Papua New Guinea Law Reports

At this point it would be convenient to deal also with a submission made by Mr. Flood in relation to his client that the indictment should be quashed because the committal proceedings upon which it was based were bad. They were bad he said because the record of those proceedings showed that apart from there being an interpreter to interpret from English to Kuanua for one Clement ToVavaula the evidence was interpreted for the remaining defendants in the committal proceedings only from Pidgin English to English and this offended against the requirement of the District Courts Ordinance that evidence was to be given in the presence and hearing of the person or persons charged. It followed that the evidence must be intelligible to that person or those persons. Pidgin he said was not a language which could be said to be intelligible to his client. However, it was not suggested that any evidence would be put before me that this was the case and as on my inquiry it appeared that his client Joseph ToVuvu was represented at the District Court hearing, that there was no objection to the interpretation, and as the magistrate who conducted that hearing is an experienced magistrate in this country, I have no hesitation in rejecting this submission, basically on the ground that failing some evidence to suggest to the contrary I must assume that the proceedings were properly conducted.

The next submission made by Mr. Lusher as I understand it was that where there are a number of persons charged in the same indictment with committing a single crime they can only be so charged if they can be brought within the provisions of ss. 7 and 569 of the Code. Neither of these sections makes any reference to abetting or to being directly or indirectly knowingly concerned in the commission of an offence. Whilst the indictment used no such words the particulars supplied in respect of some of the persons named therein specified that they abetted and were directly or indirectly knowingly concerned in the murder of Mr. Emanuel. Whilst as I understand the situation it will be alleged that Mr. Lusher’s client was the person who actually caused the death of Mr. Emanuel, this submission was supported by all other defence counsel. It was said that the wording in the particulars is directly taken from s. 5 of the Commonwealth Crimes Act, which I note is applicable to this Territory. Be that as it may I do not think that the presence of such words in the particulars supplied warrants my striking down the indictment. In any event I would have thought the presence of such words to be surplusage and I cannot imagine any person coming within the provisions of s. 7 unless it could be said that he knowingly took part in the activities therein described, and I would also have thought that s. 7 was wide enough to provide for direct or indirect participation.

I would also reject Mr. Lusher’s submission that the indictment being a joint indictment must result in either a conviction of all persons named therein or an acquittal of all. I am content to adopt the words of Philp J. in R. v. Warry and Kelly[clxii]16, viz: “I should agree that where persons are properly jointly indicted the indictment is joint and several in relation to the joint offence so that for example the principal could be convicted and the accessory acquitted but I should not think that the indictment was several in relation to an offence other than the joint offence.”

This brings me to Mr. Lusher’s final submission that the indictment before me seeks to put into the one indictment against a number of persons a multiplicity of charges. I agree with the submission of Mr. Brennan that in this case there is one offence charged and that is the wilful murder of Errol John Emanuel. To that offence there can be many parties each of whom may take a different role; for example, the doer of the act, the person who does something to enable the act to be done, the person who counsels or procures the doing of the act. And it is clear to me that under the provisions of the Criminal Code all such persons may be charged in the one indictment with actually committing the act which is the subject of the charge, that is the wilful murder. Accordingly I reject the submissions made.

I should add that I do not wish to take time to comment on the suggestion somewhat faintly made that the indictment was calculated to prejudice or embarrass any of the persons named therein in his defence to the charge. I do not think such a case has been made out.

The final matter with which I must deal is one which I deferred on Friday last and that is the question as to whether I should accede to the application to adjourn the trial in respect of the accused man Alois Titi. Good grounds have been made out for such an adjournment but Mr. Lusher powerfully urged upon me that I should not do so for two major reasons. The first of these was bound up with his argument in relation to persons jointly indicted and I have already expressed my view that this argument must be rejected. The second has given me greater cause for concern, and it is that if I remove Alois Titi as a defendant in this trial Mr. Lusher’s client may lose a possible advantage, should Titi subsequently elect to give evidence, of counsel not being able to elicit from him material favourable to his client. Other counsel urged similar considerations upon me in relation to their own clients. Upon reflection I have decided not to accede to this submission and to grant the application for adjournment. The advantage claimed to be lost is at this stage only a possibility and whilst I would be most reluctant to take any course which could possibly prejudice an accused person in the conduct of his defence I do not think that the granting of the application has been shown to me to be likely to have that prejudicial effect. It is open to any accused person to call Alois Titi as a witness. True it is that as such a witness he would be advised of his right to protection against self-incrimination. But nothing has been shown to me which would lead me to the view that being called as a witness would or could preclude him from giving evidence favourable to the party on whose behalf he may be called. Of course at the present time I know nothing of the facts of this case nor of the evidence which Titi may be able to give. Were he to remain in the trial and not elect to give evidence of course no possible advantage could be obtained by the other persons accused. And if it should appear during the course of the trial that a miscarriage of justice could occur because of the absence of Titi then that situation can be dealt with when and if it arises. Accordingly I grant the application and remand Alois Titi for trial at the next sittings of this Court.

