The State v Tau Ted Lahui, George Gadiva Hetau, Maraki Pati Noho all of Barakau Village Central Province and Jeffrey Airi Eki of Poe Village [1992] PNGLR 325

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1992] PNGLR 325
• Date: 03 August 1992
• Year: 1992

Full Title: The State v Tau Ted Lahui, George Gadiva Hetau, Maraki Pati Noho all of Barakau Village Central Province and Jeffrey Airi Eki of Poe Village [1992] PNGLR 325

National Court: Hinchliffe J

Judgment Delivered: 3 August 1992

1 Criminal law—murder—victim dragged behind stolen motor vehicle—s300(1)(a) Criminal Code and s300(1)(b) Criminal Code

2 Criminal law—sentence—considerations determining severity

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Hinchliffe J: The four accused have pleaded not guilty that on 26 October 1991 they did murder one Theresa Mitchell Lutschini.

At the commencement, of the trial on 17 June, this year the Prosecutor outlined the alleged facts as follows:—

"On the 26 October last year between 10.00am and 10.30am the deceased Theresa Mitchell Lutschini drove her motor vehicle, a blue Toyota Starlet registered number AGD.041 to the Hohola shopping centre. She parked her car in front of the Regal Bakery. In her car was her mother, Lilly Avenall and the deceased's two children Stephen aged two and a half years and Ajesha aged fourteen months. Stephen was in the back seat and the other child was with her grandmother.

After completing her shopping the deceased returned to her motor vehicle. She got into the vehicle, fastened the seat belt and closed the door and was in the process of starting the vehicle when the accused ran to the car with the intention of stealing it. The accused Tau Ted Lahui opened the door on the driver's side. Two others ran to the other side to the front passenger door where Lilly Avenall was sealed. Tau Ted Lahui said "hurry up" and he then forced his way into the car and sat on top of the deceased's lap and he then took the key from the ignition. The deceased struggled and managed to alight from the motor vehicle. She then ran to the other side of the vehicle and tried to help her mother unbuckle her seatbelt. The two other men were struggling with Lilly Avenall. One climbed over Mrs Avenall to the back seat and unlocked the back doors.

The four accused and one other (who is still at large) all got into the vehicle. When they closed the door to the front passenger side part of the seat belt was left hanging outside. At the time both Lilly Avenall and the deceased's hands were caught–up in the seat belt. Tau Ted Lahui then reversed the motor vehicle from its parked position and then drove forward. Both the deceased and Lilly Avenall were dragged onto the road because of the seatbelt.

At some stage Lilly Avenall became untangled and fell away, but the deceased remained entangled and was dragged through various streets of Hohola for a distance of three kilometres.

A post mortem report on the 29 October 1991 revealed fracture and evulsion of the left side of the skull with damage to half of the brain. There were multiple lacerations over all of the body. The deceased was twenty eight weeks pregnant at the time of death. The actual crime of death was brain injury and multiple lacerations over the body."

The State indicates that it was relying on s300(1)(a) and (b) of the Criminal Code which provides:

"300. Murder

(1) Subject to the surrounding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder—

(a) if the offender intended to do grievous bodily harm the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prevention of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person."

The defence case was such that Tau Ted Lahui and Jeffery Airi Eki admitted to being involved in the taking of the motor vehicle by force but submissions were made that at the most they could only be convicted of manslaughter.

George Gadiva Hetau and Maraki Pati Noho denied any involvement in the crime and they gave evidence that they were in their village—named Barakau—at the relevant time. Their mother's and one other gave sworn evidence to support their defence.

First of all I shall deal with Tau Ted Lahui and Jeffery Airi Eki. They were involved in the forceful stealing of the motor vehicle outside the Regal Bakery, Hohola. That is not disputed. It is also...