Unreported National Court Decisions
N356
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
ILA PAGAVE (NO. 2)
Waigani
Quinlivan AJ
16-19 November 1981
8-11 December 1981
23 December 1981
29-30 December 1981
5 January 1982
8 January 1982
CRIMINAL LAW - WILFUL MURDER - novus actus interveniens raised but not discussed - statement of Bray C.J. (South Australia) that “considerations which are weighing with the tribunal” change during a trial (see Browse v. Bartlett (1972) 3 S.A.S.R. 472 at 477) invoked.
The picture of the events of the night of Christmas Day, 1980, which was originally in the Judge’s mind is one of an irate mod, armed with dangerous weapons, invading the curtilage of a dwelling and stoning the house, thus provoking the peaceful inhabitants to come out and fight. And although this picture is not the result of anything the prosecutor said (his conduct of the case was, throughout, exemplary) it is, his Honour said, the picture which he felt many people who had not heard the evidence, had.
The charge is one of wilful murder. The Judge analysed the evidence and pointed out:
(i)       that although the picture, mentioned above, existed and caused grave concern because the peoples of the coastal areas had decided, several generations ago, not to invade the sanctity of people’s homes by armed attack, and had faithfully kept that resolve, it was not the result of any evidence given by the main witnesses for the prosecution;
(ii)      that he had to FIND, on the evidence, that a dangerous state of affairs (where communal harmony had “died” to an appreciable extent and the right of people to go, pass and repass on the public road had been denied them) had existed in the area for months because the members of V’s family believed that the members of A’s family had killed a loved one by sorcery;
(iii)     that he had to FIND, on the evidence, that, as part of (ii), a party of villagers containing a single member of A’s family, had been set upon by vigilantes at 3 o’clock in the morning as they went from a Christmas Day party in one village to another party in an adjoining village;
(iv)     that the sight of the bleeding and bruises on the face of the member mentioned in (iii) caused A’s family, and others, to go to V’s house in a belligerent but unarmed group;
(v)      that V. ran out at the group mentioned in (iv) in such a way that they were afraid and scattered and gathered up bottles and sticks from within the curtilage of the house from which V. came;
(vi)     that V. was, undoubtedly, wounded during the resultant fight BUT
(vii)    that those wounds were, on the evidence, not caused by Accused. NOR did they cause the infection which ultimately caused V’s death.
QUINLIVAN AJ:  The Accused has stood his trial for the wilful murder of JOHN KAPI. It is now for me to say whether, according to the rules of law, the State has proved that charge (or, as we shall see, any lesser charge such as “assault”) or whether it has failed in the task which it set for itself.
Before I do that, however, I would like to follow the course which Counsel for both sides (Mr. Sakora, Senior State Prosecutor, with whom Mr. Ramatlap appeared; and Mr Gabe, Dean of the Faculty of Laws) adopted. They both mentioned that, apart altogether from the fact that it was warranted because of the grave seriousness of the charge - there can be no more serious charge, anywhere - this trial has been unusually long because, amongst other things, a great deal of evidence has been unfolded before me on a number of matters which are not usually paraded in public.
The “other things” which have extended the trial include: a prior commitment, which I had, to go to Wabag to deliver a speech (a speech which, curiously enough, will become relevant in its own way, later); Sittings of the National Court which I had been scheduled, many months before I was assigned to this case, to conduct at Goroka, Kerema and Alotau (and one at least of the judgments which I delivered on those circuits will become relevant) - and, of course, there have been the Christmas and New Year Holidays. The main reason for the length of the trial was, however, the material which, as I have said, is not usually paraded in public - especially, not before a non-National. And the unusually detailed cross-examination of the medical expert.
I will deal with that medical evidence later. All that I want to do at this stage is mention the fact that it is of the utmost importance if we are to have a proper understanding of the technical (that is, in this instance, the LEGAL) aspects of this case.
In most criminal trials, no matter how complicated they may at first appear, there is usually only one question which has to be understood and answered. At most, there are two (that is, as I have said, speaking of the usual experience. It is very seldom indeed that there are three). In this case, however, I face a much wider range of matters which must be understood by “THE PEOPLE” in whose name, and on whose behalf, the whole of these proceedings have been conducted - see The State v. John Mogo Wonom[dccclx]1 at pages 315, 318 and 320.
In fact, it could even be said (although it causes me great uneasiness to have to say it and I must not be misunderstood in what I am saying because there can never be anything more important than any criminal trial, and a trial for wilful murder is the most serious kind of criminal trial that can exist) ... it could be said that the killing is almost an irrelevant, late-arriving, side-issue, compared with other things involved in this case.
As I have said, I do not want to be misunderstood here. The hastening of the death of any human being is a tragedy, and, unless it is authorised, justified or excused by law, it undermines Society. Consequently, every organ of Society - and especially, Judges - must be quick of condemn it and take appropriate action. The death of John Kapi was, quite clearly, a particularly tragic one. And it took place a week after he was recovering in hospital and it took place at the end of a series of incidents (whether two or many is in dispute) which showed that the social-engineering mechanisms of the community in which he lived had broken down.
It is this last fact that is the one I am referring to. It does not matter whether one accepts the story told by Deceased’s family or the story told by the defence witnesses; the result is the same. The mechanisms which, for thousands of years, had made life in Papua New Guinean villages internally secure, had broken down. The only difference is on the question of whether they had broken down many months earlier or whether they had broken down only for a short period. The reason for the breakdown is, also, in dispute. Thus this death, which intimately affects only the family of Deceased and the Accused and his family, could be said to be of secondary importance when compared with the interests of THE PEOPLE, whether those interests be viewed at large, or considered from the point of view of the particular community amongst which the Deceased and Accused’s brother and cousin (or Accused’s family and Deceased’s family, depending on which story one accepts) were conducting a dangerous form of harassment. And, because of this, people will expect me to brand one side or the other as liars and wrong-doers - but wrong-doers in matters totally unrelated to the actual events of the daylight hours of 26th December, 1980.
In State v. Gerek Kua (No. 1)[dccclxi]2 I said that it sometimes happens, particularly in this country because of our unusual heritage, that a Court has to ignore the normal method of delivering a judgment and deal with other matters which are (or should be) of legitimate public concern. In State v. Julius Wape and Peter Waravon[dccclxii]3 (a case which is unfortunately similar in many points) it became vitally important that I do just that. And there have, of course, been other cases where the necessity to point out that there are dangers ahead if the course that has been followed is persisted in, has been of prime importance.[dccclxiii]4 The question, however, is whether it is really true that I have to brand any of the witnesses who have given evidence before me as a liar or evil-doer.
