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State v Kuru [2011] PGNC 43; N4264 (19 April 2011)

N4264

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 441 OF 2008

THE STATE

v

STANLEY KUMA KURU

(No 2)

Minj & Mount Hagen: Makail, J
2010: 13th, 19th, 20th April & 2011: 19th April

CRIMINAL LAW - Wilful murder - Trial - Not guilty plea - Circumstantial evidence - One rational inference - Guilt of accused - Criminal Code, Ch 262 - Section 299.

EVIDENCE - Dying declaration - Admissibility of - Circumstances of - Considerations of - Evidence Act, Ch 48 - Section 20.

PRACTICE & PROCEDURE - State witnesses' statements - Service of - Belatedness - Credibility of - Reliability of - Whether adverse inference may be drawn - Criminal Code, Ch 262 - Section 262, Criminal Practice Rules, 1987, Order 2, rule 6(b)&(c).

Cases cited:

The State -v- Tom Morris [1981] PNGLR 493
Paulus Pawa -v- The State [1981] PNGLR 498
The State -v- Kwale Dire [2001] PNGLR 589
The State -v- Emmanual Bais (2003) N2416
The State -v- Henry Judah Les (2005) N2950
The State -v- Wanaepe Warara [1977] PNGLR 458
R -v- Kipali Ikarum [1967-68] PNGLR 119
R -v- Ambimp [1971-72] PNGLR 258
R -v- Enn Bullen [1990] PNGLR 43

Counsel:

Mr J Kesan, for the State
Mr M Mumure, for the Accused

VERDICT

19th April, 2011

1. MAKAIL, J: Following a ruling that the accused had a case to answer on 19th April 2010 in relation to a charge of wilful murder under section 299 of the Criminal Code, Ch 262, he gave evidence and also called his brother Colin John Kuru who also gave evidence in his defence.

BRIEF ALLEGATIONS OF FACT

2. The State alleged that on 22nd December 2007, the accused wilfully murdered his wife, Grace Wamne Koime at Bala village in Minj District of Western Highlands Province. Prior to her death, in 2003, the deceased was doing Grade 7 when she was lured by the accused and taken as his second wife. In the ensuring years, until the fateful day of 22nd December 2007, the deceased lived a troublesome marriage life. She was constantly abused by the accused. On more than one occasion, the accused was summoned before the village court and was ordered to stop and also make restitution to the deceased but those orders did not deter him. He continued the abuses, and on many occasions under the influence of liquor and drugs.

3. On the fateful day of 22nd December 2007, between 7 o'clock and 8 o'clock in the morning, the deceased was at Minj road intersection market. The accused armed with a long butcher knife and under the influence of liquor went to the market on a bicycle looking for her. He saw her and attempted to attack her by chasing her around the market but she ran away and sought refuge with some of her relatives at the market. The accused approached them and ordered the deceased to go home. He said he would kill her. He eventually convinced her to go home and she went home. At home, he stabbed her on her chest with a knife. She suffered massive internal bleeding and was rushed to the hospital. Unfortunately, she died.

THE LAW

4. Section 299 of the Criminal Code, Ch 262 provides for the offence of wilful murder as follows:

"299 Wilful Murder

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death."

5. The State must establish the elements of the offence of wilful murder, which are:

1. The accused assaulted or injured the deceased; section 299(1) of the Criminal Code;

2. The death of the deceased; section 299(1) of the Criminal Code; and

3. There is intention to cause death of the deceased; section 299(1) of the Criminal Code.

STATE'S EVIDENCE

6. The evidence of the State came from 3 witnesses and they were:

1. Thomas Masi;

2. Kine Tumbe; and

3. Bai Koime.

7. In addition to the evidence of these witnesses, the State, with the consent of the defence, tendered the following documents:

1. Record of Interview of the accused dated 14th February 2008, (exhibit "P1");

2. Post Mortem Report by Dr O Desmond dated 13th February 2008, (exhibit "P2");

3. Sketch Map of Crime Scene, (exhibit "P3"); and

4. Copy of village court order of 12th July 2007, (exhibit "P4").

Thomas Masi

8. The first State witness was Thomas Masi. He is the elder brother of the deceased. He is from Gun village in the Minj District of the Western Highlands Province. He is employed by WR Carpenters as its factory supervisor. He said, the deceased was his last born sister and was doing Grade 7 at Raphael Kome Primary School in 2003. Sometimes in 2003, he was told by some of the deceased school friends that the accused went to the school and abducted her. He took her to his village and kept her there. When he heard this, he said some of his family members and relatives went to the village of the accused and demanded him to release the deceased but he refused.

9. On one occasion, he met with family members and village leaders at Minj road junction to resolve the conflict and release of the deceased. The accused vehemently refused. When his other brother Tombe Koime and a church pastor countered the accused's refusal, he attempted to attack them. His family members and relatives felt that it would be a futile exercise for them to continue discussions with the accused and his line as he would not give in to their request. They ended the meeting and left. He said this was one of the many meetings they held with the accused and his line to resolve this conflict.

10. In 2004, he and the rest of the deceased family members discovered that the accused was abusing the deceased and they sent word to the accused and his relatives to dissolve the marriage but again, the accused refused. On 03rd December 2006, the father of the deceased issued a summons against the accused in the village court for payment of compensation for the time and expenses incurred in educating the deceased. The father was also upset that the accused had been abusing the deceased. At the village court hearing, the father told the court that as Christians, he and the relatives of the deceased wanted peace. Also, as the deceased was the second wife of the accused, according to the custom of the Waghi people, he received no bride price as the custom prohibited payment of bride price for a second wife.

11. The village court ordered the accused to pay some form of compensation to the father but the accused failed to pay. On 26th May 2007, there was a fight between the accused and the deceased and the deceased sustained a broken arm. The conflict was taken to the village court and he was present and witnessed the village court ordering the accused to pay K600.00 and 1 pig to the deceased. Subsequent to this, the accused paid K200.00 and 1 pig. After payment of compensation, he and the family members of the deceased thought that the accused would stop but he continued his abuses.

12. On 22nd December 2007, he was at his house at Gun when he was informed by some people that the accused had stabbed the deceased and she had been rushed to the hospital for treatment. He found out later that the deceased had died and was at the Mt Hagen General Hospital morgue. He and his family members and relatives gathered and moaned her death. He told everyone at the gathering that because of the constant abuses by the accused, the accused eventually ended up killing the deceased. Although the accused and the deceased lived separately and away from him in the village, he meets the accused occasionally, usually at the market place. When they do, they have a chat. He has a good relationship with the accused and reckons that the accused is a nice person as they shared views on a variety of issues.

Mrs Kine Tumbe

13. The second witness was Mrs Kine Tumbe. She is the sister in law of the deceased. She is married to one of the deceased's brothers and lives at Gun village. She said on the morning of 22nd December 2007 between 8 o'clock and 9 o'clock, she was with Bai Koime at Minj road intersection market. Bai Koime is the elder sister of the deceased and they were preparing the place to sell second clothes. She observed that there were many people at the market buying and selling food and items. As she and Bai were laying out the canvass on the ground to put the second hand clothes up for sale, they saw the accused chase the deceased towards them. He was on a bicycle and armed with a butcher knife following the deceased. The deceased ran to them and took cover behind them. The accused stopped a few centimeters from her. She heard him tell the deceased to leave them and go to the house but the deceased refused. He spoke aggressively. She observed he was armed with a butcher knife and had red eyes. She concluded he must have been drunk.

14. He insisted and said if the deceased went to her village at Gun, she would be safe but if she returned to his village, he would kill her. Fearing that the domestic conflict between the accused and deceased would turn nasty, she intervened and told the accused to cool down as it was a public place. She observed the deceased was terrified but eventually gave in and left them. She walked up the road past the betel-nut market while the accused rode behind her. She and Bai said to each other that given the tense and volatile situation between the couple that morning, the accused might end up killing her.

