The State v Misari Warun

• Jurisdiction: Papua New Guinea
• Citation: (1989) N753
• Date: 25 August 1989
• Court: National Court
• Year: 1989

National Court: Brunton AJ

Judgment Delivered: 25 August 1989

1 Criminal law—murder whether intention to cause grievous bodily harm—s269 Criminal Code—self defence against unprovoked assault—failure to negative defence of self–defence—judgment on verdict

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CRIMINAL LAW—Criminal Code s300(1)(a)—murder—whether intention to cause grievous bodily harm—s269—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 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 s300(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 came 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...