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Omowo and Yirihim v The State [1976] PGLawRp 617; [1976] PNGLR 188 (11 May 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 188 - Awap Omowo and Warsa Yirihim v The State 

[1976] PNGLR 188

SC96

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AWAP OMOWO

AND WARSA YIRIHIM

V

THE STATE

Waigani

Frost CJ Williams Saldanha JJ

30 April 1976

11 May 1976

CRIMINAL LAW - Parties to criminal offences - Acting in concert - Joint offenders - Unlawful killing - Unnecessary to decide which accused committed act causing death - Principles applicable - Criminal Code (Queensland adopted) s. 7[ccxv]1, s. 293.

Where two persons are jointly charged with unlawful killing, so long as the Court is satisfied that death was caused by the accused acting in concert, it is unnecessary to decide which accused committed the act which actually caused death.

The principle which is expressed in s. 7 of the Criminal Code (Queensland adopted) is that two persons participating in a crime are responsible for the acts of each other. Sirinjui-Biagwei v. The Queen (1962) 36 A.L.J.R. 9 at p. 11 and R. v. Lowery and King (No. 2)[1972] VicRp 63; , [1972] V.R. 560 followed.

Appeal

This was an appeal against convictions for manslaughter on joint charges of wilful murder where the appellants admitted that they intended to kill their infant child, that they planned to kill and that they did in fact kill the infant child and bury him. The only significant particular in which their statements differed was the manner in which they said the child was killed, one saying he had wrung it’s neck, and the other saying they had both stamped upon it. The trial judge holding that he could not find a verdict of wilful murder, as against either accused, unless he was satisfied that death occurred directly as a result of some specific act committed by that accused, entered a verdict of guilty of manslaughter. The appellants appealed on the sole ground that the convictions were wrong in law having regard to certain of the trial judge’s findings.

Counsel

C. F. Wall, for the appellants.

S. C. Cory and J. L. Cagney, for the respondent (the State).

Cur. adv. vult.

11 May 1976

FROST CJ:  The appellants appeal against their conviction by the National Court sitting at Vanimo for the unlawful killing between 25th April and 3rd May, 1975, of the male child, Pori, aged approximately three months. It was Awap’s child and she said Warsa was the father.

No submission was made that on the evidence it was not open for the court to have convicted the appellants of manslaughter, or indeed of wilful murder which was the charge contained in the indictment. The only ground of appeal was that the convictions were wrong in law having regard to certain findings of fact by the trial judge, which led him to acquit the appellants of wilful murder and inferentially of murder, and which it was submitted amounted to findings that neither of the appellants had caused the death of the deceased infant and so were inconsistent with the verdict of manslaughter.

The case was a simple one, and tragic. The only relevant independent evidence was confined to the fact of the death of the child, and did not extend to the nature of any injury inflicted upon his body. The State case depended on statements by each appellant in records of interview conducted by Senior Constable So’on. No evidence was called on behalf of the appellants. From these statements it appeared that after the birth of their child trouble arose between the appellants, for Warsa accused Awap of having prostituted herself, and claimed that the child was not his. Later the child suffered burns when he rolled upon the fire one night, and was taken to an aid post for treatment over several days by an orderly. On the family’s return to their home, as each appellant admitted, they decided to murder the child and in fact did kill the child. This is supported by Awap’s statement, “At about 6 p.m. that even date two of us came to our decision to murder the child. So we murdered him”, and Warsa’s statement, “My wife said, ‘We better kill the child’. I agreed with her and said, ‘that is alright we kill him’ so we did”. But each gave a different account as to the manner in which the child was killed. According to Awap the deed was done by Warsa wringing the child’s neck whilst she held him on her lap, but Warsa said the child died as a result of Awap placing her foot on the child’s neck, followed by him also stepping on it.

