N774

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

TAMANG SEM

Lae
Brunton AJ

10-11 July 1989
9-10 October 1989

CRIMINAL LAW - Criminal responsibility - Parties to offences - Prosecution of common purpose - Disassociation - Withdrawal - Grounds to support defence of - Criminal Code (Ch No 262), s 8.

For the purposes of s 8 of the Criminal Code (Ch No 262), to support a defence of withdrawal from prosecution of a common purpose, the accused must show:

(a) withdrawal from prosecution of the common purpose;

(b) communication of that withdrawal to other co-accused in such a way as to make any subsequent act or acts of other accused his or their separate act or separate acts;

(c) an express countermanding or revoking of any advising, counselling, procuring or abetting which he had previously given, sufficient to demonstrate that any influence exercised on the mind of other accused who actually performed the acts in question had been removed and that he had severed his connection or departed from the agreed contract.
R v Hanjau-Aikolo (Supreme Court, Mann CJ, 1967, unreported), adopted and applied.

Cases Cited

R v Hanjau-Aikolo (Supreme Court, Mann CJ, 1967, unreported).

Trial

This was the trial of an accused on a charge of wilful murder where death resulted from an attack upon the deceased by a number of persons including the accused.

Counsel

M Peter, for the State.
M K Konido, for the accused.
Cur adv vult

10 October 1989

JUDGMENT ON VERDICT

BRUNTON AJ:

THE INDICTMENT

The accused was indicted with the wilful murder of one Walis Tupon, at Lae, on 4 February 1989. In his opening address, the State Prosecutor alleged that the killing arose out of anger amongst the group in which the accused participated, over the arrest by police of one of their friends. The police had arrested a person after complaints were received that another person had been assaulted and a carton of beer had been stolen. The deceased was seen to get out of a police vehicle after this arrest, and was presumed to be a police informer. As soon as the deceased alighted from the vehicle, it was alleged that the accused in company with four others chased the deceased and assaulted him. In the course of the assault it was alleged that the deceased was stabbed to death by a person other than the accused.

THE TRIAL

The trial started on 10 July 1989. The accused pleaded not guilty and the the State presented its evidence. At the end of the State case there was an adjournment because the State Prosecutor requested that another trial be started to enable a witness who was a senior police officer to give his evidence and return to his posting outside the Morobe Province. During the course of this adjournment and the interposed matter, the accused Tamang Sem was injured in a road accident. The trial resumed on 8 October 1989.

THE EVIDENCE

The State presented evidence beyond reasonable doubt that the deceased Walis Tupon died from stab wounds which were inflicted upon him in the attack that occurred at Seventh Street, Lae, at about 7.30 pm on 4 February 1989.

There was no evidence to suggest that it was the accused who stabbed the deceased, rather the State case rested on the evidence of Brian Dokola who testified that he had seen the accused, with others, beating up the deceased. Dokola testified that the assault took place in a well-lit street, that he could see the assaults, that he saw the accused punch the deceased many times on the body and the face. At the same time he also saw one Phillip Bombom stab the deceased twice.

The evidence of the accused and a defence witness Kalo Wana was that the accused ran up to the deceased, hit him once, and then was dragged away by Kalo Wana, leaving others to assault and finally kill the deceased. The accused’s defence was that he desisted from his part in the assault, and that the killing took place after he had left the scene.

The medical evidence of Dr Theo was to the effect that the body of the deceased had three stab wounds, and no other external marks. The only objective evidence then, appears to support the accused’s version of events that he struck the deceased only once. However, the evidence of the accused was not just that he slapped the deceased, but that he saw others hitting him too. The others, in the words of the accused, were hitting him, kicking him and screaming at the same time. He said be saw Phillip Bombom hit the deceased hard with his fists "plenty" of times. A lot of people were hitting the deceased when the accused left the scene.

If the accused’s case was that the deceased was slapped but once — then it would be supported by the medical evidence, but it is not put that way at all. The accused’s case is that he followed a group of youths, who set about beating up the deceased. The accused’s version of this is that the others did the assaulting. He saw them punching and kicking the deceased. There are only two possibilities with this version — either the accused is lying and no punching and kicking took place, or the medical evidence was incomplete as to physical indications of these assaults.

The evidence of Brian Dokola supported the version put forward by the accused. Dokola saw the accused hit the deceased many times with his folded fist.

Dokola also testified that the assault was motivated by anger which the group felt against the deceased because they thought he had reported, or informed on, one of their friends to the police.

When the deceased got down from the police vehicle, the group called out, "He’s one of them", they chased him, caught up with him and beat him. That version accords with the testimony of the accused who says: "I heard some people crying out, they were chasing somebody, they said ‘he’s one of them get him, get him’ ... I stood up and I saw people holding him and they were hitting him." Despite the medical evidence, there is a confluence between the testimony of witnesses for both the State and the defence that the deceased got down from the vehicle, the cry went up, "He’s one of them, get him," and that the young men ran out after the deceased and began to assault him. There is sufficient evidence to show beyond reasonable doubt that the deceased was chased and beaten up by a group of youths, before he was stabbed.

