The State v Misari Warun

• Jurisdiction: Papua New Guinea
• Judge: Brunton AJ
• Judgment Date: 25 August 1989
• Citation: (1989) N753
• Court: National Court
• Year: 1989
• Judgement Number: N753

National Court: Brunton AJ

Judgment Delivered: 25 August 1989

N753

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 962 OF 1988

THE STATE

V.

MISARI WARUN

Wabag

Brunton AJ

21-22 August 1989

25 August 1989

CRIMINAL LAW — Criminal Code ss 300 (1) (a) — murder — whether intention to cause grievous bodily harm — ss 269 — self defence against unprovoked assault — failure to negative defence of self-defence — judgment on verdict.

Verdict:

Not guilty.

Cases Cited:

R v Moses-Robert [1965-1966] PNGLR 180.

R v Nikola Kristeff [1967] Unreported Judgment No. SC445A

Counsel:

Mr. Everingham, for the State.

Mr. Takin, for the Accused.

Cur. Adv. Vult.

JUDGMENT ON VERDICT

BRUNTON AJ:

THE CHARGE

The accused pleaded not guilty to a charge that she murdered her husband Alos Tepe contrary to s 300 (1) (a) of the Criminal Code in that she allegedly stabbed him with an intent to cause him grievous bodily harm.

THE ISSUES

It was proved beyond reasonable doubt that the accused had stabbed the deceased and that as a result of the wound she inflicted that the deceased had died. The real issues on the trial were whether or not the accused had struck the fatal blow with an intention to cause him harm, whether she had struck in self-defence, or whether she was provoked.

THE STATE CASE

The State case was that on the night of the 5th of September 1988 there was a singsing at the house of Alos Tepe (the deceased) and his wife Misari Warun (the accused). A large number of people were in the house.

That at about 2-3am in the morning one James Ambong approached the accused and asked her for a laplap. James Ambong sat beside the accused on the women's side of the house and "greased" her. The accused's husband (the deceased) heard what was going on, he came out and told Ambong to leave. As Ambong got up to leave he told the accused "I will be outside" or words to that effect. After a minute the accused followed Ambong out of the house, and did not return for some fifteen minutes. It was suggested that Ambong and the accused had sexual intercourse while outside (Oposki Abraham: 1 & 2; Kep Nili: 22).

When the accused returned the deceased got his axe, reversed it so he was holding the blade and struck her a moderate blow on the back in chastisement. Straight away the accused left the room, and about one minute later returned with a knife, some 8 inches long, and stabbed the deceased in the chest. He fell down and died almost immediately (Oposki Abraham 2 & 3 Kep Nili 23 & 24).

THE DEFENCE CASE

The defence case was there were many people inside the house during the singsing, which was a "karim leg" ceremony, put on for two young girls who were visiting the house. The accused had prepared a bed for her husband in the back of the house which was partitioned off, and separated from the room in which the ceremony was held by an area where pigs were usually kept. The accused left her husband in the sleeping area and went and sat on the left-side of the main room with the other women. She was burning some kaukau in the fire for the women, and was peeling the skin with her small knife (Misari Warun: 34). James Ambron came into the room — he was the brother of two of the girls, and brothers are not meant to be at the same ceremony at which their sister's part-take. The girls ordered him out. But before he left he asked the accused for a laplap. James Ambron spoke with a loud voice and the deceased-husband heard it. The husband called out words to the effect "are you single or an unmarried person?" he then cme out from the backroom and started to beat the accused with his axe-handle. The beating went on for about five minutes. Most of the crowd in the room fled. The accused fell on the floor face-down. The deceased kicked her and hit her many times and caused her pain. As she was lying on the floor, face down, she struck up with the knife which she still had in her hand. She had no intention to kill or do grievous bodily harm, she merely wanted to stop the assault, or as her counsel put it "nick" him.

THE BURDEN OF PROOF

In a criminal case the State carries the burden of proving all the elements of the offence beyond reasonable doubt. In this case the death and the cause of the death, the stabbing have been proved beyond reasonable doubt.

The issue which the State has difficulty with is the issue of proving that the accused struck the fatal blow with an intention to do grievous bodily harm.

By virtue of s.1 of the Criminal Code, grievous bodily harm means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

But the State has another problem. On the basis of its own case, given by its own witnesses the accused struck the fatal blow because she had been struck herself by the deceased, on her back, with the handle of an axe. On the evidence of the two State witnesses perhaps only a minute or so passed between the accused being struck and her returning with the knife to stab the deceased.

On those facts the issue of provocation is raised.

PROVOCATION

S 303 of the Criminal Code says:-

Where a person who unlawfully kills another under circumstances that but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of s 266 and before there is time for his passion to cool, he is guilty of manslaughter only.

In essence, and so far as it is relevant to this case, s 266 of the Criminal Code says:-

" (1) Subject to this section "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely when done -

(a) to an ordinary person ... to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered."

The issue of provocation was not taken up by either counsel, until I raised it at the end of Defence Counsel's address. Defence Counsel then took it up, as an afterthought. When I raised provocation with the State Prosecutor, he replied

"On provocation — it does not lie — one good smack is not enough to provoke. The State's case is that she went into a fury in a domestic argument. She provoked her husband into beating her; it is the custom that she should get one cuff over the ear."

In my view this confirms that the issue of provocation was before the court, because the essence of the definition of provocation under s 266 (1) of the Code is the deprivation of the power of self-control, an act done in the heat of passion. The submission that it was the State's case that the accused had gone into a "fury" seems to meet this necessary element, at least prima facie, of a deprivation of the power of self-control, or an act done in the heat of passion.

Accordingly, I find that a prima facie case of provocation was raised on the evidence.

It was therefore incumbent upon the State to negative beyond reasonable doubt that the accused did the killing "in the heat of passion caused by sudden provocation". R v Moses Robert [1965-1966] PNGLR 180, 185.

The main evidence to support a State case that the stabbing was not provoked came from the witnesses Oposki Abraham and Kep Nili who both testified that the only blow struck by the deceased was a single blow to the back of the accused with the handle of an axe. Their evidence was that the blow was moderate. It was in the nature of a "mild chastisement".

I have difficulty in accepting this account of the assault for two reasons. First it is diametrically opposed to the testimony of the accused who said she was beated and kicked severely. Secondly, and more cogently, because it does not fit with other evidence given by both State and Defence witnesses.

The State witness Kep Nili was asked in cross-examination.

Q: When the deceased hit his wife, did the crowd stop singing?

A: When the husband hit, the people inside rushed outside, then she went into the room got the knife and stabbed him. At that time there were only two (other) people inside.

Q: You are saying that as soon as Alos Tepe struck the accused everybody ran out except for two of you.

A: Yes.

Court:

Q: When Misari stabbed Alos, the only people in the room where Alos, Misari, you and Oposki Abraham?

A: Yes.

Mr. Takin:

Q: The first witness Oposki Abraham said that as soon as the fight started between Alos and Misari,...