Unreported National Court Decisions
N330
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
JULIUS WAPE
AND
PETER WARAVON
Kieta
Quinlivan AJ
4 August 1981
12 August 1981
CRIMINAL LAW - procedure; - reading of depositions - the “other side” to the problem in State v. LASTIN INOM. - absolute need for Judge to disregard material in lower court depositions in certain cases. - reduction, by Public Prosecutor, of charge from wilful murder to murder to manslaughter; - Separation of Functions - Court is absolutely bound by the decision of the Prosecutor before presenting indictment. - use of red ink on indictments; rules regarding. - need for the General Public to know what is happening in Court when a charge is laid.
QUINLIVAN AJ:  In this case the two prisoners are presented on the one indictment, but on two totally different charges arising out of the one incident. Each prisoner has pleaded guilty to the particular charge laid against him and it now falls to me to announce what must be done, on behalf of Society, in respect of him of each of them. I do not think that I can remember any case where the task has been so difficult. There are two reasons for this. The first arises from the nature of the incident which resulted in the two charges, and the second of the difficulties arises from a circumstance which occured just after the verdict of guilty on plea had been entered.
I wish to refer to the second of these first. On the 24th February of this year I announced that I would not normally read the depositions in those cases where a plea of guilty have been given after an Accused, who had had the benefit of the advice of Counsel, was clearly admitting all the facts which covered each of the elements of the offence charged (although I did, of course, say as I have said at the commencement of each Sittings when I have explained that “ruling” - that if there was some particular part or aspect of those depositions which Counsel for either side wished me to look at, I would look at it). That was in State v. LASTIN INOM[dcxcii]1 which, since it was an adoption of a course which I had said, in State v. KEMI BOMAI[dcxciii]2, I might possibly have to adopt, I have been referring to by the name of that latter case.
The reasons for my making that announcement were, as I have consistently explained, that where The Papua New Guinea Procedure for the Taking of a Plea is used there is (as there was in those two cases) an incidental danger that, when the depositions are read out, I might appear to be canvassing the correctness or wisdom of the advice which Counsel had tendered to his/her client. Since I was not in the position to know what all the facts were, this would be stupid, to say nothing of whether it was proper course of conduct. Moreover, as I pointed out, the question arose as to whether I should vacate of GUILTY ON PLEA if the depositions did not support what the accused had fully and freely admitted to having done when he appeared before me in Open Court. The third reason why I did not intend reading the depositions unless Counsel asked me to read a specified part of them was that, having been both Chief Crown Prosecutor and a person who had done a substantial amount of defending in this country. I knew that what is in the depositions is often no guide as to what the evidence would be if the case were to go to trial. I know that, quite often, what appeared in the depositions is unreliable; that the indicting authorities would have had the opportunity (and the duty) to check to find out whether what was said was in fact what ought to be put before this Court. Quite often, depositions would be the evidence of witnesses who would not be called because further investigation had shown that there was a misunderstanding somewhere and what appeared to be “evidence” in the depositions was not evidence at all - as the case in Appeal of Michael Dai Kaupa[dcxciv]3. Or further investigations would fill out gaps in the depositions or cause the picture which they had given to become radically altered (as was the case in State v. Lastin Inom[dcxcv]4 or they could show that the depositions were pure perjury (as was clearly the case in State v. Wapa Eala[dcxcvi]5 although I hasten to point out, as I did in that case, that I do not know which side contains the undoubted perjurers).
I mention all this because, after a verdict of GUILTY OF PLEA had been entered in this case, and after Counsel for the defence had spoken in mitigation, it was clear that there was some considerable - and vitally important- conflict on one particular aspect of the alleged facts and that makes this case, as it were, a sequel to the others. For this reason I should explain what the particular problem is and to do that, I will adopt the practice for a “normal judgment”, leaving what I have said as a form of preamble.
In this case the two accused are presented before this Court on two separate charges but on the one indictment. The first is charged with the least of all the “homicide” charges, that of MANSLAUGHTER, while the second is charged with an offence in these terms: of “knowing the said Julius Wape (to have) committed the said offence (he) assisted him in order to enable him to escape punishment.”.
Since people looking at the Court records will see that the document has an alteration in red ink which gives the impression that the indictment was presented in Court as one for MURDER, I should mention that this is misleading. I have already spoken elsewhere, on the fact that the use of red ink, in Courts, is and must be strictly restricted to use by the Court itself, just as, in money and business records the use of green ink is restricted to qualified auditors. Some misunderstanding appears to have grown up and the indictment was, in fact, presented with that amendment already on it. It was, as I have said, an indictment for MANSLAUGHTER. The fact that it had been amended by the learned State Prosecutor before it was presented to me becomes, however, very intstructive. As Pratt J. pointed out in Appeal of Smedley[dcxcvii]6 (and as I have pointed out on a number of occasions) the Public Prosecutor, and his officers, have a great, deal of work to do between the time the Magistrate commits a person for trial and the time the indictment is presented in this Court.
“he does not of course put charges in an indictment merely as a matter of speculation... His task is to produce an indictment based on evidence before him or what might reasonably be expected to emerge from the trial.... It it clear that ... the founders of the Constitution expected that the Public Prosecutor would carry out his task professionally and efficiently.
Of course, what happens to the indictment before it is presented to the court is of no concern to the trial judge and it may be that a dozen different pieces of paper have been signed, dated and served on the accused prior to the time at which one is finally presented in court.”[dcxcviii]7
The fact that the indictment in this case was originally signed for MURDER but was changed before presentation (a fact which is not usually available to the trial Judge) is very instructive as we shall see.
The facts of the case, with one exception to be dealt with in a moment, are that the second accused was travelling on a motor bike along a main road in the northern part of Bougainville Island when deceased stoned the bike causing second accused, and the driver, to fall off. A fight - a stone-throwing and fisticuff fight-broke out which involved about ten people (certainly many more than just the two accused and the deceased) but, at the end of the fight, everyone except these three ran away. The deceased did not run away because of the simple fact that he was dead. The two accused did not run away because, to quote the wording of the charge which has been admitted by the second accused he, knowing that the first accused had killed the deceased, “assisted him” by bundling the body into a bag and throwing it into a river “ in an attempt to “assist him in order to ... escape punishment”.
I have said that the above recital gives the facts “subject to one exception”. That exception, however, is of the utmost importance. The situation, in regard to the second accused has never been in doubt. He was a relative and, as relatives in many countries often do especially if (as in this case) they innocently started the fight), he gave assistance when called upon to do so. He knows that he must pay the consequences because he knew, full well, that what he did was against the law. In regard to the first accused, however, the picture - which was so clear when he fully and freely admitted all the facts which covered all the elements - became suddenly clouded when, after announcing that it seemed to me that this was a case where it would be safe to enter a VERDICT: GUILTY ON PLEA, Counsel for both sides asked me to read the depositions taken in the lower court.
I read the depositions and, as a result I was put in grave doubt as to a number of matters, all of which were legal consequences of the fact that I siddenly had no idea of what the facts were.
Or, to be more precise the depositions, of themselves, raised the question of whether the act of the first accused which killed the deceased; the act of throwing a stone at him and killing him, was merely part of a series of throwings of stones by a number of people, including the deceased himself - and the case was therefore in the category of “spleen case” (which is of unfortunately common occurrence in the country) or whether it was a deliberate act where the accused had seen a wounded person lying on the ground on his back, had gone over to where some boulders lay; had careful selected a very large rock; had carried it over and held it above the prone figure of an enemy and had then hurled it, with both hands, at that enemy’s stomach- an act which would constitute WILFUL MURDER- the most serious criminal charge of all - and nothing less. In fact, it was for “wilful murder” that the Committing Magistrate (a very experienced Senior Magistrate) committed the two accused and the reason for this is obvious. If the facts were as they appeared in the evidence of some of the witnesses before him, then it was clear that no concievable amount of “Provocation” could possibly justify such retaliation. Moreover, even the wide extension of the concept of how long it takes a man’s “passion to cool”- reasonable time to regain one’s control”- which Kelly J. explained, (in R. Rombusa[dcxcix]8 as having been traditional in this country long before KWAKU MENSAH’s Case[dcc]9 could not allow the defence of provocation to be considered here. Not that it could legally be considered at all, because the act of provocation was against the second accused, not the first. As regards the other possible defences: “self-defence” was clearly unavailable, even though the first blow might have been justified on that ground; “accident” was clearly of no application and “sudden emergency” was well and truly over when the first accused allegedly went off and selected the big stone.
This, of course, placed the Court in a very unhealthy position. The only saving grace was that the lower court depositions had not been read out aloud. If they had, the position would have been such that it is difficult to see how it would be possible even to attempt to solve the problems which would have been created. The reasons for this is the simple one that, although I have continuously said that the range of things that a court can take judicial notice of is strictly limited, there is one thing about which there can be no doubt:
“les Judges doisont que home ne poet jecter pierres molliter” (Judges are fully aware of the fact that it it not possible for a man to throw a stone “gently”)[dcci]10.
I mentioned this - the basic problem, that is, not the Norman French dictum - to Mr. Kitchin, the learned State Prosecutor and he pointed out that the indictment was for manslaughter only and that, for this reason, I could draw the necessary inferences as to the results of the investigations which he stated had taken place.
This brings me to what might be called “the other side” of the problem which I mentioned in State v. LASTIN INOM[dccii]11. There, the problem was that there was not enough evidence in the depositions. Here the problem is that, if the depositions are to be given any weight (and it is, presumably, because they must be given great weight that they are read at all) there is too much in the depositions which cannot be believed or relied on. The answer which the learned State Prosecutor gave is however, the proper one and the decision to indict for MANSLAUGHTER ONLY is totally binding.
This is not a case where we have to rely on any presumption (either the OMNIA PRAESUMUNTUR one which I mentioned in Appeal of Michael Dai Kaupa[dcciii]12 or the fact that, as the Court of Appeal said in the joint Appeals of Cain and Schollick[dcciv]13. that
“it should be presumed that the Attorney-General has made the necessary and proper inquiries before giving (his) consent (to the prosecution)”).
No presumption is necessary because it is clear that a great deal of work has been done - albeit, too late in some regards -after the depositions arrived at the Public Prosecutor’s Office because of the duty which I mentioned in State v. LASTIN INOM[dccv]14. But even if this were not so, the fact is that the principle of Separation of Functions is paramount and the indictment for MANSLAUGHTER is, as I have said, totally binding. I must therefore remove from my mind all suggestion that the stone was specially chosen or that it was “big”, or that it was held over a helpless victim or that it was aimed at a part of his body where it could, by hitting, cause death. I must, in particular, remove from my mind any suggestion that it was deliberately held in both hands and hurled with great force.
That, however, is not all, Everybody else who thinks that he or she knows the facts must disregard these suggestions, possibilities, allegations or theories in like manner and for precisely the same reason.
This latter fact is vitally important because this Court has been compelled, for the public good, to deal with this case and it would be disastrous if people were to have the wrong idea about what is involved in it. It is, in fact, essential that people change the ideas they have at the moment. I say this because Counsel for both sides have told me that one of accused’s brothers has recently been killed in retaliation for this death: K6,000.00 has already been paid in compensation although compensation is alien to the culture of the people of this Province and - despite all this- the fact is that hundreds of people still live in terror for their lives. And relations between the people of this Province and “Highlanders” in general have deteriorated to a dangerous level.
To assist them in their appreciation of the fact that this is very far from being the wilful murder case which people seem to have thought it was, I would draw attention to one very interesting fact which is made clear by the depositions but is clearly not known generally. That is the fact that the deceased was dying hours, or days, before he threw the stones which knocked the second accused off his motor bike and thereby started the fight which ended in his death. This fact is very clear from the medical evidence although I must say that one aspect of the medical evidence leaves a great deal to be desired.
The doctor who was ordered by the Coroner to perform a post mortem examination opened the body from the mouth: down and from what he saw, and from his expertise, he determined, and certified (and later testified) that the death was due to “SEPTICAEMIA, SECONDARY TO PERITONITIS, SECONDARY TO A RUPTURED LIVER”. Or, to put it the other way round, he found that deceased had had a rupture of the liver for a sufficient lenght of time for peritonitis to set in AND for that peritonitis to have been there for a sufficient time for septicaemia to set in for him to have blood poisoning which, I understand is the layman’s name for septicaemia. It is a great pity that the doctor was never asked how long the deceased had lived with his ruptured liver but Counsel inform me that it is not now possible to ask. Clearly, the peritonitis did not set in immediately the first accused threw the stone he is blamed for and which ended deceased’s life. For that matter, the septicaemia must have been there even before the first stone was thrown at the deceased after he had started the stone-throwing episode. The ‘speticaemia was “secondary” to the peritonitis which itself was “secondary” to the rupture of the liver. I will return to this in a moment because there is an even more important fact disclosed by the medical evidence although, as I have said, there is an aspect which causes me grave disquiet because it is unexplained.
I said that the doctor who did the post mortem opened the body from the mouth down. It is totally inexplicable that he did not open the skull but that, apparently, is the fact. And, yet, the evidence of ISAAC PEKORO who was sent from the hospital to bring the body in, shows that he examined the body thoroughly before the doctor saw it. He says that deceased had a FRACTURE OF THE SKULL and that it was not only a fracture in the ordinary sense but that the skull was “soft” when he pressed it at that point. He swore that, in his opinion, after having studied anatomy and physiology for four years, it was the fracture of the skull which was the cause of death.
