Unreported National Court Decisions
N244
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ARE TOMAN AND 12 OTHERS
APPELLANTS
AND
THOMAS ELUH
RESPONDENT
Mount Hagen
Narokobi AJ
18 July 1980
JUDGMENT
NAROKOBI AJ:
INTRODUCTION
This appeal is against conviction and sentence in respect of charges under s. 11 (2) of the Inter Group Fighting Act 1977. The facts and circumstances of this case appear in my judgment.
PRIMARY FACTS
The statement of facts as presented by the Prosecution, appearing on page 38 of the court depositions reads as follows:
“The Kompiam Sub Province is a declared tribal fighting area by the Enga Peace and good order Committee. The area is declared for 3 months and the declaration of the area is still in force.
The declaration of the area was announced through radio Hagen, to local media, the local government meetings and also brought to the attention of the justice of the peace.
On the 14th November, the Tombe clansmen and Takilin clansmen took part in an unlawful assembly in which involved in an inter group fight resulting in a man, namely, Nanu Kapiaka, got killed.
Police were called in and arrested the defendants now before the court and brought them to Kompiam police station whereby they were cautioned, informed of their rights, charged and placed in the cells.”
The Prosecution case consists of the evidence of three witnesses: Vincent Kadibu, the District Officer in Charge of the Kompiam Sub District, Bal Mupa, a police corporal based at Kompiam and Michael Reto, a member of the Riot Squad.
The evidence of the prosecution witnesses can be stated in full, because it is relatively short. Vincent Kadibu says, in so far as it is material as follows:
He received an information about a fight in which a Committee man named Nanu Kapiaka was killed. The fight was between two sub clans of Pinai clan. The sub clans are Taklin and Tambe sub clans. He went with the police to the tribal area and found nothing there, no pigs, dogs, chickens, string bags or human beings. He and police called at Tambe and Taklin Clans, but nobody responded. Because of this, he suspected that they were involved in fighting. He thought that because of this fight they were scared and did not turn up when called. No arrests were made that day.
This witness saw sharpened bamboo “used as spears and bushes nearby had been trodden on”. His evidence is that the killing took place on 13th of November, 1979, he went to the fighting area on the 14th and the arrests were made on the 15th.
The cause of the fight was that the deceased had a pig which was stolen by Tambe clansmen and he had followed the foot prints up when he was attacked and killed. A fight broke out after that killing.
Mr. Kadibu was asked to tell the court of the members from the clans involved in the fight who assisted the police to identify their clansmen who took part in the fight and he gave an affirmative answer. Unfortunately no names were given to the court. This critical factor of course greatly weakens the prosecution case. That would have been a significant clue which could have lead to a full scale investigation with a view to laying charges.
Corporal Bal Mupa’s evidence is even briefer. He says that “when we arrived at the place where the fight was, two big men with spears, they saw us and ran away. I could not recognize his face. I saw women dragging their pigs and carry their personal belongings and were vacating their houses and going towards the bushes. We looked down and saw them walking about with bows and arrows. Some clansmen spotted us and whistled to others. They saw us and they all ran away. They ran away because they took part in the fight and that was why they fled”. A circular argument indeed! The appellants turned up at the police station on their own on the 16th of November.
According to Corporal Bal Mupa, the appellants had informed the arresting officer in his presence that they took part in the fight. If this was a significant break through in state evidence, it is a pity no records of interview or statements were taken.
The evidence that the appellants came on their own to the police station is contradicted by the evidence of Constable Michael Reto who says that they went to the scene of the fight on 15th of November and saw burned houses, and gardens destroyed. The fight took place on the 13th. He says he did not see them fight. They had fought “and we came later and found they had run away into thick jungle and we believed they remained away because they had fought”. He says too that the arrests were made at the fighting area in the villages.
Mr. Reto also corroborated the evidence of Corporal Bal Mupa that the appellants had admitted to the fighting. This he says took place when 30 odd people including the interpreters were there. He says they also admitted when they were being conveyed to the police station.
It is clear that there was a fight, that some property was destroyed and a death did take place on the 13th, although the statement of facts says that the fight took place on the 14th, resulting in the death of the committee man Nanu Kapiaka. But the evidence of the prosecution witnesses states that the death took place on the 13th.
