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Jaminyen, Regina v [1967-68] PNGLR 209 (27 October 1962)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 209 - Regina v Jaminyen-Urinjimbi and Sirinjui-Biagwei

[1967-68] PNGLR 209

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

JAMINYEN-URINJIMBU AND SIRINJUI-BIAGWEI

[NO. 2]

Wewak

Smithers J

26-27 October 1962

CRIMINAL LAW - Wilful murder - Killing - Accident - One native discharged spears - Native knew another native probably would throw spears - Whether first native “killed” victim - Throwing spears unlawful act - Actions of second native independent of will of first native - The Criminal Code, ss. 23^*[cclxxvi]¹, 293^*[cclxxvii]^2*, 301^*[cclxxviii]^3** .

The accused decided to discuss with Nami the killing of other natives. As the accused approached Nami, the first accused decided to kill him and threw four spears into Nami. There was no common purpose between the accused comprehending the killing of Nami, but the first accused knew that, by reason of native custom, if he threw his spears it was probable that the other accused would also throw spears he was carrying. The second accused threw four spears into Nami who was, by that time, lying in the water of a river. Nami died as a result of some of the spear wounds but the evidence did not allow an inference to be drawn to establish which accused threw the spear or spears which killed. The first accused stated that he killed Nami.

Held:

(1)      The first accused caused the death of Nami either directly or indirectly and under s. 293 of The Criminal Code he killed Nami whether the fatal spear was thrown by himself or the second accused.

(2)      Section 23 of The Criminal Code did not avail the first accused as the throwing of the second accused’s spears was not an event which occurred independently of the first accused’s will which extended to the known likely consequences of his deliberate act.

(3)      The first accused’s statement that he killed Nami did not resolve the factual ambiguities of the case.

(4)      The first accused’s action in throwing his spears was an unlawful act directly or indirectly causing the death of Nami and as the first accused intended to cause that death he was guilty of wilful murder of Nami under s. 301 of The Criminal Code.

(5)      The evidence being such as not to enable a finding to be made beyond reasonable doubt that the second accused did anything but to a dead body, the second accused should be acquitted.

Criminal Trial.

Pursuant to the order of the High Court of Australia made on 3rd April, 1962^#[cclxxix]⁴ Jaminyen-Urinjimbu and Sirinjui-Biagwei were tried with the wilful murder of Nami on 12th October, 1961. Further facts appear sufficiently in the previous report and hereafter.

Counsel:

Bowen, for the Crown.

Cruickshank, for the accused Jaminyen-Urinjimbu.

Barnett, for the accused Sirinjui-Biagwei.

Cur. adv. vult.

27 October 1962

SMITHERS J:  In this case the accused Jaminyen and Sirinjui are charged with the wilful murder of one Nami-Wamangai on 12th October, 1961.

The evidence shows that Jaminyen and Sirinjui were men of the village of Aunyalim. Aunyalim is one of a number of villages situated in an area fairly near an Administration centre known as Maprik. It is about eight miles from Maprik. One of the neighbouring villages is Gwalim, some eleven miles from Maprik and about two miles from Aunyalim. The villagers of Aunyalim and Gwalim were enemies. Of the villages in the district about half would be friendly to Aunyalim and half to Gwalim. The villages in alliance with each other are against the other villages which were in alliance against them. The village enmities lie deep in the past.

To the native men there can be no such thing as a natural death. Each village therefore knows that when some member thereof dies it is as the result of sorcery worked by some member of some other village which is identified in some way. When a member of another village dies that will be treated as punishment; it will be treated as a death worked by the sorcery of a member of the first village. Sometimes the score is evened or made uneven by spear incidents and these may well be followed by other spear incidents in reprisal. Alongside this set of circumstances is the fact that to the native to kill a man raises the prestige of the killer, and the natives generally have a disposition to take part in any killing which may be in progress. By tradition, also, in a case where an armed group of villagers come upon an enemy who is attacked and disabled by one of themselves, it is customary for all members of the armed group to concentrate upon throwing their spears into the wounded or dead victim, not necessarily to kill but to share in the event. The spears will be thrown to the limit of their supply. The event of death is not recognized as relevant to continuance of the performance. Although this is the tradition, its operation has become affected by the law of the Government which forbids killing.

Some short time before 12th October a “tanket” was received by Sirinjui. A tanket is a symbol in the nature of a pledge of genuineness or a summons, and together with the tanket or in some way in connexion therewith, a message was conveyed to Sirinjui purporting to come from Nami. The burden of the message was, that Sirinjui and Jaminyen meet Nami at a creek forming the boundary between the area of the two villages with a view to discussing the proposition, if not arranging, that Sirinjui and Jaminyen should kill two of the villagers of Gwalim called Rubugum and Waranje. Nami was a villager of Gwalim and this message evidenced a highly traitorous attitude to his own people on the part of Nami.

On receipt of this message Sirinjui told Jaminyen of it and gave him the tanket. Jaminyen reported the matter to Wambengen, one of the senior men of the village called a tul-tul. The tul-tul told Jaminyen that he should not go, that the men of Gwalim who had been responsible for killing his brother had been punished and more trouble was not desired, and “we stay here”. As a result, Sirinjui and Jaminyen did not go to meet Nami and Jaminyen told Sirinjui that “we should not do it”.