If I have to do that then, of course, I will. But it is important that I make it clear that I am not here to fulfil the hopes of people who wish to see others being shown up in a bad light. Moreover (as I pointed out in State v. Koma Tau,[dccclxiv]5) it is a very dangerous course for any Court to take, to brand the witnesses as liars unless it is very clear that this is so - and my experience is that it is very rare indeed for such a matter to be really clear. In State v. Wapa Eala[dccclxv]6 it was clear that the Court was being fed false evidence - that its processes were being abused - but I could not say which side was doing it. And even in the Pennington Tubuwai Case[dccclxvi]7 which I mentioned in the “No Case To Answer” Submission,[dccclxvii]8I merely said that the criminal justice system was being used for unworthy and improper purposes and it was certainly not the witnesses who were doing that. My purpose is, as I said in State v. Chanel Pospoi,[dccclxviii]9 to see what can be done to make things better in the future and I cannot do that - nor can I achieve my primary purpose of seeing that justice is done - if I allow people to be “shown up in a bad light” if they ought not to be so displayed.
I think that it is this aspect, suitably clothed, in Melanesian style, in disguising words, that is behind the second part - the contradictory part - of Mr. Sakora’s remarks about all this background evidence which, as I have said, the people of the village could normally expect to remain decently hidden from the public gaze. He spoke about people seeking out “scape-goats for communal sin” and he said that:
“there was nothing dramatic or historical about this case which could, in any way, be said to distinguish it from any other of the hundreds of other trials that take place each year ...”
I will return to this in a moment because, in a vitally important way, it is very true and it is important that everybody sees that it is true. But it is a statement which overlooks the fact that everybody expects me to say one side is telling the truth and the other is lying and, more to the point, it cannot stand alongside Mr. Sakora’s other statement (and I quote his words verbatim) that:
“It is the State’s contention that this long trial has enabled the truth to emerge through the maze of conflicting evidence. Instead of confusing the issues - as some outsiders may assume - this long trial has facilitated the emergence of the facts in their true light.”
I agree entirely. When I first got involved in this case I thought of it as being very different from what I now see, very clearly, it to be. This would not have been possible if people had not spoken out about things which probably embarassed them - things which, as I shall mention in a moment, should not have caused them embarrassment.
Because I think that it is important, for several reasons, that I do so, I want to tell you what my early thoughts about this case were. There is a rather famous saying, by Chief Justice Bray of South Australia, in Prowse v. Bartlett,[dccclxix]10, that:
“Judges and magistrates frequently take strong views about the contentions put before them and sometimes express themselves forcibly during the course of a trial. It is often well that they do so express themselves, because that given the party affected an opportunity to appreciate the considerations which are weighing with the tribunal and to answer them. A judge who keeps his mouth firmly closed during the hearing and refrains from giving utterance to his thoughts may decide the case on considerations which could have been answered if they had been made known to the unsuccessful party during the hearing. Such remarks on the part of a judicial officer are not to be taken, extreme cases apart, as indicating that his mind has been irrevocably made up or that he is not open to further argument ...”
With reservations which I would respectfully make about forceful expression of strong views (which should, I feel, be restricted to the imposing of sentence in certain cases or to the protection of the processes of the Court where it appears that they are being abused), I would like to adopt these words here.
It is important that people realize that what they ought to know, by the exercise of common sense is what, in law, is expected to happen. The Court’s picture of what the case is about is constantly developing so that what might have seemed to be the most important aspect at the beginning comes, as cross-examination changes the focus of things and view-points change, to be nothing at all. Thus, in this case, the first two witnesses, Bob Robert and his wife Saini, painted a picture of a house being stoned by bottles and other things, thrown by an invading mob in the early hours of the morning following Christmas Day, 1980. And that, of course, is perfectly true. And John Kapi was moved to hospital as soon as possible after the attack ended and he died in hospital. That also is perfectly true.
The impression which was first created in my mind - and I am sure that it is the impression which still exists in the minds of countless people who have not heard the evidence - was one of something that I have been telling people, in certain Highland cases, had not happened for several generations in coastal areas of this country. And, in my quiet way I was very proud of the fact that so many different people could decide not to have any more mob-raids - and to abide by their decision through several generations - and I hoped that people in certain Highland areas might benefit by the lesson which could be learnt from it. In fact, it was simply because of this that I accepted the invitation to deliver the Occasional Address at Wabag High School.
It was a terrible disappointment for me to discover that the wonderful record of the coastal areas had been broken. Then I looked more closely at the evidence and I saw that the picture which had at first been created, was not true. Neither Bob Robert or his wife (Saini, the sister of John Kapi who was killed ) said anything about the “mob” raiding the house. Neither of them knew how or when the mob came. All they know is that, at some point in time after the people had arrived at their house, they started pelting it with missiles of all kinds. The following is my note of the evidence of Bob Robert (pp. 32/67):
“I did not see my father-in-law and deceased run out. I only saw that we were surrounded and that they had run out.
...
Q.       Where were you when your father-in-law and deceased ran out of the house?
A.       I was in a room inside the house.
Q.       You were inside the house?
A.       Yes. In a room.
...
Q.       Was there a wall between you and the main door?
A.       Yes.
Q.       When you were in the room did you hear anything outside?
A.       Just the general noise of the group.
Q.       Were bottles and stones thrown at the house while you were still inside the room?
A.       Yes.
...
Q.       How long did you stay in the room?
A.       For about 5 or 6 minutes, while the noise was going on and things were hitting the house. Then I ran out onto the verandah to see what was going on.
...
Q.       While you were on the verandah, were people still throwing bottles and stones?
A.       Yes.
...
Q.       Where was Kapi Olopu when you ran out onto the verandah?
A.       He was down below, on the ground, surrounded by the Pelagai people
...
Q.       What was Kapi Olopu doing when you saw him?
A.       He was already helpless. They were jabbing him and hitting him with sticks.”
The transcript of the evidence of Saini Kapi shows that, in examination-in-chief, she was asked:
“(When) your father and John Kapi left the house, did you see them actually leave the house?”
and she answered:
“No. At that time I was in the kitchen.
