The State v Jenny Dei (2011) N4231

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

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

National Court: Cannings J

Judgment Delivered: 11 March 2011

N4231

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 407 OF 2010

THE STATE

V

JENNY DEI

Madang: Cannings J

2011: 7, 8, 11 March

VERDICT

CRIMINAL LAW – trial – wilful murder – Criminal Code, Section 299(1) – elements of the offence – whether the accused killed the deceased – whether the killing was unlawful – defences of self defence (Section 269) and accident (Section 24(1)(b) – whether the accused intended to kill the deceased – alternative verdicts, Criminal Code, Section 539(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 Section 299(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 Section 269 of the Criminal Code did not apply as the accused used more force than necessary for her defence. The defence of accident under Section 24(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 Sections 539(1) and 302 of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

R v Kaiwor Ba [1976] 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 Jeffery 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.

Counsel

S Collins & M Pil, for the State

E Thomas & M Mwawesi, for the accused

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 defence case that the killing was lawful because the defences of self-defence and/or accident apply. If either defence succeeds the killing of the deceased will be justified by law. If both defences fail, the killing will be unlawful and the court will consider the final element: did the accused intend to cause the death of the deceased? If she did not have that intention, an alternative conviction for murder or manslaughter will be considered.

9. The primary issues therefore are:

1 Does the defence of self-defence apply?

2 Does the defence of accident apply?

3 Was the killing unlawful?

4 Did the accused intend to kill the deceased?

5 If she did not intend to kill the deceased, should she be convicted of some other offence?

1 DOES THE DEFENCE OF SELF-DEFENCE APPLY?

10. To assess whether the accused has a defence, her version of events must be carefully considered. Her oral testimony was that she was forced to marry the deceased against her will and that he was a violent man who failed to provide for her, routinely took her wages and often assaulted her. Two days before the incident, both of them, who were working at Gusap, received their wages but the deceased had incurred debts, so that when they went into town at Ramu on Saturday he had no money. She had K40.00 cash and he asked her for K20.00 and said that he would repay her later. So she gave him K20.00 and spent the other K20.00 on food. That night, on Saturday, she cooked a meal and slept in their house. The deceased went off gambling and did not come home until early Sunday morning.

11. At about 1.00 am he told her to prepare him something to eat. She did as she was told and, amongst other things, peeled some carrots with a small kitchen knife. She asked him about the K20.00 she had lent him the previous day. That is all she did. She just asked. She was not angry. But when she mentioned the money he got cross and struck her over the head and other parts of her body with his hands. The blows did not draw blood but they were hefty blows. She cried. They went outside and he continued to argue with her. They were quarrelling but not shouting. She heard someone sing out and tell them to go back inside.

12. He struck her on the head with a rock, she felt dizzy and fell on to the ground, face down. Then he pinned her down by standing on her legs. She was concerned that he was going to harm her seriously, struggled, as she was trying to run away from him, and was in the process of rising from the ground, trying to remove him, as he was still trying to hit her, when she threw her hands backwards. She accepts that when she threw her hands back, the kitchen knife, which – though she did not realise it at the time – she was still holding, must have penetrated his neck. She did not realise at the time that she had stabbed him. She did not deliberately stab him. It was an accident. It happened as she was trying to stop him from further assaulting her. She still does not understand exactly how it happened. She did not mean to kill him. As soon as she freed herself from him she ran away as she was scared that he would assault her again.

13. The argument therefore is that by attempting to free herself from the deceased and run away the accused – who happened accidentally to stab the deceased – was defending herself against the likelihood of further assaults from the deceased. She was acting in self-defence. Her killing of the deceased was lawful, and it is argued that this provides her with a complete defence under Section 269 (self-defence against unprovoked assault), which states:

(1) When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not...