15. Their prediction came to pass. In the afternoon of the same day, they were informed by people that the accused had assaulted the deceased and she was rushed to the hospital for medical treatment. They caught a PMV bus to Kudjip to look for her. When they arrived, they did not find her. They asked around and were told by a security guard that an ambulance from Minj had arrived earlier that afternoon and had left for Mt Hagen. As it was late, they decided against going to Mt Hagen and returned to Minj. When they arrived in the village, she saw all the relatives of the deceased had gathered and were moaning. The relatives informed them the accused had killed the deceased and her body was in the morgue. They joined in the moaning.

Bai Koime

16. Mrs Kine Tumbe's evidence is corroborated by Bai Koime. Bai Koime said, on the morning of 22nd December 2007, between 8 o'clock and 9 o'clock, she was with Kine Tumbe at Minj road intersection market. With them was her mother. They were preparing the place to sell second hand clothes when she also saw the accused chase the deceased. He was riding a bicycle and armed with a knife. The deceased ran to them and the accused followed her. She heard the accused tell the deceased to go with him and Kine Tumbe told the accused to calm down as there were a lot of people at the market. She also heard the accused tell the deceased that she would be safe if she went to her village but if she returned to his village, she would die. The deceased told her that she has a domestic conflict with the accused but obediently followed the accused up the road past the betel-nut market and to the village.

17. After they left, she and Kine Tumbe said to each other that because of the couple's marital conflict, the accused might kill her. They made this observation because they were aware of his bad record of abusing her. It so happened later in the afternoon of that day that they were informed the accused had assaulted the deceased and she was rushed to Kudjip hospital for urgent medical treatment. A driver of a vehicle named Peter and her brother informed her the accused had stabbed the deceased. It was around 4 o'clock in the afternoon when she received the news. She and Kine Tumbe left for Kudjip hospital but returned to Minj in the evening after they discovered the deceased had been taken to Mt Hagen General Hospital.

DEFENCE EVIDENCE

18. The accused and his brother Colin John Kuru gave evidence for the defence.

Accused-Stanley Kuma Kuru

19. The accused gave evidence that he is from Bala village in Minj of the Western Highlands Province. The deceased was his second wife and came from Gun village. She died on 22nd December 2007. On the morning of Saturday 22nd December 2007, they were at their house. At about 7 o'clock, he got on his bicycle and rode to Minj road intersection market leaving behind the deceased. At about 11 o'clock, he went to the bingo place and there he saw the deceased playing bingo. He had always told the deceased not to gamble like playing bingo, cards, or lottery and when he saw her playing bingo, he was not happy. He gestured to her to leave immediately and go home. He said, he did not put any pressure on her to leave the bingo place because he felt sorry for her as she had worked hard during the week making garden and wanted her to enjoy herself. He left her and went away.

20. When he returned to the bingo place between 12 o'clock and half past 12, she was still there playing bingo. He walked up behind her and was about to hold her mouth when one of his fingers accidentally poked her eye. She stood up and ran to her relatives. As she ran away from him, she told him that if he was man enough, he would beat her. He got onto his bicycle and followed her. When he caught up with her, he saw she was with her relatives. He told her to go home or else, he would kill her. When he said he would kill her, he did not mean to kill her but said it to threaten her to go home. Her relatives supported him and told her to go home and she obediently left.

21. The deceased walked up to the betel-nut market past the intersection and onto Minji road. He followed her to the Minj road intersection and saw her walking up along the Minj road. He returned to the market area and stayed around with some relatives. After about 30 minutes, he felt tired and followed her to the house. When he arrived at the house, he parked his bicycle at the side of the house and called out. She replied from the back of the house and he walked to the back. He saw her at the pig house holding a piglet. He asked her if she heard him forbade her from gambling. She countered by saying that she had never stopped him from gambling or going out while she remained at home. Then she told him she would leave him and return to her relatives. She held a knife in her hand.