Q.       When did you first see them after they went out?
A.       When I came out from the kitchen.” (p. 32/96)
and, in cross-examination (p. 35/15) she was asked:
“Q.     You did not see your father and deceased run out of the house?
A.       Correct.
...
Q.       Where was your husband at that time?
A.       In the bedroom.
Q.       Who was the first to get out onto the verandah.
A.       I don’t know.”
This is vitally important because the evidence of the defence witnesses (including the Village Court Magistrate, Kini Ravu) is that “the mob” went to the house, on the outskirts of the village, unarmed and they only armed themselves (taking up things that were found near the house) when John Kapi raced out at them and attacked them with a pig-hunting spear and chased them “all over the place” (36/25, 38/84, 39/35). There is also evidence that John’s father, also, raced out to the attack but it is clear, from Accused’s evidence, that he was interested only in making sure that John did not get him (his evidence is - 36/25:
“I saw John running at me with a spear. (He had) a red cloth around his head (indicates around the head, above the eyes - like a tennis player’s sweat-band) and a Bird of Paradise plume in front (indicates it was standing up above mid-forehead) and half his face blackened with charcoal (indicates the left side); army trousers with the legs cut off half-way.
He rushed at me with the spear.
I ran towards Wari Taera’s house to escape.
When I was running I was looking backwards and then forwards (illustrates) and as soon as I saw his hand being pulled back I side-stepped.
I felt, on my right shoulder (indicates back of shoulder) the tip of the spear touch me on the shoulder.
I turned back to punch him but I saw him running towards the house.)”
Because of this - and because Kapi Olopu denies being armed and the other evidence about him being armed is unclear (Vila Ilo, who was a passer-by, thought the whole of Kapi Olopu’s family ran out to attack but it is clear that he was only attracted by the general hubbub; Alan Ila only arrived when the fight was well in progress; Kini Ravu had left, in disgust, before this and Wari Gerega was clearly still affected by a beating which he had received earlier that morning so, since he was only tagging along behind the group of 60 to 70 people, his passing reference to having seen Kapi Olopu can be given little weight although his clear statements on other matters clearly can) - I do not think that a reasonable jury could be sure that Kapi Olopu did attack at the beginning.
This being so, the interesting fact that Kapi Olopu does not mention John as being in the house when the group of 60 to 70 people came from the main village, assumes a special importance. His evidence is that he, his daughter Saini and her husband, and the two younger sons who had spent the might at their aunt’s house in Pelagai vallage, but who had returned early in the morning, were sitting down preparing to have their breakfast when, suddenly, there was a disturbance outside. But there is no mention, as I have said, of John.
This, taken with the fact that I feel that a reasonable jury would have to accept the evidence that John was wearing feathers and had made himself look distinctive, is something which would have to be considered when a decision is made as to whether it has been proven, beyond reasonable doubt, that the Accused came armed with a bushknife or whether, as he and his witnesses claim, they were all part of a lineage group which had been aggravated beyond endurance but who had still gone, for a show-down, in an unarmed condition, taking up whatever arms lay close to hand, at the “enemy’s” house, only after they were actually attacked by the strangely painted and bedecked John Kapi.
THE EVIDENCE ABOUT ENMITY.
I have referred to the deceased’s father’s house as the house of Accused’s family’s enemy and this, in a Papua New Guinea village, is a most unusual situation. There can, however, be no doubt on the question as to whether or not this was so on that particular morning. The main question is, as I mentioned earlier, whether the enmity was of several months standing or was only created the night before the killing.
Kapi Olopu would have me disbelieve the defence explanation for the undoubted enmity but, considering the nature of that explanation, this is only to be expected. The first of the prosecution witnesses, Bob Robert, the Sepik man who is husband to Saini Kapi, was not asked anything on the matter. Saini, his wife, was asked one question only on the matter and that question was put by me because it seemed that the explanations which I had received up to that time were rather thin and I felt that something might have happened on Saini’s previous visit home. The tribunal of fact will have to decide whether the prosecution story is “too thin” or whether the defence story must be accepted.
The prosecution story is that, first Wari Gerega and, later, Accused’s brother ILA PAGAVE, in the hour between three and four o’clock in the morning of 26th December, 1980, broke the rules which protect people’s houses (particularly houses which are, to a certain extent, isolated, as Kapi Olopu’s house was) and, waking the occupants with shouted insults, provoked a fight. There was, undoubtedly, a fight, in the sense that the Village Court Magistrate was concerned at the state the two young men I have mentioned were in next morning, but the defence story is totally different.
Their version is that, when Kapi Olopu’s wife died earlier - in the year, a belief arose which caused Kapi Olopu to exclude Accused’s family from the funeral area; it caused him, and some members of his family, to threated Accused’s family and it caused roadblocks to be erected on the public-financed road which runs between Kapi Olopu’s house and the burial site where a permanent (and armed) camp was set up to guard the grave. It is because he went past that spot, on his way from a Christmas party in one village to a Christmas party in an adjoining village, that Wari Gerega was set upon and badly beaten, they say. Amd Wari Pagave, finding out about it, foolishly went there and he, too, was badly beaten.
Mr. Sakora has submitted that, because neither of these two young men actually received “western-style” medical attention in the early hours of Boxing Day morning, I should reject the whole story but this begs a number of questions. I can, perhaps, best illustrate them by mentioning the old law which made it compulsory for village people to get medical attention for an ailing child or elderly person as quickly as possible IF such attention was readily available as well as necessary. But neither of these was a child and Kapi Olopu was, as far as the evidence goes, the only person able to provide that medical attention and he, according to the defence, was the cause of the injuries. And the fact that the 60 to 70 people went off to Kapi Olopu’s house as soon as the injuries were seen, raises the question of what is meant by “as quickly as possible” because, once that happened, matters were completely out of control. Moreover, as Wari Gerega himself says, he received proper attention from his own mother and he asks: what better attention could one hope for? I think that a reasonable jury would reject the submission.
But the rejection of a submission does not necessarily mean that the dispute is settled. I think that a reasonable jury would (and I adopt, here, the remarks which I made in State v. Faith Hubert[dccclxx]11) make its decision in the light of the fact that the Village Court Magistrate, who is an elderly man of experience, came and decided that it was a matter of grave importance. This is made clear by the fact that (and I am now quoting his evidence (page 40/12) as to what he did when he heard of it in the early hours of the morning of 26th December, long before anyone else had heard:
“I told the Peace Officer, Halai Waroa, to go to Maopa and get the Village Court Magistrate from there to send the Peace Officer from Waira to Kwikila to get the National Police. Then I went to Pagave Waga’s house and I told him not to cause any fight but to wait for the police. When I was telling them Wari Taera arrived and he, Wari Taera, said:
“PAGAVE WAGA You and your clan: GO!
KAPI OLOPU’s clan are waiting for you!
Pagave Waga’s clan did not listen to me.
They went and they fought.”
It will also see some significance in the fact that the first prosecution witness, Bob Robert (who was clearly telling what he believed to be the truth -which is often quite different from what is, in fact, the truth) said that, at the time of the 3 o’clock episode, (that is, when the first of the two young men was “involved in a fight” and received the injuries which caused the 60 to 70 people to go to Kapi Olopu’s house) Wari Gerega and John Kapi:
“both exchanged punches whilst other friends of Wari - RAVU URA (was one)-were observing” (32/32).
But the point is that the prosecution case is that Wari Gerega was there in breach of all the laws. How comes it that the others who were with him (and who, presumably, were prepared to break all the rules) just stood there “observing”? The defence story is that Wari Gerega and a group of other young men from various villages (including, curiously enough, a man named Ravu Ura as the only one he could name) were waylaid by Kapi Olopu’s vigilantes as they passed that spot on the public highway.
I say, without any hesitation (but with the proviso that I am not at all sure as to the membership of what I have called the vigilante group which attacked Wari Gerega and his companions as they peacefully passed along the road), that a reasonable jury is bound to accept the defence story in regard to this episode and reject the prosecution story.
Having done that, there is no possibility of my rejecting the defence story that the reason for the antipathy between the two houses is the belief, by Kapi Olopu (and, presumably, by the late John Kapi) that someone in Accused’s father’s house killed Kapi Olopu’s wife by sorcery. Kapi Olopu has said in this Court that he does not believe that there was any death by sorcery but I FIND, as a fact (according to the rules that bind me) that this is the reason for the whole sorry series of episodes which has destroyed the communal peace and good government of the area.
Learned Counsel for the State has submitted that there is no evidence before me that what I might call “public life” was in any way involved and that this is just another case of the ordinary kind that fills the lists of the criminal courts with people who are there for what are, happily, charges of a lesser nature. This, however, is not so. There is the evidence of the Accused that every possible level of authority, local, Provincial and National, and police as well as judicial and administrative, has been approached for assistance in the many attempts which he himself has made to solve the matter. This testimony is more than amply supported by the evidence of Kini Ravu, the Village Court Magistrate who did all he could to prevent the 60 to 70 people going off to Kapi Olopu’s house. It also receives some limited support from the evidence of Police Senior Constable Augustin Amora who said (33/87):
“Kwikila police were directed to send a detachment to the area because of possible disturbance. That detachment went to the village whose name I forget, to attend the opening of a new church. I went along to keep them company.”
And the part about the road being made impassable (which, since it is a permanent and terribly public action, is probably the most significant - if least painful, aspect of the whole affair) is attested to by several witnesses and denied by nobody.
It is clear to me that the life of this village, and Society itself, as a “whole”, has greatly suffered as a result of all that the non-removal of those road-bloack signifies. This brings me to the fact that I said, earlier, (page 4) that it was not for me to make people appear in “a bad light” and that part of the background to some aspects of this case might well be the fear that some sort of shame will attach if outsiders come to know that sorcery is behind all this.
If this is so I would like to make it clear, with all the emphasis at my command, that this is not so. As I said in Appeal of Lupitiria Ezo and others,[dccclxxi]12 the law, even today, is constantly on the watch for allegations of sorcery because it knows the harm that can arise if action in regard to them is not taken immediatly. And people should feel proud of the way in which the fear of sorcery is being controlled. But it still does break out at times, even in places where one least expects it. It happens, and it will continue to happen, in ever decreasing occurences, for a good long time to come.
And there is no shame, either, in the practice of painting ones face, and wearing signs as a warning in special cases (if practice there be. It is not necessary for me to decide whether there is any “practice” although I feel bound to find that John Kapi did paint his face on this occasion, and wear Bird of Paradise plumes, for non-festive reasons. The evidence before me is too strong for me to decide otherwise.
I first came across this nearly thirty years ago and, having just seen how short-sighted some people could be, I was worried lest it be condemmed as a revival of what used to be called, in English, Heera (“HIRA”. It is described in Hubert Murray’s book, Papua Today). I saw Judge Gore and he said that it was a valuable mechanism, provided it does not become abused as the DUKDUK had in East New Britain. And he referred me to a book which had, then, only just been published: Sir Arthur Grimble’s “A Pattern of Islands” (1952, John Murray, London) which contains a passage which I thought I would never forget. Reading it again now, I see that I did forget an important part of it, otherwise I would have included it in my judgment in State v. Faith Hubert.[dccclxxii]13 It echoes what I said when I was welcomed to this Bench - about how it was by working THROUGH the people that the great Chief Justice, Judge Murray, was able to do so much. It is a passage which I feel people of today should remember when they face the sort of problems which faced this village of Pelagai, and almost destroyed it. The book swept the world as an international “best seller” but it is difficult to get today. Since it would be a pity if the only people who do not know what the passage is are the people it is about, I will quote it here. The book is written by an Englishman in the days when Englishmen did not often have much good to say about other types of administration than their own. It reads:
“WARNING TO FIDDLERS
The worst of interfering with customs ... is that it can end by leaving (the general masses of the people) bereft of their national will to live. The fiddler is a killer on a grand scale. There have been in the past some grim cases of depopulation - especially in Melanesia - due to the premature blotting out of interests that kept people alive in their environment. But from Melanesia also comes the classic example of how fundamental changes of custom, if unavoidable, should be brought about. Sir Hubert Murray, Administrator of Australian Papua, wanted to rid his territory of ... (HIRA). A lesser man might have thought himself justified in using force to suppress so murderous a habit; but not he. He took the trouble to inquire first what (HIRA) really meant to the people. He found practices based upon the cult ..., and would collapse if (HIRA) were to be summarily abolished. His problem was therefore to keep the cult alive while doing away with (the evil aspects)... he discovered his solution ... he set out to persuade the folk ... he succeeded. that a great structure of sane and beneficent social practices was based upon the cult ... and would collapse if ...(HIRA) were to be summarily abolished. His problem was therefore to keep the cult alive while doing away with ...(the evil aspects). He discovered his solution ... he set out to persuade the folk ... He succeeded. The new practice spread to neighbouring districts. ... (HIRA today) has been eliminated not only without the use of force but also without damage to the delicately poised social fabric of which it was once the main foundation.”