Shortly afterwards, however, Sirinjui informed Jaminyen that he had received another tanket from Nami requesting them to meet him at the same land mark between the two villages. Jaminyen said to Sirinjui, “All right we will go”. This time Wambengen was not informed. Jaminyen and Sirinjui went to their houses to sleep. The next morning Jaminyen took four spears and went off to get Sirinjui. Sirinjui took four of his spears, and after some time spent in talking, they set off together to the rendezvous. Jaminyen came to the rendezvous and saw Nami squatting in the stream having a wash. Nami did not see Jaminyen. Jaminyen approached quite close to Nami and then remembered that Nami’s brother had held his, Jaminyen’s, brother a year before when Gwalim villagers killed him. Jaminyen says that this memory caused him to be unable to think straight, so he threw his four spears into Nami. After two spears had hit Nami, he screamed out and fell into the water. Sirinjui was standing quite close to Jaminyen when Jaminyen threw the spears and after Jaminyen had thrown his four spears, Sirinjui threw his four spears into Nami as he lay in the water. Jaminyen extracted three of his spears and Sirinjui extracted two of his and they ran away together. Jaminyen told Sirinjui that he was going to Maprik to report what he had done. That night he told Constable Simun that he had killed Nami.

Jaminyen is guilty of wilful murder if he unlawfully killed Nami intending to cause his death (s. 301). He is deemed to have killed Nami if he caused his death directly or indirectly by any means whatever (s. 293).

It is clear that Nami died either by drowning or by injury to a vital organ as the direct result of being struck by one or more of the eight spears thrown at him by Jaminyen and Sirinjui. It is not possible to draw any inference as to whether death was caused by any particular spear or by the joint effect of any particular spears, and it is not possible to say by whose hand or hands the spears which caused the death were thrown.

There were three spears, any one of which might have caused death or the joint effect of any two of which, or of all of which, might have caused death. These were the three spears, one which entered the chest over the left anterior thorax, another the left ancillary line of the left thorax, i.e., the left side about the middle of the ribs, and another the mid lumbar spine.

The medical evidence was scanty and unskilled. I say this with full respect to the medical assistant who was called and gave evidence. The training and qualifications of this witness did not enable him to speak as to various relevant matters and he did not pretend to the contrary. Within the limits of his knowledge and experience he gave the court as much assistance as he could. On the evidence however I am unable to say whether death would have occurred swiftly or otherwise as a result of any of the particular spears, and I am certainly not satisfied that Jaminyen threw the spear which entered the chest over the left anterior thorax. This may have been the effective thrust. If so I am unable to draw the inference that the spear or spears which killed Nami were thrown by Jaminyen. Equally I am unable to draw the inference that the spear or spears which killed Nami were thrown by Sirinjui.

There is no evidence of any common purpose existing between Jaminyen and Sirinjui which comprehended the killing of Nami, and I am not satisfied that Jaminyen knew that if he threw his spears Sirinjui would inevitably throw his.

I am satisfied however that Jaminyen knew that if he threw his spears it would create a situation in which it was probable that Sirinjui would be involved and would throw his spears. This could happen in a number of ways: (i) that Sirinjui would react in the traditional way if Nami were disabled; (ii) that Sirinjui would act as Jaminyen’s ally if Nami were not disabled and fought back; (iii) that Sirinjui would join in if Nami were not disabled and fled.

I think his knowledge follows from the following:

(1)      It is traditional that an enemy of the group who is disabled will be speared to the limit of available spears by those present as well as the member who first brings down the enemy;

(2)      It is traditional that the spears will be thrown by the others whether the victim is dead or otherwise;

(3)      This spearing of victims proceeds from a desire to be associated in the killing;

(4)      Nami was an enemy in the sense that he was a member of an enemy village;

(5)      Jaminyen and Sirinjui were persons closely associated in an exploit in which at least there was an element of unlawfulness and in which at least a highly unlawful activity involving two reprisal murders was under consideration. There must have been between them a bond of comradeship flowing from their being common villagers and friends required in a general way to trust each other and to be loyal to each other. They were “one party” in the two party talks which were going to take place.

(6)      There was need for Jaminyen and Sirinjui to be alert to act together if there was an ambush. On any view of the facts Nami was a treacherous person;

(7)      The possibility that Jaminyen and Sirinjui as a party would have to take action against Nami if he double-crossed them was real;

(8)      If Jaminyen attacked Nami it would be natural for Sirinjui to think that Jaminyen was shooting for good reason and for Sirinjui to accept as a fact that Nami had passed from the role of a friendly conspirator to that of an enemy;

(9)      No matter how capricious Jaminyen’s action, Jaminyen would regard Sirinjui as one to be relied on for active support if a fight developed;

(10)    Jaminyen knew all these things.

It is said that my conclusion even if valid in past days is not justified by reference to October, 1961. The reason given is that the Government law that there is to be no killing is recognized, the tradition has therefore evaporated and no native in Jaminyen’s position would expect another native to act in accordance with the tradition.