22. She left him at the pig's house and went into the house. He heard her moving around in the house and suspected that she was packing her personal items as he heard her zip a bag. He entered the house and saw her standing with a bag beside her. He went up to her and pushed her and she tripped on some timber planks lying on the floor and fell on the bag. He heard her scream out saying that she was wounded by a knife. He saw blood coming out from her left chest and went to her aid. He held her and laid her on the floor. He tried to stop the bleeding but blood kept on coming. She told him she felt hot and wanted water to cool her body. He got a container of water and poured it on her and called out for help. His small niece heard and went to the house. She saw that the deceased was wounded and the accused told her to go and get help.

23. She went away and returned with her father Colin John Kuru. He helped the accused and they carried the deceased to the road. It just so happened that a vehicle belonging to one of their cousin, a policeman in Mt Hagen was passing by and the driver saw them. He stopped and picked them. They drove to Minj health centre.

24. When they arrived, a nurse attended to the deceased. His brother left him with the deceased and ran off to look for the ambulance driver. He found the ambulance driver and they returned to the health centre. They put the deceased into the ambulance and drove to Kudjip hospital. At the entrance to Kudjip hospital, they were informed by a staff that the hospital was closed for the festive period. They drove on to Mt Hagen and on the way they stopped at an aid post at Awiamp and saw a volunteer doctor. The doctor checked the deceased and informed them that she had died. The accused insisted they took her to Mt Hagen General Hospital to confirm her death.

25. They left for Mt Hagen General Hospital. On arrival, they rushed her to the emergency section and a doctor came and checked her. He pronounced her dead on arrival. He told them she must have died on the way to the hospital and there was nothing more he could do to revive her. They put her in the morgue. He wept bitterly for her and refused to leave the morgue. His brother Colin had to convince him to leave and eventually, he did. They returned to the village in case the relatives of the deceased found out and retaliated.

26. As to the history of their marriage and cohabitation, he met the deceased when she was in Grade 7. The first time she met her was at Minj road intersection market. She was with another girl. It was the deceased who initiated the friendship by asking him to be his boyfriend through this girl. He was told to meet them at a given location. When he met them, the other girl left and he was alone with the deceased. They devised a plan that after school on one Friday, he would pick her up and take her to his village. He did exactly that. He took her to his village and she spent the weekend with him. When Monday came, she refused to return to her village and school, despite his insistence.

27. She told him she would remain in his village for good. Word reached her family and they came in two truck loads. They demanded her to return with them but she refused. Following that, they lived peacefully. He had a piece of land nearby and proposed to the relatives of the deceased to occupy it and develop it but they refused. The relatives of the deceased hated him. Not one single time he was in good terms or at peace with them. The dispute arose because the deceased was the last born of the family and they did not agree that she would marry him. They were also unhappy because he was a married man as he has a first wife and the deceased was his second wife. However, he took her as his wife because he loved her so much. His love for her was more than the first wife.

28. There were occasional domestic arguments between them and she would leave for her parents. When she returned to her parents, they accused him of being abusive and violent. When he went to get her back, sometimes, Thomas Masi would accompany him. Three times he had been summoned before the village Court. The first was in relation to the deceased's parents demand for payment of bride price because he disrupted the deceased's education and secondly, when he assaulted her for making false accusations about him to her relatives. The third occasion was also for assault after she made false accusations about him to her relatives. That was the time, he broke her arm.
For that, he was ordered by the village court and paid compensation of 1 pig and K200.00 to the deceased. He has been falsely accused of this offence because the relatives of the deceased suspected he killed the deceased. He did not stab her with the knife. He said it was an accident.

Colin John Kuru

29. The elder brother of the accused Colin John Kuru gave evidence that he and his wife were working in their garden about 100 metres away from the house on the afternoon of 22nd December 2007. Their daughter arrived and told them the accused and the deceased had fought and the deceased was wounded. On hearing this, he ran to the house and as he entered the door, he saw the accused holding the deceased and there was a lot of blood. He asked the deceased as to what had happened and she told him that she had fallen down and injured herself. He observed she had lost a lot of blood and the accused was pouring water on her.

