The State v Stanley Kuma Kuru (No 2) (2010) N4264

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 19 April 2010
• Docket Number: CR NO 441 OF 2008
• Citation: (2010) N4264
• Court: National Court
• Year: 2010
• Judgement Number: N4264

Full Title: CR NO 441 OF 2008; The State v Stanley Kuma Kuru (No 2) (2010) N4264

National Court: Makail, J

Judgment Delivered: 19 April 2010

N4264

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 441 OF 2008

THE STATE

v

STANLEY KUMA KURU

(No 2)

Minj & Mount Hagen: Makail, J

2010: 13th, 19th, 20th April & 2011: 19th April

CRIMINAL LAW - Wilful murder - Trial - Not guilty plea - Circumstantial evidence - One rational inference - Guilt of accused - Criminal Code, Ch 262 - Section 299.

EVIDENCE - Dying declaration - Admissibility of - Circumstances of - Considerations of - Evidence Act, Ch 48 - Section 20.

PRACTICE & PROCEDURE - State witnesses’ statements - Service of - Belatedness - Credibility of - Reliability of - Whether adverse inference may be drawn - Criminal Code, Ch 262 - Section 262, Criminal Practice Rules, 1987, Order 2, rule 6(b)&(c).

Cases cited:

The State -v- Tom Morris [1981] PNGLR 493

Paulus Pawa -v- The State [1981] PNGLR 498

The State -v- Kwale Dire [2001] PNGLR 589

The State -v- Emmanual Bais (2003) N2416

The State -v- Henry Judah Les (2005) N2950

The State -v- Wanaepe Warara [1977] PNGLR 458

R -v- Kipali Ikarum [1967-68] PNGLR 119

R -v- Ambimp [1971-72] PNGLR 258

R -v- Enn Bullen [1990] PNGLR 43

Counsel:

Mr J Kesan, for the State

Mr M Mumure, for the Accused

VERDICT

19th April, 2011

1. MAKAIL, J: Following a ruling that the accused had a case to answer on 19th April 2010 in relation to a charge of wilful murder under section 299 of the Criminal Code, Ch 262, he gave evidence and also called his brother Colin John Kuru who also gave evidence in his defence.

BRIEF ALLEGATIONS OF FACT

2. The State alleged that on 22nd December 2007, the accused wilfully murdered his wife, Grace Wamne Koime at Bala village in Minj District of Western Highlands Province. Prior to her death, in 2003, the deceased was doing Grade 7 when she was lured by the accused and taken as his second wife. In the ensuring years, until the fateful day of 22nd December 2007, the deceased lived a troublesome marriage life. She was constantly abused by the accused. On more than one occasion, the accused was summoned before the village court and was ordered to stop and also make restitution to the deceased but those orders did not deter him. He continued the abuses, and on many occasions under the influence of liquor and drugs.

3. On the fateful day of 22nd December 2007, between 7 o’clock and 8 o’clock in the morning, the deceased was at Minj road intersection market. The accused armed with a long butcher knife and under the influence of liquor went to the market on a bicycle looking for her. He saw her and attempted to attack her by chasing her around the market but she ran away and sought refuge with some of her relatives at the market. The accused approached them and ordered the deceased to go home. He said he would kill her. He eventually convinced her to go home and she went home. At home, he stabbed her on her chest with a knife. She suffered massive internal bleeding and was rushed to the hospital. Unfortunately, she died.

THE LAW

4. Section 299 of the Criminal Code, Ch 262 provides for the offence of wilful murder as follows:

“299 Wilful Murder

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.”

