The State v Lenny Banabu (2005) N2871

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 June 2005
• Citation: (2005) N2871
• Court: National Court
• Year: 2005
• Judgement Number: N2871

Full Title: The State v Lenny Banabu (2005) N2871

National Court: Cannings J

Judgment Delivered: 8 June 2005

N2871

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1546 0F 2003

THE STATE

V

LENNY BANABU

KIMBE : 12, 16 MAY, 8 JUNE 2005

CANNINGS J

VERDICT

Criminal Law – indictable offences – Criminal Code, Division V.3, Homicide etc – Section 299, wilful murder – trial – accused pleaded not guilty – fight between accused and deceased – domestic dispute – self-defence raised – elements of the offence of wilful murder – elements of the defence of self-defence – prosecution has onus of disproving self-defence – prosecution must establish that one or more elements are not present.

The accused was charged with the wilful murder of a neighbour at Buvussi, West New Britain. It was alleged that the deceased and the accused fought over a land and family related matter. In the course of the fight, the accused hit the deceased on the head with a lump of timber. The deceased died as a direct result of the blow. The accused claimed that he was acting in self-defence as he had been hit first by the deceased.

Held:

(1) In determining whether the defence of self-defence applies, if the accused adduces sufficient evidence to legitimately raise the defence the prosecution has the onus of proving, beyond reasonable doubt, that at least one of the elements of the defence did not apply. R v Nikola Kristeff (1967) No 445 applied.

(2) In this case that onus was not discharged. The defence of self-defence therefore applied.

(3) Self-defence is a complete defence. Therefore the accused was acquitted.

Cases cited

The following cases are cited in the judgment:

Eiserman v Nanatsi [1978] PNGLR 457

R v Kaiwor Ba [1976] PNGLR 90

R v Kambe Pare [1965] PNGLR 321

R v Nikola Kristeff (1967) No 445

Tapea Kwapena v The State [1978] PNGLR 316

The State v Albert Gias (2005) N2812

The State v Angela Colis Towavik [1981] PNGLR 140

The State v Leah Tununto (1990) N947

The State v Leonard Masiap [1997] PNGLR 610

The State v Matilda Edward (2004) N2726

The State v Michael Nema Melpa (2003) N2450

The State v Misari Warun (1989) N753

The State v Rose Yapihra (1997) N1741

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

Counsel

L Rangan for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the verdict for a man who pleaded not guilty to a charge of wilful murder.

BACKGROUND

Incident

The incident giving rise to the charge took place at Buvussi oil palm settlement, West New Britain, in July 2003. It is alleged that an Eastern Highlander, Amos Anaupi, was struck on the head with a piece of timber by the accused during the course of a fight and died as a result of the injuries he received.

Indictment

On 12 May 2005 the accused was brought before the National Court and faced the following indictment:

Lenny Banabu of Ambasi, Ijivitari, Popondetta in Oro Province, stands charged that he on the 17th day of July 2003 at Buvussi in Papua New Guinea wilfully murdered Amos Anaupi.

The indictment was presented under Section 299 of the Criminal Code.

Arraignment

The following allegations were put to the accused for the purposes of obtaining a plea.

The State allege that the accused was at his in-laws’ block at Buvussi, Section 5, Block No 1202. He was there as a caretaker as the block belongs to the parents of his wife. These people come from the Kainantu District of the Eastern Highlands Province. The accused had for some time been having quarrels with his wife and her wantoks were upset about this. In the late afternoon of 17 July 2003 wantoks of the accused’s wife went to the block for the purposes of telling him to leave the block. They had been consuming liquor. Shortly before this happened the deceased had gone to see the accused by himself and the two of them had fought. The deceased had left the accused and gone back to see his wantoks. He convinced them that they should go back to where the accused was staying and ask him to leave the block. When they arrived at the block the accused was sitting on the steps of his house and another argument ensued. During the course of this argument the accused started fighting with the deceased and the deceased’s wantoks. The accused, upon being assaulted and feeling pain, got a piece of timber and hit the deceased over the head with it. The deceased fell to the ground and was taken to the local clinic but died soon afterwards. The accused intended to kill the deceased.