30. He realized the deceased was in serious danger and needed to be moved to the road quickly to catch a vehicle to the hospital. He and the accused carried her to the road and it just so happened, a vehicle belonging to one of their cousins a policeman, in Mt Hagen was passing by. The driver saw them and stopped. He picked them and they drove to Minj health centre. When they arrived, there was no staff to attend to her. He left the accused to attend to her and he ran off to look for the ambulance driver. He found the ambulance driver and they returned to the health centre. They put the deceased into the ambulance and drove to Kudjip hospital.

31. At the entrance to Kudjip hospital, they were informed by a staff that the hospital was closed for the festive period. They drove on to Mt Hagen and on the way they stopped at an aid post at Awiamp and saw a volunteer doctor. The doctor checked the deceased and informed them that she was dead. The accused insisted that they take her to Mt Hagen General Hospital to confirm the volunteer doctor's advice. On arrival at Mt Hagen General Hospital, they rushed her to the emergency section and a doctor came and checked her. He pronounced her dead on arrival. He told them that she must have died on the way to the hospital and there was nothing more he could do to revive her. They put the deceased in the morgue and returned to the village in case the relatives of the deceased found out and retaliated.

ISSUES

32. As the accused has been charged with wilful murder of the deceased, the State must establish beyond reasonable doubt that the deceased died, the accused killed her and had intended to kill her. There must be presence of actus reus and meas rea. There is no dispute the deceased died. The post mortem report by Dr O Desmond dated 13th February 2008 (exhibit "P1") confirmed the deceased sustained a stab wound on her left chest between the 3rd and 4th ribs causing massive internal bleeding. It concluded that the death was a direct result of the wound. Further, the accused admitted in his evidence and record of interview in his answer to Q11 in the record of interview (exhibit "P2") the deceased died. I am therefore satisfied this element of the offence has been established by the State.

33. The issue is, first who caused her death and if it was the accused, secondly, did he intend to cause her death? To determine these issues, it is necessary to review the evidence of the State and defence witnesses.

ANALYSIS OF THE LAW AND EVIDENCE

34. I accept there were no eye witnesses to the killing, and the State's case is largely based on circumstantial evidence. The law on circumstantial evidence is not in doubt. The law states that, in cases where evidence is circumstantial, the test is, is the only rational inference that all the evidence can enable the Court to draw is that the accused is guilty? If the accused's guilt cannot be inferred from such evidence, then the accused is entitled to be acquitted. The necessary inference must be drawn from the overall view of all the evidence before the Court: see The State -v- Tom Morris [1981] PNGLR 493[1], which was later affirmed by the Supreme Court in Paulus Pawa -v- The State [1981] PNGLR 498[2]. See also The State -v- Kwale Dire [2001] PNGLR 589[3].

35. I must therefore look at the overall evidence before me, all of which I have discussed above, in deciding what inference I should draw.

36. The defence counsel submitted, the evidence of Thomas Masi is hearsay and is inadmissible. The Court should not rely on it. I do not agree that all of it is hearsay. I accept his evidence in relation to the constant abuses is hearsay because he was not physically present and saw the accused abuse the deceased. For example, he did not say when and where he saw the accused assault the deceased. He also did not say how many times he witnessed the accused assault the deceased. To that extent, any evidence he gave in relation to the accused assaulting the deceased is hearsay and I reject them. I also reject his evidence that the accused abducted the deceased from school in 2003 because this evidence is hearsay. He did not see the accused abduct the deceased. He was only told by the deceased's school friends of the abduction.

37. However, there are some aspects of his evidence that are not hearsay. They are admissible and I take them into account. First, there is some evidence of history of abuse of the deceased by the accused. Thomas Masi spoke of the history of abuse and physical violence of the deceased during her marriage with the accused. He witnessed a mediation meeting between the family members of the deceased and the relatives of the accused at Minj road intersection to resolve the conflict and the release of the deceased. The conflict was in relation to the deceased's marriage to the accused.

38. He was present and witnessed the accused attempt to attack Tombe Koime and a church pastor as they were vocal in the release of the deceased. This evidence is not hearsay and I must accept it. It goes to establish that the family members and relatives of the deceased disapproved of the accused marrying the deceased and demanded her return.

