The State v Emp Mek

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 15 June 1993
• Citation: [1993] PNGLR 330
• Court: National Court
• Year: 1993
• Judgement Number: N1167

National Court: Woods J

Judgment Delivered: 15 June 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

EMP MEK

Mount Hagen

Woods J

15 June 1993

CRIMINAL LAW — Sentence — Manslaughter — Customary compensation — Matter settled within the family — Considerations on sentence.

CONFLICT OF LAWS — Custom and legislation.

CUSTOMARY LAW — Inconsistency with Constitution.

Facts

The deceased and accused, who were clan brothers, were involved in an argument which developed into a fight. In the escalation of the fight, the accused struck the deceased on the head with a coffee stick. The deceased died a few days later from the head injury. The accused was charged for manslaughter under s 302 of the Criminal Code.

The relatives of the deceased and accused came to court and gave evidence of a traditional settlement.

Held

1. Custom should be taken into account when determining penalty, following Acting Public Prosecutor v Aumane [1980] PNGLR 510.

2. Section 7 (e) of the Native Customs (Recognition) Act does not enlarge the power of the Court under ss 19 and 309 of the Criminal Code. Section 7 (e) may only operate within the range provided under ss 19 and 309 of the Code.

3. The trial judge erred when he imposed a traditional settlement (sentence) as a matter of law.

Cases Cited

Acting Public Prosecutor v Aumane [1980] PNGLR 510.

State v Pokolou (1983) unreported N404.

Counsel

S Carter, for the State.

K Kot, for the defendant.

15 June 1993

WOODS J: The accused, Emp Mek, has pleaded guilty to the unlawful killing of Wayeng Kapal at Karape Village in the Western Highlands Province on 20 January 1993. This is manslaughter under Criminal Code s 302.

On that day, there had apparently been an adultery matter before the Village Court involving the accused and the deceased, and apparently there was an argument which developed into a fight. Some punches were used and, in the escalation of the fight, the accused struck the deceased on the head with a coffee stick.

The deceased fell to the ground. He was taken to hospital where he died a few days later from head injuries.

The evidence before the court on sentence is that the deceased and the accused were clan brothers, and this was a fight that got out of control. The accused has expressed his remorse at what happened saying, "We fought and I am very sorry for my brother. We are one blood. I did not mean to kill my brother".

The relatives of the victim and accused have come to court to plead for leniency, saying that all matters have been settled in the village and compensation has been paid. The State concedes that there should be some leniency in view of the traditional settlement of the matter.

For many years now, the Court has been asked to consider the place of customary punishment to be imposed as punishment. The clearest statement and analysis of the place of customary punishment in criminal...