The State v Junior Paul Paina

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 November 2014
• Citation: (2014) N5819
• Court: National Court
• Year: 2014
• Judgement Number: N5819

Full : CR NO 255 OF 2014; The State v Junior Paul Paina (2014) N5819

National Court: Cannings J

Judgment Delivered: 21 November 2014

N5819

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 255 OF 2014

THE STATE

V

JUNIOR PAUL PAINA

Madang: Cannings J

2014: 4, 16 June, 17 July, 11 September, 20, 21 November

CRIMINAL LAW – murder – Criminal Code, Section 300(1) (murder) – elements of the offence – whether the accused killed the deceased – whether the accused intended to do grievous bodily harm

CRIMINAL DEFENCES – defence of self-defence: Criminal Code, Section 269 (self-defence against unprovoked assault) – partial defence of provocation; Criminal Code, Section 303 (killing on provocation)

The accused was charged with murder under Section 300(1)(a) of the Criminal Code. The deceased was a man who the accused alleged had stolen betel nut from him. The accused admitted cutting him with a bushknife and causing his death but raised the defences of self-defence and provocation.

Held:

(1) There are two elements of murder under Section 300(1)(a): that the accused killed the deceased and that the accused intended to cause grievous bodily harm to the deceased (or some other person).

(2) If both elements are proven, it is open to the accused to give evidence in support of the defences of self-defence (under Criminal Code, Section 269) or provocation (under Criminal Code, Section 303).

(3) Self-defence under Section 269 is a complete defence in that if it applies it results in a complete acquittal, whereas provocation under Section 303 is a partial defence in that if it applies it results in a conviction for manslaughter, not murder.

(4) Here the State proved that the accused killed the deceased and that he intended to do him grievous bodily harm.

(5) As to the defence of self-defence the evidence of the accused was not credible and the State disproved the defence.

(6) As to the defence of provocation the State disproved the defence by proving that the accused did not act in the heat of passion caused by sudden provocation.

(7) The accused was accordingly found guilty of murder, as charged.

Cases cited

The following cases are cited in the judgment:

R v Nikola Kristeff (1967) No 445

R v Oa [1967-1968] PNGLR 1

Tapea Kwapena v The State [1978] PNGLR 316

The State v David Yakuye Daniel (2005) N2869

The State v Inawai Moroi [1981] PNGLR 132

The State v Silas Anjipi (2007) N4963

The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

This was the trial of an accused charged with murder.

Counsel

M Pil, for the State

A Meten, for the accused

21st November, 2014

1. CANNINGS J: This is the verdict in the case of the accused, Junior Paul Paina, who has been indicted for the murder of Daniel Salawai. The accused pleaded not guilty so a trial was held.

2. The State alleges that the accused cut the deceased with a bushknife, intending to do him grievous bodily harm and causing his instant death, at Arra in the Transgogol area of Madang Province, on Friday 15 November 2013. The State’s case is based on the eyewitness evidence of the deceased’s wife and on the evidence of the Police officer who arrested the accused soon after the incident and interviewed him.

3. The accused gave sworn evidence. He did not dispute that he cut the deceased but denied that it was his intention to kill him or do him grievous bodily harm. He said that earlier that day the deceased had trespassed on to his land, cut down trees and stolen betel nut. He raised defences of self-defence and provocation.

UNDISPUTED FACTS

4. A number of undisputed facts have emerged from the evidence:

· The incident took place at approximately 3.00 pm on Friday 15 November 2013 at Arra hamlet in the Transgogol area of Madang District, Madang Province.

· The accused was then aged 32, the deceased was 28.

· The accused cut the deceased on his back with a bushknife, inflicting a wound that proved fatal, in that the deceased died almost instantly due to hypovolaemic shock (sudden loss of circulating blood).

· The deceased’s wife was in the vicinity and has given evidence of what she saw.

· Immediately before cutting him, the accused confronted the deceased with the allegation that he had stolen betel nut from his garden early that morning.

ISSUES

5. The accused has been charged with murder under Section 300(1)(a) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: …

if the offender intended to do grievous bodily harm to the person killed or to some other person.

6. The two elements of the offence are that:

· the accused killed the deceased; and

· he intended to do grievous bodily harm.

7. If the court is not satisfied that the first element is proven, an alternative verdict of unlawfully doing grievous bodily harm or a similar offence can be considered, under Section 539(4) of the Criminal Code. If the court is satisfied that the first element is proven but not the second, an alternative verdict of manslaughter can be considered under Section 539(2). If the Court is satisfied that both elements have been proven it will then consider whether either of the defences raised by the accused apply. The primary issues are:

1 Did the accused kill the deceased?

2 Was there an intention to do grievous bodily harm?

3 Does the defence of self-defence apply?

4 Does the defence of provocation apply?

1 DID THE ACCUSED KILL THE DECEASED?

8. Resolution of this issue requires a:

· summary of evidence for the State;

· summary of evidence for the defence;

· formal determination of the question whether the accused killed the deceased.

Evidence for the State

9. Two witnesses gave oral evidence for the State, as summarised in the following table, and various exhibits were admitted into evidence by consent.

Oral evidence

No	Witness	Description
1	Angela Pundi	Wife of deceased
Evidence: On the afternoon of 15 November 2013 she was standing on the roadside waiting for her husband to return from his village, Kagi. She was holding their baby and spoke to her mother, then her husband approached. She then saw the accused come from behind her husband and cut him with a bushknife. She was standing only about ten metres away. She ran over to her husband but he was badly wounded on the back, the ribs and the side of his body, and dying. The accused told her that he had cut her husband as he had stolen his betel nut, but she saw no evidence of that. She knows the accused and was able to identify him easily. She had been with her husband until midday, then they went their separate ways, then he came back and this incident happened at about 3.00 pm. He had told her that he was going to his village to visit his family. She did not have an argument with him. She did not see him holding a bushknife. She saw clearly what happened. She did not observe any argument between the accused and her husband. The accused just came from behind and cut him. The accused swung the bushknife once. Her husband was not running away from the accused at the time he was cut. He ran a short distance after he was cut but collapsed and died.
2	Constable Nelson Salingana	Police investigating officer, Bawan Police Station
Evidence: He was on duty on the afternoon of 15 November 2013 – he received a phone call from the Local-level Government President who said that there had been a death at Arra – he went to the scene of the incident, arriving at 4.00 pm – stayed for a couple of hours and told the deceased’s relatives not to retaliate – located the accused, who had been identified as the only suspect, at his village at 6.30 pm – the accused told him that he had been waiting for the Police to come and get him – the accused gave up his bushknife and said that ‘this is the bushknife I used to cut the victim’ – he cooperated – took him to Jomba Police Station and locked him up there – he took photos of the deceased’s body with his personal camera as there were no other facilities available. He later conducted the interview of the accused, in which the accused made admissions and explained that the deceased had earlier that day gone to his area and stolen betel nuts.

Exhibits

· Post-mortem report and certificate of death: Dr Jiuth Gawi conducted the post-mortem examination – the cause of death was “bilateral hemothorax [sic] and hypovolaemic shock due to blood loss”; the deceased was “noted to have a deep horizontal bushknife wound across the posterior chest through the 7th thoracic vertebrae and through the posterior 7th intercostals right and left spaces of the chest”. External injuries recorded were “Bushknife wound through the 7th thoracic vertebrae and through the 7th intercostal spaces of right and left chest region, wound measuring 32 cm x 9 cm with depth of 15 cm”.

· Record of interview of accused – the deceased stole ten bunches of betel nut and cut...