National Court of Papua New Guinea

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 wenthe door wherewhere accused was. Accused had already heard the shout from either the deceased or Kasilda and sothe p peeled kaasau asau aside and went and stood at the door. Deceased came at her fher fher first with the stone on the jaw. hit ith her ha#1s. F60; From the R.O.I. version from the Questions and Answers 19 to 24, 24, 28 to 39, accused was told that her hd Leohad come from Tabm Tabubil and that he will come to Wesley’s house in the evening.&#1g. So sheexpecting her husbanusband. Fur Leonard’s sisterister with Leonard’s son Hans Leonard were at Wesley’s house. So, obviously Leonarld co see his son and also the deceased is expected toed to come to Wesley’s house. 160; One must anderstand Wand Wesley and Ld’s relationship. According toence, accused used is the niece of Wesley. 160; So Wesley is thlaw ofaw of Leonard be Leonard is married to accused. That is wonard hard had lead left his son Hans at Wesley’s house with his sister and that was iriam came to Batianiap because Leonard had returned from Trom 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 reng that accused wasd was ththey had to return. That may be why rd’s217;s s7;s sister took Hans back to the house. Howeveceased did not liat liat so she went to get Hans but when she saw accused, her emer emotions got the better of her and she first fought Kasilda. This madesed te to her aidr aid. The fight enbetween dece dece deceased and accused and in the process deceased’s T’ shirt wmoved. And also in the process of fight accused stabbed her.

So from the aboveabove 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. ed with the above inferencerences is the medical report. The ac’s oral evidenvidence is made some time later, period year and 3 months whereas her R.O.I was made one month and one week after incident when heen her mind was fresh. I would thereaccep statemeatement in R.On R.O.I as nearer the truth of the events that may have occurred.

Counsel for accused referred me t Lialu’s case [1990] PNGLR 487 at 493, but that was a plea to manslaughter charge ande 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 caat 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 ar case of provocrovocation 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 kor rock etc. You just just grab is ther there in your presence and defend yourself. That was whe accused was fwas 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. Accon the otherother hand hand had a knife in her hand. Deceased hthing. Acc; Accused’s lif nwas not in danger. So she hadthe time to defe defend herself. I am therefore of the view that defence of provon iso assistance here.

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

NCE

I have on the 17th of April 1997 found the athe 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 aeard the prisoner’#8217;s statement in allocutus. The matts adjourned to todo today (18/4/97) for sentencing whinow d>

The prisonersoner is aged about 22 to 23 years of age from Tekap village in Oksapmin Dmin District of Sandaun Province. Thnsel tted that she is e is e is a youthful offender and comes from a remote area. Although she may bouthful hful offender, she inly cannot be regarded as coming from a remote area. The question i216;what is t is t is a remote area’?. Her villay be remoographicaphically from Vanimo or Oksapmin Stationation of which there is no evidence, but her village may not be so remote she dot know that ther there is a government with courts and police available to redress wrongs ongs 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 wasw 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/or did not know that there was a Government in Papua New GNew Guinea available to redress his grievances. We think the first r plainplainly wrong. The unsophated man may be y be just as fine a man in the moral or spiritual sense as the sophisticate. Thducated man living in a in a village and wearing traditional dress may have just just as developed (or as poor) a moral sense aseducated man living in a town. en have consciences which hich tell them right and wrod wrong. en succeed at times, and fand fail at other times, in obeying their consciences and controlling their passions. We consider tha second read reason is stilid. offender comes from such such a remote area that that he does not know that there is a Government with a police force and s to ss his wrong, so that he is forced to resort to s to self-help actions, then we would reducreduce 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 them no reductiouction of nce for lack of sophistication.”

I therefore agree with the view held by the Sthe Supreme Court that there are now only people indeed living in PNG who fall into this category.&#ry. risoner here certainly doey 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 R Of Interview. There here is a nment Stat Station which is about 4 hours walk from Tekap to Oksapmin. There is a Police StatioOkin Oksapmin. There are other nment serv services in her area so I do not agree that her place is so remote that one coulssify her as “less sophisticated” to be considered for lcy wncy when sent 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.; The another argumentument also as pointed out in above quoted passage. That is that as u 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 town0; All persons have consciences which tell them right and wand wrong. In this case she would cl arly have a moral conscience that there is a good and that there is a right and a wrong. The ece shows that she wase was preparing meal for Sabbath next s she is a member of the SDA Church. Therefore, this this argument of lack of understanding of right or wrong is not vali60; I ther dismiss it.s it.s it.

Her Counsel also submitted that she has no prior convictions which I will take in her favour.; Tha was in custody fody for 10 months which is a discretionary matter for the court to considensider when sentencing. She also co-ted with policpolice in their investigations and appeared in Court awaiting trial. She was alsorseful. 160; I take aese factoro anto account in her favour.

Counsel referred me to the case of State v Re v Robert Kupla but I could not find the &#160 issue he submitted was that court to consider coer compensation and impose a just punishmeishment. In Criminal Law (Compensation) Act 1991, Parliament only intended that court to consider ordering compensation after due inquiry. The Act does not sathingt bout taking into account compensation that has already been paid (See State v Wena [ena [1993] PNGLR 168 per Kapi DCJ. Turts fore use Schedule 2.le 2.1, 2.2 & 2.3 of the Constitution to develop the underlyinrlying law and Customs Recognition Act to compensation into account as part of mitigating factor. Howeversoner must undersndersnderstand that payment of compensation does not exonerate her from criminal liability. That means that evough herh her line or clan has paid compensation, she will face the full force of thef the law for killing a person which is a criminal offence under our laws. There is dispute as to thunt of compensation actualltually paid. The Defence says K80,500 and State says K65,000.00. I will t the fact there mere me compensation paid and will therefore take that into account in considering sentence.

I have also considered section 19he Co160; In all the cthe circumstances, I am of the view that what 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. Wesling uncle of the prisopriso#160; Deceased did not approve of that and so she went to get Hans back to Tekin whereas Noas Norm Leonard want the son to sleep the there again. So there was alreuspicion cion by deceadeceased. 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 Januar6.

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

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor