Unreported National Court Decisions
N216
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
STEVEN TOLIRA
AND
BENEDICT OKOLE
Kimbe
Greville Smith J
26-28 March 1980
CRIMINAL LAW - unlawfully killing - Confession on the face of it admitting the killing charged - Accused giving evidence without reference to the confession but stating uncertainty as to hitting the person named in the charge and actually killed - other evidence as to identity of person hit by accused with person referred to in charge - resolution of facts.
Cases Referred to:
R. v. Chatwood & Ors. (1980) Crim. Law Review 46
Lustre Hosiery Ltd. v. York (1935) 54 C.L.R. 134
REASONS FOR JUDGMENT
GREVILLE SMITH J:  The abovenamed two persons were charged with the murder, on 24th November, 1978, of one Reme Malala Wakore, to which charge each pleaded not guilty. At the end of the trial I gave a short extempore judgment from notes, stating the nature of such judgment, and stated that I would give full reasons in writing after my return to Port Moresby if asked. Defence Counsel has since asked for such reasons, which I now give.
It was alleged by the State that during a brawl upon a road near a store owned by one Sam Toliva a group of the brawlers, including the two accused, attacked Reme Malala Wakore, a man aged forty to fifty years who had been unwise enough to venture onto the road at the time and who, after having been struck a number of times, was knocked unconscious and later died.
Each of the accused persons was interviewed by the Police, and each, as appeared from the records of interview, admitted, in terms I shall shortly refer to more fully, striking the deceased. However the “Section 103” statements tendered by the Prosecution showed that upon the committal proceedings the accused Steven Tolira stated on oath as follows:
“I slapped a man but I don’t know which man nor which part of his body I slapped. That is all.”
and the accused Benedict Okole stated:
“It is true I did fight with the timber but I am not too sure which man I struck nor which part of his body I hit. I only hit him once. That is all.”
So far as concerns Steven Tolira I was not satisfied that an assault was made upon the deceased by that accused of sufficient proximity to the assault which led to his death as to be capable of being regarded as part thereof, or sufficiently associated with the assault that led to his death as to implicate the accused in liability for that death, or to allow any other conviction upon the indictment before the Court. He was accordingly acquitted and discharged.
In the case of Benedict Okole matters were otherwise, and I shall now deal with the evidence against him.
The brawl in question took place at about eight o’clock at night on a road where there was no artificial lighting. There was, however, evidence from Sam Tolira, who was called by the Defence that, he thought, there was a light on in front of the store which showed from where he stood in front of the store to as far as the fight. He said he was standing about fifty feet from where the body of the deceased was found.
There was no direct evidence as to whether it was a dark or a light night. The accused Steven Tolira would have had the Court believe that the brawl took place in almost total darkness. He even went to the length of saying under cross-examination as follows:
“People were fighting on the road. I punched. I don’t know where. I could not see who was in the fight. It was too dark.”
and
“I didn’t know the face of the person I hit. I just hit, not knowing whether I was hitting one of my own group or not. Others were hitting him so I hit him.”
and
“Men were punching one another without being able to see who they were punching. I hit someone, I don’t know who the person was.”
However he said on other occasions in his evidence that he ran down to the road to look for “George’s two brothers” and that he found them, that when he joined in the fight he saw people using wood and stones, and that about fifty or sixty people were involved in the fight.
Also when interviewed by the Police he was told that they had information that at the fight he had fought a Talasea man named Reme Wakore Malala, (sic) who died, he was asked if he could help them in the matter, he said yes; and the record of his interview contains the following:
Q.15.  Dispela nait you bin paitim dispela man, em idai?
A.       Mi bin paitim em long wonem.
Q.16.  You bin paitim em long wonem ap long dispela man idai long pes belong em or long head belong em?
A.       Mi bin toromai hand natting igo long dispela man idai na mi no save long wonem ap bilong em.
Q.17.  Long dispela nait taem you paitim em, em sanap or em i sidaon?
A.       Time emi sanap yet.
Q.18.  You wantaem usat man ben ikam behaen na toromai hand binaen long dispela man i dai?
