-11 August 1989

14-16 August 1989

CRIMINAL LAW — Murder — Manslaughter — self defence against unprovoked assault — use of excessive force in self defence — Defence of extra — ordinary emergency rejected — Unlawful killing not excused by law.

In a very brief struggle between two Ministers of the Oro Provincial Government the accused drew a knife and stabbed the deceased in the throat causing instant death. It was done in self defence against an unprovoked assault but the force used was excessive. The accused's intention was to defend himself and in these circumstance that was a lawful purpose even though the force used was excessive. For this reason it was not a killing done in the course of an unlawful purpose and he was therefore not guilty of murder. As the force used was excessive however and not justified by s 269 of the Criminal Code (self defence against unprovoked assault) the killing was unlawful and constituted the crime of manslaughter.

Verdict:

Guilty of manslaughter contrary to s 302 of the Criminal Code.

Sentence:

Two years in hard labour.

BARNETT J: The accused has been indicted for Murder under s 300 of the Criminal Code. The following facts are uncontested:

1. The accused and the deceased were both Ministers in the Oro Provincial Government and there was a history of a recent dispute between them which had resulted in a fight and in damage to property.

2. On the 24th of July 1987 between 1 and 2 p.m the accused was waiting inside the Finance Cash office while Incytrix Edgar was searching amongst a pile of cheques for one made out to the accused.

3. It was a very small and crowded office measuring about 6 x 6 metres. It was divided in half by a chest high partition which commenced a few feet from one side wall (leaving a small gap blocked by a table) and ended about 1.5 metres from the other side wall (leaving a small gap through which the public had access to staff serving behind the partition. On the customers' side of the partition customers would enter through the front door (which opened inwards) and be immediately confronted by a table at which the new typist Beromina Moiun sat. On the far side wall was another table at which Incytrix Edgar normally sat facing Beromina. That table was on the customer's side of the partition near the access gap.

On the staff or far side of the partition were two tables (up against the back of the partition. Fiona Gadebo worked on the table furthest from the access gap. At the time of the incident Incytrix was standing at the second table near Fiona (between Fiona and the access the gap) searching for the accused's cheque and the accused was standing in the access gap waiting. He had a sharp "kitchen knife with a 5" pointed blade in his hip pocket.

4. The deceased walked in the front door, paused, saw the accused, and said "Yu tasol" meaning "you are the one!" and moved swiftly towards him.

5. At that time Fiona was sitting at her desk and Beromina Moiun was sitting at her desk. State witness Kelly Kamura was standing on the customer side of the partition talking to Fiona over the partition. Incytrix had left her own desk and was behind the partition at the table next to Fiona standing with her front towards the partition sorting through cheques.

6. A scuffle started between the deceased (a taller, younger man) and the accused (a shorter, older but well built man)

What happened next is contested. Amazingly Beromina and Incytrix were so shocked and filled with panic that they saw nothing of the struggle in their haste to get out of the way. Fiona saw the struggle commence with a glimpse from her left eye and immediately climbed on her table in order to exit through the little gap between the wall and the partition in front of her table. She saw "blows exchanged" and "hands moving". It was so quick and her departure was so swift that she is not able to say whose hands were moving but obviously she realised a fight was starting.

While on top of her table she saw that the deceased was already on the floor in the access gap with blood near his head and the accused was running out the door. She then ran out herself.

Incytrix said she heard Fiona scream and saw her climbing the table. She immediately turned away from the struggle and moved towards Fiona and tried unsuccessfully to climb the table (she was too short and heavy) she turned back to escape through the access gap and saw deceased already on floor with blood pouring from his throat. The accused had already gone. She then walked around the body went through the access gap and headed for the front door just as Copland Gewa and Vincent Bakau entered.

Kelly's evidence shows that he got a better look at the commencement of the struggle. He heard the words "Yu tasol" and saw the accused turning to face the deceased who was moving towards him. He saw them meet face to face and each place his hands on the upper part of the others body around the shoulder and neck area. The deceased was the more aggressive of the two and the force of his motion pushed the accused through the gap and up against the back wall. Neither person held anything in his hands. The accused had his back against the back wall retaliating strongly (seems pushing at deceased's chest) and neither had a weapon.

Kelly went through the front door half jumping half running and ran three paces to the right stopped and turned to face back towards the front door. The accused had already come outside and was moving towards the bystanders and said "You stay here" opened the car door and got in shouting "take off take off!". The car sped off.

Copland Gewa swore he heard screams and saw people rush out the front door. As he tried to enter he bumped against the accused who was coming out carrying a blood stained knife in his right hand. When he got inside the room he saw the deceased lying just inside the access gap with blood pouring from his neck. Incytrix was just stepping around the body to get through the access gap on her way to the front door. Kelly than returned and Gewa and Kelly examined the dying man. Kelly tried to apply pressure to stop the bleeding but his thumb went right inside...