DEFENDANTS’ (APPELLANTS’ EVIDENCE)
Each of the accused in the Local Court gave evidence and denied the charges. Each gave a story to the effect, and a remarkable effect, at that, that they were each working on his piece of the road and was not involved in the fight. If the fight took place on the 13th, then Pastor Payar Pundu’s evidence certainly gives credibility to the evidence of the appellants. In an appropriate case, consistency of evidence by a number of the accused who are from the same clan or speak the same language could tell against them. Pastor Payan returned and heard that there was a fight and saw the dead body. In my view the pastor’s evidence has credibility which was not damaged on cross examination in the Local Court.
Now, the charge is a serious charge carrying a maximum of 5 years imprisonment, when a person is killed.
There was an opportunity for the police to undertake more investigations to support the State’s case. At the very least, they could have followed the Judge’s rules and then undertaken records of interview or obtained statements from the accused. This they did not do. There is no evidence of cautions having been properly administered. In the circumstances, I feel that although on circumstantial evidence, the appellants could have been convicted, it would be unsafe to uphold the convictions.
Court procedures must be followed and followed stringently. The State has an interest in suppressing tribal fighting and crime generally.
But the State cannot resort to short cut methods to secure convictions against its citizens. Every conviction secured must be supported by evidence which establishes every element of the crime. If it was otherwise, we would not have any respect for authority.
In the facts of this case there is no evidence whether direct or circumstantial to support[ccxxx]1:
(a)      Persons in numbers of 5 or more any of whom is armed with an offensive weapon; or
(b)      Appears to be about to take part in a group fight; or
(c)      Who appears to be preparing to take part in a fight (s. 10).
In an unlawful assembly[ccxxxi]2 (s. 11) referred to in s.10[ccxxxii]3 there has to be:
(a)      Assaults; or
(b)      Attempts at assaults; or
(c)      Commencement to fight with a member of another group before an offence is committed.
There must be evidence of an unlawful assembly in the words of s. 10 (supra)[ccxxxiii]4 before a conviction under s. 11 can be upheld. See Reg v. Cunningham Graham and Burns[ccxxxiv]5. There being no evidence of an unlawful assembly in the words of s. 10, I must quash the conviction.
I was involved in the preparations for the drafting of this legislation. I am mindful of the genuine desire of the Legislature to suppress tribal fights. Before this Act was drafted, I dedicated considerable effort and energy to obtain the wishes of the Highlands people. In this vein, I spent time in Tsak Valley, once, shortly after a tribal fight in which I myself witnessed the mass running away of the people. Quite often, women and children will take their precious goods and run away before the fight would take place. It is only in a surprise attack that people would be caught unaware.
In allowing this appeal, I am also mindful of the danger of this court and its officers, the lawyers, destroying the morale of the magistracy and the police. However, I believe that sometimes, magistracy may well be under some local pressure to convict and an appeal system helps to strengthen their objectivity. With regard to the police, it is my hope they will take pains to secure real evidence, instead of attempting short cuts. It is better to get one good conviction through proper investigation than to intimidate the citizens through mass convictions based on mass suspicions. Law, and agencies of justice blossom in judicial integrity when that happens, but are dragged beneath the weights of oppression when short cuts are attempted.
This is a case in which all the evidence consists of circumstantial evidence. Because there was a fight and because everyone ran away, therefore there was a fight and everyone arrested was involved in an unlawful assembly. This sort of logic is unacceptable in proof of crime. It would be like saying - because there is noise on the roof, therefore there is rain and there is rain therefore there is noise on the roof.
The intention of the Act is to suppress tribal or group fights. But the Act has not given the State simpler or less Constitutional standards required to prove crime against its citizens. The State must not resort to unconstitutional methods to achieve its goals. Appeal allowed - no re-trial.
Solicitor for the Appellants: D.J. McDermott, A/Public Solicitor.
Counsel: W. Neill.
Solicitor for the Respondent: L. Gavara, A/Public Prosecutor.
Counsel: C. Bourke.

[ccxxx](1978) P.N.G.L.R. 421
[ccxxxi](1978) P.N.G.L.R. 421
[ccxxxii](1978) P.N.G.L.R. 421
[ccxxxiii](1978) P.N.G.L.R. 421
[ccxxxiv]16 Cox CC 420