In this case the Coroner should have been called in as soon as there was any breath of suspicion about the cause of Kapi Olopu’s wife’s death. But, since this did not happen, it was most humane, wise and proper that nobody should interfere in the grief of those who mourned her. But the idea of non-interference which was a part of Melanesian culture in olden times, had as its “main foundation” the fact that, if things became too difficult for the rest of the community, the people putting up the old-time equivalent of the road-blocks in this case, would leave or be otherwise “brought into line”. But those days are long since past. There is no more land for people to go to. New solutions must be found. It is not for me to suggest what they could be. I only hope that, by pointing out that there is nothing shameful involved, AND THAT IT IS HAPPENING EVERYWHERE, to some extent or other, because it is a natural part of human adaption from one type of socio-economic system to another, I will give people the extra impetus towards finding a solution. And, by pointing out that:
“from Melanesia ... comes the classic example of how fundamental changes of custom, if unavoidable, should be brought about”
(and Hubery Murray was actually only the catalyst; it was the elders of the day who actually devised the whole thing, and who made sure that it was adopted by all the people), I hope that you will see that, difficult as it may appear, the task is not beyond you. It is a task which must be faced, and faced on a national scale. This case is merely one instance - an instance which, because of factors which intervened, had to come out of the ruck.
THE CASE ITSELF
This brings me to the case itself. It also brings me to the medical evidence which (at page 2.) I said is of the utmost importance for a proper understanding of the technical (that is, the LEGAL) aspects of this case. It is the medical evidence which explains why this case was destined by fate to be taken out of the ordinary run of what Mr. Sakora described as the hundreds of similar trials that take place each year. And it is that same medical evidence which, after proper analysis, puts this case back into the ruck of ordinary, every-day cases despite the tragic fact that John Kapi is dead.
John Kapi was a big man. A very big man. And it is tragic in more ways than one that he died when he did. The first entry in the medical record produced before me is not dated but it is, presumably, the record of 29th December because it says (in the same handwriting as the entry I am about to quote: VOMITED IN WARD 8” and the first entry for vomiting is dated 29.12.80). The entry which I find most instructive is this:
“History of Present Illness
Was well until 8 a.m. today.
He was attacked by some men with stick and bushknife.
He was O.K. after he was attacked and he ran away and later became unconscious, fainted, but regained his consciousness and was fully conscious when he was brought into casualty.”
The medical cause of death is SHOCK subsequent to SEPTIC MYOCARDITIS subsequent to SEPTACAEMIA and it is the expert opinion of Dr Saott (who was, very properly, called by the prosecution, not the defence) that that septacaemia had nothing to do with the wounds which John Kapi received in the incident of 26th December.
This is supported (if support for such an opinion could be said, in a criminal trial such as this, to be needed) by the entry which I have just read and by the following entry which appears in the Medical Record just prior to the entry about the vomiting:
“29 / 12 / 80.
Fully conscious and alert.
Eating and drinking.
Complains of headache.”
And, of course, he had every reason to complain of a headache. The evidence of the medical post mortem examination shows (as the earlier X Rays did not show) that the blow on the top of the head had been delivered with such force that:
“The skull bone was fractured at the base of the skull.”
(first line, second paragraph of P.M. Report under entry: Central Nervous System).
I will return to this fact -this vitally important and inescapable fact - in a moment. I must now describe the legal situation.
The charge is, as I have said, one of wilful murder. It is the most serious charge that can be laid against any person in this country and, until recent years, it was an undoubted fact that, by laying that charge, the State was conferring an immunity from being found guilty of any other charge except for “murder” or manslaughter. Nowadays (as I mentioned in State v. Gunua Kamane (No. 2)[dccclxxiii]14 with some adverse comments) it is possible for a person to be “found” guilty, on this charge, of common assault. I am happy to note that Mr. Sakora has not asked for any such a finding but, in law, it is my duty to bear this possibility in mind.
The charge being WILFUL murder it is up to the State to prove, beyond reasonable doubt, not only that Accused killed John Kapi but that, when he inflicted the wounds on the top of his head, he intended to kill him.
I will return to this in a moment. There is an unusual aspect of this case which I must dispose of first. The medical evidence is, as I have said, that the septicaemia form which John died had nothing to do with the wounds. Part of the reason for this is the fact that John survived for far too long for this to have happened. The cause of the septacaemia is put, on a probability basis, as being due to some infection which was introduced into John’s blood-stream when he was receiving a blood-transfusion. The medical evidence is this. The doctor was asked for a definition of “septacaemia” and he said (35/33):
“Septacaemia is a word which means that there is bacteria in the blood (and) toxin - that is, poison. It means that germs have got into the blood. They multiply in the blood. But they are not only in the blood, they produce poison”
(If I man break in here, I would mention that that there is a similarity here to BEIT and VADA. The doctor continues):
“... they produce poison so you have both germs, and the poison they produce, in the blood.”
Dr. Saott was then asked (35/34) what caused this and he said:
“First of all, their presence (that is, the presence of germs) in the blood is abnormal. In this case it meant that the germs came from OUTSIDE ...
Q.       In what ways can bacteria enter the blood stream ...?
A.       There are many ways. In this case it could be introduced through the wounds OR be iatrogenic - that is, “introduced by human agency or procedures”.
Q.       In your opinion, how was the bacteria introduced ...?
A.       That is difficult for me to decide. But by reading through the history in the “CHART”, and the day-to-day progress notes, ... the condition of the patient was fairly stable ...(and) on 29th December ...(he) gained clinical improvement. On 30th December ... he developed fever ... the condition ... progressively got worse up to the time (he) perished. ... therefore, I am of the opinion that this septacaemia may be iatrogenic.
Q.       Could it be iatrogenic through the scalp wounds?
A.       My opinion does not exclude the possibility that germs could have entered the blood stream through the scalp wounds OR the left hand wound.”
and, at that point the examination-in-chief, on this aspect ended. Dr Saott was, however, asked further questions about it in cross-examination and later and, putting these in reverse order, the transcript reads: (35/91 and 35/
“Q.     Would any test have been made ... before the transfusion was given?
A.       Yes ...
Q.       Does that mean that the indications are that the septacaemia was not there before the blood transfusion?
A.       Yes. That is true.
Q.       How long does it take for the germs in septacaemia to multiply sufficiently to cause death?
A.       It would have taken about 24 hours. Bacteria multiply at compound interest.
Q.       Could it have been longer than 24 hours.
A.       To achieve the degree of septacaemia here, 24 hours would be the minimum.
Q.       What would be the maximum?
A.       That is difficult to say. Blood is a fertile ground for the bacteria to multiply. They multiply rapidly at body temperature. I would say 36 hours would be the outside limit.”
Finally, this passage is relevant (35/67ff). To understand it one must remember that Dr. Saott did not see the deceased until after death, by which stage the wounds on both the top of the head, and on the hand, were almost healed:
“Q.     ... was a pus swab taken?
A.       There is no evidence of one being taken. When I saw them there was no pus. The wounds were partially healed.
Q.       In your 16 years of practice could you tell us the relevance of taking pus swabs?
A.       It is very important, when pus is seen, to take a swab ...
Q.       Is it correct to say that a ... pus swab would have shown the cause of septacaemia?
A.       It is good medical practice for a doctor, when suspecting an infection like septacaemia, to find out the possible point of entry of the germs. Therefore, he would take swabs from as many possible places as he can. ...
Q.       Is it correct to say that the cause of septacaemia in this case is “unknown”?
A.       From my reading of the history - the day to day history - I would agree with you but I strongly suspect that the iatrogenic cause was the means whereby the germs gained entry to the blood. And I would like to underline the word “suspect”.
Q.       Transfused blood is always sterilized, is it not?
A.       No. The bag is sterilized. The blood is sterile from the donor.
Q.       What are the chances of transfused blood causing septacaemia?
A.       Germs can get into a bag of blood through lack of strict procedures. Or germs can get into the patient through lack of a-septic procedures - through the needle being contaminated, for instance. Or by the sterilized area, where the injection is to be made, being touched by something which is not sterilized - for instance, if the vein does not “come up”, people usually tap it with their finger and their finger may not have been sterilized.
Q.       ...
Q.       What if someone with septacaemia ... donated the blood?
A.       People with septacaemia are usually very sick. And even if they are not very sick the bag of blood (would show it). One can see the effects of this (that is, of the fact that the blood is infected) just by looking at the bag of blood.
Q.       Could small sores on the body cause septacaemia?
A.       Yes. In both extremes of life; in the very young and the very old. And in the very sick - patients with such things as cancer. But in a young, fit male like this man, I would think that his normal defence mechanisms would not allow septacaemia to set in from small ulcers.
Q.       You said, in evidence, that the cause of death was malfunction of the heart?
A.       The immediate cause of death was SHOCK, subsequent to septic myocarditis, subsequent to septacaemia”
and this is explained, by the witness, at page 91 as follows:
“It is a vicious circle. Because of the septacaemia, the heart is affected. So are all the other organs, but the heart is unable to supply the body’s needs and the result is the total collapse of the system and the patient dies.”
I feel that a reasonable jury would have to FIND that the septacaemia was not caused at the time the wounds on the head and left hand were inflicted. The doctor himself has raised what, in State v. Waikaiko Taunitawe[dccclxxiv]15I described as a “reasonable hypothesis consistent with innocence” and, because of the rules which I said, in that case, bound me because of this, this conclusion is clear. In addition - and quite independently of that - there is this expert opinion of Dr. Scott to be considered:
“Q.     How long does it take for the germs in septacaemia to multiply sufficiently to cause death?
...
A.       ... I would say 36 hours would be the outside limit.”
Since John was alive and alert, eating and drinking, talking and walking to the toilet more than twice that length of time after those wounds were inflicted - and since there was, presumably, no pus on the wounds at any stage - this makes it conclusive. The very fact that septacaemia was widespread (which, in the case of State v. Julius Wape and Peter Varavon[dccclxxv]16 was conclusive evidence that the victim, in that case, was dying long before the accused had even met him) is, in this case, conclusive evidence that the cause of death was something which happened several days after Accused had anything to do with John.
This raises a very interesting legal question but, first, I should also mention that there is one further aspect of the medical evidence which would, in the minds of a reasonable jury, be conclusive. This is the fact that, in examination-in-chief, Dr Saott said:
“On microscopic examination, all the organs taken out and examined were found to be abnormal” (35/53)
and he explained this, on a number of occasions, by saying that the whole of the body (with one exception I will mention in a moment and another which I presume is an exception) was in an “abnormal” state in that every organ - every layer of the brain; EVERYTHING - was riddled with (covered with) microabscesses because of the septacaemia. But there was a blood clot, inside the brain, which had been caused by the blow or blows which had inflicted the two wounds on the top of the head. This, presumably, had cut off the supply of blood to itself so it was not riddled with the taxins which, by the time John died, were being spread by the blood as it flowed everywhere except into this sealed-off clot. The evidence is:
“Q.     The blood clot was NOT affected?
A.       I did not record it in my histology. This probably means that it was not affected.” (35/64-65).
And since, as I have already said, there was no pus on the wounds at any time, one must presume that they, also (probably because of the anti-biotic treatment that they received), were not affected. This evidence would, I am sure, weigh heavily with a jury if we had one here. The fact is, however, that if one analyses it, it becomes clear that two assumptions are involved. The doctor is assuming that, because he did not note something at the time, it was not so. And I am assuming (as I think a reasonable jury would assume) that this was so because the clot had sealed itself off from the blood supply before there was any sign of the infection which caused the septacaemia. The doctor is entitled to make his assumption. In fact, that is why he was called by the State to give evidence. And a jury would be entitled to make its assumption, especially since it is something which a prosecution witness is saying in favour of the Accused. But I am bound, as I have said so often, to “get out of myself” when I am performing the functions of the Tribunal of Fact, and look at things in a colder light. And I am bound by the rules laid down for me. I cannot make assumptions about medical matters unless I have seen that particular sort of thing so often, or heard expert medical evidence in regard to it so often, that it comes into the field which is called “judicial notice”. And I have never heard of a case such as this - as far as the medical evidence is concerned, that is. I have, as I will be saying in a moment, had numerous cases of people being hit on the head with bushknives and axes and sticks and I have seen what can and does happen in a fight in this country.
I, therefore, feel that I am bound to disregard this part of the evidence, But I should mention that the evidence that there was, in fact, a blood clot created because of the blow or blows which caused the wounds on the top of the head, is of the utmost importance.
There is, as I have said, no possibility of me not FINDING, on the evidence before me, that the septacaemia which caused John’s death was caused by something which happened long after Accused had anything to do with John. This, as I have already mentioned, is a fact which raises a very interesting (and, if I may say so, with respect, rather confused) legal question. The first of the two main elements of WILFUL MURDER is, as I have said, that:
Accused himself killed the deceased.
Now it is perfectly true that the law covers the concepts of directly and “indirectly” doing something, and it also deals with a number of other matters which are highly relevant. But the question of “fault” which I have mentioned so often[dccclxxvi]17 is, as Windeyer J. said in Timbu Kolian’s Appeal,[dccclxxvii]18 at the very basis of our law so the question, quite clearly, will be asked by someone: Why, if he was doing so well for the first three days that he was in hospital, should John’s death be blamed on the person who put him there? Is there not a cut-off point beyond which the responsibility of the original wrong-does ceases - or does it go on for a year and a day?
Because of what I will have to say about the conclusions which I have to arrive at when I consider the evidence in the light of the second of the elements of wilful murder, however - that is, the element of WILFULNESS, “intent” - I do not have to deal with this very interesting legal point on which Counsel for both sides quoted so many authorities in their final addresses.
Before I deal with INTENT, however, I want to return to several matters that I have dealt with already. I said, at page 9, that the Tribunal of Fact would have to consider (when asking itself what it thought about the prosecution case that Accused came to Kapi Olupu’s house armed with a bush-knife) the full effects of my FINDING, on the evidence, that John Kapi had painted his face and put on plumes to indicate that he wanted people to know that, at that particular period of time, he regarded himself as “a person apart”.
This, I said, was permissible because it provides an outlet which can be of benefit to both the individual who has a problem which is too great for him, and to the community in which he lives. Provided, aleays, that (as I said) it does not lead to anti-social or unlawful behaviour. The concept of AMOK and going berserk is well known (but often misunderstood) in other tropic countries and I once thought that we had a case of it at Minj. But that turned out to be halucinogenic mushrooms. The difference between the use of distinctive garb to keep people away from one while the problems which bear down are too heavy to bear, and the deliberate running at an irate group of people (whether they are armed or not) while so garbed, is absolute. The latter could be said to court, as well as cause, disaster if one does it (as I said - p. 8 - I have to FIND on the evidence was the case here) while brandishing a killing-spear. And this difference supplies the answer to the learned Prosecutor’s question to the Village Court Magistrate: If this be an accepted form of behaviour amongst your people, why are there not more deaths? The Magistrate could not understand the question but the answer, quite clearly, is that the “accepted form of behaviour” amongst the Aroma people is not anti-social in the legal sense. It shows that the wearer is to be avoided. And the wearer, presumably, makes sure that he does not go beyond the boundary where people cannot avoid him. I had a case (apart from the one I have already mentioned) of a somewhat similar situation in an adjoining area some seven or eight years ago, where the man who should have been protected by his garb, died. But that was because the intruder broke the rules because he did not know them. Since I have said that John broke the rules, also, the question arises: What are the legal results?
This depends, of course, on the answer to the primary question of what kind of a group it was that he was running at. I have already said that it was an irate group. But, was it armed? And how many did it number? On both of these questions there is complete conflict. The prosecution witnesses, curiously enough, make it a much smaller group of invaders (20 to 25) than do the defence witnesses (60 to 70). The difference in size can, I think, probably be correctly explained by adopting the words of the Village Court Magistrate who said (as do all the defence witnesses) that the group that went off the Kapi Olopu’s house that morning numbered between 60 and 70 people of whom 20 or so belonged to Accused’s fathers line. The rest were ordinary people who went along to watch.
Support for this comes from several of the witnesses for the defence who, despite the fact that they have family ties with the Accused’s father and his brother - and it is important that it was these two men, and not Accused himself, who were involved in the early stages - carefully kept out of the fight although they did keep close enough to watch. Mute-testimony support comes from Senior Constable Augustin Amora who said that he saw about ten fence posts lying scattered about the place, as if they had been used as weapons, when he inspected the area later that morning.
Twenty to twenty-five fighters and fifty or so onlookers crowded into the area close to ones’ house is a very large crowd and, as we have already seen, the proceedings, once the throwing of bottles began, were very hectic. The first two prosecution witnesses, Saini Kapi (sister to the deceased John) and her husband Bob Robert were, to use Bob Robert’s own word, thoroughly scared. It was a very hectic time and the best that any observer could expect to happen would be fleeting glimpses of what happened in regard to anyone one was interested in, and nothing continuous. A pressing, milling, fighting crowd does not pull apart so as to allow someone else an unimpeded view every time the action becomes interesting. They crowd closer and block out everybody’s vision, particularly if the action is in regard to someone rolling about on the ground. As against this, however, the human mind has a well-proven habit of filling in the gaps and then leaving its owner with the belief that what the mind (or outside sources) has supplied, is actually what was seen. There is nothing dishonest in this. It is well attested by experiments in many parts of the world and it is the basic proposition from which any reasonable Tribunal of Fact must proceed when dealing with a case such as this.
Before I read the testimony of these two witnesses, however, - and they constitute the only evidence against the Accused - I feel that I should (as any reasonable jury would) look at another part of the “mute testimony” - the evidence which cannot be in dispute because it exists independently of the human mind and cannot be perverted by it.
