The State v Enny Bulen

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ
• Judgment Date: 16 January 1990
• Citation: [1990] PNGLR 43
• Court: National Court
• Year: 1990
• Judgement Number: N789

National Court: Kidu CJ

Judgment Delivered: 16 January 1990

N789

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ENNY BULEN

Madang

Kidu CJ

11-12 January 1990

15-16 January 1990

CRIMINAL LAW — Evidence — Dying declarations — Admissibility — Religious beliefs of declarant irrelevant — Evidence Act (Ch No 48), s 20.

EVIDENCE — Admissibility — Dying declarations — Religious beliefs of declarant irrelevant — Evidence Act (Ch No 48), s 20.

The Evidence Act (Ch No 48), s 20, provides:

"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 makes 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."

Held:

For the purpose of admitting a dying declaration into evidence under s 20 of the Evidence Act (Ch No 48), the statutory conditions require that:

(a) the declaration be oral;

(b) that the declarant believed that death was imminent;

(c) that the declarant/deceased would have been a competent witness; and

(d) that direct oral evidence of the matter declared was admissible;

the religious beliefs of the declarant are irrelevant.

Cases Cited

The following cases are cited in the judgment:

R v Ambimp [1971-72] P&NGLR 258.

R v Kipali-Ikarum [1967-68] P&NGLR 119.

R v Madobi-Madogai [1963] P&NGLR 252.

R v Woodcock [1789] 1 Leach 500; 168 ER 352.

Counsel:

J Kuvi and C Bidar, for the State.

C Inkisopo, for the accused.

Cur adv vult

16 January 1990

KIDU CJ.: The accused is charged with the unlawful killing (manslaughter) of the late Amo Gui, a female.

It is alleged by the State that, on Friday, 23 June 1989, the accused assaulted the deceased, ruptured her enlarged spleen and thereby caused her death. The medical evidence is that she bled to death as a result of the ruptured spleen.

The deceased was living at Nagada Plantation with her husband and children. The accused was employed at the same plantation as a driver.

On the morning of Friday, 23 June 1986, the accused was at the plantation manager's house. This house is about 15 metres away from the house which the deceased and her husband and others occupy.

At the time of her death, the deceased was, according to her husband, a mad woman. He says she had become "long long" in April 1989 and had remained so. Her mental condition was such that she talked "nonsense", according to her husband. There is no medical evidence of the deceased woman's mental condition. But I accept the evidence of the husband that she was "long long". This is supported by the defence witness, Yapeng Kawa, Manager of Nagada Plantation. This aspect is important as it bears directly on the question of the deceased's dying words. I will come to this later.

Two State witnesses gave evidence of the alleged assault of the deceased by the accused: the deceased's husband, Gurimba Gui, and the woman, Mrs Sipar Gingkewe.

Gurimba Gui's evidence is suspect. He says he saw the assault but he indicated at the view that the assault took place at the front of the manager's house. It was clear from the view that he could not have seen anything — his house is behind the manager's house. Also he did nothing when he allegedly saw his wife being assaulted. A man seeing his wife being assaulted would have gone to her aid unless he hated her or had had a fight with her and refused to help. No such evidence is before me. It is quite clear to me that Gurimba Gui has lied to this Court. The part of his evidence that I accept is that relating to what his deceased wife said before she died and this is only because an independent witness, Mrs Piro Weangkepe, said: "She [deceased] said, 'Enny assaulted me' ... ". It was after she said this that the deceased died. In cross-examination, she said that the deceased said, "Enny beat me". I will deal with the admissibility or otherwise of this statement after I deal with Mrs Sipar Gingkewe's evidence.

MRS SIPAR GINGKEWE'S EVIDENCE

She had gone to her small store to serve a customer at about 7 am. After she served the customer and locked the door of the store, she was about to go back to her house behind the store when she looked across to the plantation manager's house and saw the accused "grab the mad woman by her shoulders and push her". She goes on to say:

"Then he swung his legs to her sides. He used his left leg and his right leg. He swung his legs at the woman on her sides. He held her on the shoulders from behind. He then kicked her on both sides with his legs. He was wearing brown shoes. He kicked her on the left side with his left foot and on her right with his right foot."

She says when she saw this she shouted at the accused and said, "Do not assault her". This assault, she says, took place on the side of the manager's house.

Her store and house are about 100 metres or more from the manager's house. She could see what she says she saw from where she was but I doubt, from that distance, whether she could tell what colour of shoes the accused wore at the time.

If the incident took place near the sink at the front of the manager's house (as contended by the defence), she could not have seen the alleged assault.

She says that, after she saw the accused assault the deceased, she went to her house to sleep as she had a headache but later she went to the plantation clinic for treatment.

Also, she...