State v Lavau and Kauva [1996] PGNC 37; N1523 (26 September 1996)

Unreported National Court Decisions

N1523

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1366 OF 1995
THE STATE
v
KAUVA LAVAU And KAMO KAUVA

Waigani

Batari AJ
13-14 June 1996
17-19 June 1996
18-19 September 1996
26 September 1996

CRIMINAL LAW - Wilful murder - Evidence - Identification - Dangers of - Recognition - Reliability of.

CRIMINAL LAW - Evidence - Scene visitation - Observations - Advantage of.

CRIMINAL LAW - Evidence - ROI - Admissibility of - Question of weight where admitted.

CRIMINAL LAW - Evidence - Admissions of accused not evidence against co-accused.

Cases Cited:

John Beng v The State [1977] PNGLR 115

R v John Theodore Mumford 1953 No 48

R v Sapulo Masure & Ors (1973) No 732

Counsel:

Popeu for the State

P Tusais for the Accused

D Kari for the Co-accused

Judgment on Verdict

26 September 1996

BATARI AJ: The accuseds have been arraigned on an indictment charging both with the wilful murder of one Kulolo Kama on 3 July, 1995 at Brown River. The charge was brought under s.229(1) and s.7(1)(a),(c) of the Criminal Code Act, Chapter 262.

The alleged acts surrounding the offence were that on the night in question, the accused Kamo Kauva initially assaulted the deceased by punching him. He fled a short distance and stopped. The first accused, Kauva Lavao came around his back and struck him with an axe. Kamo also cut the deceased with a bush knife on his back. The deceased fell and died where he was attacked.

Each accused has denied implication in the killing and has given evidence on Oath to that effect. The medical evidence showed the cause of death as haemorrhage shock due to stab wounds. No evidence has been led to establish the accused owned an axe and a knife or were carrying similar weapons on the night in question except that State witness Laumane Opu spoke of seeing the accuseds striking the deceased with an axe and a knife. There is no other description of the axe alleged murder weapons. The accused said nothing about the alleged weapons on their evidence, though in their records of interview, one implicated the other in his admissions.

The accuseds are from Tapini, Central Province. Kauva is aged about 50 years old. His co-accused son appeared to be in his mid-thirties. Both have no formal education and are quiet in demeanour. Kauva was alert in giving evidence but clearly had difficulty remembering events perhaps due to senility. Kamo was presented with some difficulties in his movement. He attributed his condition to alleged police assault at the time of his arrest. During cross-examination, he “decided” not to recall anything. I think he deliberately faked memory loss as the medical examination I ordered showed nothing significant about his fitness to stand trial. He denied knowledge of the killing and said he was elsewhere. When pressed on details and other aspects of the evidence, he simply responded with a “I do not know” even to the simplest of the questions.

The story led from the State witnesses was that on 3 July, 1995 at about 9.00 am, the two accuseds were drinking at a store near the Brown River Forestry Station along the Hiritano Highway. They returned to their house and continued to drink the whole day and into the night. Around 8.00pm Kamo fought with the deceased and the deceased fled towards Opu’s house. He stood some distance away and spoke to the two accuseds. The accused Kauva came around his back and struck a blow to his chest region with an axe. The accused Kamo also cut the deceased on his back with a knife. As the deceased collapsed and died, the two accused ran away.

That evidence was given by the only eye-witness, Opu. He spoke of seeing the incident from the initial assault to the time both accuseds attacked the deceased with the weapons mentioned. He saw the incident from the verandah of his house under pressure lamp lights, one of which was located over the verandah of his house and the other, over the verandah of the accuseds’ house. The killing took place in a clearing located between the two houses.

Because the witness and the accuseds come from the same area of Tapini and were neighbours at Brown River Settlement, the issue is that of recognition other than identification of a stranger. In assessing the evidence, I warn myself of the dangers in identification evidence and I remind myself that recognition is more reliable than identification of a stranger, but mistakes in recognition of close relatives and friends have been made in the past. (See John Beng v The State [1977] PNGLR 115).

The Court’s visit to the scene had given me a greater appreciation of the various locations, the surroundings and the nature of vegetation as spoken of by witness Opu in his evidence. That visit was made some twelve months after the incident. When I examined photographs of the scene marked from Exhibit ‘D5’ to ’D7’, in comparison, there is little difference to the vegetation growth around what was once the location of the accuseds’ house and witness Opu’s house. The density, maturity and heights of the banana trees were similar to that shown in the photographs. The photographs could have been taken shortly before the Court’s visit to the scene. However, the evidence is that they were taken the next day following the killing.

I have some difficulty accepting the evidence of Opu that he had a clear, unobstructed view of the accuseds’ house and the place where the killing occurred. His evidence is inconsistent with what photographs ‘D5 to D7’ show. In my observation at the scene, anyone looking in a straight line from the verandah of Opu’s house to the accused’s house would have his views partially blocked by the clusters of banana trees on that side of the accuseds’ house so that the house and those in or under it were not in his full view. I infer from the vegetation growth around Opu’s house that they were growing in that state on the night in question. I conclude that the presence of those banana trees would make clear observation of the accused’s house from Opu’s house, difficult.

The location of the killing is shown in photograph Exhibit ‘D4’. It lies slightly to the left of Opu’s house looking in the direction of the accuseds’ house. I again infer that one would be looking into the clearing through spaces of the banana trees and leaves from the verandah of Opu’s house. The two houses were about 50 meters apart and stood about the same height 1.7 meters from ground level. The location of the killing was about 20 meters from Opu’s house. Because of the distances and the banana patches around the two houses, I have some doubts that the area the deceased died was well lit by the lights which Opu spoke of.

