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State v Kandason [1996] PGNC 31; N1553 (11 September 1996)

Unreported National Court Decisions

N1553

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1179 OF 1995
THE STATE
v
DAVID KANDASON

Waigani

Passingan AJ
19-23 August 1996
11 September 1996

CRIMINAL LAW - Wilful Murder - use of explosives - hand-grenades motive - dispute - non-payment of brideprice - Identification -cousin responsible - Whether - Real living person - Burden of proof - Alternative verdict - Murder.

SENTENCE - aggravating features - death caused by dangerous explosives - one deceased - many injured.

Cases Cited:

The State v Laura (No. 2) [1988-89] PNGLR 98

Trial

David Kandason was indicted for the wilful murder of Cecilia Kimbiri pursuant to Section 299 of the Criminal Code, Chapter No. 262. His defence was eral deniadenial to the charge.

Counsel:

L Maru for the State

L Tilto for the accused

JUDGMENT

11 September 1996

PASSINGAN AJ: On the 28th day of November, 1994, between 11:00 pm and 11:30 pm, the deceased and others were drinking at the Five Mile Settlement of Port Moresby. The accused in ny of anothanother person drove his vehicle to the settlement and parked his vehicle on the roadside. His companion walked up tu a tuckshop where he bought a bottle of beer and then returned to the vehicle. The accused als out of hisf his vehicle, bought a bottle of soft drink and returned to his vehicle. The accusen took an explosxplosive ob namely “hand-grenade”, removed the safety pin and threw it towards the group ooup of men and women. An explosion oed ing many many of them. The deceasd others wers wers were admitted at the Port Moresby General Hospital. About a week lshe died fnjm injuries sustained from the explosion.

It is not in dispute that the ethe explosive object was “hand-grenade&#8 And that it was thrown at the crowd with the intention that an explosion should occu occur. Fr, the deceased sustainedained serious injuries from which she died.

The Post-Mortem Report shows the following injuries and the cause of death:

&;(d) the cause of death eas/w.me...multipultiple, organ injuries from bomb blast septicaemic shock.

(f) &##160;caue of e of death.eath.

SUMMARY OF SIGNIFICANT, ABNORMAL FINDINGS AT EXAMINATION.

· &ـ҈ Multiple p llet entry wounds both lower legs/knees.

·&183; #1660  1 ccmeter entry wounds to l to lower abdomen and lower lateral chest.

&#18>· < ҈ ;<paroaparosuturks.̶”

Onbasishe medical evil evidencedence I am I am sati satisfiedsfied that that the cause of death was “multiple organ injuries from bomb blasticaehock&;. That thet the inju injuriejuries caused severe infection resulting in unconsciousness and death.

Finally, it is not in disthat the accused was at the scene of the explosion at the relevant time.

THE ISSU ISSUES

I turn now to the only issue in this trial, that is, identification. The accused s responsibiliibility for the explosion which injured the deceased and others and caused her death.

I find at the outset that the accused was at the scene of the explosion at the relevame, between 11:00 pm and 11nd 11:30 pm on the 28th of November, 1994. The rest of the essentialsfacts are clear and I find them to have been proved beyond reasonable doubt.

It is the State case that the accused was responsible for the explosion.&#1hat it was him who had intentionally thrown the hand-grenadrenade to the deceased and others. Tcused denied that he was was responsible. In his Record of Interview at Q.68 (Exhibit “A”) he said his cousin brother Joseph Kamen who was in the ve threw the hand-grenade on the crowd. In his sworn eorn evidense Joseph Kamen was seated at the back of the vehicle. The accuad walked up to thto the tuckshop to buy a softdrink. There hiser-in-law Jerry Brry Bani shouted at him in a loud angice:

“yupela Iela I painim pipia, yu rabis man, yupela ino baim braid prais (bride priceprice) bilong pikinini bilong mi.”Then Jerry Bani threw a be a beer bottle at him and people came crowding around them. At that people were shoutshouting. He e afraid and walked to d to his vehicle. He saw Joseph Kamen thhe othe object at the mob of people. The accused he wrprised, shocked and panicked as a result of the the explosion. That hist impreimpression sion was that the Chimbus were getti him on-payment of brif bride-price. He tt they had fired a guna gun or thrown a bottle atle at him. He p and then drove

Two State witnessesesses on the indictment and one other were called in the Defence case to corroborate the accused’s eviden160; These witnesses gave very similar evidence. The The accusrived on hisn his vehicle at the Five mile Settlement. The vehias parked on the sthe side of the road. The accused and one Luse oame out of the vehicle and went to a tuckshop.&#160ry&#1ani, a witness sass saw the accused and had an argument with him. Th men were thre then surr surrounded by a crowd of people.&#That it was at this point tint that an object was thrown from a dark area on the road. It landed andoded where thre the argumen. Thused returneturned to hito his vehicle after the explosion and drove away.

Two of the three witnesses were cross-exa in ron to statements they gave to the Police about twut two weeks after the incident. In ; In theirements they they told the Police that they saw the accused threw the object which exploded. Thoatements were made some some one (1) year and none (9) monto. I0; light of these inconsiconsistencies and my obsy observation of their demeanour in the witness-box I give very little weio theorn testimony.&#1y. I accept whey each said inid in their statements as the truth.&#1h. The fiefence witness gave gave evidence of seeing a third person coming out of the accused’s vehicle and throwing the hand-grenade towards the crowd. Thisence corroborated by a by any other evidence apart from them the evidence of the accused.

The accused was apprehended at his wlace the following day and taken to the Police Station. He gave details about Jout Jout Joseph Kamen but Police have not located him ever since.

This raises one question in my mind. Wseph Kamen a real person?rson? he accused shift lame to a to a fictitious personerson and get away with it. I find that there evidencidence to show that Joseph Kamen was a real pe&#160 accused could hald have easily called witnesses from his ahis area to show that Joseph Kamen was a real person and was his cousin.&#In my view, it is most unre unreasonable to expect the Police to apprehend a non-existent person.

The next point I wish to consider is whether there is evidence of motive on the part of the accused. There is evidence the accu accused had been married to Jerry Bani’s daughter for about three years. And there was an existing ting dispute over the non-payment of brice. Furthermore, the accused’s wife (Jerry Bany Bani’s daughter) was residing with her parents at the Five Mile Seent at the time. Ther There is evidefrom Jeom Jerry Bani) that the accused had threatened to blow them up with a bomb. Finally, the evidence that that there was an argument between the accused and Jerry Bani immediately before the explosion. I find on tidenct the accu accused had the necessary motive to cause such an explosion which resulted lted in the death of the deceased.

n this trial I must be satisfied beyond reasonable doubt that the accused in throwing the hthe hand-grenade into the crowd did so intending to cause the death of the deceased or that of some other person in the crowd. Therevidence that the &#82 “pull-pin” was removed before the hand-grenade was thrown.

On the evidence before me I find that there was a degree of cation in a non-legal sense which is sufficient to create sate such doubt in my mind, whether the element of intention has been proven beyond reasonable doubt.

This brings me to consider alternative verdicts which are open to me under Section 539(1) and (4) of the Criminal Code. In the circumstances I have raised earlier, I find the accusedguilty olty of wilful murder. Iatisfied that the accusedcused’s action resulted from long standing dispute over non-payment of bride-price.&#16am altisfiat ther there was a degree of provocation in a &# a “non-legal sense”.

I

In my view the accused intended to do grievous bodily harm to the deceased or to some other person who was at the 5 Mile Settlement, the scene of the incident in question. My verdict is that tcused used is guilty of murder.

VERDICT

Guilty of murder.

REASONS FOR SENTENCE

The Court has convicted you of a very serious crime under the Criminal Code. The maximum penalty is onl of life imprisonment subject to Section 19 of the Criminal Code.

