The State v Tu'uo Ibru

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 20 October 1999
• Year: 1990
• Court: National Court
• Citation: (1990) N1940
• Judgement Number: N1940

National Court: Kirriwom J

Judgment Delivered: 20 October 1999

N1940

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. 164 OF 1999

BETWEEN:

THE STATE

AND:

TU’UO IBRU

GOROKA: KIRRIWOM, J.

1999: 12, 13 & 20 OCTOBER

CRIMINAL LAW – Murder – Self-defence - Provocation – alternative verdict –manslaughter - whether provocation as absolute defence - Criminal Code Act Ch.262, ss. 266 and 267

Criminal Law – Practice and Procedure – Husband not compellable witness for the prosecution against wife – Evidence Act Ch. 48, s.13.

Cases cited:

PLAR No.1 of 1980 [1980] PNGLR 326

The State v Saikoro Norman [1979] PNGLR 559

Counsel:

Mrs. C. Asthon-Lewis for the State

Mr. M. Apie’e for the accused.

JUDGMENT

October 20, 1999.

Kirriwom,J.: The accused pleaded not guilty to a charge of murder under s.300(1)(a) of the Criminal Code. That subsection says that ‘a person who kills another person…’ under the circumstances ‘…where he intended to do grievous bodily harm to the person killed or to some other person is guilty of murder”. The deceased, Serah Tom, was her sister in-law, her husband’s sister. The killing is connected to the accused’s on-going marital discord with her husband, the deceased’s brother. The deceased is an unfortunate victim of another’s unhappy domestic situation.

The circumstances of the killing as alleged by the prosecution are at variance with the accused’s version of what happened and how it happened. At the end of this trial this is an issue that I will have to resolve to decide this case by eliminating the untruth from the truth.

The prosecution says that this is murder while the defence pleads self-defence and in the alternative, provocation. Thus the main issue in the case is whether the accused acted in self defence or she acted in the heat of sudden provocation before there was time for her passion to cool down. I set out firstly what I perceive to be uncontested or undisputed facts:

1. The accused is in her fifties and married to her husband Ibru Kare for some 26 years and they have five children and grandchildren.

2. Some four to six years ago the husband took another woman to be his second wife. This unilateral act had planted a permanent seed of marital disharmony between them for the years that followed as their marriage headed for disaster and the family unit similarly disintegrated.

3. About two months prior to 2nd January 1999 the accused’s husband took his recreation leave and whilst the accused and the children remained in Goroka town he proceeded to Lae where he spent that entire period with the second wife.

4. On the 2nd of January 1999 the accused’s husband Ibru Kare was in the village at Barenanka after returning from Lae. The accused learnt of his return through another in-law.

5. On that day the accused proceeded to Barenanka village from Banano village where she had been since Christmas to see her husband for some explanation and some assistance.

6. She went there with a grandchild to Dama’s house, one of her husband’s sisters where she had some feed. After having some food she left the grandchild with the auntie and proceeded to Berris Bayou’s house where her husband was.

7. She got to Berris Bayou’s house at about 9pm that night, carrying a small bilum and holding a kitchen knife. The house was about 80 – 100 meters away from Dama’s house.

8. In Berris Bayou’s house were Berris Bayou himself, his wife Esther Berris, Tom Pampao and his wife Serah Tom (deceased) and Ibru Kare the accused’s husband. Both Esther and Serah were said to be Ibru Kare’s sisters.

9. When the accused got to the house she knocked on the door and Ibru, her husband answered the knock. They all knew right away who was at the door outside the house and they further knew that this was not a social or friendly visit.

10. There were verbal abuses and insults directed at Ibru by the accused and the husband asked the accused to go away until tomorrow when they could talk things over.

11. The deceased Serah exchanged a few words with her sister in-law, the accused, and proceeded to open the door of the house.

What then happened from the time Serah opened the door of the house is where the stories differ substantially between the prosecution and the defence. But there is no dispute that Serah was stabbed with a long kitchen knife with the blade measuring between 8” to 10” long, and the blade made its entry just below her right breast and penetrated the skin deep into her chest fracturing the 5th rib as far as the entire length of the blade puncturing the right lung and causing extensive laceration of the heart. Consequently the deceased died as the result of haemorrhage (laceration of the heart) and collapse of the left and right lungs. It is not contested that the accused stabbed her and she died almost immediately.

The prosecution case is that Serah was the only other person who spoke to the accused besides her brother. She told the accused to calm down and talk to her husband nicely inside the house instead of insulting and abusing him from outside. She then proceeded to the door and opened it with her right hand pulling the door inwards from the left to the right. At that moment when she opened the door, the accused struck with her knife using her right hand with a mighty force and the knife penetrated deep into the body, then she pulled it out. The men inside the house reacted when they saw Serah collapse onto the ground bleeding. Ibru Kare went to disarm his wife while the other two men attended to Serah Tom.

The State called two witnesses. They were Tom Pampao and Berris Bayou. The third witness, who was in fact listed first on the indictment, was Ibru Kare, the husband of the accused. He was not tendered as witness in the prosecution case when the accused objected to her husband giving evidence against her. The accused was entitled to raise that objection under section 13 of the Evidence Act Ch. 48. Subsection (1) provides that a wife or a husband of an accused in a criminal proceeding is a competent witness in any legal proceeding in connexion with the offence and subsection (2) says but only with the consent of the person except where the husband or wife is compellable to give evidence or where the husband or wife is charged with being a party to an offence against the other. The only clear exception where a wife or husband can be a witness for the prosecution or defence without the consent of the person on trial is where the husband or wife is charged with bigamy. The Act does not specify other instances where the husband or wife can be compelled to give evidence against the other. Applying the law as it presently stands in the Act, the State was correct in my view in not compelling the husband to give evidence for the prosecution, although the husband was quite free to give evidence for the accused.

The combined evidence of Tom Pampao and Berris Bayou generally was that the accused arrived at the house about 9pm at night and knocked on the door. Her husband asked who it was and she demanded that they open the door or she would break down the door and burn the house. Tom Pampao then said that they must not open the door. It was a precaution rather than a direction because he feared for Ibru’s life if they did as they all knew that her visit there meant trouble for the husband. The marital problem between the two couple was a common knowledge to them. Afterall they all belonged to the same family either filially or conjugally. Thus, in that context Tom advised against opening the door to the accused. However, Serah defied the advice and opened the door resulting in her being attacked by the accused.

On the other side of the coin the accused says that she went there to see her husband and knocked on the door and her husband answered, asking to know who it was. Recognising her own husband’s voice, she replied “Yu yet nau!” in pidgin. This pidgin expression could mean different things in different contexts and I don’t know in what context it was used here. Counsel did not attempt to have this clarified with the accused. It could, in one colloquial language or sense, mean “I am here, what now?” a challenge to her husband to meet her. Or it could literally mean “it’s your turn”, but that would not fit into the context in which the words were uttered or the expression was used given the whole scenario of this case.

The husband then told her it was late and that she must return home so that they could talk tomorrow. Accused said this is all that the husband said to her when Serah intervened and called her names like “ yu pamuk” or “yu K2 meri” and said words to the effect “where have you been screwing around and neglected your children and your husband”. She said the barrage of insults came from Serah continued where there was mention of bride price and there was even reference to “steel or iron”. Accused says Serah said words to the effect in pidgin “Yu kisim ain ikam?” Colloquially speaking this is a pidgin expression used where a person’s physical make-up or built is likened to that of steel in a sarcastic sense in that the challenger is not made of steel for anyone to be...