N8605

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1408 OF 2017

THE STATE

-V-

EVELYN STEVEN

Waigani:  Koeget, J
2020: 23rd, 30th September

CRIMINAL LAW- Indictable offence – Wilful Murder pursuant to section 299 (1) of the Criminal Code Act chapter 262 – conviction after a trial – Exercise of court’s discretionary powers to impose sentence outside of the suggested tariffs set out by the Supreme Courts in Manu Kovi –v- The State and Kumbamong –v- The State.

FACT

The accused and the deceased were married to Steven Bip and they lived at 7 Mile in the Weather office compound with their children.  The accused is the first wife of Steven Bip and the deceased was the second wife of Steven Bip.

On 5th April 2017, the accused went with Steven Bip to 4 Mile to attend to some land dispute at 8 Mile ATS settlement leaving the deceased in the house at 7 Mile.

They went to see Paraka Lawyers at 4 Mile in the National Capital District.  They waited for a long time till afternoon when their child began crying as he was hungry so she left with the child while Steven Bip stayed back at 4 Mile.

As they departed home, the accused bought two kwik-kai packets and left for the house.  When the accused and child arrived at the house, she saw that the inside of the house was dirty and untidy, the plates, dishes and cups were not clean and washed.  She said to the deceased “bai mipela kuk tu oh, yupela laikim mi stap long hapsait na ikam na wasim doti plat bilong yupela”.

As the accused was picking up the dirty plate to wash, the deceased replied and said: “yu go raun gut tru wantim man bilong yu, na yu stap na mi kuk blong yu na wasim plat blong yu na yu tok tok stap ha!”

The deceased went and laid down and was sleeping face down when the accused stabbed her several times on the back and when she felt pain and turned around, the accused stabbed her twice at the base of the neck to the left hand side and twice on the left shoulder joint leaving gaping wounds.  She was rushed to the Port Moresby General Hospital and she was pronounced dead on arrival.  The accused left the house and surrendered to the police.

Cases Cited: 

Manu Kovi v The State (2005) SC 789,
Kumbamong v The State (2008) SC 1017
The State v Pok (2014) N5606
The State v Steven Malim (2017) N6678
The State v Benjamin Emma and Paul Tom (2019) N8098
The State v Bonny Valken (2020) N8391

Counsel:

A. Kapu, for the State
B. Popeu, for the Accused

TRIAL

23rd September, 2020

1.      KOEGET, J. INTRODUCTION: The accused is charged with one count of Wilful Murder pursuant to section 299 (1) of the Criminal Code Act chapter of 262.

2.     The accused pleaded not guilty to the charge so a trial proceeded as she raised the defences of self defence against unprovoked assault under section 269 of the Criminal Code and Provocation under section 267 of the Criminal Code Act.  The State conducted its case by tendering into evidence some of the relevant committal depositions without calling oral evidence. The following documents were tendered into evidence by the State with consent of the Defence counsel:

-	Statement of Steven Bip dated 5th April 2017 – “marked exhibit 1” for the State.
-	Statement of Richard Moka dated 13th July 2017 – “marked exhibit 2” for the State.
-	Statement of Murray Kwapena dated 23rd June 2017 – “marked exhibit 3” for the State.
-	Statement of Jacob Hais dated 14th July 2017 – “marked exhibit 4” for the State.
-	Statement of Jackson Timbi dated 19th July 2017 – “marked exhibit 5” for the State.
-	Statement of Nei Pige dated 20th July 2017 – “marked exhibit 6” for the State.
-	Statement of Lenny Varage dated 5th August 2017 – “marked exhibit 7” for the State.
-	Record of interview of Evelyn Steven dated 11th April 2017 in Pidgin – “marked exhibit 8A”.
-	English translation – “marked exhibit 8B”.
-	Confessional statement of Evelyn Steven dated 10th April 2017 – “marked exhibit 9” for the State.
-	Affidavit of Dr. Joe Norri dated 1st August 2017 – “marked exhibit 10” for the State.
-	Statement of Dabada Kobua dated 7th June 2017 – “marked exhibit 11” for the State.
-	Photographs 1-29 – “marked exhibit 12 (a)            (z) (z1), (z2), (z3)” for the State.

Evidence

Evidence for the State

Statement of Steven Bip dated 5th April 2017

“My name is Steven Bip, I am from Nipa, Mendi, Southern Highlands Province.  I work as an Observer with the National Weather Service at 7 mile.  I have two wives, the first one is Evelyn Daniel Steven and the second is Roselyn Moka, the deceased.   Evelyn Steven lives in my family block at ATS settlement and Roselyn Moka lives with me at 7 mile.

Recently, we were served eviction notices for the blocks at ATS and also the room at 7 mile so I looked for places to settle my family.  On 5th of April 2017, the settlers at ATS block gathered at Paraka Lawyers residence.  When I arrive at Paraka Lawyers residence, my first wife Evelyn Steven and our child were present there.  They came with the large group of settlers from ATS settlement.  We stayed at Paraka Lawyer’s residence for some time as we sought assistance from that law firm.