The particular mute testimony is part of the medical testimony. Part of it we have already seen. The blood clot which was undoubtedly caused, in the brain, by the blow or blows which inflicted the two wounds on the top of the head. The second part of the same mute testimony is that, although the X-Rays did not pick it up during John’s life, the blow or blows which inflicted the two wounds on the top of the head was (or were) so strong and heavy that the skull bone - that is, one of the particularly tough bones at the base of the skull, on which the skull “rests” - was fractured. And, according to Dr. Saott, that must have been a very heavy blow. This is his testimony (35/74):
“Q.     Would it be correct to say that, to cause the linear fracture, there would have had to be a lot of force used?
A.       Yes. You need a lot of force to buckle the skull bones, to cause a contra-coup fracture.
Q.       A stick, about three feet long, being a mangrove stick, split in half and with a sharp edge - if it was used, could it have inflicted the wounds you saw on the head?
A.       Provided it had a sharp edge. Yes. It does not need to be metal.
Q.       Would you say that the linear fracture at the base of the skull could have been caused by a blow on the head with a stick which is reasonably hard and swung with a lot of force?
A.       Yes.”
The importance of that last question is that the two witnesses whose evidence I will be reading in a moment each gave a demonstration of what the blow or blows were like. And each showed that the blows were administered with tremendous force. And, having had a lot to do with cases where people have been attacked with bushknives and axes over the past thirty years, both a prosecutor, as defence counsel, as Magistrate conducting Preliminary Inquiries and a Coroner, I have no hesitation in saying that if such a blow were ever to land on the top of a skull it would, if the instrument used was a bushknife, cleave the skull right open like a rotten watermelon. But, in this case the skull was not touched in any way. The skin was, of course, cut. Otherwise there would not have been any wounds. But the wounds did not penetrate the outer covering of the skull bone. If the wounds had gone right around the head John would have been scalped but the skull was not in any way harmed or touched. The medical evidence in regard to that is this (35/73):
“Q.     Had a sharp bushknife, with a blade of about 2 1/2 feet long been used to inflict wounds on the head, would it be correct to say that the force used would have to have been very little?
A.       Yes. That is correct. With a sharp bushknife you would only need very little force to inflict wounds half a centimeter deep on the skin.”
I have no doubt whatsoever that the wounds on the top of John’s head were not caused by anybody hitting him with a bushknife - at least, not if the blow had any force behind it at all. And yet the inescapable fact is that the blow must have been administered with considerable force because there was the blod clot and the fracture of the skull bone at the base of the skull. Therefore, the hypothesis that it was someone who hit John with a fencing stick who caused the wounds of the top of his head is not only a reasonable one but it completely answers all the known facts.
I now turn to the only evidence against the Accused, the evidence of the two eyewitnesses, Saini Kapi (sister to the Deceased, John Kapi) and her husband Bob Robert. These two witnesses gave their evidence before there was any inkling, as far as I was concerned, as to the nature and extent of the wounds. And they gave evidence, as we have seen, that they were scared and that things were very hectic. Saini’s evidence is this (32/99):
Q.       How many times did Accused swing the knife at your brother?
A.       Twice.
Q.       Could you demonstrate.
A.       (demonstrates a powerful, wide-arm swing sideways followed with a downwards slash).
Q.       How far apart was your brother from accused when accused swung the knife?
A.       About 4 feet away.
Q.       Where did the knife land?
A.       Across the forehead (horizontally), and in the middle of the head from front to back.”
The point is, however, that there was no wound which could be said, by any stretch of the imagination, to be horizontal. And there can be not the slightest doubt about the fact that the wound parallel with the horizon was the main one this witness believes she saw.
The evidence of the other witness, Bob Robert, is (firstly, at 32/34):
“I saw Ila Pagave with a bushknife in his hand, chop John Kapi on the head. Twice on the head.”
And later (32/44) he was asked by the learned State Prosecutor to describe how these blows were administered. My note of his answer and demonstation is as follows:
“One blow was sideways, the second was downwards (illustrates a horizontal sideways sweeping blow followed quickly, as part of the one action, a heavy downward chop, both “full armed”.)
Q.       Did either or both bolws land.?”
A.       Yes. Both of them landed on deceased’s head.”
Whoever it was that was the victim of the blows these witnesses described, it could not be the deceased in this case.
On every possible point the conclusion is obvious. Accused cannot be guilty. The State has failed to prove its case amd it is my duty to declare that he is not guilty on the present charge.
Since the only evidence actually against Accused must be considered to be evidence which relates to some person other than the deceased in this case, it is clear that Accused cannot be found guilty on any of the other charges which are covered by the present indictment. Accused is, for this reason, found to be NOT GUILTY on all charges.
Solicitor for the State: L. Gavara-Nanu Esq. The Public Prosecutor
Counsel: B. Sakora Esq.
Solicitor for the Defence: S. Gabe Esq.

[dccclx]1975 PNGLR 311. It is a Supreme Court case, on “Case Stated”
[dccclxi]Unreported judgment, KUNDIAWA, 18th June, 1981 ... N. 349.
[dccclxii]Unreported judgment, KIETA, 12th August, 1981 ... N. 330.
[dccclxiii]See, for instance, State v. Chanel Pospoi at 9 below and State v. Gunua Kamane (No. 2), Unreported, KUNDIAWA,… N. 352.
[dccclxiv]Unreported judgment, WAIGANI, 4th November, 1981.
[dccclxv]Unreported judgment, MOUNT HAGEN, 2nd May, 1981.
[dccclxvi]Rabaul District Court, 1967 ... see Mann C.J. Jmt.463 of 3.4.68.
[dccclxvii]Unreported ruling, WAIGANI, 9th December, 1981 ... N. 353.
[dccclxviii]Unreported judgment, KIETA, 10th August, 1981.
[dccclxix](1972) 3 S.A.S.R. 472 at
[dccclxx]Unreported judgment, ALOTAU, 15th December, 1981 ... N. 354.
[dccclxxi]Unreported judgment, KAINANTU, 20th February, 1981.
[dccclxxii]Unreported judgment, ALOTAU, 15th December, 1981 .. N. 357.
[dccclxxiii]Unreported judgment, KUNDIAWA, 1st October, 1981 ... N. 352
[dccclxxiv]Unreported judgment, KAINANTU, 20th February, 1981.
[dccclxxv]Unreported judgment, KIETA, 12th August, 1981 ... N. 330.
[dccclxxvi]See, e.g. N. 329 at p.4; N. 334 at p 3; 336 at 2; 337 at 4.
[dccclxxvii]1967-1968 PNGLR 320 at p. 327.