5. The State must establish the elements of the offence of wilful murder, which are:

1. The accused assaulted or injured the deceased; section 299(1) of the Criminal Code;

2. The death of the deceased; section 299(1) of the Criminal Code; and

3. There is intention to cause death of the deceased; section 299(1) of the Criminal Code.

STATE’S EVIDENCE

6. The evidence of the State came from 3 witnesses and they were:

1. Thomas Masi;

2. Kine Tumbe; and

3. Bai Koime.

7. In addition to the evidence of these witnesses, the State, with the consent of the defence, tendered the following documents:

1. Record of Interview of the accused dated 14th February 2008, (exhibit “P1”);

2. Post Mortem Report by Dr O Desmond dated 13th February 2008, (exhibit “P2”);

3. Sketch Map of Crime Scene, (exhibit “P3”); and

4. Copy of village court order of 12th July 2007, (exhibit “P4”).

Thomas Masi

8. The first State witness was Thomas Masi. He is the elder brother of the deceased. He is from Gun village in the Minj District of the Western Highlands Province. He is employed by WR Carpenters as its factory supervisor. He said, the deceased was his last born sister and was doing Grade 7 at Raphael Kome Primary School in 2003. Sometimes in 2003, he was told by some of the deceased school friends that the accused went to the school and abducted her. He took her to his village and kept her there. When he heard this, he said some of his family members and relatives went to the village of the accused and demanded him to release the deceased but he refused.

9. On one occasion, he met with family members and village leaders at Minj road junction to resolve the conflict and release of the deceased. The accused vehemently refused. When his other brother Tombe Koime and a church pastor countered the accused’s refusal, he attempted to attack them. His family members and relatives felt that it would be a futile exercise for them to continue discussions with the accused and his line as he would not give in to their request. They ended the meeting and left. He said this was one of the many meetings they held with the accused and his line to resolve this conflict.

10. In 2004, he and the rest of the deceased family members discovered that the accused was abusing the deceased and they sent word to the accused and his relatives to dissolve the marriage but again, the accused refused. On 03rd December 2006, the father of the deceased issued a summons against the accused in the village court for payment of compensation for the time and expenses incurred in educating the deceased. The father was also upset that the accused had been abusing the deceased. At the village court hearing, the father told the court that as Christians, he and the relatives of the deceased wanted peace. Also, as the deceased was the second wife of the accused, according to the custom of the Waghi people, he received no bride price as the custom prohibited payment of bride price for a second wife.

11. The village court ordered the accused to pay some form of compensation to the father but the accused failed to pay. On 26th May 2007, there was a fight between the accused and the deceased and the deceased sustained a broken arm. The conflict was taken to the village court and he was present and witnessed the village court ordering the accused to pay K600.00 and 1 pig to the deceased. Subsequent to this, the accused paid K200.00 and 1 pig. After payment of compensation, he and the family members of the deceased thought that the accused would stop but he continued his abuses.

12. On 22nd December 2007, he was at his house at Gun when he was informed by some people that the accused had stabbed the deceased and she had been rushed to the hospital for treatment. He found out later that the deceased had died and was at the Mt Hagen General Hospital morgue. He and his family members and relatives gathered and moaned her death. He told everyone at the gathering that because of the constant abuses by the accused, the accused eventually ended up killing the deceased. Although the accused and the deceased lived separately and away from him in the village, he meets the accused occasionally, usually at the market place. When they do, they have a chat. He has a good relationship with the accused and reckons that the accused is a nice person as they shared views on a variety of issues.

Mrs Kine Tumbe

13. The second witness was Mrs Kine Tumbe. She is the sister in law of the deceased. She is married to one of the deceased’s brothers and lives at Gun village. She said on the morning of 22nd December 2007 between 8 o’clock and 9 o’clock, she was with Bai Koime at Minj road intersection market. Bai Koime is the elder sister of the deceased and they were preparing the place to sell second clothes. She observed that there were many people at the market buying and selling food and items. As she and Bai were laying out the canvass on the ground to put the second hand clothes up for sale, they saw the accused chase the deceased towards them. He was on a bicycle and armed with a butcher knife following the deceased. The deceased ran to them and took cover behind them. The accused stopped a few centimeters from her. She heard him tell the deceased to leave them and go to the house but the deceased refused. He spoke aggressively. She observed he was armed with a butcher knife and had red eyes. She concluded he must have been drunk.

14. He...