The State v Pondros Laki (2010) N4164

• Jurisdiction: Papua New Guinea
• Judge: Kawi J
• Judgment Date: 15 October 2010
• Citation: (2010) N4164
• Docket Number: CR No. 802 of 2009
• Court: National Court
• Year: 2010
• Judgement Number: N4164

Full Title: CR No. 802 of 2009; The State v Pondros Laki (2010) N4164

National Court: Kawi, J

Judgment Delivered: 15 October 2010

N4164

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 802 OF 2009

THE STATE

V

PONDROS LAKI

Bialla: Kawi, J

2010: 14th, 15th July, and 15th October

CRIMINAL LAW – Indictable offence – Criminal Code section 299(1) - Homicide etc……Wilful murder trial - Accused pleaded not guilty to wilful murder- Defence of self Defence raised-defence not available as there was no prior assault by the deceased – accused anticipated that wife would assault him using a stone- anticipatory self defence not known in law and therefore self defence fails- accused also raises killing on provocation as a defence under section 303-no loss of self control- accused failed to establish an act of provocation- retaliation by accused highly disproportionate to alleged provocation- Killing on provocation as a defence fails - accused raised defence of accident- section 24 of criminal code-accused failed to establish that death occurred independently of his will. – death was not accidental- defence of accident not available- Accused found guilty of wilful murder and convicted under section 299(1) of the criminal code.

HELD:

(1) In determining whether the defence of self defence applies, if the accused adduces 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 does not exist. R-v-Nikola Kristeff (1967) N445 applied.

(2) The essence of self defence is that actual assault in terms of s.243 is required. There must be prior assault by the victim for the defence of self defence to be available. – The State –v- Angela Colis Towavik [1981] PNGLR 140 applied.

(3) Here the accused anticipated that the deceased would throw a stone to hit him or even use a knife to cut him or inflict grievous bodily harm given her past bad record of using knives to cut her husband, the accused. Self Defence as a defence would not arise even where an accused person anticipates that the deceased would hit him with stone and then use a knife to inflict grievous bodily harm upon him. In law, the defence of Self Defence as known under the Criminal Code would not apply to anticipatory situations where an accused person anticipates that the deceased would cause grievous bodily harm upon his person with a knife or assault him with a stone.

(4) Where a defence of self- defence is raised, the questions to be determined beyond reasonable doubt are:

(a) the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm,

(b) whether the accused believed that he could not preserve himself from death or grievous bodily harm otherwise than by using the force that he in fact used; and

(c) whether the accused’s belief was based on reasonable grounds; or rather whether the State had negative beyond reasonable doubt the possibility that the accused so believed on reasonable grounds: Tapea Kwapena –v- The State [1978] PNGLR 316 applied

(5) In order for the accused to successfully raise the plea of self defence under section 269 of the Criminal Code the court needs to be satisfied that the following elements of the defence exist;

(a) the accused was unlawfully assaulted; and

(b) the accused did not provoke the assault;

(c) the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm, and;

(d) the accused believed on reasonable grounds that he could not preserve himself from being killed or suffering grievous bodily harm; and

(e) the accused used such force as was necessary for his defence.

(5) The conduct of the accused that fateful morning after stabbing his wife, the deceased, was that he failed to give aid or show concern for his wife, whom he deliberately stabbed. He was less caring and was not concerned to take his wife to the hospital or the nearest health centre, or to seek help from people who could transport her to the hospital. He was simply less caring. He threw away the murder weapon and ran away himself. His conduct was such that he was more determined to see his wife suffer and more determined to see her die. This proves that he intended to see his wife suffer and die.

(6) This was not an accidental death as it did not occur independently of the will of the accused. The accused intended to see his wife suffer and die.

(7) And the motive for all this can be inferred from the whole circumstances of this case. He wanted to end all his suffering and the instability in his marriage.