I think a jury would interpret the statement of Wambengen that spears are not now thrown in accordance with the tradition as meaning rather that there is no spear throwing now and therefore the tradition has no scope rather than that the tradition is dead. I interpret the effect of the evidence on this question as establishing that the laws operate to discourage spear killings and that the scope for the custom of throwing spears into another’s victim has thereby been reduced, but that when once a spear killing has commenced there is a strong probability that the disposition of those present to throw their spears will assert itself modified only by the degree of respect for the law of the persons concerned. In this case both Jaminyen and Sirinjui had already exhibited lack of respect for the law.

They were on a joint journey which they would not have undertaken had they not each to the knowledge of the other been favourably disposed to disregard the law prohibiting killing. Jaminyen knew therefore that Sirinjui was a person influenced by tribal requirements to kill notwithstanding the laws. Their whole journey was one which implied disrespect for the law. They had refrained from consulting Wambengen about the second tanket for that very reason. It has to be remembered that the tribal tradition is much more than a tradition—it is a way of life. Jaminyen must have known that whatever other natives might do, the chances of Sirinjui resisting the tradition on this expedition at this stage if he, himself, indulged in killing in his company, were slim.

Jaminyen’s murderous attack on Nami was itself a repudiation of the law; a repudiation consistent with the spirit of their whole expedition.

When Wambengen was asked what would happen in a case in which men are following one another and the first throws his spears and knocks another man out, he answered instantly and emphatically—“The other men will throw their spears.” There was no suggestion in this that it related to former times.

The question then arises whether I am satisfied that the throwing by Jaminyen of his spears and the disabling of Nami caused Sirinjui to throw his. I do not think there is any other reasonable hypothesis. Sirinjui’s action in my view was the natural and probable result of Jaminyen’s action.

If Sirinjui’s action was not prompted in the most direct way by Jaminyen’s what reason actuated him to throw his spears?

It seems to me impossible to think that he had a sudden independent urge to strike down the man with whom they were to confer.

There seems to me no explanation of his conduct other than a desire to be associated with the killing. At the time he fired there was no necessity to fire in self defence or defence of Jaminyen.

In this Territory there is nothing very surprising in the action of Sirinjui. The disposition of natives to join a killing for prestige purposes is well known.

A jury of Australians knowing the Territory would have little doubt that Sirinjui joined in because Jaminyen was killing. A native jury would have no doubt at all.

In the circumstances therefore Jaminyen fired intending to kill knowing that it was probable that his action would cause Sirinjui to throw his spears. Sirinjui did throw his spears because Jaminyen fired his and Nami died either as the result of injuries suffered from Jaminyen’s spears or Sirinjui’s spears or the joint effect of spears thrown by Jaminyen and Sirinjui.

In my opinion this constituted a killing by Jaminyen of Nami directly or indirectly.

The unlawful act of Jaminyen was the throwing of his spears in these circumstances and it was that act which either caused the death directly or indirectly.

Section 23 does not avail the accused Jaminyen. The throwing of Sirinjui’s spears was not an event which happened independently of his will. Jaminyen’s will extended to the known likely consequences of his deliberate act. In this case the known likely consequence was that Sirinjui would throw spears into the body, that such spears would be likely to kill if Jaminyen had not himself already caused death by his spears. It was also Jaminyen’s will that Nami should die. Accordingly Jaminyen performed an act designed to kill with knowledge that that very act would probably cause Sirinjui to perform an act which would in all probability accomplish the killing if Jaminyen’s act failed.

It has been urged upon me that in some way Jaminyen’s statement that he had killed Nami should be treated as resolving against Jaminyen the factual ambiguities of this case. I do not take this view. If there is a reasonable hypothesis by reference to which the use of the words are explicable on a basis favourable to the accused, the accused should be given the benefit thereof. It may be that Jaminyen wrongly assumed that when Nami threw up his hands and fell into the water, he was dead. I am unable to be sure that Jaminyen’s knowledge of Nami’s life or death at that stage was any better than mine. It is quite possible therefore that Jaminyen’s words were based on a mistake of fact. In assessing the effect of his words this possibility must be regarded. Therefore I do not interpret this particular statement of Jaminyen’s in a way which gives me any assistance in my problem.

In case it is of relevance there is no doubt whatever that Jaminyen was guilty of attempting wilfully and unlawfully to murder Nami.

So far as Sirinjui is concerned, I am unable to find beyond reasonable doubt that he did anything but to a dead body. He was engaged in no common purpose with Jaminyen to kill Nami.

I do not see how be can be found guilty under ss. 7 or 8 and he will therefore be acquitted.

Verdicts:

Jaminyen: Guilty of wilful murder.

Sirinjui: Acquitted.

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

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

[cclxxvi]* Section 23 of The Criminal Code provides: “...a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident...”

[cclxxvii]** Section 293 of The Criminal Code provides: “Except as hereinafter set forth, any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person”.

[cclxxviii]*** Section 301 of The Criminal Code provides: “Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder.”

[cclxxix]# [1967-68] P. & N.G.L.R. 198.