RULING ON READING A CONFESSIONAL STATEMENT TO HELP DETERMINE ITS ADMISSIBILITY ON THE VOIRE DIRE

It is obvious that at this stage there is a great conflict of fact as to what did happen on the Tuesday morning in the police station, or I should say not only on the Tuesday morning but also on the preceding Sunday at the Rabaul police station and, of course, the conclusion that I come to in attempting to resolve that conflict of fact should assist me greatly in ultimately deciding whether the confession should be admitted or the record of interview should be admitted as evidence in the case. However, that is not the matter with which I am dealing at this moment. The matter with which I am dealing is whether I should look at the statement to assist me as it is submitted by the Crown that it will assist me in coming to a conclusion as to who is to be believed. The Crown’s submission is that the form and content of the statement will assist me in assessing the credibility of the parties concerned in this conflict.

It has been urged upon me with great force by both Mr. Galbally and Mr. Lusher and their submissions have been supported by all other defence counsel presently at the bar table, that the authorities say that I should not look at that statement for the purpose for which it has been submitted. This is a question which has caused me some concern. I took a view on Friday last that I was entitled to look at the statement. I have heard argument subsequently and in the result I remain of the view that I had on Friday, that I am entitled to look at the statement for the limited purpose for which it has been submitted, making it quite clear of course that the content of the statement at this stage, even though I do look at the statement, is not admissible into the trial itself. It may be that it will not assist me greatly. I do not know because I do not know in what precise form the statement is or what procedure the questioning followed but in the resolution of this very difficult problem, what I regard as a very difficult problem of credit, I would seek to have every bit of assistance that I can get and I accept the Crown’s statement that this may give me some assistance. For those reasons I propose to examine this statement and to take it in as part of the material on the voire dire.

I should add perhaps as the remarks of Mr. Justice Dixon in McDermtott’s case[clxiii]17 were urged upon me in respect of the defence submissions, that I do not really think that Mr. Ju Dixon had this particular ular sort of problem under consideration when he made these remarks. He was in fact saying that the court should look at all the circumstances when deciding whether it is up to his discretion to reject a statement because of some alleged police impropriety. Indeed, I would regard this statement as being part of the general circumstances.

18 FEBRUARY 1972

RULING ON ADMISSION OF TAUPA’S STATEMENT

In his opening address Mr. Brennan outlined the case for the Crown under what appeared to be some difficulties. He began by relating events of the morning of 19th August, 1971, which in their turn began with the arrival of a Mr. Moorhead at what is known as the Kabaira Plantation of which he was the manager. There he found a number of men cutting grass on what in his view was plantation property. It was said to me (although as yet I have no evidence on this point) that Mr. Moorhead rang the police with a request that the District Commissioner, Mr. Emanuel be informed of the then situation at Kabaira. Some time before 9.30 a.m. the District Commissioner arrived at Kabaira with Superintendent Feeney and some police. Again although as yet I have no evidence on this point it was opened that after the District Commissioner and the Superintendent arrived at Kabaira and after their spending some short time in search of a man named ToGigie, they returned to find the accused Taupa and some 10 or 11 others just forward of a reserve on the lefthand side of the track leading into the Kabaira Plantation from the main coast road.

Mr. Brennan then went on to say that evidence would be led to show that the District Commissioner had touched Taupa under the arm and said words to the effect of “Let us go and talk”, that the two of them had walked up the track to a track junction and then turned to the left still following the main track, after which they disappeared from view. Subsequently after argument I ruled that the depositions of Mr. Moorhead who is now dead should be read subject to just exceptions as to the admissibility of their contents. So far these depositions have not been read as Mr. Brennan announced that he would seek their reading at or about the time that Superintendent Feeney gives evidence of the events which had been opened.