We sat around at Paraka’s place for some time and around 4 o’clock in the afternoon, Evelyn Steven and the child left without my knowledge.

At about 4:30pm I received a call from workmate Murray Kwapena that Evelyn Steven stabbed Roselyn Moka and they were travelling to the hospital.”

Affidavit of Dr. Joe Norrie dated 1st August 2017.  

Paragraph 7:

“In the cause of my examination on the deceased, on condition directly leading to her death;

1.	Direct causes;

A.	  acute blood loss
B.	  left Hemothorax
C.	  multiple stab wounds to the body and chest caused by sharp instrument.
Evidence for the Defence

3.      The accused’s unsworn statement from the dock:

She is the first wife of Steven Bip and the deceased was the second wife of the same man.  Both of them have child each from Steven Bip, employed by the Weather Office as an Observer at 7 Mile.  During those happier times she attended to domestic duties in the house because she stayed home and also cared for their young children.

The deceased attended classes at University of Papua New Guinea campus at Waigani as she was a student and her courses were paid for by the husband.

On 5th April 2017, she went with her child to 4 Mile and Steven Bip followed her.  They went to 4 Mile to see Paraka Lawyers because they were served with eviction notice for the family block at ATS and the one bedroom flat at Weather Office compound at 7 Mile in the National Capital District.  They stayed at 4 Mile till afternoon when her child cried as he was hungry so she departed for the house with the child.

As she departed and en-route to the house, she purchased two kwik kai packs and took them to the house.  When she arrived at the house, the door was slightly opened she saw Roselyn, the deceased sitting down on the bed weaving string-bag (“bilum”).  She looked to the side of the lounge room, saw dirty plates, cups, spoons left and there were lots of blue flies sitting on them.  She said to the deceased: “the plates, cups are dirty, am I going to cook too or not?.”  So she went into the room to pick up a cake of soap and as she came outside and went to were the dirty plates, cups and spoons were located, put her child on the floor and being collecting the dirty plates, cups, spoons and she had her back towards the deceased.

The deceased came from the rear and said: “you went with your husband and return.  Do you expect me to cook and wash the plates and leave them?.”  The deceased held a knife in her hand and swung it at her.  She used the dirty plate to fend off the knife to avoid being stabbed.  The deceased swung the same knife the second time and she used the same dirty plate to fend off the knife and quickly held the deceased’s hand and took the knife away.

She held that knife in her hand and when the deceased bent towards a tool box in that room, she thought the deceased was picking up a sharp instrument to attack her so she went berserked and swung the knife at the deceased and stabbed her.  She did not count the number of times she stabbed the deceased.  The fight took place near the door so the deceased went outside through the door, she too took her child and left.  She heard later that the deceased died from the stab wounds.

Undisputed Facts

4.     The undisputed facts in the trial are as follows:

1)	The accused is the first wife of Steven Bip.  The deceased was the second wife of the same man.
2)	At the relevant time the accused lived at the family block at ATS settlement and she left from there with her children and other residents of ATS settlement to see Paraka Lawyers on the morning of 5th April 2017.
3)	The deceased resided with Steven Bip at 7 Mile, Weather office compound and on the morning of 5th April 2017, Steven Bip went to 4 Mile to see Paraka Lawyers leaving the deceased alone in the flat.
4)	The accused used a knife to stab the deceased 14 times on the body.
5)	The deceased died due to acute loss of blood due to the stab wounds inflicted by the accused.

Disputed Facts

1)	Did the accused arm herself with a knife and attack the deceased on the afternoon of 5th April 2017 at 7 Mile in the National Capital District?
2)	What prompted the deceased to attack the accused with the knife?
3)	Was there a tool box in the room where the deceased and accused fought on the afternoon of 5th April 2017?
4)	When the accused stabbed the deceased in the back eleven (11) times with the knife, was the deceased bending down towards a tool box in the room?
5)	When the accused stabbed the deceased 14 times on her body, was she laying on the bed in the room?
6)	Why did the accused stab the deceased with the knife 14 times on the body?

Analysis of Evidence

5.     There are no eye witnesses’ testimonies in the trial because the two women fought in the room when there was no one around.  So the deceased’s account is not told because she is deceased.  The only account told in court is that of the accused.  She made an unsworn statement from the dock during the trial including the confessional statement and the record of interview.

6.     The accused states that the deceased attempted to stab her twice with a knife on the afternoon of 5th April 2017.  She disarmed the deceased and held the knife.  She used the same knife to stab the deceased immediately and because she went berserk, she did not count the number of times she stabbed the deceased.  She stabbed the deceased when the latter stood close facing her.  This account is consistent with the three injuries found on the front of the deceased body.  One of the stab wound is on the left hand side of the neck slightly below the left collar bone.  The other stab wounds are located on the left shoulder joint slightly to the inside of the left arm.