And so on. The underlining is mine. The whole interview was clearly in the mind of that accused about the man named Reme Wakore Malala or Reme Malala Wakore, the man who was killed in the fight. At no point in the interview did this accused suggest that he had any doubt whatever about the identity of the man he had struck. That claim first emerged, without explanation for its novelty, in his “Section 103” Statement. Nor when he gave evidence in this Court did he offer any explanation for his failure to raise in his interview with the Police any matter of doubt as to the identity of the man he punched with the deceased. These two accused were represented by Mrs. Ridsdale, an experienced, careful and capable defence counsel who fought this case hard. If there had been any tenable explanation I was sure Mrs. Ridsdale would have adduced it. She was the one with the instructions.
Accordingly I rejected the evidence of this witness so far as it was to the effect that it was too dark on the road to identify persons at close quarters, and in my opinion he was able to identify the person he struck as the deceased.
The evidence against Benedict Okole identifying the victim of his assault with the deceased consisted also, in part, of the record of his interview with the Police. Okole, referred to in the record as Benedict Ingirin, was told by the Police at the outset of the interview that they had information that on Saturday, 24th November, 1979, he had killed or injured (“you bin killim”) a Talasea man named Reme Malala Wakore and he was asked if he could help them in the matter, to which he replied “Yes”. The record of interview contained ‘inter alia’ the following, the translation of which, in the English translation also tendered and received in evidence, was not precise.
“Q.13. ...
A.       Taim mipela ronim ol sampela lain igo na taem mikam mi ol sampela paitim dispela man, orait mi lukim na mi kam na mi paitim em.
Q.21.  Long dispela nait you wantaem husat killim idai dispela lapun?
A.       Mi wantaem Steven Tolira.
Q.22.  You bin lukim tu bin killim dispela lapun?
A.       Mi no lukim tasol em tokim me olsem mi killim dispela lapun pastem.
Q.24.  Na olsem wonem you igo tokim ol wantok bilong you olsem mi kilim lapun man idai finis long rod?
A.       Aiting dispela man giamin mi tok olsem mi paitim em long rot.
Q.27.  Taim you paitim em you tok sampela wantok bilong you long dispela nait or nogat?
A.       Long dispela nait mi tokim Steven long em, na wanpela Duke of York I arim mi tok long paitim wanpela lapun man long palang.
In my view in the interview with the Police the accused made in effect an unqualified admission that he had during the fight hit the man who had died, an old Talasea man by the name of Reme Malala Wakore. Furthermore it appeared from the foregoing that he later in conversation with the other accused was able sufficiently to identify the person he had hit for the other accused to say in effect “yes, I hit him too” or ‘vice versa’. Also, in his evidence in this Court Benedict, under cross-examination, said as follows:
“Steven had told me he hit him first, and then I told Steven I had hit him later on. I told this to the Police.”
He also said under cross-examination.
“I thought that the man I hit had been the man who died.”
Apropos of the first of the two statements immediately foregoing, Joseph Naso under cross-examination made a statement which I accept, and which I have recorded as follows:
Okole at the C.I.B. Office pointed out Tolira to the C.I.B. He said both of us fought together Reme Malala and Tolira agreed that that was so. He said “I killed the old man.”
Once again, Defence Counsel sought from her client no explanation as to the inculpatory form of his statements to the Police so far as concerned the central matter in dispute in this trial, namely the identity of the person he had assaulted with the deceased. She simply sought to negate the confession in this respect by ignoring it, both in her client’s evidence and in her address, and having her client give evidence in chief ‘inter alia’ as follows:
I did know the man I hit. I couldn’t see his face...I just hit him and kept on running...it was too dark to see faces... I did not know the name of the man I hit. I didn’t know where he came from...I first heard at the CI.B. that a man had died. I first heard his name there. I did not know the man they named.”
This, incidentally was considerably stronger in import than the position this accused took up in his statement on oath to the committal court when he said he was “not too sure” which man he had struck.
