The State v Kevin Henry (2019) N7800

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 16 April 2019
• Citation: (2019) N7800
• Docket Number: CR NO. 1836 OF 2016 (No. 3)
• Court: National Court
• Year: 2019
• Judgement Number: N7800

Full Title: CR NO. 1836 OF 2016 (No. 3); The State v Kevin Henry (2019) N7800

National Court: Anis J

Judgment Delivered: 16 April 2019

N7800

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1836 OF 2016

(No. 3)

THE STATE

V

KEVIN HENRY

Kokopo: Anis J

2019: 11, 12, 13 & 14 March, 5, 11 & 16 April

CRIMINAL LAW – Murder – section 300(1)(a) – Criminal Code Act Chapter No. 262 – evidence –- dying declaration – circumstantial evidence – elements of offence – effect of dying declaration discussed

Facts

The accused was charged in relation to the death of his wife. The prosecution alleged that he murdered his wife by beating and kicking her in her stomach. No one saw the incident, and the evidence were circumstantial except one witness who said that the deceased had made a dying declaration. The accused and his father gave evidence which was that the accused was not at his house at the time when the incident was alleged to have occurred but that he was elsewhere, and as such, he did not know how the deceased had suffered her injury (ruptured spleen) which led to her death.

Held

1. The State has established beyond reasonable doubt evidence which amounted to a dying declaration within the meaning of section 20 of the Evidence Act Chapter No. 48.

2. The contested elements of murder were the identity of the person or the thing that had caused grievous bodily harm to the deceased, and secondly, if it was a person, then who was he or her, and whether the person had intended to cause grievous bodily harm to the deceased.

3. The circumstantial evidence together with the dying declaration of the deceased, have established beyond reasonable doubt that the accused was responsible for the murder of his wife on 11 July 2016.

4. The accused was convicted of murder pursuant to section 300(1)(a) of the Criminal Code Act Chapter No. 262.

Cases Cited:

State v. Kevin Henry (No, 2 of 2019) N7766

State v Enny Bulen [1990] PNGLR 43

Martin Kalak v The State (2016) SC1505

State v. Miriam Kakun (1997) N1673

State v. Titila Tomur and Ors (2017) N6837

State v Morris [1981] PNGLR 493

Counsel:

Ms J. Batil, for the State

Ms J. Ainui, for the Accused

VERDICT

16 April, 2019

1. ANIS J: This was a trial on verdict. The accused was charged with the murder of his wife under section 300(1)(a) of the Criminal Code Act Chapter No. 262 (the Criminal Code). He pleaded not guilty, so the trial on verdict was heard on 11, 12, 13 and 14 March 2019, and on 5 April 2019. I reserved my ruling thereafter to 9:30am on 11 April 2019 and then to 9:30am on 16 April 2019.

2. This is my ruling.

INDICTMENT

3. The accused was indicted on 11 March 2019. The indictment reads, and I quote in part, Kevin Henry of Menabonbon Village, Bitapaka LLG, Kokopo District, East New Britain Province stands charged that he on the 11th day of July, 2016 at Menabonbon Village, East New Britain Province in Papua New Guinea murdered GETRUDE JOSHUA.

4. The brief facts that support of the indictment read, and I quote in part, On 11th July, 2016 at between 9 pm and 10 pm, Kevin Henry (the accused) and Getrude Joshua (the deceased wife of the accused) were at their home at Menabonbon Village, Bitapaka LLG, Kokopo District, East New Britain Province. At that time and place, the accused and the deceased had a fight where the accused kicked the deceased’s stomach. She died a short while after as (a) result of a spleen rupture. The State alleges that when the accused kicked the deceased on her stomach, he caused her spleen to rupture and ultimately her death. The State says that his actions contravene section 300(1)(a) of the Criminal Code in that he intended to cause grievous bodily harm to Getrude Joshua and unlawfully killed her.

