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Boto [No 2], Regina v [1967-68] PNGLR 448 (24 October 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 448 - Regina v Fum Boto [No. 2]

[1967-68] PNGLR 448

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

FUM BOTO AND OTHERS

[NO. 2]

Goroka

Frost J

14-18 October 1968

21-24 October 1968

CRIMINAL LAW - Wilful murder - Motive as evidence of complicity - Accessory before the fact - Necessity for evidence of commission of offence - Desirability of calling discharged accused as Crown witness - The Criminal Code, s. 7(d)^*[dlxix]1.

Crown evidence admitted (see R. v. Fum Boto [No. 1], [1967-68] P.& N.G.L.R. 435) tended to establish that each of the six male accused and others attended a meeting held shortly before the death of the deceased at which it was agreed that the deceased should be killed by a hammer brought along by one of the accused. At this meeting there had been some discussion on a method of killing which involved a piece of wire. The deceased was believed to be a sorcerer responsible for the deaths of relatives of the accused. Medical evidence established that the deceased died as a result of head wounds which might have been inflicted by a hammer. A piece of wire similar to that produced at the meeting was found near the deceased’s body. A Crown witness gave evidence that he had lent a hammer to one accused who produced it at the meeting and another of the accused had subsequently returned it to him with the statement: “They have killed Kavaiu with your hammer.”

Held:

(1)      Although evidence of motive was admissible against the accused such evidence did not establish that any of the accused were responsible, either as principals or as accessories, for the death of the deceased.

Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, referred to.

(2)      The remaining evidence failed to establish whether one or more of the six male accused murdered the deceased or which person or persons murdered him. The Crown had failed to prove that any person was both counselled and procured and also committed the murder and this was a necessary ingredient in a charge based on s. 7(d) of The Criminal Code. The evidence did not establish anything more than a mutual agreement to kill.

Surujpaul v. The Queen (1958), 42 Cr. App. R. 266, referred to.

Desirability of Crown offering no evidence or filing nolle prosequi against one or more of a number of accused for the purpose of calling the discharged person or persons to give evidence for the Crown considered.

R. v. O’Donnell (1857), 7 Cox’s C.C. 337, applied.

Trial.

This was a continuation of the trial of the seven accused on the charge referred to in R. v. Fum Boto [No. 1] [1967-68] P. & N.G.L.R. 435. The facts appear sufficiently from the judgment.

Counsel:

Gajewicz, for the Crown.

Flood (with him Lindsay), for the accused.

Cur. adv. vult.

24 October 1968

FROST J:  The seven persons mentioned in the indictment, Fum, a female native aged about seventeen and the six male accused are all charged with the wilful murder, on or about 9th June, 1968, of one Kavaiu.

Originally one Beguman was also charged, but the Crown was unable to call any evidence against him, so I acceded to the Crown Prosecutor’s application made during the course of the trial, that Beguman be acquitted to enable the Crown to call him as a witness against the remaining accused, as was done. In making the order and permitting Beguman to be called as a witness I followed a decision of the Court of Criminal Appeal of Ireland: R. v. O’Donnell[dlxx]².

The cornerstone of the Crown’s case was evidence of complete confessions made by the accused persons to Mr. Newport, then a Sub-Inspector of Police, and Sub-Inspector Thackeray, but for the reasons I gave and after hearing the evidence on the voir dire, I held that the confessions made by the accused persons Fum and Falupa were inadmissible. As the other confessions had been obtained apparently under the same circumstances, the Crown did not call evidence of confessions made by the other accused.

The accused persons did not give evidence or call witnesses or make statements.

So the decision I have to make, in the case of each of the seven accused, is whether the Crown has satisfied me, upon the remaining evidence, beyond reasonable doubt that such accused was one of those who caused the death of the deceased intending to kill him.