7.     The accused raised the defences of self-defence and provocation when she stabbed the deceased with the knife.  She had “reasonable apprehension of death” when the deceased allegedly attacked her from the rear with a knife but when she removed the knife from the deceased’s hand, there was no more apprehension of death because she had the knife in hand.  When the deceased was unarmed, she was incapable of offering a physical threat.  So the defence of Self-Defence was unavailable to her at that instant.

8.     The three frontal injuries on the deceased’s body are wounds inflicted when she disarmed the deceased and used the same knife to stab her.  It is probable that when the accused stab the deceased three times in the front, she lost a lot of blood and was weak and leaned on the bench in the room to support herself.  So she was not bending over towards the tool box as there is none shown in the photographs tendered into evidence.  This is a fabricated fact to justify her continuous stabbing of the deceased with a knife in the back eleven (11) times.  A question imposed is: “Was the accused acting under provocation when she stabbed the deceased in the back eleven (11) times?  

9.     The obvious answer is NO.  There is no evidence that she was suffering from depression, mental delusion or mental illness when she stabbed the deceased 11 times in the back.

10.     The finding of facts are summarised as follow:

1)	When the accused disarmed the deceased and she held the knife, the defences of self-defence and provocation were negative at that instant. The accused had no reasonable apprehension of death then.  So the logical thing the accused ought to have done was to escape from the deceased with her infant child and the knife.  But she did not do so.

2)	When she persistently used the same knife to stab the deceased in the back eleven (11) times, those injuries are indicative of her intention to kill the deceased. She stabbed the deceased at will when she was unarmed. She intended to kill the deceased when she inflicted those wounds upon the deceased.

VERDICT

11.     The verdict of the court therefore, is that the accused is found guilty as charged.

ISSUE

12.     The issue for the court to determine is what is the appropriate sentence the court should impose on the prisoner?

LAW

“Section 299.   Wilful Murder.

(1)	Subject to 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.

Penalty:   A person who commits wilful murder shall be liable to be sentenced to death.

PERSONAL PARTICULARS

13.     She is from Evea village, Kagua/Erave District of the Southern Highlands Province.  She is 28 years of age and is married with one child.  She attended Mogol Secondary school in Mendi and completed grade 10 in 2010.  She proceeded to attend Mendi Technical college and obtained Certificate in Basic Computing, Tourism and Hospitality.  She is a housewife.

AGGRAVITING FACTORS

14.     This was a vicious attack on the deceased.  The deceased sustained multiple stab wounds resulting in the death.  A weapon was used to commit the crime.  Such offence is prevalent in the country.  A life is lost and cannot be resurrected by mere apology.

MITIGATING FACTORS

15.     She is a first-time offender.  She admitted commission of the offence to the police (in the confessional statement and the record of interview).  She has been in custody for 3 years, 6 months and one week awaiting disposal of the case.

SENTENCE

16.     The prisoner and her child were residing at a family block at ATS settlement.  She went with other settlers to seek legal assistance from Paraka Lawyers on 5th April 2017.

17.     The husband Steven Bip lived with the deceased and her child in a one bedroom flat at the Weather Office compound at 7 Mile.  He left the deceased in the flat and followed the prisoner to 4 Mile to seek legal assistance from Paraka Lawyers.  

`18.     She did not return to the house at ATS settlement, instead she went to 7 Mile and murdered the deceased.  She gave no explanation for not going to the house at ATS settlement to cook the food with the kwik-kai packs.  She gave no explanations why she went that afternoon to 7 Mile Weather Office compound.

19.     The only reasonable inference drawn from the prisoner’s actions are that she went to 7 Mile to the Weather Office compound to kill the deceased.

20.     The attack on the deceased was a vicious attack and she sustained total of fourteen stab wounds to her body. The prisoner can see the sunrise in the east and sets in the west each day.  She can breathe fresh air and communicate with her family members.  The deceased cannot because the prisoner prematurely terminated her life.  She was to have lived full life like everyone else but that life was terminated by the prisoner.

21.     There is no psychiatrist report on the mindset of the accused providing explanations why she stabbed the deceased fourteen (14) times on the body with a knife.

22.     The prisoner stated that she accepted the decision made by her husband Steven Bip when he took the deceased as his second wife to the one bedroom flat at 7 Mile.

23.     If the prisoner was not comfortable residing with the husband and the deceased, she had the option to terminate the marriage to Steven Bip, claim maintenance for the child and move on with life.  She did not do so.  In my opinion, the aggravating factors in this case warrants an imposition of an imprisonment term outside of the suggested tariff in the case of Manu Kovi v The State (2005) SC 789 and Kumbamong v The State (2008) SC 1017.

24.    In the exercise of the court’s discretionary powers under section 19 of the Code, (the prisoner is sentenced to be imprisoned for 40 years in hard labour.  The pre-trial custodial period of three (3) years, six (6) months and one (1) week are ordered to be deducted.  She is to serve the balance of 35 years, 5 months, 3 weeks at Bomana jail.

ORDERS

1)	The pre-trial custodial period is deducted.
2)	She is to serve the balance at Bomana jail.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused