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State v Taupin; State v Kandamain [1995] PGNC 18; N1323 (22 May 1995)

Unreported National Court Decisions

N1323

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 33 OF 1995
STATE v PAULIN TAUPIN
And:
STATE v JIM KANDAMAIN

Mount Hagen

Injia J
16-17 May 1995
19 May 1995
22 May 1995

JUDGMENT

CRIMINAL LAW - Murder - Evidence - Identification - Sufficiency - Criminal Code Ch 262, Ss. 8; 300 (1) (a).

CRIMINAL LAW - Murder - Evidence - Expert evidence - Medical evidence - Deceased exhumed and examined six months after burial - Whether Court is bound to accept medical expert opinion as to cause of death - Weight to be attached to expert medical opinion.

Two prosecution witnesses clearly identified the two accused at the scene of the killing, one of them firing a gun at the deceased and the deceased fell down. At that time, a tribal fighting was still going on. The deceased was shot on the front right chest near the armpit. The deceased’s body was not taken to the hospital because of the tribal fight. The body was buried two days later. Six months later, the body was exhumed by a doctor and examination done. The doctor was unable to give an opinion as to the cause of death. However, whilst concluding with reasonable certainty that death was not caused by shotgun pellets, he also did not rule out death being caused by a rifle bullet. At the trial the medical report was tendered by the prosecution and admitted into evidence with consent of the defence.

Held:

(1) It is up to the Court to decide whether or not to accept the expert evidence of a medical doctor and attach such weight as it thinks fit to the medical evidence: R v Rawell [1948] 1 A11 ER 744; R v Lanfear [1968] 1 A11 ER 683, James Frank Rivett 34 [1950] Crim App R 87; Beim v Collins [1954] 28 ALJ 331and Hollingsworth v Hopkins [1967] Qd R 168 considered and applied.

(2) Where a medical report of a doctor is admitted into evidence by consent of the parties in a criminal proceeding, the court must exercise care in accepting interpretations, additions or detractions put on the report by counsels.

(3) Where the body of a 14 year old girl was exhumed and examined by a doctor some six months after burial and the medical post mortem report did not rule out the possibility of death being caused by a rifle bullet(s), and where the two accused were clearly identified by witnesses at the scene in possession of guns and one of them lifting the gun and celebrating the successful shooting of the victim after firing the fatal shot and this identification evidence was not seriously challenged or destroyed in cross examination it is open to the Court to infer that one of the accused shot the victim most probably with a rifle, if not a shotgun, such inference being the only rational inference which could be drawn from the evidence.

Cases Cited:

R v Rawell [1948] 1 A11 ER 744

James Frank Rivett 34 [1950] Crim App R 87

R v Lanfear [1968] 1 A11 ER 683

Beim v Collins [1954] 28 ALJ 331

Hollingsworth v Hopkins [1967] Qd R 168

R v Phillip Boike Ulel [1973] PNGLR 254

John Beng v The State [1977] PNGLR 115

Paulus Pawa v The State [1981] PNGLR 498

State v Tom Morris [1981] PNGLR 493

Statutes:

District Courts Act Ch No 40

Evidence Act Ch No 48

Oaths Affirmation and Statutory Declarations Act Ch 317

Texts:

Archbold’s, Criminal Pleading Evidence and Practice, 42nd Ed. (Sweet & Maxwell, London, 1985)

Counsel:

P Kumo for the State

P Dowa for the Accused

22 May 1995

INJIA J: The two accused are jointly charged in one indictment that on 4 February 1994 at Pulapais village, Wabag, Enga Province, they in common purpose, murdered Miss Diamon Minapin contrary to Section 300 (1) (a) of the Criminal Code Ch. 262 (“the Code”). They pleaded not guilty to the charge.