Now the deceased man, the native witnesses and the accused all come from the neighbourhood of the village of Yagusa in the Lufa sub-district, south of Goroka. The country is hilly and difficult, the soil infertile, and the condition of the people, their houses and diet, is rather poor. Living in their remote situation, dependent almost entirely on the limited produce of their gardens and with no cash crops, they are less sophisticated than the other people of this district. Recently the Administration has established a school at Nupurua, and I believe that the people appreciate this. They share the belief, common in the Highlands, that unexplained deaths are due to sorcery worked by evilly disposed persons. Of recent years there appears to have been a number of deaths of apparently able-bodied men which the people from the hamlets around Yagusa believed must have been due to sorcery. These deaths were attributed to the unfortunate deceased man, who lived at Lakaiu village and was reputed to be a sorcerer. This led the people from the neighbouring villages, who had lost relatives, and who feared the deceased, to talk about killing him “in pay back”.

I accept Dr. Bridgewater’s evidence that Kavaiu died, as he estimated the date of death, on or about Sunday 9th June, 1968, and that his death was caused by four wounds to the head, two of which penetrated the brain, all of which were consistent with having been caused by a hammer. I am satisfied also that, during the few days prior to Sunday 9th June, 1968, there was a meeting of a number of men from Yagusa and Havagabetna villages in the house of the accused man Ianotda at which it was decided to kill Kavaiu, in pay back. This meeting was attended by each of the six male accused, but I am satisfied that other men were also present, who were a party to the plot, and I refer not only to the witnesses called by the Crown, Tumesa, Banipi, Yeme-Yeme, Itebi and Beguman, but also Anagu and Abate and other men whose names were not mentioned. I am satisfied also that it was discussed at the meeting that the deceased should be killed by means of wire inserted through the armpit into the chest of the victim, whilst the victim was unconscious, and then withdrawn which is the practice known by the people of these parts as Sangume. Indeed a piece of wire generally thought by the plotters to be not firm enough, was produced at the meeting. But in the end it was agreed that the deceased should be killed by means of a hammer, which had been brought along by the accused Kivio. The only other evidence against the six accused men generally and also the accused Fum was that on 13th June, 1968, the deceased’s dead body was found near a garden called Duto, the signs on the ground indicating that it was there that he had received the injuries from which he died, and that a piece of wire, similar to that produced at the meeting, was found in the immediate vicinity.

The evidence against the accused Fum, which I accept, was that Falupa asked her to persuade Kavaiu by means of a trick to go to a place where the others would kill him, and that she agreed to do this. It was her primitive belief that the deceased had caused her father’s death by sorcery.

There was also a single piece of evidence which was admissible against the accused man Apato only. Avi gave evidence that Kivio had borrowed his hammer, and that it was later returned to him by Apato. At the time Apato told him, “They have killed Kavaiu with your hammer. After they have killed Kavaiu, they brought your hammer and I have kept it.”

This was the hammer produced at the meeting, and was the sort of instrument which Dr. Bridgewater said could have been used to cause Kavaiu’s wounds.

Now these were the remaining facts, established as they were by a number of witnesses, which the Crown presented to the Court in proof of the guilt of the accused. Mr. Gajewicz strongly relied on the motive that each of the accused had in “paying back” the deceased for the death of relatives whom the accused believed deceased had caused by sorcery, and the plot to kill him. His argument was that because they had a motive and plotted to kill him, and the death was consistent with having been caused by a hammer, their chosen weapon, and a piece of wire similar to the one they had discussed was found near his body, this was evidence that they had carried out their intention. Alternatively some unidentified accused had killed the deceased, and the other accused had counselled or procured his death, and were thus guilty under s. 7(d) of The Criminal Code.

Mr. Gajewicz relied strongly on Plomp v. The Queen[dlxxi]³. The relevant portion of the headnote is, “on a charge of wilful murder proof of the accused’s motive for the killing may with all the other circumstances be used as evidence both that the deceased was killed and that the death was occasioned by the accused, and it is not necessary to prove that some act of the accused was responsible for the death before evidence of his motive for the killing can be used to prove his guilt”.

But I would refer to the following passage in the judgment of Dixon C.J.:

“There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case”[dlxxii]⁴.

