The State v Lenny Banabu (2005) N2871

• Jurisdiction: Papua New Guinea
• Citation: (2005) N2871
• Date: 08 June 2005
• Court: National Court
• Year: 2005

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

National Court: Cannings J

Judgment Delivered: 8 June 2005

1 Criminal Law—indictable offences—Criminal Code, Division V.3, Homicide etc—s299, 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.

2 Eiserman v Nanatsi [1978] PNGLR 457, R v Kaiwor Ba [1976] PNGLR 90, R v Kambe Pare [1965] PNGLR 321, R v Nicola Kristeff (1967) No445, 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 referred to

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 Nicola Kristeff (1967) No445 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.

VERDICT

___________________________

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 s299 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

S299 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:

• S269 and s270 deal with the circumstances in which a killing in self–defence is lawful;

• S302 creates the offence of manslaughter;

• S539(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
death and affidavit: pressure—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...