39. The accused also admitted in his evidence in chief and also in cross-examination that he assaulted her. He did that because the deceased had spread false rumors about him. The rumors had their roots in the dissatisfaction over their marital relationship because the deceased had frequently visited his first wife and spend less time with her. I have no doubt in my mind that the deceased was jealous about her husband's first marriage. As a result, they constantly had physical confrontations.

40. It is also Thomas Masi's evidence that he witnessed a number of village court hearings in relation to the conflict between the accused and the deceased. One of them was where he witnessed the village court ordering the accused to pay K600.00 and 1 pig to the deceased as compensation for assaulting her. As a result of that assault, she sustained a broken arm. This was in 2007. In my view, this evidence also goes to establish a history of abuse of the deceased by the accused. Over all, there is evidence establishing a history of abuse of the deceased by the accused.
I also reject the submissions of defence counsel that the Court should not believe the evidence of Mrs Kine Tumbe and Bai Koime because their evidence was fabricated to persuade the Court to believe the accused killed the deceased. It was submitted their evidence was fabricated because they did not give any statement to the police before the trial. They were called to give evidence against the accused when the trial was fixed and their belated evidence is suggestive of the prosecution fabricating evidence against the accused.

41. He further submitted that their evidence is highly suspicious because in addition to their belatedness, their demeanour in Court was unimpressive. They did not maintain eye contact with the Court, the lawyers and the accused; they hid their faces suggestive of lying witnesses. For these reasons the Court should reject their evidence.

42. I reject these submissions because there is no express provision in the Criminal Code, Ch 262 and the Criminal Practice Rules, 1987 prohibiting late service of witnesses' statements on the defence. However, there is provision in the Criminal Code, Ch 262 for a person who is committed for trial or held to bail for an indictable offence to have on demand from the person who has the lawful custody of the copies of the depositions of the witnesses on whose depositions he has been committed or is held to bail: see section 262 of the Criminal Code, Ch 262. As a matter of practice, at directions hearing, the prosecution may inform the Court of the prosecution witnesses required at trial or potential witnesses for its case: Order 2, rule 6(b)&(c) of the Criminal Practice Rules, 1987.

43. Based on this, I am of the opinion that no adverse inference may be drawn against these witnesses. What is relevant is the veracity of these witnesses' evidence. Their evidence must be credible and admissible. In the present case, while I accept the witnesses' demeanour may be suggestive of lying witnesses because they frequently made no eye contact with the Court, the lawyers and accused and hid their faces, I am not satisfied that means they lied or had a motive to lie. May be they did that purposely because it may be their first time in Court and that, it was too confronting to come face to face with the person who allegedly killed their sister in-law and sister. My observation here is fortified by the accused's history of abuse of the deceased. That may be the reason they came to Court to testify against him and found it too confronting for them. Thus, I am satisfied these two witnesses are credible witnesses and I accept their evidence.

44. Turning to their evidence, there are a couple of important points about their evidence which needed mentioning and emphasising. First, the accused was seen chasing the deceased at the market on a bicycle with a knife on the morning of 22nd December 2007. The accused does not deny this. He was seen with a knife at the market on that day and it is irrelevant whether it was a butcher knife or a kitchen knife. The point is he had a knife with him on that day. This is an important aspect of the case because the State alleged the deceased died from a knife wound.

45. Secondly, they claimed he was drunk as his eyes were red when he approached them. The accused denies this. Thirdly, the accused was heard saying he would kill the deceased if she returned to his village in an attempt to get her to go home that morning. Fourthly, he was aggressive or angry. The accused does not deny these factual matters. He admitted threatening the deceased by using the words "I will kill you if you return to my village". To my mind, their evidence established that the accused and the deceased had an argument that day and the accused was angry. The argument was over the deceased's gambling at the market place that morning.

46. But I am not satisfied the words uttered by the accused that he would kill the deceased on its own established an intention to kill the deceased. There must be something more to that statement to support an inference of the presence of intention. In the case of The State -v- Emmanuel Bais (2003) N2416[4], Kandakasi, J found that the pidgin words, "Bai mi kilim yu" (I will kill you) did not establish an intention by the accused to kill the deceased. His Honour was not satisfied beyond reasonable doubt that the State had established the intention to kill beyond reasonable doubt and returned a verdict of not guilty for wilful murder but convicted him of murder. In another case of The State -v- Henry Judah Les (2005) N2950[5], Lay, J acquitted the accused for attempting to kill his wife because he was not satisfied that the pidgin words "Bai yu dai" was sufficient to establish the element of intention to kill.

47. Fifthly, the accused was the last person to have been seen with the deceased on the morning of 22nd December 2007. It was in the afternoon of that day that the deceased died. It was alleged the deceased died from a stab wound from a knife. In his interview with the police, the accused told them he was with the deceased in the house during the day. At that time, he pushed her and she tripped on a plank or piece of timber and fell down. She wounded herself with a knife: see his answers to Q7-Q10 and Q20 of the record of interview (exhibit "P2").

48. Finally, as noted above, the post mortem report by Dr O Desmond dated 13th February 2008 (exhibit "P1") confirmed that the deceased sustained a stab wound on her left chest between the 3rd and 4th ribs causing massive internal bleeding. It concluded that the death was a direct result of the wound. In my view, the knife was directed to a vital part of the body and the inference to be drawn from that is this, it could not possibly have been an accident. On the other hand, it is suggestive of being stabbed by someone. The State's case is that, the accused had previously been violent to the deceased had an argument with her over gambling at the market place that morning, seen chasing her with a knife that morning, and had expressed it to her earlier on that day, that she would die if she returned to his village and was the last person to be seen with the deceased prior to her injury and death.

49. The defence case is that, the death of the deceased was accidental. The accused gave evidence that there were timbers or planks on the floor inside the house and tried to explain an accidental death which was so vague and illogical. He said, some of the timbers or planks caused the deceased to trip over and fall during their argument. She fell on a bag of clothes. When she got up, she said she was injured. He did not explain in his evidence where the knife came from. In his record of interview (exhibit "P1"), he said the deceased had a kitchen knife and a pillar, but does not sufficiently explain in his oral evidence and record of interview how the deceased was stabbed.

50. There is also no evidence of a knife in the bag on which she fell on. The question is, is that a reasonable explanation of the cause of the death of the deceased? Can such an accident happen? Did the deceased hold the knife and fall on it or was it in the bag and she fell on it? The medical report (exhibit "P2") which I discussed above is an independent piece of evidence. It stated the deceased sustained a deep penetrating wound on the left chest which penetrated the left lung and caused it to collapse.

51. Is this injury possible in the circumstances described by the accused in his evidence? In my view, it is not possible. It is far too remote and defies logic and commonsense. How can someone like the deceased sustain a deep wound on her chest in a fall? I find it hard to believe this. This case is similar to the case of The State -v- Wanaepe Warara [1977] PNGLR 458[6], where the accused was tried on a charge of attempted murder where he, in a state of anger stabbed two men with a knife, one in the stomach and one on the chest. The former Deputy Chief Justice Prentice in finding the accused guilty observed at p 460:

"The location of the wound in Yena's stomach rather than in his arm or thigh or some other place less likely to kill, associated shortly after with the stabbing in another equally potential vital place, the chest, in Yeni's case, provides strong support for the contention that an actual intent to murder Yena was present in the accused's mind. The nature of the weapon used also supports this; and find the s. 103 statement to be clear admission to this. I therefore come to the conclusion that the charge of attempted murder has been made out and I convict the accused on the indictment."

52. In the present case, the wound was not on the deceased's arm or thigh. It was on her chest which in my view is a vital part of her body. This provides strong support for the contention that there was intention to kill the deceased in the accused's mind. The nature of the weapon also provides strong support for the State's contention. For these reasons, I am not satisfied with the accused's explanation as to how the deceased sustained the injury. I find the accused fabricated his evidence to save himself from this trouble. I reject his evidence.

53. The defence counsel also submitted it was an accidental death because before the deceased died, she made a dying declaration. She told the accused's brother Colin John Kuru that she fell and injured herself. And so, turning to the evidence of his brother Colin John Kuru, most of his evidence is irrelevant to the issue of how the deceased died and who caused her death. This is because he arrived at the house after the deceased was injured and in great pain hence, did not see what had happened. He said when he asked the deceased as to what had happend the deceased told him that she fell and injured herself.

54. I reject the defence submissions that before the deceased died, she told Colin John Kuru she accidently fell and injured herself and that statement amounted to a dying declaration which in turn established the cause of her death. Nowhere in Colin John Kuru's evidence did he say the deceased fell on the knife and injured herself. He only said the deceased told him that she fell down and injured herself. I reject these submissions because in my view, that statement is not a dying declaration and is inadmissible under section 20 of the Evidence Act, Ch 48. Section 20 states:

"20. Dying declarations.

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if -

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not -

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and

(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement."

55. A dying declaration is admissible evidence. For a statement of a deceased to be a dying declaration, it must meet the criteria set out in section 20 of the Evidence Act, Ch 48. Section 20 sets out the circumstances in which a dying declaration may arise. First, at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent. It is irrelevant the person entertained at that time, any hope of recovery or thought that legal proceedings might eventuate. Secondly, at the time when the person made the statement he would have been a competent witness in the legal proceedings and finally, the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement: for more discussions on dying declaration, see R -v- Kipali Ikarum [1967-68] PNGLR 119 [7], R -v- Ambimp [1971-72] PNGLR 258 [8] and R -v- Enn Bullen [1990] PNGLR 43[9].

56. Based on the considerations in section 20, and noting the statement of the deceased that she fell down and injured herself, one in her position would not believe that her death was imminent. In my view, a statement of that nature is too simplistic. After all, she was bleeding and in pain and a statement of that nature does not demonstrate how or what caused her to be in that condition such that her death was imminent. For these reasons, I am not satisfied the deceased believed her death was imminent. I find it was not a dying declaration and is inadmissible. I reject it.

57. Finally, it was also the defence contention that the demeanour of the accused and his evidence in relation to the events following the injury of the deceased is suggestive of a credible and truthful witness, which go to establish his innocence. Defence counsel pointed to the evidence of the accused taking the deceased to Minj health centre, then to Kudjip hospital, then all the way to Mt. Hagen, with a stop over at Awiamp aid post to see a volunteer doctor who checked the deceased and advised of her death and the accused insistance to take her to Mt. Hagen General Hospital for a second opinion and submitted all these factual matters go to support the accused's defence that he was innocent.

58. The defence contention seems reasonable and logical when one considers that the accused and the deceased are married couple and a husband would no doubt act in the way the accused did. Here was a husband and a wife in a desperate situation; the husband fighting to save the life of his wife and the wife fighting to live because of a serious injury. In my view, it is only logical that a husband in the accused's shoes would do the same thing.

59. Therefore, I accept the defence contention that these actions established the accused's sincerity and genuineness, but I am not satisfied, they go on to establish his innocence. They are only one part of the equation. As I said in the beginning, I must look at the entire circumstances of the case to satisfy myself that from all the evidence, presented, there is only one rational inference and that is guilt of the accused.

CONCLUSION

60. When I consider the history of abuse of the deceased by the accused as a result of marital relationship dispute, the argument over the deceased's gambling at the market place on that day, chasing her with a knife on that day, being aggressive or angry and expressed that he would kill her if she returned to his village, the accused being the last person seen with her on that day before her injury, the deep penetrating wound on a vital part of the body, namely her left chest, and a knife was involved and my rejection of the defence explanation that it was an accidental death, all these evidence lead to one rational inference and that is, the guilt of accused. That is, he was the person who killed the deceased and that he intended to kill her. I convict him of wilful murder.

Verdict: Guilty.
__________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

^[1] PNGLR 493
^[2] PNGLR 498
^[3] PNGLR 589
^[4] N2416
^[5] N2950
^[6] PNGLR 458
^[7] PNGLR 119
^[8] PNGLR 258
^[9] PNGLR 43