EVIDENCE

5. The prosecution called three (3) witnesses, namely, Shirelyna Kavanamur (Shirelyna), Catherine Penden (Catherine) and Bosco Lavai (Bosco). The defence called two (2) witnesses, namely, the accused and his father Henry Vuga (Henry). All the witnesses were cross-examined. Several exhibits were tendered by consent of the parties. I set them out here in a table format.

Exhibit No.	Description	Date Filed
“P1”	Post Mortem Examination Report	27/07/16
“P2”	Affidavit of Dr Tommy Walters	31/10/16
“P3”	Photographs of the deceased	31/10/16
“P4”	Statement of Mary Marut	13/07/16

ISSUES

6. The issues are as follows, (i), whether the words uttered by the deceased to witness Catherine constitutes a dying declaration within the meaning of section 20 of the Evidence Act Chapter No. 48 (the Evidence Act), and (ii), whether the circumstantial evidence are sufficiently established beyond reasonable doubt to return a guilty verdict of murder against the accused under section 300(1)(a) of the Criminal Code.

COMMON GROUND

7. The death and the injuries sustained by the deceased, were not contested. I find that the prosecution has established the death and the cause of death of the deceased. The accused did not deny that he was within the vicinity of the crime scene, and that at one point, he had gone to his house to talk to or to locate his wife Getrude Joshua (the deceased). I find that there is evidence which shows that the accused was within the vicinity of the crime scene at the material time. The accused’s evidence however is that although he was within the vicinity of the crime scene, he was at is parent’s house and he denied that it was he that fought with his wife; he also denied kicking her in her stomach which led to her death. The prosecution did not call any direct evidence to show that the accused was seen with the deceased at their house at the material time of the incident. The only indirect evidence called which directly mentions the name of the accused and which also mentions what he was alleged to have done, was the evidence of witness Catherine. I plan to deal with that first, but before I do that, let me quickly clarify an error in my decision in State v. Kevin Henry (No, 2 of 2019) N7766. In my decision, I firstly identified witness Catherine as the person who had said that she heard the deceased uttered the words, “Kevin kicked my stomach,”. That was the correct position in terms of what the witness said she heard at that time. However, in my conclusive remark, I referred to witness Shirelyna Kavanamur as the person who uttered the words, “Kevin kicked my stomach.” Obviously, my reference to Shirelyna there was an error. The correct person was witness Catherine whom I had identified earlier in my said judgment. The typographical error or mistake regarding the witness’s name I note is minor and would not have affected my ruling on the no case to answer application by the defence.

8. Having clarified that, I note that witness Catherine was vigorously cross-examined by the defence. It was put to her that she never heard the words “Kevin kicked my stomach.” However, Catherine maintained what she had heard from the deceased before the deceased died. Witness Catherine gave her evidence with ease and I found her to be a credible witness. I did not find any material discrepancies or inconsistencies in her testimony. I also find nothing wrong or suspicious of her demeanour in Court. It is hard for me not to believe what she had told the Court. But even so, that would not be the end of the matter.

9. Let me now deal with the next issue.

DYING DECLARATION

10. The relevant provision is section 20 of the Evidence Act. It reads, and I quote,

20. Dying declarations.

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—

(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventuate; and

(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and

(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

11. Let me look at the case law. Then Chief Justice, Sir Buri Kidu, in State v Enny Bulen [1990] PNGLR 43 summarised the considerations of what shall constitute a dying declaration under section 20 of the Evidence Act. His Honour held, and I quote in part,

For the purpose of admitting a dying declaration into evidence under s 20 of the Evidence Act (Ch No 48), the statutory conditions require that:

(a) the declaration be oral;

(b) that the declarant believed that death was imminent;

(c) that the declarant/deceased would have been a competent witness; and

(d) that direct oral evidence of the matter declared was admissible;

12. The Supreme Court in Martin Kalak v The State (2016) SC1505 also held, and I quote in part,

(3) Dying declarations are an exception to the rule against hearsay. However, before ruling that a dying declaration should be admitted into evidence it is necessary for the trial judge to rigorously address the preconditions set out in Section 20 of...