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State v Kaiwi (No 2) [2022] PGNC 548; N10089 (6 December 2022)

N10089

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 758 OF 2021

STATE

V

BHOSIP KAIWI
(No 2)

Waigani: Wawun-Kuvi, AJ
2022: 1^st July, 25^th July & 6^th December

CRIMINAL LAW AND PROCEDURE – Evidence-Admissibility-Propensity Evidence -Relationship Evidence- Relevance

The State called Dickson Karava. The State relies on his evidence to demonstrate propensity. It argues that it is admissible. The Defence objected based on relevance.

Held:

1. To sustain a conviction, it must be established that the accused caused the death of the deceased with an intent to cause her grievous bodily harm: see sections 291 and section 300(1)(a) of the Criminal Code.
   
2. The State’s position is that when the accused continuously assaulted the deceased between the period 18 June 2020 and 24 June 2020, he had intended to cause her grievous bodily harm and consequently he caused her death.
   
3. The common law position has always been that evidence is not admissible unless it is relevant to the fact in issue.
   
4. Relationship evidence is a category of circumstantial evidence that is admissible where it goes towards establishing nature of the relationship between the accused and the deceased and provides context to the offending behaviour. It is evidence which enables the Court to draw the relevant inferences when determining the facts in issue: see State v Namaliu [2019] PGNC 261; N8080 (26 September 2019).
   
5. There is nothing in the evidence of Dickson Karava that provides relationship evidence.
   
6. The evidence contained in the Statement of Dickson Kavara is not relevant to the facts in issue and is inadmissible.
   

Cases Cited

State v Namaliu [2019] PGNC 261; N8080

Reference

Criminal Code (Ch 262)

Counsel

Ms Elizabeth Kave & Ms Violet Nigakun, for the State
Mr Emmanuel Ellision, for the Defence

RULING

6^th December 2022

1. WAWUN-KUVI, AJ: The accused was indicted for the murder of Jenelyn Kennedy, contrary to section 300(1)(a) of the Criminal Code.
   
2. To sustain a conviction, it must be established that the accused caused the death of the deceased with an intent to cause her grievous bodily harm: see sections 291 and section 300(1)(a) of the Criminal Code.
   
3. The State’s case is that the deceased and the accused were in an intimate relationship and that relationship was marred with violence.
   
4. It is alleged that on 18 June 2020, the accused took the deceased into their shared bedroom and assaulted her continuously for 5 days with the use of various weapons. On 22^nd June 2020, a nursing officer was brought to the house to attend to the deceased injuries. On 23 June 2020 sometime between 3.30pm and 4 pm, the deceased was rushed to the Port Moresby General Hospital Accident and Emergency Department where she was attended to and subsequently pronounced as being dead on arrival. The State’s allegation is that the cause of death was because of a head injury and bruised internal organs caused by blunt force trauma to head and body.
   
5. It is essentially the State’s position that when the accused continuously assaulted the deceased between the period 18 June 2020 and 24 June 2020, he had intended to cause her grievous bodily harm and consequently he caused her death.
   
6. The State decided to call evidence from Dickson Karava. It became evident from the commencement of his evidence that his evidence was not relevant to the issue. As it is this Court’s duty to ensure that a trial is conducted fairly, enquiries were made as to whether the evidence sought was relevant to the issue.
   
7. Ms. Kave has argued that the State had given notice that it would lead evidence of propensity and that the evidence of Dickson Kavara was to that effect.
   
8. The Defence had objected to several witness statements including Dickson Kavara based on relevance.
   
9. I took the approach that a voir dire was necessary to address the issue of admissibility. Whilst initially considering that I would deal with several witness statements that the State has indicated would be propensity; I now considered and so rule that the proper approach is to consider each piece of evidence as and when the State decides to call the witness. Should the defence have any objections to any other witness called by the State, it should raise its objections as and when the State decides to call them. Presently, the State called Dickson Karava to give evidence. I will deal only with his evidence.
   
10. The objection as I gather from Mr. Ellison submission is based on relevance.
    
11. The State intends to lead evidence from the witness as set out in his statement to police dated 30^th June 2020. It argues that the evidence is propensity or similar fact evidence, and it is admissible because it provides context as to the relationship between the deceased and the accused. That it will provide evidence that will go towards showing the nature of the relationship and the tendency of the accused to behaviour in a certain manner towards the deceased. The State relied on State v Namaliu [2019] PGNC 261; N8080 (26 September 2019).
    
12. The common law position has always been that evidence is not admissible unless it is relevant to the fact in issue. I adopt the statements in law by Berrigan J in State v Namaliu [2019], “It is relevant if, but only if, it contributes something to the resolution of one or more of the issues in the case. It may do so either directly or indirectly”
    
13. Relevance of the evidence is dependent upon the facts required to prove the case. It requires assessment of the charge and the factual circumstances.
    
14. The parties have agreed that I should have regard to the statement when determining admissibility.
    
15. I have considered the case of State v Namaliu [2019] PGNC 261; N8080 (26 September 2019) which extensively canvasses the law of evidence as it relates to propensity or similar fact evidence and relationship evidence in other common law jurisdictions.
    
16. State v Namaliu [2019] discussed a specific category of circumstantial evidence described as relationship evidence which the Court found was admissible. It is not evidence about bad character but evidence that shows the nature of the relationship between the accused and the deceased and provides context to the offending behaviour. Such evidence which enables the Court to draw the relevant inferences when determining the facts in issue.
    
17. According to the statement, Dickson Karava was not present between 18 June 2020 and 24 June 2020. There is no evidence of him witnessing any incidence of violence between the accused and the deceased. His evidence relates only to him discovering the relationship between the deceased and the accused when they first met and what steps he took thereafter to bring the deceased back home.
    
18. The nature of the evidence of Dickson Karava has very little to do with either propensity or relationship evidence.
    
19. Mr. Ellison objection in relation to relevance has foundation and the State arguments are misconceived.
    
20. The balance of Dickson Kavara’s evidence is not relevant to determination of the issue. The nature of the deceased’s injuries and opinions as to what may have caused those injuries are to be properly presented by medical experts and not by the witness. Much of that portion of the evidence is riddled with speculation, assumptions, and hearsay.
    
21. In my view the evidence is not relevant to the consideration of what had transpired during the alleged period and whether the accused possessed the relevant intent. It does not go towards showing the nature and history of the relationship between the accused and the deceased.
    
22. The evidence contained in the Statement of Dickson Kavara is not relevant and is inadmissible.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
Luther’s Lawyers: Lawyer for the Defence