In the further course of his opening address Mr. Brennan referred to statements allegedly of a confessional nature which had been made by all of the 13 accused persons now before me. A minor part of the material in the statements was opened but I was informed that some of, perhaps indeed all of, defence counsel had requested him not to open the contents of these statements the admissibility of which was to be contested. In the result I was not able to form a clear picture of the part which the Crown would allege was played by each of the accused beyond its statement that it would eventually be asserted that each of them played such a part that it would be proved that he was guilty by reason of the provisions of ss. 7 and 569 of the Criminal Code (Queensland adopted). The confessional statements would show the part that each man played in the tragedy which was enacted that morning, and whilst each such statement would not provide evidence against any other actor it would enable me in seeing the part that each such man played to piece together the totality of the drama.

Counsel for the Crown very properly met head-on the difficulties which were apparent and began by seeking to lead evidence of inculpatory statements made by the first person appearing on the indictment, William Taupa ToVarula, whom I shall hereinafter refer to as Taupa. I have already admitted in evidence statements by or conversations with Taupa which were made or held on Friday, 20th August, Saturday 21st August, Sunday 22nd August. So I now come to a statement allegedly made on Tuesday 24th August.

But first I deem it necessary to set out certain material facts which have so far been made out. Taupa was apprehended by the police concerned in the investigation into this crime at about 6.30 a.m. on Friday 20th August, 1971. He was then in the vicinity of his village of Rasimen. In his possession there was a return airline ticket entitling him to travel to Port Moresby and back to Rabaul issued for a flight leaving Rabaul on that day, 20th August. This flight had been arranged by the medical authorities at Nonga and arranged to enable him to appear as an appellant at a Public Service Appeals Board hearing at Port Moresby on 23rd August. A copy letter which was also found in his possession showed that he was to appear before such a board presided over by a Judge of the Supreme Court which was to consider his appeal against dismissal from the Public Service. He was eventually that morning (i.e. Friday) taken to the police station at Rabaul where he was interviewed by Sub-Inspector Baker at about 2 o’clock in the afternoon. During the course of that interview what he said was taken down on the typewriter by the Sub-Inspector. The gist of his statement is that at the plantation Mr. Emanuel suggested that they talk together, that the two of them walked up what I shall call the main plantation track, then turned left down the same track forming the northerly border of what was described as a native reserve in which was situated the village of Rasimen, that Taupa was frightened, that he rapidly walked ahead and eventually disappeared out of sight of Mr. Emanuel and thereafter neither saw nor heard anything relevant to Emanuel’s death. This recital of events was of course on its face completely exculpatory.

At about 6.15 p.m. he was charged with riotous behaviour. The charge was based so it was said to me by Sub-Inspector Baker on information which he had from Superintendent Feeney as to Taupa’s confrontation with the Superintendent on his arrival and, more particularly, on the actions of unidentified persons who from the shelter of the dense growth in the native reserve were throwing stones at the police party which was viewing the body of Mr. Emanuel.

I have omitted to state that Sub-Inspector Baker saw the body of Mr. Emanuel on this second track to which I have referred when he arrived with a police party which had been summoned obviously some time after Mr. Emanuel had been killed. I should also add that Dr. Beatty, the Superintendent of the Nonga Base Hospital, arrived at the place where the body was found at about 10.45 a.m. and he then and subsequently examined the body. The examinations showed that a mortal wound had been inflicted by a sharp instrument of a breadth of about 2 ½ centimetres. The point of entry was in the seventh inter-costal space and the length of penetration was in the vicinity of 20 centimetres.

After Taupa had been charged and apparently before he was put into a cell at the Rabaul police station he was spoken to by Sub-Inspector Kneebone. The latter informed him that he had been told that it was the accused ToWaliria who had actually killed Mr. Emanuel, and then asked him was this correct. Taupa replied that it was true. On the following morning Taupa was taken to the Livuan police station which is not far from the Kabaira Plantation where in a line-up he identified ToWaliria, and then to the plantation where he gave a demonstration of his walking down the track with Mr. Emanuel. He was then returned to the cell at Rabaul. I should add that he also gave a demonstration of the way in which ToWaliria had come out of the bush and stabbed Mr. Emanuel in the right side. It seems that this cell was a single cell, the dimensions of which were 6'6” by 12' with a height of 8'. This was adjacent to a larger cell measuring 12' by 20'.

