State v Kakun [1997] PGNC 44; N1673 (18 April 1997)

Unreported National Court Decisions

N1673

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 631 OF 1996
STATE -V- MIRIAM KAKUN

Vanimo

Akuram J
15 April 1997
16 April 1997
18 April 1997

CRIMINAL LAW - murder - first wife stabbing second wife - lack of sophistication - remote area - meaning of

Upon the trial and conviction of accused on a charge of murdering the second wife of the same husband:

Held

1. ;ټ &60; “8220;Remote area” refers to a person who does not know that there is a Government with courts and police available to redress wrongs;

2. ټ&##160; of sopf stihistihistication can no longer be an excuse fore for reduction of sentence in Papua New Guinea subject to exceptional cirances

3. & A60;perl ns, ohether educ educated or not, not, have have a moral conscience which tell them what is right and what is wrong and should not be used any more as a mitigating factor subject to exceptional circumstances.

4. ҈& T60;Crie Criminal inal Law (Compensation) Act, 1991 can only be used to make orders after making due inquiry but does not into nt coation that has already been paid. That is considered under Schedule 2 oe 2 of thef the Cons Constitution and Customs Recognition Act, Chapter 19.

5. ټ S60; Sentence of 12 yearspis appropriate in the circumstances.

Cases Cited

REX LIALU -v- THE STATE [1990] PNGLR 487

THE STATE -v- ASELIN [1991] PNGLR 408

TBLIC CUTORKERU &aRU & Mmp; MOROI OROI [1985] PNGLR 78

Counsel

MR. KALUWIN for State.

MR. MOSORO for Accused.

The accused pleaded not guilty of the murder of one LYNN POMAT, the second wife of their husband NORM LEONARD.

18 April 1997

AKURAM J: State alleged that on the 12th day of January 1996 at BATIANAP village in OKSAPMIN, W.S.P, accused was peeling kaukau, the deceased went to her and they had a fight. In the cause of the fight, accused stabbed the deceased with the knife. Deceased died as a result. State therefore alleged that accused had intended to cause grievous bodily harm to deceased when stabbing her. By consent State tendered statements of nine (9) witnesses plus the Record Of Interview and medical report plus the knife used in the stabbing and then closed its case.

Defence then called accused as the only witness in her case to prove lack of intent to cause grievous bodily harm.

Witness KASILDA HOWUL, 14 years of age, tells story of how she and accused left their village and went to BATIANAP, then send by Wesley MINAU to OKSAPMIN Station to buy two chickens and if they run short of cash, to ask Norm Leonard to assist. This man Leonard did assist by giving K3.00 and told them that he’ll come to their house in the evening.

This witness and two others - Julinda LYNAT & NENA Wesley - returned to Batianap in the evening. She then saw deceased approached their house, went into the dwelling house, came out, hit witness with a stone on the left hand, then picked another and hit her on the head. Witness cried and went to the back of the house. She did not see accused and deceased fight nor the stabbing itself but was informed by accused later that: “YUMI RONOWE, MI SUTIM LEAN PINIS”. Witness and accused escaped to OHAKA village. They then went to SAMBATE village where they surrendered to leaders and later heard that deceased had died from severe bleeding.

Witness Wesley MINAN repeated what KASILDA said but he did not see the fight nor stabbing. He only heard at around 5.30 pm a terrible shout outside his house and went out to see. He saw deceased walking onto the road. He followed and came across deceased, her husband Leonard and Nancy Tandauat. Later other boys arrived and they carried deceased in a stretcher and were met by a vehicle which took them to OKSAPMIN but deceased died on arrival from bleeding.

Witness NANCY TANDAUAT of Oivanap village said, deceased arrived from Tabubul and said to Janet TINOP and this witness that she will go and get her son HANS LEONARD at BATIANAP. That is where accused also came the next day. Both accused and HANS Leonard were at Wesley MINA’S house at BATIANAP. Witness Wesley admitted this fact also. Witness said the three of them arrived at Batianap. Norms sister who had HANS took him across the road and met deceased, Janet and NANCY where they fed HANS & other baby. Then Norm’s sister took the other baby to Wesley’s house. It was getting late. Deceased decided to get the children. While she was at Wesley’s house, Norm arrived and was told by Janet and witness. While they were there deceased came out of the house bleeding all over her body. She then fell on the ground. When asked by witness and others, deceased could not respond. Witness and others discovered that she had a stab wound on the left side of the neck. Witness then cried aloud and MENGSI DAN came from Wesley’s house saying accused had stabbed the deceased.

Witness Janet TINOP’s story is the same as that of Nancy TANDAUAT. Neither she nor Nancy saw the fight and the stabbing. Witness Norm Leonard - husband of both deceased and accused - said he left OKSAPMIN at 5 pm to BATIANAP village to spend the night with his son (at Wesley’s house).

Both Janet and Nancy talks about two babies - HANS and another while Norm only talks about HANS. He said Hans should remain in BATIANAP and not at TEKIN. He never saw the fight nor the stabbing and therefore his story is the same as Janet and Nancy.

He said he is totally confused and had sleepless nights as to what had happened and why it happened.

Witness MENGSI DAN was at Wesley MINAU’S house. However at 5 pm he was near GENO’s trade store. He then came with three boys - two of whom he sent to fetch his water containers and other walked with him up to where Janet and Nancy and the baby girl were. He saw deceased walked into a bush track leading to Wesley Minau’s house. After meeting and talking to Janet and Nancy, witness and Limop Guria went along the bush track leading to Wesley’s house and saw people gathering and so she went to see what was happening. She then saw deceased holding her hands up and moved towards the main road bleeding. She also saw accused held a knife in her hand.

None of these witness had actually seen the fight nor stabbing of the deceased by the accused but only saw the consequence of stabbing. So when it comes to the question of how the fight took place, who started it and how accused said the stabbing took place is only the word and admission of the accused alone. She repeated the same story she made in the Record Of Interview in her oral evidence where she explained further through vigorous questioning by both Counsels.

I therefore had to look carefully at her story and that of the State witnesses. There are two ways of assessing the totality of the evidence. First, I can look at the State witnesses’ evidence together but separately from that of the accused to see which version is the correct one. Secondly, I can look at all the evidence of both State and defence’s together and in doing so, to find the truth or nearer the truth of what really happened. I prefer the second method for two reasons. First reason is that the first method or approach would create a distorted picture of the total evidence available. Some evidence from either side may not be truthful and I may put too much weight to it where it is not due. Second reason is that the issue before the Court is that of accused “intending to cause grievous bodily harm to deceased when she stabbed her”. To find intention, I must infer from all the facts of both State and Defence witnesses to see whether there was such an intention present.

First I make the following findings from the evidence which are not in dispute:

1. That both the deceased and accused are married to one man called Norm ENIVARD LEONARD;

2. & T60;acce ed dsd stab the the deceased;

3. & T60; That deceased died of shock due to blood both nal aternas no n getting into the body due to blockage by internalernal blee bleeding.ding.

4.

4. ; T60t sea&#s sonS LEONARD NARD waRD was at s at WesleWesley MINAU’S house and that was were accused was after arriving from TEKAP village that same mornip>

From these findings, I can now look at the rest of the evidence to decide the issue of intention. The evidence of KASILDA HOWUL, apart from accused, is the closest to what may have happened at the scene. The essential part of her evidence is in paragraph three of her statement to police dated 17th January 1996, five days after the incident, including that of Mengsi Dan. The others’ statements are on 18th and 19th January 1996. The R.O.I was conducted on the 19th of February 1996, one month and one week after the incident. This time frame is important because people tend to forget the crucial parts of the evidence due to memory loss. A clear example is that the accused said some things in the R.O.I which is different to her oral evidence in Court.

When one looks closely at Kasilda’s evidence, she said at about 5.30 pm she was standing near the verandah of Wesley MINAU’S house when MENIFA Wesley rushed in and said “Meri belong Norm ikam, meri bilong Norm ikam”. She looked around and saw deceased approaching. Deceased ignored her and went straight into the dwelling house with a stone in her right hand. Deceased came out after one or two minutes and said “YU STAP LONG HIA HA!” Deceased then hit her with the stone which she had in her left hand and later took another stone on the ground and hit her again on the head. She felt pain and cried and walked to the back of the house.

The next thing KASILDA heard was lady crying from outside the house, referring to deceased, but this is not clear. This was the time Wesley ran out of his dwelling house and saw deceased with only bra on the top, walking down the slope behind the house heading towards the main road. He then saw wet blood and followed deceased to the road with the rest.