On this evidence it was clearly open for the trial judge to have found that a crime of unlawfully killing the child had been committed by the appellants as principals on the ground that each pursuant to a common design had aided the other in causing the death of the child — ss. 293 7 (c) of the Criminal Code (Queensland adopted). So long as the judge was satisfied that the death was caused by the appellants acting in concert it was unnecessary to decide which appellant had committed the act which actually caused his death. The principle which is expressed in s. 7 of the Code is that “two persons participating in a crime are responsible for the acts of another”. Sirinjui-Biagwei v. The Queen [ccxvi]². That principle has been lucidly explained in a case usefully cited by counsel for the State. In a charge to a jury Smith J. of the Victorian Supreme Court said:

“The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.” (R. v. Lowery and King (No. 2[ccxvii]³).

The course taken by the trial judge in the present case, after submissions by counsel, was to adjourn the hearing and write reasons for judgment in which he reviewed the evidence, accepted the records of interview as having been made voluntarily, and then stated his findings of fact. The findings of fact so far as relevant were as follows:—

N2>“1.      The baby Pori died at Watumar village between 25th April 1975 and 3rd May 1975.

N2>2.       Apart from the respective admissions made by Awap and Warsa, there is no independent evidence showing what caused Pori’s death.

N2>3.       There is no evidence that in the period immediately preceding his death, Pori was suffering from any injury or any illness that made it appear in any way that death was likely to occur in the near future.

N2>4.       In particular, there is no evidence apart from the statement of Awap that the death of Pori had been caused by having his neck twisted twice.

N2>5.       In particular, there is no evidence apart from the statement of Warsa that the death of Pori had been caused by two people stepping in turn on the child’s neck.

N2>6.       As against both accused there is evidence of a conversation between them in which the killing of the child was discussed and was agreed upon. I find that in this conversation the two accused jointly agreed to kill the child.

N2>7.       I find as against the accused Awap only (by virtue of her admission alone) that she held the child in her hands while another person (whom she alleged to be Warsa) twisted his neck twice, so that she heard the sound of a crack from the child’s neck and so that she noticed that the main bone which supported the head part of the child had been broken.

N2>8.       I am unable to make any finding that the child died in fact from the cause of death shown in finding No. 7.

N2>9.       I find as against the accused Warsa only (by virtue of his submission alone) that another person stepped with one foot on the child’s neck and that he himself did the same, after which urine came out of the child’s penis and excreta from the mouth of the buttock, and the child appeared to be dead.

N2>10.     I am unable to make any finding that the child in fact died from the cause of death shown in finding No. 9.

...”

On the resumption of the hearing his Honour heard further submissions as to the correct verdict in the light of those findings. It is significant to note the submissions then made by accused’s counsel (who was not the counsel who appeared in this Court). From the judge’s notes which are set out in the appeal book, counsel for the accused submitted that for the State to bring Awap within the provisions of s. 7, it must show that what she did was to actually assist in that killing, that the State had not shown that Awap’s action in simply holding the baby was necessarily an act which aided whoever it was did the twisting of the neck; if her act was an act which aided the other person what was it that she was aiding at? Counsel then submitted it was not wilful murder — it was one of the essential elements of the charge of wilful murder that there must be a causal connection between the death and the unlawful act. Having regard to finding No, 8, it was then submitted that there was “therefore not sufficient evidence to support a finding of wilful murder nor in the absence of a finding of cause of death to support a charge of unlawful killing”.

It is clear that what counsel was saying is that for Awap to be found guilty of wilful murder it was necessary to establish an act which went beyond merely holding the child, and was such as to aid the other person in the very act of causing the child’s death, in this case twisting the child’s neck. Counsel then argued that the same submission applied to Warsa. The submission in relation to wilful murder was plainly unsound as it was alleged by the State that the appellants acted in concert. If further authority is required that even minor participation unrelated to the act which caused death, such as intentional encouragement of the commission of a crime by word, action or mere presence, is sufficient, it will be found in R. v. Tovarula & Ors[ccxviii]⁴.

These submissions explain the judge’s final conclusions which completed the judgment. The conclusions, which I have identified by letter, are as follows:

N2>A.       Consequent upon these findings of fact I am satisfied upon the evidence that Pori died late in the afternoon of the day on which the two accused jointly agreed to kill him.

N2>B.       I am further satisfied upon the evidence that the death of the child took place in the house of the two accused, in the presence of both of them and in the presence of them alone.

N2>C.       As against the accused Awap I am unable to find in the evidence any reasonable explanation for the child’s death by late afternoon that day other than her own statement that some person twice twisted the child’s neck while the child was still alive. I am satisfied that in that action Awap was an aider and abettor in that she then held the child on her legs and by her hands.

N2>D.       As against the accused Warsa I am unable to find in the evidence any reasonable explanation for the child’s death by late afternoon that day other than his own statement that he with the assistance of another person trod on the child’s neck while the child was still alive.

N2>E.       I am unable to find beyond reasonable doubt in view of my Finding No. 8 that Awap wilfully murdered Pori, and I find her not guilty of that charge. I find her guilty of unlawfully killing Pori.

N2>F.       I am unable to find beyond reasonable doubt in view of my Finding No. 10 that Warsa wilfully murdered Pori and I find him not guilty of that charge. I find him guilty of unlawfully killing Pori.

The appellant’s counsel submitted that the verdict of guilty was under all the circumstances of the case unsafe or unsatisfactory within the meaning of the Supreme Court Act 1975, s. 22 (1) (a), because findings numbered (8) and (10) showed that the judge was not satisfied that the act of either appellant had directly or indirectly within the meaning of s. 293 of the Code caused the death of Pori, and these findings were therefore inconsistent with the proof of causation necessarily implied in the verdict. It was therefore submitted that the verdict should be quashed, and there should be substituted under the proviso to s. 577 of the Code a verdict of unlawful assault thereby doing grievous bodily harm, with a consequent reduction of the sentence. To support the argument, a passage from Russell on Crime was also relied on, to the effect that “when the law relating to principals and accessories as such is under consideration there is only one crime ... and that it has been committed must be established before there can be any question of criminal guilt of participation in it”. (Vol. 1, p. 128).

Counsel then relied on passages from the judgments applicable to the effect of a rider or recommendation added to a verdict by a jury in a criminal trial, Myerson v. The King[ccxix]⁵; Connelly v. Director of Public Prosecutions [ccxx]⁶. This branch of the law can have no application to the reasoned judgment of a judge sitting alone. However, to adapt the words of Griffith C.J. in Myerson v. The King [ccxxi]⁷, no doubt in rare cases it may be necessary to look at the whole of the judgment and if it appears reasonably doubtful whether the judge has found the facts necessary to establish the offence charged, the accused is entitled to the benefit of the doubt.

I cannot agree with the appellants’ submissions. It is clear in my opinion that what the trial judge was saying in findings (8) and (10) was that he was not able to find that the child died as a result of the sequence of events as described by Awap or as described by Warsa. His Honour could not on the evidence prefer either account to the other. In the light of the further submissions made before him, and to cover the point of cause of death raised by counsel at the end of his arguments, his Honour then went on and, as he was fully entitled to do, made the additional conclusions C and D to the effect that as against each accused there was no reasonable explanation for the child’s death other than that the accused did an act aiding another in causing the child’s death. Taken with finding (6) the case accepted by his Honour was that the accused had so acted in concert.

In my opinion the submission of counsel for the State is correct that the trial judge was indeed under a misapprehension because he did not perceive the fallacy of counsel’s argument, but it was upon the different question that he could not find a verdict of wilful murder, as against either accused, unless he was satisfied that death occurred directly as a result of some specific act committed by that accused. It was this error of the trial judge which lead him to acquit each appellant of wilful murder, and of course that acquittal stands despite the error. But this error does not affect the force of the final conclusions as against each appellant as to the cause of death, which are stated in unambiguous words. Reading the judgment as a whole I am accordingly left in no reasonable doubt that the judge found the facts necessary to establish the crime of manslaughter.

I would therefore dismiss both appeals.

WILLIAMS J:  I have read in draft form the reasons for judgment of the Chief Justice and of Saldanha J. I agree with their conclusions and their reasons therefor. I wish to add a few words of my own.

