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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. Targe was brought under s.er s.229(1) and s.7(1)(a),(c) of the Criminal Code Act, Chapter 262.

The alleged acts surroundin offence were that on the night in question, the accused Kamo Kauva initially assaulted thed the deceased by punching him. He f short distance and stnd stopped. The first accused, Kauva Lavao came around his back and struck him with an axe. Kamo&#16so cu deceased witd with a bush knife on his back. The deceased felldied wher where here he was attacked.

Each accused hnied implication in the killing and has given evidence on Oath to that effect. The mehe medical evidshoweshowed the cause of des haemorrhage shock due to e to stab wounds. No evidence has been leesto establish the accused owned an axe and a knife or wereying similar weapons on the night in question except that Shat State witness Laumane Opu spoke of seeing the accuseds striking the ded with an axe and a knife.&ife. 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.

Theseds are from Tapm Tapini, Central Province. Kauva is aged abouyears olrs old. 160; His co-accson appearepeared to be in his mid-thirties. Both have no formacation aion and are quiet in demeanour. Kauva was alert in giviideevidence but cy hadiculty rememberinbering events perhaps due to senility.&#16. Kamo was pred with some dime difficulties in his movement. He atted his conn to allegalleged police assault at the time of h of his arrest. During cross-examination, he “decided” n recaything. I t; I think he deliberately faked memory loss as the medical examination I on I ordered showed nothing significant abos fitness to stand trial. He denied edge of the the the killing and said he was elsewhere. When pd on details and othd other aspects of the evidence, he simply responded with a “I do not know” even to the simplest of the questions.

The sted from the State witnesses was that on 3 July, 1995 at abot about 9.00 am, the two accuseds were drinking at a store near the Brown River Forestry Station along the Hiritano Highway. They red to their house anse and continued to drink the whole day and into the night. Around 8.00pm Ka60; foughtought with the deceased and the deceased fled towards Opu’s house. Hed some dis away and spnd spnd spoke to the two accuseds. The accused Kauve around hund his back and struck a blow to his chest regioh an axe. The accused Kamo also cut the deceased on his back with a knife. As t As the deceased cold psed and died, the tcused ran away.

That>That evidence was given by the only eye-witness, Opu. He spoke of seeing the entident from the initial at to the time both accuseds attacked the deceased with the the weapons mentioned. He saw the incident from the verandah of his houser pressure lamp lights, one of which was located over the vthe verandah of his house and the other, over the verandah of the accuseds’ house. The killing place in a clea 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 andnds have been made in the pthe 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 witnpu in his evidence. T60; That vwas made some tome twelve months after the incident. When I exa photographs of s of the scene marked from Exhibit ‘D5’ to ’D7’, in comparison, there is little difference to the vegetation growth arouat was once the location of the accuseds’ house and wand witness Opu’s house. The dy, maturity and heighheights 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, 160; evidence is e is e 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. Hidence is inconsistent wint with what photographs ‘D5 to D7’ show. In my observatiothe scene,cene, anyone looking in a straight line from the verandah of Opu’s house to the accused’s house would haveviews partially blocked by the clusters of banana trees on that side of the accuseds’8217; house so that the house and those in or under it were not in his full view. I infer from the vtion gron growth around Opu’s house that they were growing in that state on the night in question. I conclude that the pre ofce of those banana trees would make clear observation o accused’s house from from Opu’s house, difficult.

The location of the killing is shown in photograph Exhibit R’. It lies slig slightly e lehe left of Opu’s house looking in the direction of the accuseds’ house. I againr that one would beld be looking into the clearing through spaces of the banana trees and leaves from the verandah of Opu’se. The two houses were about 50 meters apart and stood about the same height 1.7 met7 meters from ground level. The location e killing wasg was about 20 meters from Opu’s house. Becaf the distances and thnd the banana patches around the two s, I have some doubts that the area eceased died was was well lit by the lights whic which Opu spoke of.

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

Further, I am not impr impressed with his evidence that he sat i house and watched the accuseds drinking all day and into tnto the night. I find this peculiar s evis evidence suggested the accused remained sober despite all the drinking. He also appearedbsessed wied with the accuseds’ drinking but did not in his reason for doing so. He spokeis wife flee fleeifleeing into the bushes in fear of attack by the two accuseds. I fiis piece odence curiouuriouurious as the fight was not against the witness. It could be that the wife fled when the deceased was chanto their settlement area by others like the accused Kauva said in his evidence. This This possibiliy also also be inferred frok of evidence on the presence of the deceased at the accuseccused home prior to the attack. The evidfrom Opu regardingrding a bght and a lot of noise further adds support to this suggestggestion.

I also find the evidence that he did not attend to the bo the deceased until some hours later, mysterious. If the ache 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 olot of people were involved in the killing and that the continued presence of those people prevented him from attending to the deceased quickly. On anotspectis evidence, tce, the witness vehemently denied there here ever being a party. The allegations o the accu accused were tha killing arose out of a party. Did hnge his story or was was there in fact a party arty as the accused Kauva spoke of in his ece?

Dr Jack Morewaya gave evidence that the two woun 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 suggestedife as an exam example of such object. This evidence is not conntstent with Opu’s evidence that the wound on the front of the body was caused by an axe which normally has a shortering e#160; The evidencidence also differed on the number of wounds on the back. Opu statedtated onlyblow wlow with a knife to the back of the deceased while the medical report showed two cuts. Onwhole, I am not impresseressed with the demeanour of witnes.

Both accused made statements to the police in the the form of a records of interview which are in evidence. In each r one ed named thed the othe other as the person who cut the deceased with an axe. State submitted the statemtatements in the re are supported by the evidence of Opu and the medical report. Howeveere are two two aspo aspects to the statements which are ant: (i) the so-called ‘confession’ against the the other accused and (ii) the admissions in which the accused implicatedelf. The second aspect was 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 excepto that rhat rule. If a person sses to his owis own acts, knowledge or intention and ‘confesses’ also to the acts of other persons he had know of, ‘confession’ might be valuable if thef the evidence of the act of that person ison is supported by other independent sources. At the end of all theence,ence, I think it becomes a question of whether the ‘confession’ has support. I cases however, the princprinciple in Sapulo’s case apply.

Both accused spoke of being subjected to various atrocity the investigators at the time of the interview. When I consideir evidence ence toge 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 Cble Plga Ulga in response tnse to questions:

“Q. &&#160va Lavau dvau denies nies blaming his son for the killwhat do you say?

A. ҈& H60;as was in a sn a state of shock, ock, he was shivering.

Q. ټ&##160; Was KWas Kauva Lavau stillstill in that state at the time of the interview?

A. ـ H6 was lookingly frly frned and shocked at the same time.” (emphasis

clearly arly givy gives sues support to the accused Kauva’s st/p>

Constable Ulga made similar observatif thesed Kamo’s 17;s condition at the time of his Record of Interview. He said the athe accuseke poke normal during the interview but was nervous. It is opennfer on that evit evidence that such state was due to the beatings by police before the intw. Sdid not call evidence to e to rebut those allegatlegations by the accused. I accept their evide#160; 160; I conclude that accused spoke to the police because his mind was over-borne by the threats and beatings by s by the police shortly before the intervis conducted. In the case of R. hn TheodTheodore MumfoMumford [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.