The State v Sailas Aita Anjipi (2007) N4963

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 March 2007
• Citation: (2007) N4963
• Docket Number: CR NO 1483 0F 2006
• Court: National Court
• Year: 2007
• Judgement Number: N4963

Full Title: CR NO 1483 0F 2006; The State v Sailas Aita Anjipi (2007) N4963

National Court: Cannings J

Judgment Delivered: 16 March 2007

N4963

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1483 0F 2006

THE STATE

V

SAILAS AITA ANJIPI

Bialla: Cannings J

2007: 14, 16 March

CRIMINAL LAW – indictable offences – Criminal Code, Division V.3, homicide etc – Section 300, murder – trial – elements of murder.

CRIMINAL LAW – defences to murder – self-defence – Criminal Code, Section 267 – elements of the defence of self-defence – prosecution has onus of disproving the defence – prosecution must establish that one or more elements are not present.

The accused was charged with the murder of his son-in-law. It was alleged that the deceased came to the accused’s house late at night to pay a visit, the accused heard a noise, went outside to investigate and upon seeing it was his son-in-law slashed him on his forearm with a bushknife. The son-in-law died of blood loss early the next morning. The accused admitted slashing his son-in-law but claimed that he was acting in self-defence.

Held:

(1) The State proved beyond reasonable doubt that the accused caused the death of the deceased. The first element of murder was proven.

(2) When determining whether the defence of self-defence applies, if the defence 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.

(3) The onus was not discharged as the accused’s evidence that the deceased attacked him first was plausible and none of the elements of the defence was disproven. Self-defence therefore applied.

(4) The accused was found not guilty of murder. Self-defence is a complete defence and by virtue of Section 270(1) of the Criminal Code the accused was not criminally responsible.

Cases cited

The following cases are cited in the judgment:

R v Nikola Kristeff (1967) No 445

Tapea Kwapena v The State [1978] PNGLR 316

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

TRIAL

This was the trial of an accused charged with murder.

Counsel

F Popeu, for the State

O Oiveka, for the accused

16 March, 2007

1. CANNINGS J: This is the verdict for a man who pleaded not guilty to murder under Section 300(1)(a) of the Criminal Code. The incident giving rise to the charge took place at Barema, near Bialla, West New Britain, in August 2006. It is alleged that the deceased, Peter Steven Paitakai, came to the accused’s house late at night to pay a visit, the accused heard a noise, went outside to investigate and upon seeing it was his son-in-law slashed him on his forearm with a bushknife. The son-in-law died of blood loss early the next morning. The accused admitted slashing the deceased but claimed that he was acting in self-defence.

THE LAW

2. Section 300(1)(a) (murder) 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.

THE STATE’S CASE

3. The State tendered 13 exhibits by consent. No oral evidence was called. Column 1 of table 1 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	Witness statement: Diana Sailas	Deceased’s widow/accused’s daughter – saw the deceased earlier in the day and told him to come to the house in the afternoon – but he did not come in the afternoon – after dinner, stayed awake, listening to the radio – heard the deceased, Peter, come, late at night – a few moments later the accused told her that Peter had cut him with a bushknife – the accused would not let her go and check up on her husband’s condition – her uncle later came and told her to go and check up on Peter – she saw him: his right hand was almost chopped off – no transport available. She had been married to the deceased for one year – no problems except her mother (the accused’s wife) used to get angry with the deceased over bride price and call him lazy – her mother chased Peter from the block where she lived with her parents.
B	Witness statement: Luke Simon	Difficulties in getting transport.
C	Witness statement: Jacksy Mas	Difficulties in getting transport.
D	Witness statement: Manuel Keisu	The deceased was staying with him at Section 20 – after the family went to sleep Peter left and came back later with a badly wounded right arm – transport difficulties.
E	Affidavit: Sgt Lawrence Raka	Deposes to police investigation.
F	Bush knife	70 cm, wooden handle tied with black tyre tube.
G	Affidavit: Const Vincent Patemio	Deposes to police investigation.
H	Affidavit: Dr Stephen Topaleku	Post-mortem: cause of death: blood loss due to knife wound to right forearm.
I	Statement: Det Const Benson Gope	Interviewed accused.
J	Statement: Const Michael Nawi	Corroborated interview.
K1, K2	Record of interview: 21.08.07	Conducted three days after the incident – 50-year old blockholder, married with two children – lives at Barema Section 20 – incident happened at 10.00 pm on Friday – heard noise outside, thought it might be thief, armed himself with bow and arrow and bushknife, went outside to investigate – deceased charged at him with a bushknife in his hand – swung it at his face – he blocked it with his bow – he immediately responded by swinging his bushknife at him – deceased swore at him – called his wife and daughter and told them that Peter had attacked him with a bushknife and ran away – later Peter’s relatives came and started destroying house and properties – he fled into the bush and waited until daybreak, then reported the incident to the police. Asked further, he said he did not know why the deceased came to his house that night – did not have time to ask because as soon as he went outside he was attacked – he was not angry when he came out of the house nor was he angry about the bride price – gave his bushknife to the police.
L	Sketch map	2 pages, hand-drawn showing crime scene.
M	Confessional statement: 19.08.07	When he came outside he sat down near the flowers – otherwise same story as in ROI.

THE DEFENCE CASE

4. The accused elected to remain silent. No evidence was called.

SUBMISSIONS FOR THE STATE

5. Mr Popeu submitted that it was not in dispute that the deceased went to the accused’s house and that the accused came out of the house armed. The deceased died due to the injuries inflicted by the accused. The deceased was not living with his wife who had remained living with her parents as there had been a dispute about bride-price. The State disputes that the deceased started an altercation with the accused and therefore that the accused acted in self-defence. There is no evidence that the accused was wounded. There is no evidence apart from what the accused said himself that he acted in self-defence. Also there is no evidence that deceased had a reason to attack the accused. The age difference between them (the accused was aged 50 and the deceased 22) makes it unlikely that the deceased was the aggressor, ie if the deceased really was intent on attacking the accused he could have easily done so as he would have been stronger. It is clear that the accused did not want the deceased to come and take his daughter. There was an inconsistency between the ROI and the confessional statement. In the ROI the accused said that he came outside and saw the deceased. In the confessional statement he said he came outside and sat down and then saw the deceased. Given the nature of the weapons he took with him when he went outside and the weapon he actually used there was a clear intention to do grievous bodily harm.

SUBMISSIONS FOR THE DEFENCE

6. Mr Oiveka submitted that it is very difficult to enter a conviction as no one saw what happened except for the accused and the deceased. The accused gave a clear account to the police of what happened. He retaliated without thinking. The evidence of the accused should be preferred: that his daughter, Diana, was asleep. The real reason that the deceased was chased off the block is in the record of interview, question 36: he had an argument with his mother-in-law over garden work on the oil palm block. The point about bride-price is mere conjecture. The accused’s explanation of what happened is consistent and plausible and the State has not down otherwise. The defence of self-defence stands.

ISSUES OF LAW

7. The accused has been charged with murder under Section 300(1)(a) of the Criminal Code. The prosecution therefore has the onus of proving beyond reasonable doubt that:

· the accused killed the deceased; and

· the accused intended to do grievous bodily harm to the deceased.

8. They are the two elements of the offence. They are subject in this case to three other things. First, the defence of self-defence, which exists under Section 269 of the Criminal Code. Secondly, the defence of provocation,...