Kakun v The State [1998] PGSC 13; SC550 (28 April 1998)

Unreported Supreme Court Decisions

SC550

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 33 OF 1997
MIRIAM KAKUN - APPELLANT
V
THE STATE - RESPONDENT

Wewak

Woods Jalina Kirriwom JJ
28 April 1998

CRIMINAL - murder - fight between two women - no witnesses to fight - manslaughter not murder - provocation - appeal upheld - conviction for manslaughter substituted with sentence of 4 years.

Counsel

Appellant in person

P Mogish for the State

28 April 1998

WOODS JALINA KIRRIWOM JJ: The Appellant was on 18th April 1997 convicted in Vanimo of the offence of murder following a trial and on the 21st April she was sentenced to 12 years imprisonment. The appellant has appealed against the conviction and sentence on the grounds that it was an accident that she killed the victim and that the sentence is too excessive.

The appellant pleaded not guilty to murdering the deceased who was the second wife of the same person to whom she was the first wife. The deceased died as the result of loss of blood and haemoragic shock due to blood loss which is believed to have been caused by the appellant in a fight inside the house. No-one actually saw the fight between the appellant and the deceased except that the deceased emerged from the house with a deep cut on her neck which bled profusely. The only evidence of the fight is from the appellant who says that the deceased attacked her inside the house with a stone on her jaw and she felt she lost some teeth. She then punched the deceased once and the second time she did so with the hand that held the knife she was using or had just used to peel potatoes. The knife inflicted the injury that resulted in the loss of blood.

The defence relied upon was provocation. There is no evidence that the appellant started the trouble. It seems clear that the deceased took the fight to the appellant and struck her with the stone. This prompted instant retaliation from the appellant. The only evidence of what actually happened was from the appellant herself. The trial judge treated this evidence as pleading or raising self-defence and went on to find that the appellant was guilty of murder. But he failed to give any consideration whatever to the defence of provocation relied upon by the defence on the basis that the appellant acted on sudden provocation by the deceased and before there was time for her passion to cool. This inference is open on the appellant’s evidence, being the only evidence before the judge as to what happened. There being no direct evidence to prove that she intended to cause bodily harm to the deceased the court must accept the appellant’s story that she did not mean nor intend to harm the deceased except that she was provoked by her to react in that manner. The appellant was struck with a stone which is a lethal weapon albeit of a lesser degree than a knife. The act of assault on the deceased is not disproportionate to the provocation and on the evidence this defence of provocation was clearly open to the appellant. A conviction for murder is not supported by the evidence. The verdict is thus unsafe and unsatisfactory. Self-defence has been properly held unavailable, however there is evidence to find the accused guilty of manslaughter and we quash the verdict of murder and substitute a verdict of guilty of manslaughter.

For the offence of manslaughter we impose a sentence of 4 years imprisonment with light labour.

We uphold the appeal against conviction and sentence and substitute a sentence of 4 years imprisonment with light labour.