(8) Provocation as a defence under section 267 fails. The force used was highly disproportionate to any provocation offered and that the accused did not act in a heat of passion. There was no provocation as defined in section 266 offered. The ill repute and the continuous instability and the turbulent nature of the marriage, characterized by continuous fighting, her avid drinking and gambling habits, coupled with her ill reputation may amount to de-facto provocation, but that is no provocation in law.

(9) There is no such thing as a one touch only with a dangerous lethal weapon such as a kitchen knife. Either you use the weapon or you do not use it. The statement of the accused that “I only wanted to have a one touch only of her body with a knife but she accidently died” means that the accused intended to hurt his wife with the knife. The accused expressed his intention clearly here to see his wife suffer and die.

Cases cited:

Papua New Guinea Cases

The State –v- Angela Colis Towavik [1981] PNGLR 140

Mecklina Kar Poning –v – The State (2005) SC 814

Tapea Kwapena –v- The State [1978] PNGLR 316

The State –v- Takip Palne [1976] PNGLR 90

Tapea Kwapena –v- The State [1978] PNGLR 316

The State –v- Leonard Masiap [1997] PNGLR 610 at page 617

R-v- Nikola Kristeff [1967] Unreported No. 445 per Frost J at page 23.

R-v- Korongin [1961] N204 at page 8 per Mann CJ

The State –v- Leah Tununto (1990) N947 per Brunton AJ,

The State –v- Rose Yapihra (1997) N1741 per Bidar AJ,

The State –v- Michael Nema Melpa (2003) N2450, per Jalina J,

The State –v- Mathilda Edward (2004) N2726 per Davani J, and

The State –v- Albert Gias (2005) N2812 per Cannings J

The State –v- Lenny Banabu [2005] PNGLR N2871 per Cannings J

The State –v- Michael Linas [2008] Unreported and Unnumbered Judgment of Paliau AJ dated 29th October 2008

The State –v- Alex Gasi (2010) cr 875 of 2008 Unnumbered judgement of Kawi J dated 23rd April 2010.

Overseas Cases

R-v-Muratovic [1967] Qd R 15

Counsels:

Mr. F. Popeu and Mr. D. Kuvi, for the State

Mr. R. Awalua and Mr. P. Paraka, for the Accused

DECISION ON VERDICT

15th October, 2010

1. KAWI, J: Pondros Laki of Kitikum Village, Maprik, East Sepik Province, is accused of wilfully murdering his wife one, Veronica Pondros at Area 8 Bialla, West New Province on Saturday the 24th January 2009. He has therefore been indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code.

1. ARRAIGNMENT

2. On arraignment the accused pleaded not guilty to the charge that he wilfully murdered his wife one, Veronica Pondros. Although no specific Defenses were indicated by his counsel in the opening address of the Defence case, Counsel raised the following defenses during submissions:

a) Self Defence under section 269;

b) Provocation under section 267

c) Accident under section 24.

3. As a rule of practice, defence Counsel must outline the defences being relied upon in the opening of the defence case. During cross examination, the basis of the defence must be put to the State witnesses in compliance with the rule in Brown –v- Dunn.

2. STATE ALLEGATIONS

4. The accused Pondros Laki and the deceased Veronica Pondros were husband and wife. They were married for eight (8 years). On the 24th of January 2009, the deceased and another women were returning home from an all night dance which was held at Ulamona the previous night. When the accused approached the deceased and her friend, Theresa Julius, he asked the deceased if she had repaid some monies which she had borrowed from other people. Soon thereafter an argument broke out between the accused and his wife the deceased. A scuffle then took place between the accused and his wife, the deceased, while Theresa Julius was standing in between the two trying to stop them. During the struggle the accused stabbed the deceased on her lower back. After stabbing her, the accused ran away. Theresa Julius then tried to assist the deceased. However after crossing the road onto the other side, the deceased who was by now leaning very heavily on the shoulders of Theresa Julius let go off her hands and collapsed to the ground and...