The State v Joseph Kule [1991] PNGLR 404

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 03 December 1991
• Citation: [1991] PNGLR 404
• Court: National Court
• Year: 1991
• Judgement Number: N1034

Full Title: The State v Joseph Kule [1991] PNGLR 404

National Court: Doherty J

Judgment Delivered: 3 December 1991

N1034

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KULE

Wewak

Doherty J

3 December 1991

CRIMINAL LAW — Sentence — Mitigation — Customary obligation — Proof of — Murder — Giving of child in reparation — Contrary to law — Against welfare of child — Similar to slavery — Constitution, s 253 — Customs Recognition Act (Ch No 19).

Held

(1) Whilst compliance with customary obligations is a matter to be taken into account on sentence, the particular custom must be proved by evidence in accordance with s 2 of the Customs Recognition Act (Ch No 19).

(2) (Obiter) A custom which (if proved) obliged one who had murdered to hand over one of his daughters to the family of his victim should not be recognised and enforced under the Customs Recognition Act because:

(a) recognition would be contrary to the welfare of the child and contrary to the public interest; and

(b) it would be a practice or institution similar to slavery and contrary to s 253 of the Constitution.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.

Aisi v Malaita Hoala [1981] PNGLR 199.

Sentence

The defendant pleaded guilty and was convicted of unlawful killing. In mitigation of sentence it was submitted that he had complied with custom and would have to comply with a further custom of giving one of his daughters to the relative of his deceased victim. The following judgment was delivered on sentence.

Counsel

J Wala, for the State.

M Gene, for the defendant.

3 December 1991

DOHERTY J: The defendant has been indicted and pleaded guilty to the unlawful killing of his cousin's sister. The facts presented by the State show that the deceased and some other women were sitting talking about the theft of peanuts from a garden. The defendant, was in a house some distance away, thought that they were talking about him and came up to the deceased carrying a large piece of wood and struck her, she fell to the ground where he kicked her several times breaking three ribs which penetrated the spleen and caused death.

On arraignment, he explained that: "I felt they used bad language they swear at me and I hit the woman." There is no indication from the State witnesses that the defendant was being accused of the theft and all indications are that he only thought they were talking about him.

On allocutus, he explained that his two brothers had died and he, as the only remaining relative, had to care for their nine children, their two wives together with his own wife and three surviving children. He also said that the Sepik River is high for six months of the year when it is difficult to plant and find food. His counsel has stressed the provocative action on the part of the women and submitted, inter alia, that he has complied with certain customary rights and obligations but still has to comply with the customary obligation to give one of his daughters to the uncle apparently the father or other relative of the deceased.

I accept that he himself thought he was being accused although...