A confession is ‘prima facie’ evidence of the incriminatory matters unequivocably admitted to therein (R. v. Chatwood and Others[clxxvii]1. On the face of this confession it was made, as to the identity of the man the accused hit with the deceased person named in the charge, of the accused’s own knowledge, and without doubt on his part. If he had not been sure of this identity he could have said so to the Police. Having observed this shrewd, not unsophisticated, young man intently following the evidence from the dock and having seen and heard him in the witness box, I had no doubt that he would have done so. Neither the form nor the substance of the record of interview Was challenged in the slightest way in the trial. If his admission had been, for instance, based on hearsay or faulty inference, or mere assumption, or a “wavering preference for one of two or more possible hypotheses” (Lustre Hosiery Ltd. v. York[clxxviii]2 evidence of this, to weaken or destroy the probative value of the confession could and I am sure would have been given. None was forthcoming. It is true that the State Prosecutor did not probe these matters in cross-examination but why should he? Why should he give the accused an opportunity to invent in the witness box exculpatory explanations of matters that experienced and competent and more senior defence counsel, having taken instructions, thought it better, in the interests of her client, not to venture upon. No doubt he could see that, as things stood, the confession was one cogent reason for disbelieving any evidence by the accused to the effect that he did not know whom he hit, or that he did not know the person he hit was the person who died, and for concluding that the person this accused hit and the person who died were one and the same.
On the question of identity the confession did not stand alone. The accused in evidence stated that he hit the person he did hit with a piece of timber produced and tendered as an exhibit by the State, or one similar to it. This was a piece of 4" x 1" heavy hardwood about four feet long. Asked how he had struck the blow the accused, holding the timber with his left hand, about one-third from one end demonstrated a downward blow from overhead of some considerable force with the one inch edge. I am sure he did not in this demonstration exaggerate the force he actually used, but as demonstrated in my opinion it would have been quite enough to render a man unconscious for quite some time if it had hit him anywhere on the head. That was the purpose with which he hit his victim, as he told the Police (Answer to Q.23, Record of Interview) and no doubt he used such force as he considered commensurate with that purpose. In line with that purpose, also, he would have struck for the head. The deceased upon medical examination after death was found to have a number of face and scalp injuries one or perhaps more of which was or were consistent individually with having been caused by a blow with an edged piece of timber. This was what the doctor said, and she was not cross-examined on this.
The accused told the Police that he had in fact knocked his victim to the ground. After the fight as the accused, still carrying the piece of timber, returned with his group to the store he was heard by a State witness Joseph Naso, a Duke of York man, to call out loudly that he had hit an old man with the piece of timber. The witness’s actual words, upon which he was not cross-examined were “See this. I ‘killed’ an old man with it and he is sleeping on the road.” I accept Naso’s evidence on this and it is in fact supported in part in the record of interview, answer to Q. 27.
Joseph Naso had come to the party with the deceased who had become drunk, and had tried to persuade him from leaving the party and going along the road whilst the fight was going on. However the deceased did leave to go along the road and Joseph remained at the store. It was shortly after this that the accused returned to the store and called out as aforesaid. Upon hearing what the accused said Joseph was immediately apprehensive concerning the deceased and without delay went down to the road. There he found the deceased unconscious on the road, and said that he was the only one lying on the ground. There was no evidence that anyone else was rendered unconscious or was lying on the road at any time or that anyone else was seriously hurt. Sam Toliva the storekeeper, an educated man of apparent importance and responsibility who was called as a witness by the Defence stated that people had cuts and bruises but that the deceased was the only person he had heard was seriously hurt. Although stones and bottles and sticks appear to have been much in evidence, in a non-curial sense, this seems to have been one of those skirmishes which so often occur in this country, largely - “all sound and fury signifying nothing” - or almost nothing, until there is a real casualty, then the fighting breaks up.
I was not impressed with either accused in the witness box, and I was satisfied that they collaborated in inventing defences based upon the question of identity. Altogether, I was satisfied beyond reasonable doubt that the deceased Reme Malala Wakore was the person hit by the accused on the head with the timber, the ‘coup de gras’ in a group assault that resulted in his death. The evidence was that the injuries inflicted would not in themselves have been fatal or likely to have resulted in permanent injury either severally or collectively and the deceased died, it seemed, from asphyxiation due to inhalation of blood, mucous and stomach contents whilst in a state of unconsciousness. I was not satisfied that the accused intended to inflict permanent injury and accordingly I considered that the appropriate verdict was a verdict of unlawfully killing which verdict I accordingly returned.
Solicitor for the State: C. Maino-Aoae Public Prosecutor
Counsel: M. Jalina
Solicitor for the Defence: D. McDermott A/Public Solicitor
Counsel: M. Ridsdale

[clxxvii](1980) Crim. Law Review 46
[clxxviii](1935) 54 C.L.R. 134