The State v Sinzai Karawa (2004) N2631

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 27 August 2004
• Citation: (2004) N2631
• Court: National Court
• Year: 2004
• Judgement Number: N2631

Full Title: The State v Sinzai Karawa (2004) N2631

National Court: Kandakasi J

Judgment Delivered: 27 August 2004 and 2 September 2004

1 CRIMINAL LAW—Verdict—Wilful murder—Self defence raised—Issue for trial—Whether Accused acted in self defence—Issue determinable on credibility of witnesses—State witness found credible—Guilty verdict returned—s299 and s270 of Criminal Code.

2 CRIMINAL LAW—Sentence—Wilful murder—Dispute over land—Deceased provoking initially—Deceased cut twice with use of bush knife—Conviction after trial—First time advanced aged adult offender—Expression of remorse coupled with compensation—20 years imprisonment imposed—s299 and s19 of Criminal Code.

3 The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416, The State v Peter Malihombu (29/04/03) N2365, The State v Allan Mainde (21/05/04) N , The State v Peter Malihombu (29/04/03) N2365, The State v Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266, Rosa Angitai v The State [1983] PNGLR 185, The State v Paulus Non Pable (11/06/99) N1873, Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (01/04/04) SC741, Sakarowa Koe v The State (01/04/04) SC739, Rex Lialu v The State [1990] PNGLR 487, Goli Golu v The State [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, The State v Laura No 2, [1988–89] PNGLR 193, The State v Theo Raphael (No 2) (21/02/02) N2181, The State v Ben Simakot Simbu (18/03/04) N2573, The State v Paul Yapei (No 2) (26/03/04) N2571 referred to

Decision on Verdict: 27 August 2004

Decision on Sentence: 2 September 2004

___________________________

N2631

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1677 of 2003

THE STATE

-V-

SINZAI KARAWA

GOROKA: KANDAKASI, J.

2004: 25th, 26 and 27th August

2nd September

CRIMINAL LAW –Verdict – Wilful murder – Self defence raised – Issue for trial – Whether Accused acted in self defence – Issue determinable on credibility of witnesses – State witness found credible – Guilty verdict returned – Sections 299 and 270 of Criminal Code.

CRIMINAL LAW – Sentence – Wilful murder – Dispute over land – Deceased provoking initially – Deceased cut twice with use of bush knife – Conviction after trial – First time advanced aged adult offender – Expression of remorse coupled with compensation – 20 years imprisonment imposed – Sections 299 and 19 of Criminal Code.

Cases cited:

The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416.

The State v Peter Malihombu (29/04/03) N2365.

The State v. Allan Mainde (21/05/04) N .

The State v. Peter Malihombu (29/04/03) N2365.

The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266.

Rosa Angitai v. The State [1983] PNGLR 185.

The State v. Paulus Non Pable (11/06/99) N1873.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.

Sakarowa Koe v. The State (01/04/04) SC739

Rex Lialu v. The State [1990] PNGLR 487.

Goli Golu v. The State [1979] PNGLR 653.

Ure Hane v. The State [1984] PNGLR 105.

The State v. Laura No 2, [1988-89] PNGLR 193.

The State v. Theo Raphael (No 2) (21/02/02) N2181.

The State v. Ben Simakot Simbu (18/03/04) N2573.

The State v. Paul Yapei (No.2) (26/03/04) N2571.

Counsels:

J. Kesan for the State.

M. Aipe’e for the Prisoner.

Decision on Verdict

27th August 2004

KANDAKASI J: You stand charged with one charge of wilfully murdering your cousin brother, Menamurizei Dukurima on 22nd July 2003 at Marawaka, Ombura Wanenara District, Eastern Highlands Province. You admitted to killing the deceased by cutting him with a bush knife twice. The first one was on his head causing the deceased to fall and the second was on the back as he was on the ground faced down.

You claim that you killed the deceased in self-defence or in simple terms, you say you killed the deceased to prevent him from killing you. A short trial therefore, took place on Wednesday 25th on the question of whether you acted in self-defence.

The State admitted into evidence with your consent, a confessional statement obtained from you by the police soon after the killing. The State also admitted into evidence a statement each from the policemen who got the confessional statement off you. Similarly, an affidavit sworn by a health worker, Tara Bukolei that describes the cuts you inflicted upon the deceased was admitted into evidence.

In addition to the above evidence, the State called the widow of the deceased, Kandarina Menamurizei. She gave a sworn oral testimony essentially testifying that, you attacked the deceased after an argument with him over a land dispute. At the time of your attack, the deceased did not attack you or pose any serious threat to your life, although he had a knife with him. On the other, you testified that, the deceased attacked you first with a bush knife, cutting you on your right hand. So you retaliated by cutting the deceased first on his head which caused him to fall to the ground and as he was on the ground, you cut him again to ensure that he did not get up and attack you again.

In submissions, both your counsel and that of the State agree that, which of these versions should the Court accept, is dependant on which of the witnesses, yourself or the widow of the deceased, the Court finds is credible. The Courts usually determine the issue of credibility of a witness applying a number of factors. These factors include, checking the evidence given against logic and commonsense, demeanor of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416; The State v Peter Malihombu (29/04/03) N2365 and The State v. Allan Mainde (21/05/04) N .

I carefully observed the demeanor of both yourself and the deceased widow as you gave your evidence. I found nothing in the demeanor of the widow that was indicative of a person not telling the truth. Instead, she gave me the impression that, she was telling the truth. She freely testified of the deceased starting the whole chain of events that ultimately led to his death. She said, the deceased came onto land that was yours and started to make his garden, as he had no other land close to the village to turn to. She also said, after you cut the deceased the first time and he fell, a woman knocked her out temporarily unconscious. That prevented her from seeing what happened next until she regained her consciousness and managed to get hold of the deceased, who died from the injuries he sustained from you. If she was not a truthful witness, she could have proceeded to say you cut the deceased the second time but she did not. She could have also withheld the evidence of the deceased making his garden on your land and that started the trouble.

Further, your cross-examination of the witness did not create any dent on her evidence and her demeanor. In addition, she did not give any evidence that goes against any sense of logic and commonsense. I have come to that conclusion even though, I had some difficulty initially in accepting her evidence that, even although, the deceased had a knife with him, he did not use it. On a close examination of her evidence, I note her evidence that, upon getting onto the disputed land, the deceased and her found you cutting grass on the land. The deceased therefore, told you to leave. Then he came closer to where you were and you cut him. I cannot see anything unreasonable or illogical and out of commonsense about this.

With regard to your evidence, I do not have the same impression of you. Instead, I have the clear impression based on your demeanor and account of what happened that, you were exaggerating what might have happened. For example, you said the deceased came to you ready to fight as he was armed with a bow and arrow, an axe, a bush knife and a stick. I have some serious difficulty in understanding how the deceased could have carried all of these weapons at the same time and how he might have known that you were already at the garden. Another example is, your saying, the deceased came from behind you after having faced you by which time you changed the weapons or...