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Muar, Regina v [1965-66] PNGLR 64 (14 May 1964)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 64 - Regina v Muar-Enk

[1965-66] PNGLR 64

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

MUAR-ENK

Mendi

Ollerenshaw J

12-14 May 1964

CRIMINAL LAW - Attempted unlawful killing - Evidence - Whether sufficient to enable Crown to discharge onus of proof - Justices Ordinance, 1912 (amended), ss. 92, 93 and 99 - Criminal Procedure Ordinance of 1899, s. 31.

In a trial on a charge of attempted unlawful killing the only evidence admitted for the Crown was a statement of the accused to the committing magistrate and the evidence of a doctor who treated the victim prior to the victim’s death from bronchial pneumonia. No evidence was called for the accused but counsel submitted that the Crown had not sufficiently identified the victim of the accused’s attack and had not discharged the onus of proving criminal responsibility because of the possibility that the weapon was used in self-defence and the other possibility that it was used under provocation.

Held:

That the Crown had discharged its onus of proof.

Trial on Indictment.

The facts are sufficiently stated in the judgment.

Counsel:

Croft, for the Crown.

Germain, for the accused.

14 May 1964

OLLERENSHAW J:  The accused person, Muar, is charged under s. 306 of the Code that on the thirteenth day of August, 1963, she attempted unlawfully to kill her husband, Iok, the son of Tombela. Section 4 says what an attempt is.

There is an alternate count charging that with intent to do some grievous bodily harm to Iok she unlawfully wounded him.

The Crown alleges that, near their home at the village of Angamanda, Muar attacked her husband with a steel axe - which I take to be the light type of axe in common use amongst natives and sometimes called a “tomahawk” - inflicting four wounds upon him, of which one, across the top of the skull, was a very serious wound. It was six inches in length and involved bone and brain substance, going in to a depth of threequarters of an inch for part of its length. Another, to the lower part of the left forearm, was also a serious wound, going three inches around the arm and severing the ulna and a number of ligaments in association with it. The two other wounds, one over the left lower chest and the other over the left hip bone, involved superficial structures only.

Two alleged eye-witnesses of the encounter, Iok himself and Maki-Manti, the mother of the accused, gave evidence before the learned magistrate at Mendi, who committed the accused person upon the charge of attempting unlawfully to kill. Since then they have both died, Iok from bronchial pneumonia, which came on while he was in hospital, here at Mendi, recovering from his wounds.

The deposition of Maki-Manti was tendered in evidence, objected to and not admitted. The statement, made by the accused person to the committing magistrate on the 25th September, 1963, was tendered and admitted, after objection. It reads:

“We have had three children and of these two have died and one is still alive. The eldest child used to help with the work but has died. I am still cross about my two children dying and my husband was cross and said that I had collected green firewood which was no good. Iok took a bush knife to cut me but I pulled it from him and threw it into the sleeping room of the house. He then took a tomahawk and went to hit me but I pulled it from him and cut him. One of the things I was cross about was that someone gave me a pig in compensation for a garden which was destroyed. I looked after the pig and was going to give it to my mother but Iok took it. I was cross about my two children dying and also about the pig.”

The Crown called Colin Lindsay Mathews, the doctor in charge of the hospital, who examined Iok soon after he received his injuries, operated upon him and had him under his care.

This witness described the wounds and also the deformities of Iok, due to long-standing leprosy, and said that when he first saw Iok he considered that he had about a fifty per cent chance of survival and that, without immediate access to medical attention, the chance of survival would have been about ten per cent. He also said that considerable force would have been required to inflict the skull and arm wounds.

The case for the Crown depends upon the statement of the accused to the committing magistrate and the medical evidence.

Although Mr. Germain, who appears for the accused, indicated the possibility of the defences of self-defence and provocation, the accused person did not give evidence or make an unsworn statement and no evidence was adduced in defence.

Mr. Germain submits: (a) That the patient known to the doctor as Iok has not been sufficiently identified as the victim of the accused’s attack; (b) that the Crown has not discharged the onus of proving criminal responsibility because of the possibility that the weapon was used in self-defence; and (c) the onus has not been discharged because of the possibility that it was used under provocation.

I am completely satisfied that the doctor’s patient was the husband of the accused and the victim of her attack.

The statement of the accused, Exhibit “A”, admits her use of the weapon upon her husband and I accept this. In this statement she said, in effect, that she “cut” him with the “tomahawk”. Although the use of the word “cut” in this context, when used by a native of these parts, not infrequently means, in effect, “cut him unto death”, Mr. Croft, for the Crown, does not rely upon that but upon the weapon used, the nature and number of the wounds and the force with which they were inflicted. Particularly, he relies upon the wound to the skull. The wound to the lower part of the arm may have been received in an endeavour to protect his head but no matter. I find the medical evidence quite convincing and, in the circumstances, I am completely satisfied that the wounds were inflicted with intent to kill.