From the accused’s evidence plus that of Kasilda, Wesley, Janet, Nancy and Mengsi Dan, I can safely say the following.

Deceased went to Wesley’s house to get her son HANS LEONARD. On her arrival at the house she attacked Kasilda on the verandah of the house. She then went to the door where accused was. Accused had already heard the shout from either the deceased or Kasilda and so put the pot of peeled kaukau aside and went and stood at the door. Deceased came and hit her first with the stone on the jaw. Then hit her with her hands. From the R.O.I. version from the Questions and Answers 19 to 24, 28 to 39, accused was told that her husband Leonard had come from Tabubil and that he will come to Wesley’s house in the evening. So she was expecting her husband. Further, Leonard’s sister with Leonard’s son Hans Leonard were at Wesley’s house. So, obviously Leonard would come to see his son and also the deceased is expected to come to Wesley’s house. One must also understand Wesley and Leonard’s relationship. According to evidence, accused is the niece of Wesley. So Wesley is the in-law of Leonard because Leonard is married to accused. That is why Leonard had left his son Hans at Wesley’s house with his sister and that was why Miriam came to Batianiap because Leonard had returned from Tabubil. However, unknown to Leonard, deceased and her sister Nancy and Janet had come earlier to either get Hans or to visit him and Wesley’s family. Upon realising that accused was there, they had to return. That may be why Leonard’s sister took Hans back to the house. However, deceased did not like that so she went to get Hans but when she saw accused, her emotions got the better of her and she first fought Kasilda. This made accused to come to her aid. The fight ensued between deceased and accused and in the process deceased’s T’ shirt was removed. And also in the process of fight accused stabbed her.

So from the above analysis of the evidence and inferences drawn I would say the accused did intend to cause grievous bodily harm to deceased when stabbing her from which she later died. Coupled with the above inferences is the medical report. The accused’s oral evidence is made some time later, period of 1 year and 3 months whereas her R.O.I was made one month and one week after incident when her mind was fresh. I would therefore accept her statement in R.O.I as nearer the truth of the events that may have occurred.

Counsel for accused referred me to Rex Lialu’s Case [1990] PNGLR 487 at 493, but that was a plea to manslaughter charge and the passage quoted is referring mainly to the mitigating factors and not to the findings of fact upon trial establishing lack of intention to cause anybody any harm. I therefore distinguish that case.

As to the case of The State -v- Aselin [1991] PNGLR 408, accused was charged for manslaughter for stabbing her husband with a knife. That was a clear case of provocation and the court there said, the law is not concerned with the niceties and that if your life is at stake, you do not stop to think whether to grab a stick, an axe, a knife or rock etc. You just grab what is there in your presence and defend yourself. That was what the accused was faced with. Here, the deceased did not have any weapons except a stone which according to accused, deceased used to hit accused first. Then deceased was bare handed. Accused on the other hand had a knife in her hand. Deceased had nothing. Accused’s life was not in danger. So she had all the time to defend herself. I am therefore of the view that defence of provocation is of no assistance here.

Based in the above findings, I find the accused guilty of murder and therefore convict her.

SENTENCE

I have on the 17th of April 1997 found the accused MIRIAM KAKUN guilty to murder pursuant to section 300(1)(a) of the Code and convicted her. I then heard submissions on mitigation by Defence Counsel and response by State Counsel. I also heard the prisoner’s statement in allocutus. The matter was adjourned to today (18/4/97) for sentencing which I now do.

The prisoner is aged about 22 to 23 years of age from Tekap village in OKSAPMIN District of SANDAUN Province. The Counsel submitted that she is a youthful offender and comes from a remote area. Although she may be a youthful offender, she certainly cannot be regarded as coming from a remote area. The question is ‘what is a remote area’?. Her village may be remote geographically from Vanimo or OKSAPMIN Station of which there is no evidence, but her village may not be so remote that she does not know that there is a government with courts and police available to redress wrongs as was held in The Public Prosecutor -v- Keru & Moroi [1985] PNGLR 78 by the Supreme Court at 81 to 82 that:

“The old view was that a person’s sophistication” was judged by whether he went to school, whether he left his village to take outside employment, the economic development in his area and the distance from a “civilising” influence such as a town or mission; and the more primitive a person was the less punishment he should receive. The rationale for this view was twofold: the more primitive man had a less developed sense of right and wrong and less control over his passions such as anger, fear, revenge and shame; and/or did not know that there was a Government in Papua New Guinea available to redress his grievances. We think the first reason plainly wrong. The unsophisticated man may be just as fine a man in the moral or spiritual sense as the sophisticated man. The uneducated man living in a village and wearing traditional dress may have just as developed (or as poor) a moral sense as the educated man living in a town. All men have consciences which tell them right and wrong. All men succeed at times, and fail at other times, in obeying their consciences and controlling their passions. We consider that the second reason is still valid. If an offender comes from such a remote area that he does not know that there is a Government with a police force and courts to redress his wrong, so that he is forced to resort to self-help actions, then we would reduce the sentence for that reason. But there must be very few people indeed living in Papua New Guinea who fall into this category. Certainly these two respondents living at the Goilala area of the Central province do not fall into this category. We would allow them no reduction of sentence for lack of sophistication”.

I therefore agree with the view held by the Supreme Court that there are now only a few people indeed living in PNG who fall into this category. The prisoner here certainly does not as she had access to school where she is educated up to grade 5 and left grade 6 half way though in order to get married according to her evidence in her Record Of Interview. There is a Government Station which is about 4 hours walk from Tekap to OKSPMIN. There is a Police Station in OKSAPMIN. There are other Government services in her area so I do not agree that her place is so remote that one could classify her as “less sophisticated” to be considered for leniency when sentencing her. It can now be safely said that lack of sophistication can no longer be an excuse for reduction of sentence in her area or any where in Papua New Guinea. There is another argument also as pointed out in above quoted passage. That is that as uneducated person living in a village and wearing traditional dress may have just as developed (or just as poor) a moral sense as the educated person living in a town. All persons have consciences which tell them right and wrong. In this case she would clearly have a moral conscience that there is a good and that there is a right and a wrong. The evidence shows that she was preparing meal for Sabbath next day as she is a member of the SDA Church. Therefore, this argument of lack of understanding of right or wrong is not valid. I therefore dismiss it.

Her Counsel also submitted that she has no prior convictions which I will take in her favour. That she was in custody for 10 months which is a discretionary matter for the court to consider when sentencing. She also co-operated with police in their investigations and appeared in Court awaiting trial. She was also remorseful. I take all these factors into account in her favour.

Counsel referred me to the case of State -v- Robert Kupla but I could not find the case. The issue he submitted was that court to consider compensation and impose a just punishment. In Criminal Law (Compensation) Act 1991, Parliament only intended that court to consider ordering compensation after due inquiry. The Act does not say anything about taking into account compensation that has already been paid (See State -v- Wena [1993] PNGLR 168 per Kapi DCJ. The Courts therefore use Schedule 2.1, 2.2 & 2.3 of the Constitution to develop the underlying law and Customs Recognition Act to take compensation into account as part of mitigating factor. However, prisoner must understand that payment of compensation does not exonerate her from criminal liability. That means that even though her line or clan has paid compensation, she will still face the full force of the law for killing a person which is a criminal offence under our laws. There is dispute as to the amount of compensation actually paid. The Defence says K80,500 and State says K65,000.00. I will accept the fact there is some compensation paid and will therefore take that into account in considering sentence.

I have also considered section 19 of the Code. In all the circumstances, I am of the view that what she did was done partly by her husband and partly by herself. Her husband as created the situation by marrying a second woman (deceased) and left the prisoner. However, when he returned from Tabubil on 11th January 1996, he spent the night with Wesley MINAU with his son Hans. Wesley being uncle of the prisoner. Deceased did not approve of that and so she went to get Hans back to TEKIN whereas Norm Leonard want the son to sleep the night there again. So there was already suspicion by deceased. The added factor is that word was send to prisoner to come on Friday 12th January 1996 and so she came to the very house where Norm stayed the night before and to stay that night, 12th January 1996.

In view of what I said above, I am of the opinion that a custodial sentence is warranted. I therefore sentence the prisoner to 12 years. I deduct 10 month for being in custody. The prisoner will now serve 11 years and 2 months.

Lawyer for the State: PUBLIC PROSECUTOR

Lawyer for the Accused: PUBLIC SOLICITOR