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Koinbondi, Regina v [1969-70] PNGLR 194 (9 February 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 194 - Regina v Namiropa Koinbondi

[1969-70] PNGLR 194

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

NAMIROPA KOINBONDI

Goroka

Clarkson J

3-4 February 1970

9 February 1970

CRIMINAL LAW - Murder - Evidence - Onus of proof - Degree of persuasion - Uncorroborated confession by accused - Another likely suspect.

The accused, a village native probably not more than fourteen years old, was charged with the murder of his foster mother. The prosecution case rested on a number of unretracted admissions made by the accused shortly after the murder had taken place. The police had accepted the accused’s admissions, and consequently had not fully investigated the circumstances surrounding the death. The deceased had been slain in her house with an axe which belonged not to the accused, but to the accused’s foster father, the husband of the murdered woman. The husband gave evidence that he had spent the night of the murder in the men’s house of a neighbouring village. The evidence was unconfirmed. In giving evidence, the husband seemed over-anxious to embellish his answers by adding that the accused had been the killer. These and other circumstances tended to suggest that the murder might have been committed by someone other than the accused, and that the accused might have been “nominated” to accept the role of the killer.

Held:

(1)      A court will convict on an uncorroborated confession only after the closest scrutiny and testing of the confession, and only after examining “the considerations, if any, supplying hypotheses by which the making of a confession may be explained more or less reasonably consistently with innocence”.

Dictum of Dixon J. in McKay v. The King [1935] HCA 70; (1935), 54 C.L.R. 1, at p. 9, adopted.

(2)      In the case of such a confession made by a native person, it is not for the court to reject the hypotheses because they are not reasonable as applied to the European, and the onus is on the Crown to convince the court of the reality of its allegations against a background of the unknown.

Reg. v. Mon and Debong, [1965-66] P. & N.G.L.R. 42; Briginshaw v. Briginshaw [1938] HCA 34; (1938), 60 C.L.R. 336, referred to.

Criminal Trial.

Namiropa Koinbondi, a village native probably not more than fourteen years old, was arraigned on indictment charging him with the wilful murder of Fifi, his foster mother. The facts appear sufficiently in the judgment.

Counsel:

Steele, for the Crown.

Lindsay, for the accused.

Cur. adv. vult.

9 February 1970

CLARKSON J:  The accused is charged with wilfully murdering his foster mother, Fifi.

The case against the accused depends on a number of admissions made by him on the day the killing of Fifi was discovered.

The evidence of the deceased’s husband Koinbondi is that on 27th October he and Fifi, after locking their house, left their village to attend a mumu at a neighbouring village. Sometime in the evening Fifi left to return to their house. Koinbondi slept the night in the men’s house of the village they were visiting. He says he saw the accused at the mumsu late in the afternoon.

At some time during the night of 27th/28th October Fifi was killed, apparently by one blow of considerable force to the neck with a tomahawk which almost decapitated her as she lay on her bed. About $80 in notes was taken from a cash box, presumably opened by a key which Fifi wore on a chain round her neck, and the door of the house was padlocked from the outside.

The deceased’s village is about seventeen miles by road from Goroka and twenty miles from the Bihute Corrective Institution. At about noon on 28th, the accused presented himself at the corrective institution and told firstly a warder, then a senior warder and then the superintendent, Mr. Hallinan, that he had killed his mother. He was sent to Goroka police station and after he had repeated his statement to the officer-in-charge, Superintendent MacDougall, Sergeant Umba was sent to the village to investigate.

Sergeant Umba found the house still locked and the villagers apparently unaware of any trouble. Koinbondi was sent for and the house entered. Fifi lay dead with Koinbondi’s bloodstained axe nearby. The cash box was open and its key was found on the floor. The accused was not present at these discoveries. A little later he was found to have in his possession some $76. At about 8.30 p.m. that night the accused man made a statement to Inspector Robinson.

The relevant portion is as follows:

“Yesterday evening my Mother said, ‘Go and get some water,’ and I said, ‘No.’ She said, ‘You are not my child. Go back to your real Mother and Father.’ She said this and I cried and got angry. She went to sleep and I got an axe and cut her throat. I got a key and I opened the cash-box. I took some money and I came. I took a key from her bilum and I locked the door and I came. Then I went to sleep at another man’s house and early in the morning I came here. I came and I went down to the Corrective Institution.”