The accused does not deny he took part in that assault. He admits that he went up to the deceased and slapped him once. He said he did that because he thought the deceased must have done something wrong, and he "just went up and slapped him". He asserted that he did not know what it was that the deceased had done. The accused was supported in his version of events by the witness Kala Wana. Kala Wana and the accused grew up together. It was clear that they were close friends. Kala Wana was not an impressive witness. He testified that he saw the accused run past him, strike the deceased only once, and that he pulled the accused out of the fight, and they both went to Tamang’s elder brother’s house. The fight was going on when they left. Kala Wana could not say for sure how many people were fighting. First he said there were more than three people fighting, then he said he did not know how many people were fighting, then he said six people were fighting. The fight was one in which a group of people were assaulting one person. It moved about and was five metres away from him, when he got hold of the accused and dragged him off home to his brother’s house.

Kala Wana was not an impressive witness. He gave the impression that he had a selective memory. He was a close associate of the accused, and the accused had been out on bail. There was ample opportunity for them to concoct a version of events that they would see as assisting the accused. The Court cannot rely on Wana’s evidence unless it is corroborated.

I find the following facts beyond reasonable doubt:

· The accused was at a house in Seventh Street at the time the deceased alighted from the police vehicle.

· A cry went up, "He’s one of them, get him," and a group of youths ran out of the house next door and chased the deceased.

· The accused followed the youths.

· The deceased was caught by the youths and beaten up.

· The accused joined in the assault on the deceased, and hit the deceased, at least once.

· The deceased was stabbed by Phillip Bombom.

· The accused knew Phillip Bombom had a knife.

The accused was therefore part of an unlawful assault on a person, which resulted in the death of that person. There is no evidence that the accused shared an intent to kill, or an intent to commit grievous bodily harm on the deceased, but he was a party to a dangerous act which finished in the death of a person.

Once that act was put in progress by others, the accused joined in voluntarily, he did nothing to stop it, he actually contributed to it. His participation gave assistance to those who finally killed the deceased, and made the deceased’s predicament all the more fatal. His acts, his participation in supporting those who were bashing the deceased, encouraged them to continue with the general assault that eventually degenerated to a fatal stabbing.

The accused says that he walked, or was pulled away from the affray, before the fatal blow was struck. This cannot be accepted as an excuse. He did not dissociate himself legally from the consequences of his acts.

The 6th edition of Carter’s Criminal Law of Queensland (1982) at 52 says:

"An accused person who relies on disassociation from the mutual aiding must be able to point to evidence which ‘shows distinctly’ the disassociation — evidence which shows that he made the other party an unequivocal ‘timely communication’ of his intention to abandon the common purpose."

In the pre-Independence case R v Hanjau-Aikolo (Supreme Court, Mann CJ, 1967, unreported), Mann CJ examined the common law authorities which discussed disassociation from, or the withdrawal from, a common purpose. In Hanjau-Aikolo, the accused, members of a raiding party intent on a pay-back killing, stood aside while other members of the party killed a woman who was a blood relative of the accused. At p 2, Mann CJ said:

"The conditions under which a withdrawal from a common purpose may be relied upon successfully are discussed in the case of R v Saylor [1963] QWN 14; (1963) 57 QJPR 79. This was a decision of the Court of Criminal Appeal and it was held that the appellant was guilty of the offence charged unless there was evidence fit to be considered by the jury that before the final kicking (in that case) by the other accused on the second occasion, the appellant had not only withdrawn from the prosecution of their common purpose, but had also communicated that fact to the other accused in such circumstances that any subsequent criminal act by the other accused was his separate act, and there was no such evidence in that particular case. It also appears from R v Croft [1944] 1 KB 295, an authority cited in the judgment of Philp SPJ at p 83 of the report of Saylor’s case, that in the case of a pact to commit a criminal offence coming within s 7 of the Criminal Code (Qld) the accused must show that he expressly countermanded or revoked any advising, counselling, procuring or abetting which he had previously given. This is not to alter the onus of proof but to demonstrate that any influence exercised on the mind of the persons who actually performed the acts in question had been removed and that he severed his connection or departed from the agreed contract."

This pre-Independence law, in my view, is applicable and appropriate to the circumstances of Papua New Guinea, and in the application to this particular matter does not conflict with custom: Constitution, Sch 2.2(1).

At best what this accused did was to allow himself to be dragged off from the affray while it was still in progress. He made no attempt to stop the assaults. Morally and legally, he was part of a broad transaction that was likely to lead to serious injury or death.

The accused had a common intention with other persons to prosecute an unlawful purpose in conjunction with others, namely, to administer a beating to the deceased, and in the prosecution of that purpose the victim was killed. The killing of the deceased was a probable consequence of the prosecution of the purpose — the beating. Objectively, if a group of people set about to punch and kick someone, it is a probable consequence that the victim will receive injuries and that death may follow from the injuries. Accordingly, I find that the accused had a common purpose within the meaning of s 8 of the Criminal Code (Ch No 262).

There is no evidence that the accused or his accomplices intended to kill the deceased, and I am not persuaded beyond reasonable doubt that they had the intention to cause grievous bodily harm.

But in the prosecution of their unlawful purpose — assault — an unlawful killing occurred. That is manslaughter.

Accordingly, I convict the accused of manslaughter of Walis Tapon.

Verdict of guilty of manslaughter

___________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.