Opu said at the start of the fight, he became fearful and moved inside his mosquito net which was pitched about 3 meters in from the verandah. He observed the killing from inside the net in a sleeping position. I conclude from that description, the witnesses view of the deceased and his attackers would have been made more difficult.

Further, I am not impressed with his evidence that he sat in his house and watched the accuseds drinking all day and into the night. I find this peculiar as his evidence suggested the accused remained sober despite all the drinking. He also appeared so obsessed with the accuseds’ drinking but did not explain his reason for doing so. He spoke of his wife fleeing into the bushes in fear of attack by the two accuseds. I find this piece of evidence curious as the fight was not against the witness. It could be that the wife fled when the deceased was chased into their settlement area by others like the accused Kauva said in his evidence. This possibility may also be inferred from lack of evidence on the presence of the deceased at the accused home prior to the attack. The evidence from Opu regarding a big fight and a lot of noise further adds support to this suggestion.

I also find the evidence that he did not attend to the body of the deceased until some hours later, mysterious. If the accused fled immediately after attacking the deceased, the threat would have no doubt receded, allowing him to get help at the earliest. It may be inferred that a lot of people were involved in the killing and that the continued presence of those people prevented him from attending to the deceased quickly. On another aspect of his evidence, the witness vehemently denied there ever being a party. The allegations put to the accused were that the killing arose out of a party. Did he change his story or was there in fact a party as the accused Kauva spoke of in his evidence?

Dr Jack Morewaya gave evidence that the two wounds located at the back and the one on the front left clavicle region appear to have been caused by a long sharp object. He suggested a knife as an example of such object. This evidence is not consistent with Opu’s evidence that the wound on the front of the body was caused by an axe which normally has a shorter cutting edge. The evidence also differed on the number of wounds on the back. Opu stated only one blow with a knife to the back of the deceased while the medical report showed two cuts. On the whole, I am not impressed with the demeanour of witness Opu.

Both accused made statements to the police in the form of a records of interview which are in evidence. In each record one accused named the other as the person who cut the deceased with an axe. State submitted that the statements in the records are supported by the evidence of Opu and the medical report. However, there are two aspects to the statements which are apparent: (i) the so-called ‘confession’ against the other accused and (ii) the admissions in which the accused implicated himself. The second aspect was not addressed by either counsel on submissions.

A fundamental principle of the law is that, if a man makes a statement outside Court, that evidence is evidence against him only and not against anyone else including any person he may implicate, (See R. v. Sapulo Masure & Ors (1973) No 732). There is an exception to that rule. If a person confesses to his own acts, knowledge or intention and ‘confesses’ also to the acts of other persons he had knowledge of, such ‘confession’ might be valuable if the evidence of the act of that person is supported by other independent sources. At the end of all the evidence, I think it becomes a question of whether the ‘confession’ has support. In all cases however, the principle in Sapulo’s case apply.

Both accused spoke of being subjected to various atrocities by the investigators at the time of the interview. When I consider their evidence together with the evidence of Police Investigator, Pius Ulga and the contents of their interviews, there is some ring of truth in what they said. The evidence of Constable Pius Ulga in response to questions:

“Q. Kauva Lavau denies blaming his son for the killing, what do you say?

A. He was in a state of shock, he was shivering.

Q. Was Kauva Lavau still in that state at the time of the interview?

A. He was looking really frightened and shocked at the same time.” (emphasis mine)

clearly gives support to the accused Kauva’s story.

This evidence raises the question of whether or not it was proper to interview the accused while he was in that state. His condition might be a result of the beatings that he spoke of or it might have been due to the predicament he was in. Whatever the cause, I am of the view that an accused in such state is not in the right frame of mind to be interviewed. He would have been most vulnerable and easily susceptible to influence. Any admission made in the circumstances would have been unfairly obtained. The improper conduct of the interview is also apparent on the face of the document. He was not given his constitutional right before being asked about the allegations in Question 4. The same procedure was repeated in Kamo’s interview. That impropriety as it appears on the records add weight to their evidence of police improprieties.

Constable Ulga made similar observations of the accused Kamo’s condition at the time of his Record of Interview. He said the accused spoke normal during the interview but was nervous. It is open to infer on that evidence that such state was due to the beatings by police before the interview. State did not call evidence to rebut those allegations by the accused. I accept their evidence. I conclude that each accused spoke to the police because his mind was over-borne by the threats and beatings by the police shortly before the interview was conducted. In the case of R. v. John Theodore Mumford [1953] No.48, it was held that, where a confession has been admitted into evidence and fresh evidence later shows that the confession has been extorted by threats and assaults, the confession may be disregarded by the Court.

The record of interviews here were admitted by consent. The evidence of the accused on the assault and threats are fresh evidence and were fairly raised after each record was admitted. The accused Lavau said he was advised by Counsel who took initial instructions not to raise the issue of police improprieties. The evidence remain uncontroverted by the State. I must consider each record as it contains admissions and give it due weight in the circumstances of the allegations raised. I conclude that it would be unsafe to rely on the admissions in view of the circumstances under which they were obtained. I find that the State has not proven its case against each accused on the requisite standard.

I return a verdict of Not Guilty and acquit the accused of wilful murder.

Lawyer for the State: Public Prosecutor

Lawyer for the Accuseds: A/Public Solicitor