Coming to self-defence and provocation:

Mr. Croft asks me to disbelieve the accused’s explanation of the encounter, contained in her statement, particularly because she has not given evidence.

It may be that she has exaggerated her husband’s part, but, as I see it from the statement, she took the knife from him and then the tomahawk. He was a leper. Although the disease was not active, he had had it for many years and it had left him with deformities, particularly the limited dexterity in his hands, which the doctor described. She is a very sturdy person, appearing to me to be in the thirties and more like a man than a woman. She is not at all tall but her shoulders are broad and the muscles of her legs and arms are extremely well developed.

I consider that the Crown has discharged the onus. I am not left in any doubt in favour of the suggestion of self-defence and I conclude, too, that the onus has been discharged with regard to the possibility of provocation. I am not in any doubt in favour of provocation in this trial.

I am satisfied beyond reasonable doubt that the accused person attempted unlawfully to kill her husband and I find a verdict of: Guilty, upon the first count, and, I convict the accused accordingly.

Verdict: Guilty.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

Editorial Note: As appears from the judgment, his Honour admitted in evidence against the accused person that the statement that she made before the magistrate who committed her for trial, his Honour holding that such statement was admissible pursuant to ss. 92 and 93 of the Justices Ordinance, 1912, and his Honour rejected the deposition of the deceased victim of the assault, tendered under s. 99 of the Justices Ordinance and s. 31 of the Criminal Procedure Ordinance of 1899.

The accused applied to the High Court of Australia for leave to appeal but the application was refused by the High Court on the 31st August, 1964 (112 C.L.R. 672). His Honour’s notes of evidence contained a note that it was conceded on behalf of the Crown at the trial that the Crown could not prove that the accused person was expressly invited by the magistrate to cross-examine the witnesses who gave evidence in the committal proceedings.

As appears from the transcript of the hearing of the application for leave to appeal, it was submitted unsuccessfully for the accused that, being a primitive native, uninvited to or otherwise uninformed of her right to cross-examine the witnesses, she had not had a proper opportunity of doing so and that, therefore, her statement was wrongly admitted in evidence by the trial judge.

It should also be noted that whereas s. 99 of the Justices Ordinance, the section that provides for the admission in evidence of certain circumstances admissibility that the accused person should have had “a full opportunity of the deposition of persons dead or absent, requires as a condition of of cross-examining the witness”, s. 93, which provides for the giving in evidence of the accused’s own statement, contains no such requirement. Further, s. 31 of the Criminal Procedure Ordinance of 1899 expressly confers a discretion upon the trial judge to permit or forbid the deposition of a deceased person to be given in evidence.

MEMORANDUM BY OLLERENSHAW J.

I have considered whether I should add this note to what I said at the conclusion of this trial and I have decided to do so.

Upon her arraignment, in which, in the case of each count, the essential elements of the offence were included, together with some details, sufficient to identify to her the time and place, the accused replied, as to the first count: “True” and as to the second: “True, I did it”. It seemed to me that she added to her first: “True”, the words: “I did it”, because she did not appreciate why she was being asked about the incident a second time.

When Mr. Germain announced his appearance he applied that pleas of Not Guilty be entered. After hearing both counsel I entered a plea of not guilty to each count, more particularly because of counsel’s intimation of the possibility of the defences of self-defence and provocation.

In his final address, Mr. Croft submitted that I should take into consideration, in determining the question of guilt, the responses of the accused upon her arraignment, to the extent of regarding them as an admission that the accused was the assailant, while leaving open the matters of self-defence and provocation.

I said to Mr. Croft that a somewhat similar submission had been made to me for the Crown in a trial during, I thought, my first circuit, a trial for wilful murder, in which, upon application by counsel for the accused with the concurrence of counsel for the Crown, I had entered a plea of not guilty. Little, if any argument, was advanced in support of the submission and I then expressed the view, as a matter of first impression, that if the trial were being conducted with a jury the arraignment and responses of the accused would not have been heard by the jury, and I rejected the submission. I also said to Mr. Croft that, although it had occurred to me since then that I should give the matter further and fuller consideration, I had not had proper occasion to do so and that I did not consider that this trial at Mendi provided such an occasion. Mr. Croft informed me that he was aware of my earlier ruling and that he was taking the point formally and did not propose to press it. In the circumstances Mr. Germain properly refrained from submitting any arguments in support of my previous ruling.

I am adding this note here because I wish it to be understood generally that I am open to review my previous ruling when a suitable occasion arises and that I would then expect the assistance of fully informed argument by counsel. While it may seem that there is something to be said for Mr. Croft’s point that a response, such as was made by the accused in this trial, to a carefully framed arraignment could be taken as an admission of the identity of the hand that killed or attempted to kill and so on, I would mention here a recent trial in Rabaul in which I acquitted an intelligent Chimbu native, who pleaded, to a charge of wilful murder, that he had done it, and later went into the witness box and described in detail the circumstances in which, and how he had done it. At the conclusion of the trial I was convinced that he had not done it and I acquitted him.