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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 a general denial 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 company of another person drove his vehicle to the settlement and parked his vehicle on the roadside. His companion walked up to a tuckshop where he bought a bottle of beer and then returned to the vehicle. The accused also got out of his vehicle, bought a bottle of soft drink and returned to his vehicle. The accused then took an explosive object, namely “hand-grenade”, removed the safety pin and threw it towards the group of men and women. An explosion occurred injuring many of them. The deceased and others were admitted at the Port Moresby General Hospital. About a week later she died from injuries sustained from the explosion.

It is not in dispute that the explosive object was “hand-grenade”. And that it was thrown at the crowd with the intention that an explosion should occur. Further, the deceased sustained serious injuries from which she died.

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

“(d) the cause of death was/were...multiple, organ injuries from bomb blast septicaemic shock.

(f) the cause of death.

SUMMARY OF SIGNIFICANT, ABNORMAL FINDINGS AT EXAMINATION.

· Multiple pellet entry wounds both lower legs/knees.

· 4 x 1 cm to 0.75 cm diameter entry wounds to lower abdomen and lower lateral chest.

· Laparotomy suture marks.”

On the basis of the medical evidence I am satisfied that the cause of death was “multiple organ injuries from bomb blast septicaemic shock”. That the injuries caused severe infection resulting in unconsciousness and death.

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

THE ISSUES

I turn now to the only issue in this trial, that is, identification. The accused denies responsibility 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 relevant time, between 11:00 pm and 11:30 pm on the 28th of November, 1994. The rest of the essential facts 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. That it was him who had intentionally thrown the hand-grenade to the deceased and others. The accused denied that he was responsible. In his Record of Interview at Q.68 (Exhibit “A”) he said his cousin brother Joseph Kamen who was in the vehicle threw the hand-grenade on the crowd. In his sworn evidence Joseph Kamen was seated at the back of the vehicle. The accused had walked up to the tuckshop to buy a softdrink. There his father-in-law Jerry Bani shouted at him in a loud angry voice:

“yupela I painim pipia, yu rabis man, yupela ino baim braid prais (bride price) bilong pikinini bilong mi.”

Then Jerry Bani threw a beer bottle at him and people came crowding around them. At that point people were shouting. He became afraid and walked to his vehicle. He saw Joseph Kamen threw the object at the mob of people. The accused said he was surprised, shocked and panicked as a result of the explosion. That his first impression was that the Chimbus were getting at him for non-payment of bride-price. He thought they had fired a gun or thrown a bottle at him. He got up and then drove away.

Two State witnesses on the indictment and one other were called in the Defence case to corroborate the accused’s evidence. These witnesses gave very similar evidence. The accused arrived on his vehicle at the Five mile Settlement. The vehicle was parked on the side of the road. The accused and one Luso came out of the vehicle and went to a tuckshop. Jerry Bani, a witness saw the accused and had an argument with him. The two men were then surrounded by a crowd of people. That it was at this point that an object was thrown from a dark area on the road. It landed and exploded where the argument was. The accused returned to his vehicle after the explosion and drove away.

Two of the three witnesses were cross-examined in relation to statements they gave to the Police about two weeks after the incident. In their statements they told the Police that they saw the accused threw the object which exploded. Those statements were made some one (1) year and none (9) months ago. In light of these inconsistencies and my observation of their demeanour in the witness-box I give very little weight to their sworn testimony. I accept what they each said in their statements as the truth. The final defence witness gave evidence of seeing a third person coming out of the accused’s vehicle and throwing the hand-grenade towards the crowd. This evidence is uncorroborated by any other evidence apart from the evidence of the accused.

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

This raises one question in my mind. Was Joseph Kamen a real person? Can the accused shift the blame to a fictitious person and get away with it. I find that there is no evidence to show that Joseph Kamen was a real person. The accused could have easily called witnesses from his area to show that Joseph Kamen was a real person and was his cousin. In my view, it is most 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 that the accused had been married to Jerry Bani’s daughter for about three years. And that there was an existing dispute over the non-payment of brideprice. Furthermore, the accused’s wife (Jerry Bani’s daughter) was residing with her parents at the Five Mile Settlement at the time. There is evidence (from Jerry Bani) that the accused had threatened to blow them up with a bomb. Finally, there is evidence that there was an argument between the accused and Jerry Bani immediately before the explosion. I find on the evidence that the accused had the necessary motive to cause such an explosion which resulted in the death of the deceased.

Now on this trial I must be satisfied beyond reasonable doubt that the accused in throwing the hand-grenade into the crowd did so intending to cause the death of the deceased or that of some other person in the crowd. There is evidence that the “pull-pin” was removed before the hand-grenade was thrown.

On the evidence before me I find that there was a degree of provocation in a non-legal sense which is sufficient to create 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 accused not guilty of wilful murder. I am satisfied that the accused’s action resulted from long standing dispute over non-payment of bride-price. I am also satisfied that there was a degree of provocation in a “non-legal sense”.

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 the accused 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 one 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 case the deceased Cecilia Kimbiri died from injuries she received from grenade explosion you were responsible for. The Court found that you were in possession of the hand-grenade when you went to the 5 Mile Settlement, you have a long standing dispute with your father-in-law, Jerry Bani over non-payment of bride. And your wife left you and was then residing with her parents at the time. On arrival at 5 Mile you had an argument with Jerry Bani. On the evidence I found that you had the necessary motive to cause such an explosion which resulted in the death of the deceased. In finding you guilty of the alternative verdict of 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 plea for leniency. I take the following factors into account on sentence:

(a) you are still fairly young at 30 years;

(b) you are well educated with a Masters Degree in Anthropology;

(c) you were formerly a policeman, and you held a senior position with the National Museum for some four years;

(d) No prior convictions;

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

(f) a degree of provocation in a non-legal sense.

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

(a) death was caused by a dangerous and deadly explosive object, namely, hand-grenade, a weapon normally used in wars;

(b) many people were injured (at least more than ten) and also admitted to the hospital as a result;

(c) deceased was an innocent victim and suffered terribly as a result of your actions. In other words you took away an innocent life out of anger and frustration; and

(d) you have not shown remorse for what you did, but attempt to advance your own interest.

In my view this appears to be a new trend in the criminal mind. Persons resorting to such dangerous weapons to kill another person. It is clear to me that you have no respect for human life which is a gift from God to all of us to enjoy on this earth. Section 35 of the Constitution is very clear. You had no right to deprive the deceased Cecilia Kimbiri of her life. I have said this before in another case and I say it again to you now.

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

I 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. In my calculation that was the position between 1980 and the 24th of March, 1989, the date of that decision. I consider the following passage in His Honour’s judgment at p. 99 relevant:

“I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract a sentence of six years is imposed, I believe 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 years old) or the very advanced age of the accused. In a contested case it should be between eight to 12 years and more in a case where aggravating factors are shown by the evidence. Such factors are too numerous to list here and must be determined on a case-to-case basis.”

Yours is a contested case and on the evidence there are aggravating factors. I have set them out above. On the authority of the State v Laura (No. 2) I consider that a sentence of nine years imprisonment in hard labour appropriate.

ORDERS

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

2. One year, three months period in custody be deducted; and

3. Balance to serve: 7 years, 9 months IHL.

Lawyer for the State: Public Prosecutor

Lawyer for the accused: Attorney-General