The State v Kauva Lavau and Kamo Kauva

• Jurisdiction: Papua New Guinea
• Citation: (1996) N1523
• Date: 26 September 1996
• Court: National Court
• Year: 1996

National Court: Batari AJ

Judgment Delivered: 26 September 1996

1 Criminal law,—Wilful murder—Evidence—Identification—Dangers of—Recognition—Reliability of

2 Criminal law—Evidence—Scene visitation—Observations—Advantage of

3 Criminal law—Evidence—Record of Interview—Admissibility of—Question of weight where admitted

4 Criminal law—Evidence—Admissions of accused not evidence against co–accused

5 John Beng v The State [1977] PNGLR 115, R v John Theodore Mumford (1953) No48 and R v Sapulo–Masuve (1973) No732 referred to

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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 s229(1) and s7(1)(a), (c) of the Criminal Code (Ch262).

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 accuseds 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 accuseds 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...