The accused responded that some of the allegations were true. He hit the deceased with a piece of timber, but he did not mean to kill him.

I therefore entered a plea of not guilty.

THE LAW

Section 299 states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

There are several other provisions of the Criminal Code that might apply in this case:

· Sections 269 and 270 deal with the circumstances in which a killing in self-defence is lawful;

· Section 302 creates the offence of manslaughter;

· Section 539(1) provides that on an indictment charging a person with wilful murder, he may be convicted of the crime of murder, manslaughter or some other offence, as prescribed.

THE STATE’S CASE

Outline

The State tendered six exhibits by consent and called two witnesses to give oral evidence.

The exhibits

Column 1 of the table below gives the exhibit number; column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS

Exhibit Description Content

A Post-mortem report, Body of the deceased examined on 30.07.03. Cause of death:
medical certificate of subdural haematoma/raised intracranial pressure –
death and affidavit: significant findings: subdural haematoma; brain
Dr Sammy Thomas, swelling/oedema.
Kimbe General
Hospital, 30.07.03

B Affidavit: Tau Archie, Obtained confessional statement on 05.08.03 and conducted
investigating officer, interview on 07.08.03.
CID, Kimbe Police
Station, 05.09.03

C Affidavit: Rhema Corroborated confessional statement and interview of
Luckie, CID, Kimbe accused on 05.08.03 and 07.08.03.
Police Station,
05.09.03

D Confessional States that on 17.07.03 he was preparing dinner and waiting
statement: Lenny for his children to come home from school – the children
Banabu, 05.08.03 came home and they began eating – then Amos Anaupi came
onto his block and went straight to the kitchen where he and
the children were eating – Amos started punching him and
destroying the children’s dinner – so he and Amos began
fighting – then Amos said he would go and get his brothers
and they would come back and fight with him – Amos left
the block – then he came back later with his brothers, Iyae
Amimi, Benson Iyae and Ruben Raiu – they were all drunk –
he was sitting on the steps of the house and they came and
surrounded him and began swearing at him – then Amos
punched him on his chest so he retaliated by punching Amos
on his face – then the others started fighting him – then
Amos pulled out a bushknife from the side of his trousers
and decided to chop his neck – but Thomas Camillus, who
was standing by, held on to the bushknife and threw it into
the bush – after the knife was taken from him, Amos got a
piece of timber and hit him (the accused) on the head –
blood ran down his head and covered his face and he fell
down – he saw a piece of timber on the ground so he picked
it up and hit Amos on the head – “at the same time I told all
these guys that this is my premises and you guys came to kill
me, so I will kill any of you too” – he hit Amos on the head
the second time and that’s when Amos fell down – he, (the
accused) also felt dizzy and fell down and was taken to
Buvussi Health Centre.

E1/E2 Record of interview: States that when the incident occurred on Thursday 17 July
Lenny Banabu, 2003 he was at his house with his children – he denied that
13.08.03 he attacked Amos Anaupi and his relatives – but it is true
that Amos Anaupi came with his relatives to his block and
they all fought – denied that his friends and the accomplices
came to his aid – admitted hitting the deceased on the head
with a piece of timber.

F Medical report: A States that Lenny Banabu, the accused, was admitted to the
Ningiura , HEO, health centre on 17.07.03 – on examination, his vitals were
Buvussi Health stable, laceration on the left side of the eye about 1 cm deep
Centre, 12.08.03 and 2 cm long – also a laceration in the centre of the head, 3
cm deep and 5 cm long – examined and sutured under local
anaesgia – x-ray taken.

Oral evidence

The first witness for the State was Rodney Iyae. He is 17 years old and attends Hoskins Secondary School. He is in Grade 10 and lives at Buvussi. He is from Ikana village, in the Kainantu District of Eastern Highlands Province.

He recalls the incident of 17 July 2003. He heard that the accused had assaulted his wife and his wife had run away to the village. His wife comes from Ikana. The wife...