The State v Miriam Tekap

• Jurisdiction: Papua New Guinea
• Judge: Akuram J
• Judgment Date: 18 April 1997
• Court: National Court
• Year: 1997
• Judgement Number: N1561

National Court: Akuram J

Judgment Delivered: 18 April 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 631 OF 1996

STATE

v

MIRIAM TEKAP

Vanimo

Akuram J

15-16 April 1997

18 April 1997

CRIMINAL LAW — murder — first wife stabbing second wife — lack of sophistication — remote area — meaning of.

Upon the trial and conviction of accused on a charge of murdering the second wife of the same husband:

Held:

1. "Remote area" refers to a person who does not know that there is a Government with courts and police available to redress wrongs.

2. Lack of sophistication can no longer be an excuse for reduction of sentence in Papua New Guinea subject to exceptional circumstances.

3. All persons, whether educated or not, have a moral conscience which tell them what is right and what is wrong and should not be used any more as a mitigating factor subject to exceptional circumstances.

4. The Criminal Law (Compensation) Act, 1991 can only be used to make orders after making due inquiry but does not take into account compensation that has already been paid. That is considered under Schedule 2 of the Constitution and Customs Recognition Act, Chapter 19.

5. Sentence of 12 years is appropriate in the circumstances.

Cases Cited:

Rex Lialu v The State [1990] PNGLR 487

The State v Aselin [1991] PNGLR 408

The Public Prosecutor v Keru & Moroi [1985] PNGLR 78

Counsel:

Mr Kaluwin for State

Mr Mosoro for Accused

The accused pleaded not guilty of the murder of one Lynn Pomat, the second wife of their husband Norm Leonard.

18 April 1997

AKURAM J: State alleged that on the 12th day of January 1996 at Batianap village in Oksapmin, W.S.P, accused was peeling kaukau, the deceased went to her and they had a fight. In the cause of the fight, accused stabbed the deceased with the knife. Deceased died as a result. State therefore alleged that accused had intended to cause grievous bodily harm to deceased when stabbing her. By consent State tendered statements of nine (9) witnesses plus the Record Of Interview and medical report plus the knife used in the stabbing and then closed its case.

Defence then called accused as the only witness in her case to prove lack of intent to cause grievous bodily harm.

Witness Kasilda Howul, 14 years of age, tells story of how she and accused left their village and went to Batianap, then send by Wesley Minau to Oksapmin Station to buy two chickens and if they run short of cash, to ask Norm Leonard to assist. This man Leonard did assist by giving K3.00 and told them that he'll come to their house in the evening.

This witness and two others — Julinda Lynat & Nena Wesley — returned to Batianap in the evening. She then saw deceased approached their house, went into the dwelling house, came out, hit witness with a stone on the left hand, then picked another and hit her on the head. Witness cried and went to the back of the house. She did not see accused and deceased fight nor the stabbing itself but was informed by accused later that: "Yumi Ronowe, Mi Sutim Lean Pinis". Witness and accused escaped to Ohaka village. They then went to Sambate village where they surrendered to leaders and later heard that deceased had died from severe bleeding.

Witness Wesley Minan repeated what Kasilda said but he did not see the fight nor stabbing. He only heard at around 5.30 pm a terrible shout outside his house and went out to see. He saw deceased walking onto the road. He followed and came across deceased, her husband Leonard and Nancy Tandauat. Later other boys arrived and they carried deceased in a stretcher and were met by a vehicle which took them to Oksapmin but deceased died on arrival from bleeding.

Witness Nancy Tandauat of Oivanap village said, deceased arrived from Tabubul and said to Janet Tinop and this witness that she will go and get her son Hans Leonard at Batianap. That is where accused also came the next day. Both accused and Hans Leonard were at Wesley Mina's house at Batianap. Witness Wesley admitted this fact also. Witness said the three of them arrived at Batianap. Norms sister who had Hans took him across the road and met deceased, Janet and Nancy where they fed Hans & other baby. Then Norm's sister took the other baby to Wesley's house. It was getting late. Deceased decided to get the children. While she was at Wesley's house, Norm arrived and was told by Janet and witness. While they were there deceased came out of the house bleeding all over her body. She then fell on the ground. When asked by witness and others, deceased could not respond. Witness and others discovered that she had a stab wound on the left side of the neck. Witness then cried aloud and Mengsi Dan came fromWesley's house saying accused had stabbed the deceased.

Witness Janet Tinop's story is the same as that of Nancy Tandauat. Neither she nor Nancy saw the fight and the stabbing. Witness Norm Leonard — husband of both deceased and accused — said he left Oksapmin at 5 pm to Batianap village to spend the night with his son (at Wesley's house).

Both Janet and Nancy talks about two babies — Hans and another while Norm only talks about Hans. He said Hans should remain in Batianap and not at Tekin. He never saw the fight nor the stabbing and therefore his story is the same as Janet and Nancy.

He said he is totally confused and had sleepless nights as to what had happened and why it happened.

Witness Mengsi Dan was at Wesley Minau's house. However at 5 pm he was near Geno's trade store. He then came with three boys — two of whom he sent to fetch his water containers and other walked with him up to where Janet and Nancy and the baby girl were. He saw deceased walked into a bush track leading to Wesley Minau's house. After meeting and talking to Janet and Nancy, witness and Limop Guria went along the bush track leading to Wesley's house and saw people gathering and so she went to see what was happening. She then saw deceased holding her hands up and moved towards the main road bleeding. She also saw accused held a knife in her hand.

None of these witness had actually seen the fight nor stabbing of the deceased by the accused but only saw the consequence of stabbing. So when it comes to the question of how the fight took place, who started it and how accused said the stabbing took place is only the word and admission of the accused alone. She repeated the same story she made in the Record Of Interview in her oral evidence where she explained further through vigorous questioning by both Counsels.

I therefore had to look carefully at her story and that of the State witnesses. There are two ways of assessing the totality of the evidence. First, I can look at the State witnesses' evidence together but separately from that of the accused to see which version is the correct one. Secondly, I can look at all the evidence of both State and defence's together and in doing so, to find the truth or nearer the truth of what really happened. I prefer the second method for two reasons. First reason is that the first method or approach would create a distorted picture of the total evidence available. Some evidence from either side may not be truthful and I may put too much weight to it where it is not due. Second reason is that the issue before the Court is that of accused "intending to cause grievous bodily harm to deceased when she stabbed her". To find intention, I must infer from all the facts of both State and Defence witnesses to see whether there was such an intention present.

First I make the following findings from the evidence which are not in dispute:

1. That both the deceased and accused are married to one man called Norm Enivard Leonard.

2. The accused did stab the deceased.

3. That deceased died of shock due to blood loss both internal and external plus no oxygen getting into the body due to blockage by internal bleeding.

4. That deceased's son, Hans Leonard was at Wesley Minau's house and that was were accused was after arriving from Tekap village that same morning.

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