Ruling on evidence in Kaiwi case

THE National Court has reserved a ruling on whether to let the State call eight witnesses whose evidence were months prior to the death of Bhosip Kaiwi’s wife Jenelyn Kennedy.
Kaiwi, from Kuraip village in South Waghi, Jiwaka, is alleged to have tortured Kennedy for five days (June 18, 2020-June 23, 2020) in their home at Korobosea, Port Moresby, leading to her death.
The State, through lawyer Elizabeth Kave, appeared before acting Judge Laura Wawun-Kuvi at Waigani yesterday, said the evidence of those witnesses were very relevant and would go to the issue of causation: who and what caused Kennedy’s death.
Another issue was whether a medical evidence which was not part of the committal proceeding, could be admitted into evidence in this murder case.
The witnesses were Grace Ipang, Dickson Karava, Louisa Johns, Josie Kikoli, Olivia Darina, Marylyn Espolong and Christine Waure.
Kave said Kaiwi allegedly assaulted Kennedy on previous occasions causing serious injuries, especially in the three months prior to her death.
She added that the witnesses knew Kennedy.
“For Ipang, Karava and Johns, they had lived with her and had seen instances of abuse perpetrated on her by Kaiwi,” she said.
“For Johns, she was subjected to the alleged beatings from Kaiwi as well.” The State submitted that the evidences were relevant and admissible because the instances of assault talked about evidence of those witnesses occurring in the months immediately prior to the June 18-June 23, 2020, incident.
“They show a pattern of behaviour perpetrated by Kaiwi on Kennedy where she had sought help from the police,” Kave said.
“The State further submits that the propensity evidence sought to be presented is relevant and therefore admissible.
“It’s probative value far outweighs its prejudicial effect on Kaiwi; prejudice in that it must not mean it looks bad for Kaiwi but that the evidence, if included, would be unfair to Kaiwi.
“We say there is no unfairness and so the court can and should in the interest of justice, allow the evidence to be led by the State.”
Kaiwi’s lawyer Emmanuel Ellison submitted that, “evidence is not admissible unless it is relevant”.
“It is relevant if, but only if, it contributes something to the resolution of one or more of the issues in the case,” Ellison said.
“It may do so directly or indirectly.”
He added that not all relevant evidence was admissible.
“Relevant prosecution falls excluded if, in the judgment of the trial judge, its admission will be unfair to the accused in the sense that its prejudicial value outweighs its probative value.”
Ellison stated that Kikoli’s evidence was in regards to past events that had no bearing on causation.
Karava’s evidence was what happened between 2016 and 2019.
He said Karava gave evidence regarding abduction and child abuse which Kaiwi was not tried for and was irrelevant to the issue of causation.
Ipang’s statement regarding sexual harassment was not corroborated by other State witnesses.
Ellison further stated that the evidence being proposed to be led by the State of propensity of evidence or similar fact evidence was irrelevant to the question which the court was being asked to decide.
“Hence, any evidence that does not relate to events within five-day period leading to the death of Kennedy is irrelevant and therefore inadmissible.”
Acting judge Wawun-Kuvi reserved her ruling for Thursday.
Kaiwi was remanded in Bomana prison.