A similar position arose before the Privy Council in Surujpaul v. The Queen[dlxxiii]⁵, which was relied on by Mr. Flood. In that case the appellant was jointly charged and tried together with four others for the murder of a police constable. The case for the prosecution was they had jointly planned to rob the overseer of an estate of the wages of the workers, and that the police constable was shot whilst escorting the overseer. The appellant was acquitted as a principal, but convicted as accessory before the fact. The four other accused were acquitted both as principals and accessories.

Mr. Flood relied on the following passage from Lord Tucker’s judgment:

“In the present case it was essential to the conviction of any one of the accused as accessory before the fact for the Crown to prove that he had counselled, procured or commanded one or more of the other accused persons to murder (the deceased) and that such person or persons had in fact murdered (the deceased). By their verdict the jury have found that murder by any one of the accused has not been proved, but none the less the appellant was guilty of having counselled one or more of them to commit murder and that one or more of them, unspecified, in fact committed it. This certainly appears, at first sight at any rate, an inconsistent and contradictory verdict”[dlxxiv]⁶.

Now in fact here the Crown have quite failed to prove, having regard to the remaining evidence, even whether one or more or six men murdered the deceased, or which person or persons murdered him. The mere fact that a hammer could have caused the deceased’s wounds, and that the wire was found near the body, points to no specific person or persons as having committed the murder. It could have been any one or more, not only of the accused, but also of the other plotters at the meeting, or indeed any of the revengeful villagers.

So far as the case of counselling and procuring is concerned, I am not satisfied on the evidence that there was any more than a mutual agreement to kill. Further the Crown have failed to prove that any person was both counselled and procured and also committed the murder, as the Privy Council held is necessary.

As far as the accused Akueba, Falupa, Kivio, Ianotda, and Waiotnama are concerned, accordingly all that the Crown has proved is a plot to kill. There is no proof that any or some or all carried out the plot, so there is no evidence whatever against them which could be left to a jury. As Mr. Flood submitted, the proved fact that two of the plotters, Sevato and Beguman, both originally on the indictment, were sick and certainly took no part in the murder is graphic illustration, if any were needed, of the practical proof of the truth of this conclusion. They must be acquitted.

So far as the accused Fum is concerned, there is no evidence whatever that she carried out the part she had agreed to play in the plot, and she must be acquitted.

The case against Apato is different from the others. He admitted that after the murder he was in possession of the hammer which he stated had been used to kill the deceased; and this taken with the evidence that he was a party to the plot to kill Kavaiu would be some evidence of guilt. But he stated to Avi that “they” (unnamed) had killed the man, meaning others not including himself, and had brought him the hammer, and as this is an hypothesis of innocence not excluded, he also must be acquitted.

Now this case has continued over nine sitting days and at considerable public expense. According to the statements made to the police by the accused Fum and Falupa, which I held to be inadmissible, it was a cold-blooded murder perpetrated by the male accused persons after Fum had led Kavaiu to the ambush. The Crown must have known that the statements had been taken in plain breach of the Judges’ Rules, which are laid down for the protection of accused persons, and that accordingly there was a risk that the statements would not be received in evidence, and the prosecution thus fail, as it has. In situations such as this, it is usually considered that the interests of the administration of justice are best served by the Crown taking the course of calling no evidence or filing a nolle prosequi against one or more of the accused, who after being thus acquitted or discharged, is then called to give evidence against the others, with the possibility at least, that the remaining accused or some of them will be convicted, rather than that all should go scot free. (Archbold, Pleading, Evidence and Practice in Criminal Cases, 35th ed. (1962), par. 1307; Cross, Evidence, 2nd ed., 149-150.) But no reason was given nor does it appear why this procedure was not adopted.

Verdict: All accused acquitted.

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

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

[dlxix]* Section 7 of The Criminal Code provides: “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:

(a)        Every person who actually does the act or makes the omission which constitutes the offence;

(b)        Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)        Every person who aids another person in committing the offence;

(d)        Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.”

[dlxx](1857) 7 Cox’s C.C. 337.

[dlxxi](1963) 110 C.L.R. 234.

[dlxxii](1963) 110 C.L.R., at p. 242.

[dlxxiii](1958) 42 Cr. App. R. 266.

[dlxxiv](1958) 42 Cr. App. R., at pp. 269, 270.