The facts and circumstances of your case are unique.&#In my research I have not been able to find a similar case like this case. In this cais case theased ased Cecilia Kimbiri died from injuries she received from grenade explosion you were responsible for. The Court found tha were inre in possession ofhand-grenade when you went to the 5 Mile Settlement, you haou have a long standing dispute with your father-in-law, Jerry Bani over nyment of bride. And your wife lou and was was then rhen residing with her parents at the time. On arrival at 5 Mile you had an argument with Jerry Bani. On vidence I found that yoat you had the necessary motive to cause such an explosion which res in the death of the deceased. In fi you guilty of the alhe alternative verdict of muof murder under Section 539 of the Criminal Code, the court was satisfied that there was a degree of provocation in a non-legal sense in relation to your long standing dispute.

In considering sentence I take into account your statement on allocutus and submissions in mitigation advanced by your lawyer. On the whole it is a plr lfor leniency. I take the folg factors inrs into account on sentence:

(a) ;&#16u are stillstill fairlfairly young at 30 years;

(b) ټ&#you areu are well well educated with a rs Dein Anology;

(c) you were formerly acpolicemaiceman, ann, and youd you held a senior position with the NatiMuseu some four years;ears;

(d) ; No prior convnctions;

(e) &ـ Custodystody from from the 29th of November, 1994 to the 22nd of February, 1996, a period of one year three months; and

(f) aedegr p ofocaovon nin- sen- sense.

On

On the the other hand the aggravating features of your case are:

(a) h aated dsng and y expe obje object, namely, hly, hand-gand-grenadrenade, a e, a weapoweapon normally used in wars;

(b) &#1anple wnjure lease tha) tha) and also admitteditted to t to the hohe hospitaspital as l as a result;

(c) deceased was an int vicnd sud ter as a result of your actions.ions.&#160 In ; In otherothrds you toou took away an innocent life out of anger and frustration; a>

160;&ـ&#1ou have not shown rown remorsemorse fore for what what you you did, but attempt to advance your own interest.

In my view this appears to be a new trend in the criminal mind. Persons resorto such dangedangerous weapons to kill another person. It is cle me that you have have no respect for human life which is a gift from God to all of us to enjoy on this earth. on 35he Coution iion is veis very clear. You h right to deprive thee the deceased Cecilia ilia Kimbiri of her life. I have sais befn another aase and I say it again to you now.

Your education and work expe experiencrience does not assist you but is against you.& Because you are expected to know better and have control over your actions.

I have have to come to a conclusion on an appropriate sentence to impose on you. In the case of The State v Laura (No. 2) [1988-89] PNGLR 98, the former Chief Justice of this Court observed that sentences for murder have varied from three years to nine years in the last eight-and-a-half years.&#160my calculation that was thes the position between 1980 and the 24th of March, 1989, the date of that decision. I consider the fing passagassage in His Honour’s judgment at p. 99 relevant:

“I consider that a murder case with no special aating factors where the accused pleads guilty should attract a sentence of six years 160; is im, I believe that that it should only be in a case where there are special mitigating factors such as the youthfulness of the accused (for example, 14 or 15 year) or the very advanced age of the accused. In a In a contested it shot should be between eight to 12 years and more in a case where aggravating factors are shown by the evidence. Such factoe too numerous tous to list here and must be determined on e-to-case basis.”

Yours is a contested case and on the evidence there are aggravating factors. I have set the abov60; On ; On the authoruthority of the State v Laura (No. 2) I consider that a sentence of nine years imprisonment in hard labouropriate.

ORDERS

1. ; D60ID KVNDASON,ASON, you you are convicted of the murder of Cecilia Kimbiri and sentenced to nine years imprisonment in hard labour;

2. &##160; O60; One yearn mod riody tody be deducteducted; and; and

3. &##160;; B60ancelance to seto serve: 7 years, 9 months IHL.

Lawyer for tate:ic Prtor

Lawyer for the accused: Attorney-rney-GenerGeneral