The State v Joseph Kule [1991] PNGLR 404

• Jurisdiction: Papua New Guinea
• Citation: [1991] PNGLR 404
• Date: 03 December 1991
• Court: National Court
• Year: 1991

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

National Court: Doherty J

Judgment Delivered: 3 December 1991

1 Criminal law—Recognition of custom in mitigation of punishment—giving a child in reparation for death of deceased contrary to law and not recognisable

2 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, s253—Customs Recognition Act (Ch19).

3 Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 and Henry Aisi v Malaita Hoala [1981] PNGLR 199 referred to

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 s2 of the Customs Recognition Act (Ch19).

(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 s253 of the Constitution.

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.

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