I have no intention in getting involved in the question of who is right. As I mentioned in State v. HESIGNE SOMBLOK[dccvi]15 the Courts in this country have always been only too happy to accept the evidence of “medical assistants” as to what they saw and, although he was cross-examined in a way which might have caused a man less sure of himself to change, this experienced Health Extension Officer was totally unshaken in his evidence. And, for some inexplicable reason, the doctor did not examine the head.
I do not want the Tari people to start, as a result of what I am now saying, to hunt for the cause of the ruptured liver and the fracture of the skull. It could be that deceased fell down a cliff-or out of a coconut palm or off the roof of a building. Or he could have been hit by a passing vehicle and thrown, chased by a bull and so on. The fact is, however, that there can be no doubt that he was dying long before he threw the stone which knocked the second accused off his motor bike and nearly killed him. Immediately after the first accused threw his stone accused was clearly dead and everyone fled. The point is, however, that there is no way of knowing that the blow which the first accused inflicted-no matter how small-did not “accelerate” or hasten the death which was well in process and, since the first accused has had the benefit of the advice of Counsel and he has pleaded guilty, the verdict of guilty of of manslaughter is justified under section 299 of the Criminal Code: “ACCELERATION OF DEATH.”
There is a lesson for us all here. When I first came to this country a person in the condition that deceased was in, when he was first seen, would have called for assistance from everyone who saw him. He was lying across a main highway. He only had one person with him, a Highlander who dragged him off the road. But nobody helped. Then another vehicle came by and he was back in the middle of the road again, this time with two Highlanders and they dragged him off the road. Then he got into a P.M.V. and caused trouble there so he was told to get out at the next stop. The result was that he picked a fight with the others who got off at the stop and, in the fight, he threw the stone which knocked the second accused off his motorbike. All of this shows that he was a dying man suffering from brain damage and riddled with poison from septicaemia. But, because people nowadays do not help others, as their forefathers did- and because the colour of his skin (and that of those with him on the two occasions that we know of) was different -
The result is that, after hundreds (possibly thousands) of people have been living in fear for many months, a second man- the brother of one of those here - has been killed and the worry has started all over again. And I am worried about what might happen to these two young men. Moreover, the advancement of the nation to stability and unity has been gravely threatened.
People must get back to the ways that were in vogue when I first came here. But they must do it because they have a feeling of unity. They cannot attain it by hatred or fear of any kind.
The disruptive forces which were so powerful in this case were mainly due to misunderstandings; to not realizing that a man was in need of help, in the first place, and to not realizing that these two young men who are here before me today COULD NOT POSSIBLY HAVE KILLED this Tari man in the sense that they started the death process. All that can be said is that, because they did not know that he was in need of help, they retaliated to what he did and, by so doing, they probably hastened the death with was already well and truly upon him.
(His Honour then went on to deal with the case as an ordinary “spleen” case in which the accused had pleaded guilty to the two quite different charges which had been laid by the Proper Authorities).
Solicitor for the State: L. Gavara-Nanu, Public Prosecutor
Counsel: T. Kitchin Esq.
Solicitors for the Accused: Messrs REUBEN & ZESUS Barristers & Solicitors, Chebu Street, ARAWA, N.S.P.
Counsel: R. Siara Esq.

[dcxcii]Unreported, Goroka, 24th February, 1981, issued as N.329
[dcxciii]Unreported, Waigani, 27th January, 1981, issued as N. 327.
[dcxciv]Unreported judgment, Waigani, 20th January, 1981, issued as N. 320.
[dcxcv]See 1 above
[dcxcvi]Unreported judgment, Mount Hagen, 2nd May, 1981.
[dcxcvii]Unreported judgment, Waigani, 31st October 1980, issued as S.C. 182.
[dcxcviii]Unreported judgment, Waigani, 31st October 1980, issued as S.C. 182. The passage is taken from page 30 of S.C. 182.
[dcxcix]Reported in the “Q.R” but no copy is currently available.
[dcc]1946 A.C. 83.
[dcci]Cole v. Maunder (1935) Rolle Abridgement, ii, 548 at p. 549; cited from Professor Noakes: “The Limits of Judicial Notices” (1958) 74 L.Q.R. 59 at p. 62
[dccii]Unreported judgment, Waigani, 20th February, 1981, issued as N. 320.
[dcciii]Unreported judgment, Goroka, 14th February, 1981. Issued as N.329
[dcciv]Unreported judgment, Goroka, 14th February, 1981. Issued as N.329
[dccv](1975) 2 All E.R. 900 at p. 904. Line “J” plus
[dccvi]Unreported judgment, MADANG, 10th July 1981.