This statement fits very neatly with the known facts. It supplies a motive; it describes a mode of killing consistent with police and subsequent medical observations; it explains the open cash box and the locked door; the accused had in his possession what was for him a substantial sum of money approximating that apparently missing from the cash box; and it explained where the accused had spent the night of the murder.

The deceased’s house had no windows through which any observations could be made. I am left with the firm impression that the accused was inside the house at the time or at least after Fifi was murdered and before the door was locked. I think it highly unlikely that the accused could have told the story he did unless he was in the house at some stage during the period I have mentioned.

The accused’s statement coupled with the evidence of the police and medical observations constituted at first sight a formidable case against the accused. It seems that those responsible for the police investigations took the same view. After the accused’s arrest, some efforts were made without success to ascertain how the accused had got from the village to the corrective institution on 28th October. Several people were interviewed, in an unsuccessful attempt to trace the deceased’s movements on 27th. The person at whose house the accused said he had slept on the night was traced. He claimed to have been drunk. He said he had seen the accused that night but could not recall any conversation between them.

The officer in charge of the investigations further stated that he was unsuccessful in obtaining any corroboration of Koinbondi’s story as to his own movements during the relevant period; that he did not check Koinbondi’s claim that the deceased was at the mumu because he had no reason to disbelieve him; that he was unable to find any evidence of the accused’s movements on 27th or 28th before he presented himself to the corrective institution except as already mentioned; that he did not visit the scene of the crime; that he did not arrange for fingerprint tests of the axe or cash box because he would not expect to find the accused’s prints on the box after at least three people had handled the articles and the axe was unlikely to carry clear prints; and that it did not occur to him that the accused had been “nominated” by another to accept the role of the killer.

Police investigations in the Territory are generally carried out under extremely difficult conditions and yet with commendable efficiency. In the present case, what was done was done promptly and well, but I think there is force in the submission of defence counsel that the investigating officer was a little too ready to accept the accused’s confession, supported as it was by the findings of Sergeant Umba and the medical evidence. This in turn led to the unquestioning acceptance of Koinbondi’s evidence.

I think it is now clearly established that a court, taking proper safeguards may, even on a charge of wilful murder, act on a confession which is uncorroborated but it will do so only after the closest scrutiny and testing of the confession and only after an examination of “the considerations, if any, supplying hypotheses by which the making of a confession may be explained more or less reasonably consistently with innocence”. McKay v. The King[ccxl]¹ per Dixon J. (as he then was). See also Reg. v. Mon and Debong[ccxli]². The difficulties associated with the inquiries suggested by Dixon J. (as he then was), as referred to above, are well expressed by Smithers J. in Reg. v. Mon and Debong[ccxlii]³. That was a case clearly distinguishable on the facts from the present case, but the following observation, at p. 51, is relevant here:

“When the court is dealing with native persons whose ways are frequently inscrutable, it is not for the court to reject hypotheses because they are not reasonable as applied to the white man. The onus is on the Crown to convince the court of the reality of its allegations against a background of the unknown. In such a setting an ounce of objective evidence is obviously of great value to the tribunal and the absence of that evidence may well be fatal to the Crown.”

In the present case, the defence clearly raised the danger of relying on the accused’s confession in the light of inadequacies in the investigation. The accused is a village native, probably no more than fourteen years old. He lived, under the discipline of his foster father Koinbondi, in an ignorant community where a belief in sorcery is held; the power of sorcerers greatly feared and the obligation of a deceased’s relatives to “pay back” for his death acknowledged. If the accused had been induced by fear or otherwise by relatives or clansmen to accept responsibility for an act which he had not in fact committed, he would be far from the first person to be so induced. The use of violence following family quarrels is an everyday occurrence in the Territory. Inspector MacDougall when he heard the accused’s admission did not accept it; he thought it probably exaggerated. The boy’s story in view of his age, physique and relationship to the deceased was, the Inspector thought, very unusual. There was no evidence immediately available to confirm any part of Koinbondi’s story.

In my view, this state of affairs should have been sufficient to put the investigating officer on inquiry as to the truth of the accused’s confession but, as he candidly admitted, it did not occur to him that the accused’s confession might be false. The result was that nothing approaching the sort of investigation which would have been undertaken if the accused’s confession and Koinbondi’s evidence had not been accepted without question, was carried out.