At the conclusion of the evidence the trial judge made certain preliminary findings. He then invited further argument from counsel. At this stage he was still fully seized of the matter both as to fact and law. After hearing argument he made further findings as to fact. This, I think, he was perfectly entitled to do. It was contended for the appellants that the further findings of fact were analogous to riders by a jury added after a verdict was given, that these riders were inconsistent with his earlier findings numbered 8 and 10, and indicated such confusion in the mind of the trial judge as to make the verdict unsafe.

On first appearances the alleged inconsistency may seem to exist. However, in my view, a closer consideration of the record of the proceeding shows otherwise. I think that any misapprenhensions on the part of his Honour were as to matters of law rather than as to matters of fact.

From a reading of his judgment as a whole I am left in no doubt that his Honour was of the opinion that death was the result of the actions of the appellants taken in pursuance of their prior agreement to kill the child. But whilst he had doubts as to the method actually employed to give effect to the agreement, no other reasonable explanation was presented by the evidence to explain the death other than at the hands of the appellants by one or other of the methods stated by each of them to have been employed. Upon this footing a finding of guilty of manslaughter was clearly open to him; indeed, a finding of guilty of wilful murder was equally open, although the trial judge appears to have seen some legal impediment to his so doing which is not apparent to me. It seems to me that the evidence was such that the appellants should consider themselves fortunate to have been acquitted of the major charge.

SALDANHA J:  I have had the advantage of reading in draft the judgment of the learned Chief Justice. I am in broad agreement with his findings, his decision and the reasons for his decision, and have very little to add.

At the trial the State relied upon the statements the appellants made to Senior Constable So’on. These statements were not challenged at the trial and they are not in question now. The appellants admitted that they intended to kill, that they planned to kill, and that they did in fact kill the infant child and bury him. The only significant particular in which their statements differed was the manner in which the child was killed. The appellant Awap said that while she held the child her husband wrung his neck, while the appellant Warsa said that the child was killed by first his wife stamping with her foot on the child’s neck and then he himself doing likewise. On this evidence it was open to the trial judge to convict of wilful murder.

Most of the arguments advanced and the cases cited by appellant’s counsel referred to verdicts returned by juries. I do not agree that the same considerations apply to a trial by jury as to a trial by a judge sitting alone. A jury return only a verdict of “guilty” or “not guilty”. They may add a rider recommending mercy or something similar. They do not give reasons for their verdict nor make findings of fact. In this case, in accordance with the general practice in this jurisdiction, his Honour wrote a judgment giving his findings, his decision and the reasons for his decision. His thought processes are capable of being analyzed and it is possible to see how and where he went wrong.

It is not difficult to see how his Honour fell into error. Faced with the two different ways in which the appellants alleged the child had been killed his Honour would appear to have felt that unless he was satisfied that death occurred directly as a result of some specific act committed by a particular appellant he could not convict that appellant of wilful murder, and, therefore, he could not convict either appellant of wilful murder. This is apparent from the conclusions he reached after inviting counsel to make submissions on the twelve findings he had made and the reasons for judgment he had given earlier. These conclusions are referred to in the judgment of the Chief Justice at p. 192 and identified by the letters A, B, C, D, E and F.

In order to be consistent, if the trial judge was unable to find them guilty of wilful murder he should have been unable to find them guilty of manslaughter. But he would appear to have thought that as he was satisfied that they had killed the child between them, albeit he did not know how they had killed him he could convict of manslaughter. There is sufficient material in his findings to justify the inference that his Honour was satisfied beyond reasonable doubt of their guilt on a charge of manslaughter. I have said earlier that on the evidence before him his Honour could have convicted them of wilful murder. A fortiori he could have convicted them of manslaughter.

The appellants are fortunate in that as a result of the trial judge’s misdirection they were not convicted of wilful murder, and, thus, escaped the heavier sentences which they so richly deserved. I am of the opinion that this appeal should never have been lodged. I agree that it should be dismissed.

Appeals dismissed; Conviction and sentence affirmed in each case.

Solicitor for the appellants: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent State: L. W. Roberts-Smith, Public Prosecutor.

[ccxv]Section 7 of the Criminal Code (Queensland adopted) provides: “Principal Offenders.—When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—