The State v Kauva Lavau and Kamo Kauva

• Jurisdiction: Papua New Guinea
• Judge: Batari AJ
• Judgment Date: 26 September 1996
• Citation: (1996) N1523
• Court: National Court
• Year: 1996
• Judgement Number: N1523

National Court: Batari AJ

Judgment Delivered: 26 September 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1366 OF 1995

THE STATE

v

KAUVA LAVAU And KAMO KAUVA

Waigani

Batari AJ

13-14 June 1996

17-19 June 1996

18-19 September 1996

26 September 1996

CRIMINAL LAW — Wilful murder — Evidence — Identification — Dangers of — Recognition — Reliability of.

CRIMINAL LAW — Evidence — Scene visitation — Observations — Advantage of.

CRIMINAL LAW — Evidence — ROI — Admissibility of — Question of weight where admitted.

CRIMINAL LAW — Evidence — Admissions of accused not evidence against co-accused.

Cases Cited:

John Beng v The State [1977] PNGLR 115

R v John Theodore Mumford 1953 No 48

R v Sapulo Masure & Ors (1973) No 732

Counsel:

Popeu for the State

P Tusais for the Accused

D Kari for the Co-accused

Judgment on Verdict

26 September 1996

BATARI AJ: The accuseds have been arraigned on an indictment charging both with the wilful murder of one Kulolo Kama on 3 July, 1995 at Brown River. The charge was brought under s.229 (1) and s.7 (1) (a), (c) of the Criminal Code Act, Chapter 262.

The alleged acts surrounding the offence were that on the night in question, the accused Kamo Kauva initially assaulted the deceased by punching him. He fled a short distance and stopped. The first accused, Kauva Lavao came around his back and struck him with an axe. Kamo also cut the deceased with a bush knife on his back. The deceased fell and died where he was attacked.

Each accused has denied implication in the killing and has given evidence on Oath to that effect. The medical evidence showed the cause of death as haemorrhage shock due to stab wounds. No evidence has been led to establish the accused owned an axe and a knife or were carrying similar weapons on the night in question except that State witness Laumane Opu spoke of seeing the accuseds striking the deceased with an axe and a knife. There is no other description of the axe alleged murder weapons. The accused said nothing about the alleged weapons on their evidence, though in their records of interview, one implicated the other in his admissions.

The accuseds are from Tapini, Central Province. Kauva is aged about 50 years old. His co-accused son appeared to be in his mid-thirties. Both have no formal education and are quiet in demeanour. Kauva was alert in giving evidence but clearly had difficulty remembering events perhaps due to senility. Kamo was presented with some difficulties in his movement. He attributed his condition to alleged police assault at the time of his arrest. During cross-examination, he "decided" not to recall anything. I think he deliberately faked memory loss as the medical examination I ordered showed nothing significant about his fitness to stand trial. He denied knowledge of the killing and said he was elsewhere. When pressed on details and other aspects of the evidence, he simply responded with a "I do not know" even to the simplest of the questions.

The story led from the State witnesses was that on 3 July, 1995 at about 9.00 am, the two accuseds were drinking at a store near the Brown River Forestry Station along the Hiritano Highway. They returned to their house and continued to drink the whole day and into the night. Around 8.00pm Kamo fought with the deceased and the deceased fled towards Opu's house. He stood some distance away and spoke to the two accuseds. The accused Kauva came around his back and struck a blow to his chest region with an axe. The accused Kamo also cut the deceased on his back with a knife. As the deceased collapsed and died, the two accused ran away.

That evidence was given by the only eye-witness, Opu. He spoke of seeing the incident from the initial assault to the time both accuseds attacked the deceased with the weapons mentioned. He saw the incident from the verandah of his house under pressure lamp lights, one of which was located over the verandah of his house and the other, over the verandah of the accuseds' house. The killing took place in a clearing located between the two houses.

Because the witness and the accuseds come from the same area of Tapini and were neighbours at Brown River Settlement, the issue is that of recognition other than identification of a stranger. In assessing the evidence, I warn myself of the dangers in identification evidence and I remind myself that recognition is more reliable than identification of a stranger, but mistakes in recognition of close relatives and friends have been made in the past. (See John Beng v The State [1977] PNGLR 115).

The Court's visit to the scene had given me a greater appreciation of the various locations, the surroundings and the nature of vegetation as spoken of by witness Opu in his evidence. That visit was made some twelve months after the incident. When I examined photographs of the scene marked from Exhibit 'D5' to 'D7', in comparison, there is little difference to the vegetation growth around what was once the location of the accuseds' house and witness Opu's house. The density, maturity and heights of the banana trees were similar to that shown in the photographs. The photographs could have been taken shortly before the Court's visit to the scene. However, the evidence is that they were taken the next day following the killing.

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