I do not wish anything which follows to be misunderstood. I do not suggest for a moment that the evidence before me implicates any person other than the accused in the murder of the deceased, nor do I suggest that there was necessarily available any evidence which did. I wish only to point out some of the matters which are left unresolved once the truth of the confession is put in issue. Before doing so, I interpolate a comment on the strange situation which exists. Here is a case where the accused has confessed to the killing. That the confession was apparently voluntary is not denied nor is there any suggestion of impropriety on the part of the police. Nevertheless, and notwithstanding the accused’s admissions and the absence of any retraction, his counsel submits that I cannot be satisfied to the degree I should be of the accused’s guilt. Strange as this situation may appear, it follows quite naturally from the provisions of s. 601a of The Criminal Code which, in effect, permits defence counsel with the court’s leave to enter a plea of not guilty even though such a course may be directly opposed to the client’s instructions.

Many of the unresolved matters to which I refer were raised by counsel for the defence in cross examination of the Crown witnesses. The broad picture which emerges is this. There is a well-populated area, seventeen miles from Goroka and accessible by road. There was no real obstacle to a detailed “on the spot” investigation. A woman is murdered sometime during the night of 27th/28th October and her body is found the next day. The only evidence relating to her movements is that of her husband. She was killed in her house which she shared with her husband and the accused. The weapon used was her husband’s axe. I do not know how far this house is from other habitation nor whether there were neighbours who saw, or might have seen the deceased, her husband or the accused near the house.

The husband says he spent the night in the men’s house of the village where the mumu was held. Yet no one in the men’s house that night confirmed the husband’s story or his presence there for any period.

I have already noted why no attempt to find fingerprints on the axe or cash box was made. At the trial I made the comment that it would not have been of great significance if the accused’s prints had been found on either, because he may well have handled both objects quite innocently on a number of occasions.

On reflection however, it seems to me that the absence of the accused’s prints on either object might well have assisted the accused. At least some explanation could be expected from the Crown as to why the accused’s prints were not detectable on the two objects which, on the Crown case, the accused had so recently handled and depending on the persuasiveness of such explanation the absence of the accused’s prints may have assisted him to some degree.

I turn now to the accused’s confession. I have already said that it persuades me to think the accused was in the house before it was locked but it cannot exclude the suggestion that the accused may not have struck the fatal blow nor that under pressure he might say he struck a blow which he did not. His possession of the money might be evidence of theft but it does not establish murder. Did he kill for money and then repent? Why take the money if he was going to the police? Why did he go to the police when he did? Apparently he did not do so for self-protection, as so often occurs, because he spent the night in the area in the house of a relative.

Finally, I mention a matter occurring during the trial which impressed me. The deceased’s husband is a village native. He may well be ignorant, but he did not seem to me to be unintelligent. During his evidence I was struck by the number of occasions on which he was able to, and did, embellish the answer to a question with the addition, irrelevant to the question, that the accused had killed the deceased. He was over-anxious to make the point. His insistence raised a suspicion in my mind which left me troubled when the Crown asked me to accept his uncorroborated evidence without question.

Where the law requires proof of a fact the court must feel an actual persuasion of the occurrence of that fact. A mere mechanical comparison of probabilities is not enough. There must be a belief in the reality of that fact (Briginshaw v. Briginshaw[ccxliii]⁴ per Dixon C.J.).

In the present case I must be satisfied beyond reasonable doubt that the accused struck the fatal blow and the forming of that state of mind will be influenced by such factors as the seriousness of the allegation, and the gravity of the consequences which follow the finding. The crime charged carries the ultimate penalty. Without the confession there is at least one more likely suspect than the accused and that person has no alibi. Is the confession such a compelling factor as to satisfy me beyond reasonable doubt of the accused’s guilt? Bearing in mind the matters to which I refer, it is not.

In some ways, this may be thought to be an unfortunate, even unsatisfactory, conclusion. It will certainly not be understood by many close to the deceased, but I hope I have expressed my views in sufficient detail to show why I consider the proper verdict to be Not Guilty.

Verdict: Not Guilty of wilful murder.

Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.

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

[ccxl][1935] HCA 70; (1935) 54 C.L.R. 1, at p. 9.

[ccxli][1965-66] P. & N.G.L.R. 42.

[ccxlii][1965-66] P. & N.G.L.R. 42.

[ccxliii][1938] HCA 34; (1938) 60 C.L.R. 336.