The State v Jenny Dei (2011) N4231

• Jurisdiction: Papua New Guinea
• Date: 11 March 2011
• Citation: (2011) N4231
• Docket Number: CR NO 407 OF 2010
• Court: National Court
• Year: 2011

Full Title: CR NO 407 OF 2010; The State v Jenny Dei (2011) N4231

National Court: Cannings J

Judgment Delivered: 11 March 2011

VERDICT

CRIMINAL LAW—trial—wilful murder—Criminal Code, s299(1)—elements of the offence—whether the accused killed the deceased—whether the killing was unlawful—defences of self defence (s269) and accident (s24(1)(b)—whether the accused intended to kill the deceased—alternative verdicts, Criminal Code, s539(1).

The accused was charged with the wilful murder of her husband. She admitted killing him by stabbing him in the neck with a kitchen knife in the course of a domestic dispute but claimed that she acted in self-defence against an unprovoked assault by him and, further, that her husband’s death was an accident.

Held:

(1) Under s299(1) of the Criminal Code the offence of wilful murder has three elements:

• the accused killed the deceased;

• the killing was unlawful; and

• the accused intended to cause the death of the deceased.

(2) The State proved that the accused killed the deceased.

(3) The defence of self-defence under s269 of the Criminal Code did not apply as the accused used more force than necessary for her defence. The defence of accident under s24(1)(b) of the Criminal Code did not apply as the stabbing of the deceased was a deliberate and intentional act. Therefore the killing was unlawful.

(4) Given the circumstances in which the deceased was killed (a spur of the moment reaction to provocation on the part of the deceased) the State failed to prove that the accused intended to kill the deceased or that she intended to do him grievous bodily harm.

(5) The accused was accordingly convicted of manslaughter under s539(1) and s302 of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Kaiwor Ba [1975] PNGLR 90; R v Nikola Kristeff (1967) No 445; Tapea Kwapena v The State [1978] PNGLR 316; The State v Abaya Ulas (2010) N4009; The State v David Yakuye Daniel (2005) N2869; The State v Ephraim Ria Boa (2008) N3436; The State v Jefferey Bijuma (1989) N765; The State v Lenny Banabu (2005) N2871; The State v Melchior Kapus (2010) N4114; The State v Moses Nasres (2008) N3302; The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2005, 11.12.07; The State v Raphael Kuanande [1994] PNGLR 512; The State v Takip Palne of Dumbol [1976] PNGLR 90

TRIAL

This was the trial of an accused charged with wilful murder.

11 March, 2011

1. CANNINGS J:The accused, Jenny Dei, is a 19-year-old Southern Highlands woman. She is charged with the wilful murder of her 28-year-old husband, Bob Wari. She has pleaded not guilty and a trial has been conducted.

2. The State’s case is that the accused killed the deceased in the early hours of Sunday 7 February 2010 at Gusap oil palm settlement in the Ramu area of Madang Province by stabbing him in the neck with a kitchen knife. The State argues that she acted unlawfully and deliberately, intending to cause the deceased’s death.

3. The accused admits to killing the deceased but says that she did so in self-defence and that it was an accident. She says that he assaulted her first and that while she was struggling to get away from him she flung her arms towards him and the kitchen knife that she happened to be holding when he assaulted her penetrated his neck.

EVIDENCE

4. The State relied entirely on documentary evidence, consisting of:

• witness statements by four people who were in the vicinity of the incident, none of whom, however, witnessed the incident;

• a post-mortem report, showing that the deceased died from a pneumothorax (collapsed lung) and hypovolaemic shock (decreased volume of circulating blood) leading to hypoxia (deficiency in oxygen reaching the tissues), caused by a 13 cm deep stab wound to the neck, penetrating to the lung;

• a record of interview in which the accused admitted to killing the deceased but raised the defences of self-defence and accident.

5. After the court’s rejection of a no-case submission the accused gave sworn evidence and was subject to cross-examination. She maintained that though she killed the deceased she was acting in self-defence and that it was an accident. There was no other evidence for the defence.

ELEMENTS

6. The offence of wilful murder is created by Section 299(1) of the Criminal Code and has three elements. The prosecution has the onus of proving beyond reasonable doubt that:

• the accused killed the deceased;

• the killing was unlawful; and

• the accused intended to cause the death of the deceased.

ISSUES

7. The first element of the offence is non-contentious as the accused admits that she killed the deceased and there is ample evidence on which the court is satisfied beyond reasonable doubt that she directly caused the death of the deceased.

8. The second element is contentious as it is the...