The evidence against the accused was given by two eye-witnesses who said they saw Paulin Taupin appear with Jim Kandamain and the former shot the victim with a gun. The first witness is David Minapin who is a brother of the victim. According to David’s evidence-in-chief, at about 6.30pm, he was staying at his house with other people and mourning over the death of two of his brothers who were killed by Pyain tribesmen in a tribal fight between his own Sakaron tribe and the Pyain. At that time the fight was still going on some distance away. The two deceased men were buried on a slope some distance away from the mourning place. Whilst he was at the mourning place he heard one Thomas Toko crying and coming up the slope to the mourning place with the victim. Then he heard a gun shot being fired so he went down to see who fired the shot. From a distance of about 12m, he saw the two accused each with a gun in their hands standing about 6m from the victim. Also with the two accused were Berom Alo, Ponape and Yasik Yapalin. He saw the victim lying on the ground and as he tried to see who shot the deceased, Jim fired another shot aimed at him so he fled from the scene. The first shot which killed the deceased was fired by Paulin. The victim was shot on the right front side near the armpit. Later they came and collected the body and cried over it. They buried her 2 days later and reported the matter to the police some 2 days after burial. He did not give any evidence of examining the spot where she was shot to confirm the gunshot wound. They could not take the body to the hospital because of the tribal fight. Six months later, the body was exhumed for the doctor to examine.

David’s evidence was tested in cross-examination. From a close look at his evidence in chief and his answers in cross examination, I am not satisfied that he actually saw the first fatal shot which he says was fired by Paulin. He also did not actually see the second shot fired by Jim. I am however satisfied that he arrived at the scene of the shooting after he heard the gunshot blast and he saw the two accused with guns in their hands appearing near where the victim fell down near the cemetery of his two late brothers. The two accused are known to him as his uncles. The two accused also in their unsworn statements said David and Thomas are from the same village or area and are known to each other and that is why David and Thomas were able to falsely accuse them. Also they did not dispute David’s evidence that they are his uncles. There was sufficient light because it was getting towards dark. David clearly identified the two accused with reference to his prior knowledge of the two accused, their appearance, the clothes each of them wore and the guns they each held. David’s identification evidence of seeing the two accused at the scene with guns in their hands was not seriously contested, disturbed or destroyed in cross examination.

The second prosecution witness is Thomas Toko. According to his evidence-in-chief, he is a Pyain tribesman who was in Lae at this time. He heard of the death of his two clansmen and decided to come home to mourn over their death. On the day of the incident, he left Lae at 6am by PMV bus and arrived in Mt. Hagen at 1.30pm. In Mt. Hagen he got on another bust to Lakayok village. There he met the victim and they both walked up to Pulapais village where they were mourning the death of the 2 men. It was about 6pm - 6.30pm. On the way, the victim walked ahead and stood on a slope to show him the cemetery of the two deceased. Up to this point, he did not see anyone. As she stood to show him the two cemeteries, he heard a gunshot. It was fired in front of him. He didn’t see who fired the shot and he didn’t see the shot actually landing on the victim. He got frightened and fell down thinking he was being shot at and then looked up to see who fired the shot. He saw Paulin with a gun in his hand. Paulin lifted up the gun and jumped up and down in a celebrative mood saying “I used to kill”. He also heard the victim saying “mama...” and from this he assumed that she had been shot. Then Jim appeared with another gun and pointed at him so he ran away through another tribe’s land. As he was fleeing, he heard another shot being fired. There were 8 people altogether there and he only recognised the two accused. They all got up and celebrated the killing. The next day he came to Pulapais and mourned over the death of the deceased. Even though he knew she had been shot on the left hand side, he did not bother to check the exact spot of the shooting at the funeral because he was frightened of being shot at. Two days later, he reported the matter to the police.

Thomas’s evidence of identification of the two accused is also clear. He identified them by recognition from prior knowledge of the two accused, the clothes they wore, the guns they held, the distinct actions in the manoeuvring of the two the guns they held, the words spoken by Taupin and so on. There was sufficient light as it was going towards dark. The two accused in their unsworn statements admit they are known to David.

In cross examination, Thomas’s identification evidence was not seriously challenged or disturbed. The defence counsel sought to attack his demeanour by, inter alia, attacking his movements that day but I think his demeanour was not really destroyed. He was cross examined on the accuracy of his view and judgment whilst in a state of fear himself but he strongly maintained he saw them clearly when he looked up after the first shot. Except for a few pauses which show his lapse of memory on certain things, his story as to identification remains substantially intact.

In relation to the evidence of both David and Thomas, the former appears to assume that he saw Thomas. But it is clear to me he didn’t. Thomas says he didn’t see David near the scene of the killing. However this is a minor area of contradiction which does not shed any real doubt as to who was at the scene and who was not.

The defence case is not one of mistaken identity. It is one of false accusation. The principal basis on which this defence is based on is the alleged inconsistency between the medical evidence and the evidence of the two prosecution witnesses as to the cause of death resulting from a gunshot injury.

The medical report of Dr John Watts of Sopas hospital dated 18 August 1994 was admitted into evidence by consent. The report is in the form of a certified statement and was tendered in the committal proceedings. Even though the statement says it was made on oath, it was not sworn before a Commissioner for Oaths and therefore it is not in affidavit form: Oaths Affirmations and Statutory Declarations Act (Ch 317), S. 14. Nevertheless, pursuant to S. 94 (1) (B) of the District Courts Act Ch No 40, a certified statement is deemed to be an affidavit for purposes of Division III 2 (SS. 33-37 - Evidence by Affidavit) of the Evidence Act Ch 48. Pursuant to S. 37 (1) of the Evidence Act, Dr John Watts’ medical report is admissible in these proceedings and it was on that basis that I admitted his medical report into evidence. And because this medical report is critical to the defence case, I will set out the pertinent parts of the report in full:

“AFFIDAVIT OF POST MORTEM REPORT:

I, Doctor J Watts the Medical Superintendant of Sopas hospital, Wabag being Duly Sworn Make an Oath and says as follows:

QUALIFICATION: I got Bachelor of Medicine at Auckland University, Bachelor of Surgery at Auckland University and also Bachelor of Human Biology at Auckland University.

18 August 1994

To who it may concern

Post Mortem Examination on Diamon Minapin 14 years female of Pulupais village, Wabag, Enga.

The examination was performed at the grave side at 5.30pm 17 August 1994.

The body was identified to me by her brother David Minapin. He alleged that the girl was shot with a shotgun on 4th February 1994.

The body was a young female of approximately 14 years as stated. The body (was) wrapped in blankets and clothing. Significant put faction had occurred to the body but the skin was still intact. The body appeared to be well built and nourished.

The abdomen, chest and head was examined. The abdominal wall was opened in the midline and the chest was opened at the right side by cutting the ribs. There was no evidence of any disease and no evidence of shotgun injury as alleged.

COMMENT: Because of the long time in the ground it was not possible to do a detail examination. This examination can not be taken to exclude or prove death due to a single bullet (rifle) but it is reasonably certain that death was not due to a shot gun (pellets). This examination is unable to give a cause of death.

It may be more informative (sic) to re-examine the body after further decay has removed the flesh and examine the bones for evidence or pellet injury.

I, Doctor John Watts certify that this one page of the Post Mortem report is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence, I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

(signed)

Doctor John Watts

Medical Superintendant

Sopas, Wabag.”

The two accused gave unsworn statements from the dock. Both say they are being falsely accused because they are from the same area, the same village, the same council area and they are known to the 2 state witnesses. Jim goes further to say he was out of the Enga Province at the time of the offence.

Mr Dowa for both accused submits that the medical evidence clearly does not support a case of the victim dying from a gunshot injury as alleged and sought to be proved by the State. He submits that at the time of exhumation, the skin was still intact when the body was examined and operated upon by the doctor but he did not find any evidence of gunshot injury. Indeed, he is almost certain death was not due to a shotgun (pellets). He submits, this fact coupled with the failure to take the body to the hospital for medical examination and the delay in police investigating the crime and arresting the two accused 6 months after the death raises a reasonable doubt as to the two accused’s involvement in the crime and therefore, they should be acquitted.

Mr Kumo for the State submits that the two eye witnesses were consistent with their evidence as to identification and the shooting, that the medical report does not rule out the possibility of death being caused by a single rifle bullet as opposed to a gunshot pellets, that the victim was a normal healthy young girl whose death is only explicable in terms of the gunshot fired by Paulin in common purpose with Jim. He submits that the State has proved its case beyond any reasonable doubt.

The real issue before me is whether death was caused by a gunshot wound. If I find it was, then as a matter inference from the identification evidence before me, it will be safe and reasonable to infer that it was the same shot which was fired by Paulin in common purpose with Jim. If I find that the death was not caused by a gunshot wound, then there will be a reasonable doubt as to the involvement of the two accused in the crime and they will be entitled to an acquittal (because the prosecution’s only allegation is that the deceased died from a gunshot fired by Paulin in common purpose with Jim).

The question of whether the court should accept the medical evidence of Dr. Watts and if so, what weight the court should attach to the medical evidence is import in this trial. In my brief research, I have been unable to find any local cases on these points. The common law principles are well settled. It is up to a judge (or jury) to accept the evidence of a doctor and attach such weight as to it as it sees fit. An accurate summary of the common law principles is stated in Archbold, Criminal Pleading Evidence And Practice, 42nd ed. (Sweet & Maxwell, London, 1985) at p. 1012, para 14-9:

“The duty of experts ‘is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.’ Davies v Edinburgh Magistrates (1953) SC 34, 40.) Although an expert may be regarded as giving independent expert evidence to assist the Court it is wrong for the jury to be directed that his evidence should be accepted in the absence of reasons for rejecting it: R v Lanfear [1968] 1 All ER 683.”

In R v Nawell [1948] 1 All ER 744, at p. 795; 32 Cr. App. Rep. at p. 180; the Court of Criminal Appeal said:

“Our view is that the evidence of a doctor, whether he be a police surgeon or anyone else, should be accepted. Unless the doctor himself shows it ought not to be, as the evidence of a professional man giving independent expert evidence with the sole desire of assisting the Court.”

The use of the word “accepted” in the above passage raised some confusion. In R v Lanfear [1968] 1 All ER 683 at p.685, the Court of Criminal Appeal clarified the above passabe by saying:

“What that passage meant in that context was that the evidence should be treated, as regards admissibility and other matters of that kind, like that of any other independent witness; but taken out of its context, the use of the word ‘accepted’ may well, we think, give the jury a false impression of the weight to be given to that evidence.”

The common law position was perhaps forcefully put by Gordard LCJ who delivered the judgment of the Court in James Frank Rivett 34 [1950] Crim. App. R. 87. In that case, the appellant appealed against the verdict of the jury which returned a verdict of guilty to murder after rejecting medical evidence of three doctors of undoubted intergrity. They all gave evidence at the trial in support of the appellant’s defence of insanity. In dismissing the appeal, Goddard LCJ (p. 93-94):

“But the importance of this case, and it is one of importance, is that it gives this Court the opportunity to emphasise, if emphasis be necessary, two matters of cardinal importance in the criminal law...

The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a Judge, that by the law of this country the decision is to be entrusted. This Court has said over and over again that it will not usurp the functions of the jury, though it may by virtue of the Criminal Appeal Act set aside a verdict if satisfied that no reasonable jury could have found a verdict of guilty in a particular case. Here, no doubt, they had the opinion of medical men of undoubted integrity and whose qualifications none would question. But they had also the facts and the undisputed facts of all the surrounding circumstances. This is not a case where a scientific witness can say with certainty, as in the case of a bodily disease, from specific symptoms such as a rash, a coma or other physical sign that a disease exists. The jury have heard the indications that have led the medical witnesses to their conclusion; they have also heard all the other facts relating to the man and the crime, including the evidence of the doctor who saw the man very soon after it was committed. That he knew he had done wrong is evidenced by the fact that he not only told his friend what he had done and indicated the consequences that would follow to himself, but gave himself up to the police for having committed murder. Let it be assumed he suffered from schizophrenia, or whatever doctors may call it; let it be assumed that he killed the girl on a sudden impulse; a jury of his country are satisfied that he was responsible, and it is not for this Court to say that he was not.”

These principles have found acceptance in Australia. See Beim v Collins [1954] 28 ALJ 331 and Hollingsworth v Hopkins [1967] Qd R 168 and 171-172.

I do not see any reason why those common law principles should not be adopted and applied to the circumstances of our country and in particular, in the case before me.

I am not bound to accept Dr Watt’s opinion as to the likely cause of death. But I think his opinion as to the likely cause of death due to gunshot injury is a fair and reasonable conclusion. Whilst concluding with reasonable certainty that death was not caused by a shotgun pellet, at the same time he does not exclude death being caused by a rifle bullet. He implies that the visible wounds which caused by shotgun pellets would be easily visible whereas a rifle bullet would not even after the body had undergone significant amount of decay after being buried for six months. This conclusion was reached even after the left side of the ribs where the victim was allegedly shot was opened. In the absence of any oral evidence from Dr Watts explaining his findings and his conclusions, I must be careful not to place my own interpretation and conclusions on his evidence nor that of counsels. I will accept the report as it is without any addition or detraction to it. The most I can find on Dr. Watts’ medical evidence is that death arising from a rifle bullet is not excluded whereas death not arising from a shotgun pellet(s) is reasonably certain, meaning it is not completely ruled out.

That being the medical evidence, it is necessary to closely examine the oral evidence relating to the type of gun used to shoot the victim. There is no evidence from David and Thomas as to the particular type of gun held by Taupin and Jim. Thomas did not actually see the fatal shot being fired by Taupin and the bullet landing on the right front side of the victim. But then it is too much to ask Thomas or David both laymen, in the circumstances they were placed in at that time to pinpoint, with maximum precision, the type of gun used by Paulin, the shot being fired and the pace at which the shot travelled and found its target. Thomas did the best he could. So did David. Paulin no doubt used a gun. He may have used a rifle or he may have used an ordinary shotgun.

I have referred to the evidence of the two prosecution witnesses’ failure to give evidence of the exact nature and extent of the gunshot wound to her left side which claimed her life. They have not been questioned on this by the defence counsel or even the State Prosecutor. The gunshot wound from which she died appears to have been a foregone conclusion to the minds of David and Thomas. I too think it is a foregone conclusion.

At the material time, the two accused were the enemy tribesmen of the deceased, David and Thomas. The fight between the accused tribe and the victim’s tribe was in progress. The two accused and others were armed with guns and on enemy territory. They had already killed two tribesman. Therefore, their undoubted purpose for being at the scene was shoot to kill. And they had the motive to shoot to kill.

The identification evidence against the two accused is very strong. It is sworn evidence. I remind myself of the dangers of relying on the identification evidence of these two witnesses as required of me in accordance with the principles in John Beng v The State [1977] PNGLR 115. As I have said their evidence is of good quality. The two accused have not given any motive for David and Thomas giving false evidence against them in particular as opposed to their other tribesmen who no doubt were involved in the tribal fighting. As for the two accused, their evidence is unsworn. It cannot be given the same weight as the sworn evidence of the two prosecution witnesses: R v Phillips Boike Ulel [1973] PNGLR 254. Even then, their unsworn statements contains broad allegations of false accusation which do not match the quality of the identification evidence of the two prosecution witnesses.

The evidence of the shooting of the victim and as to the presence of the two accused at the scene armed with guns is clear and strong. The evidence of the celebration of the successful killing at the scene by the two accused and others, especially Paulin is also clear and very strong. The fatal shot was no doubt being fired by Paulin. I find that Paulin Taupin shot the victim with a gun, most probably a rifle, if not a shotgun. This finding is open on the medical evidence. Medical evidence is not a pre-requisite for a conviction. It is merely there to assist the Court in reaching its decision. In this case, the medical evidence does not totally exclude the use of a shotgun and leaves open the use of a rifle. There is no other hypothesis open as to the cause of death of the victim before me except the gunshot fired by Paulin in common purpose with Jim. It is the only rational inference I can draw from the proven facts: State v Tom Morris [1981] PNGLR 493; Paulus Pawa v The State [1981] PNGLR 498.

Mr Dowa relies on the failure to take the deceased’s body to the hospital and the failure of the police to investigate and arrest the two accused promptly. But these delays have been satisfactorily explained. It is not contested by the two accused that the victim died on 4 February 1994 at about 6.30pm; was buried two days later, the killing was reported to the police two days after burial, that the body would not be taken to the hospital because of the tribal fight and that the body was exhumed 6 months later and a medical post mortem done at the site. The police could not come in and apprehend suspects in the middle of a tribal fight in which firearms were involved. The doctor who exhumed the body is from Sopas hospital. The two accused are Sakaron tribesman and their village is Sopas. From this I infer that Sopas hospital is situated on the two accused’s village. Therefore, it is true that David could not take the victim’s body to Sopas which is situated in enemy territory whilst the tribal fight was still going on.

In all the circumstances, I am satisfied beyond reasonable doubt that Paulin Taupin shot the deceased with a gun and at the time he fired the shot, he intended to cause grievous bodily harm and that the deceased died from the gunshot injury she received to her body. I am also satisfied beyond reasonable doubt that Jim Kandamain acted in common purpose with Paulin Taupin: Code S. 8. I find them guilty of murder pursuant to S. 300 (1) (a) of Code.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Paulus M Dowa