On the morning of Sunday 22nd August, Taupa was again shortly questioned by Sub-Inspector Baker at the police station at Rabaul as a result of which questioning he agreed that the place where Mr. Emanuel was killed was different from that which he had demonstrated on the previous day. He was told that ToWaliria had shown to the police officers a different place which was near where a road or track goes down from the main track to the copra dryer. This is the same road or track as leads to Rasimen village. ToWaliria he said was correct and he, that is Taupa, had lied. He was then returned to his cell where he remained until Monday morning, 23rd August when he with a number of others (probably about 20 people in all) was brought before the resident magistrate then sitting at Rabaul. No attempt was made to advise him of any rights he might have had as to bail. When he was charged at 6.15 p.m. on 20th August Sub-Inspector Baker noted in the Charge Book opposite the particulars relating to him the words “not to be released on bail under any circumstances”. This notation had the approval and I am inclined to think authority of Inspector Bell, the Officer-in-Charge of the Criminal Investigation Branch at Port Moresby, who had arrived in Rabaul on the afternoon of 19th August to take charge of the investigation into the death of the District Commissioner.

A staff memorandum issued from the police station at Rabaul on 30th October, 1967, contained a short paragraph with regard to bail in which it was stated that bail is a right and the onus is on the tribunal refusing bail to show good cause for any refusal. In ordinary times the memorandum stated that there are two and only two proper grounds for a refusal of bail, viz: (i) the likelihood of the person absconding; (ii) the likelihood of his release impeding the course of justice by leading to an intimidation of or tampering with witnesses, disposal of the corpus delicti or the avoidance of arrest by a fellow offender.

A station instruction issued on 27th November, 1970, at Rabaul contained the following directions:

“1. &  Whr evesibossible arrested persons shoulgranted bail if requested. When the offencefence with which he is charged is such that there is no likelihood of the offence continuing, no persons would be endangered by the release of the offender and there are reasonable grounds to believe that person would attend Court at the time nominated or should he fail to do so then he can be easily located.

3. Comton s oeet offences such as offensive behaviour, obscene lan, drurunk isorderly the offenderenders cans can norm normally be bailed for a reasonable cash amount. In the cases where liquor is involved then a minimum period of holding prior to bailing should be four hours. Intoxicated persons should not be bailed.

4. ¦
ff; Offences involving violence i.e. unlawfully s, ass unlay lay, riotous behs behaviouaviour etcr etc. mus. must be treated on their merits. Consideration should first be given to the victim then the public in general and lastly the offender. If any person’s safety cannot be guaranteed then the offender should remain in custody until the first available court hearing.

7. &; The moriouerious offences under the Code must be treated on their merits. Things to take into constion #re:—8212; Is the person a property holder? Is he in permanent employment? Is there any likelihood of the offender absconding? Should you consider bail could be applied and after consultation with one of the Officers mentioned in para. 5 a substantial cash bail should be applied together with a cash surety of a similar amount from a responsible citizen.”

Obviously very little or no regard was paid to this instruction and it is clear to me that any application for bail would have been refused and if it had been made at the police station would have necessitated an application to a magistrate. I am satisfied that such an application was never considered by any of the police officers concerned and I am equally satisfied that the accused Taupa was unaware of any rights he might have had in this regard. All of the police evidence touching on this subject was to the effect that it was normal practice if a person were arrested on a Friday evening or at any time during the weekend for him to be brought before a magistrate on the Monday morning. Because of the pressure of business in the District Court at Rabaul if there was no plea of guilty to a charge made a remand would be in fact automatically granted. I am satisfied that in the case of Taupa and the other persons who were charged with riotous behaviour (I should mention that by Monday morning two persons had been charged with the murder) because of the events at Kabaira Plantation on 19th, bail would have been vigorously opposed had it been requested. In the case of Taupa the effect of Mr. Baker’s evidence was that he would have strongly opposed any application for bail; firstly, because Taupa had an airline ticket in his possession and if he managed to get to Port Moresby there would have been difficulty in ensuring that he returned to Rabaul, secondly, that it was thought that Taupa might well have interfered with potential witnesses who might have been able to throw some light on the murder, and thirdly, that he was wanted for further questioning in relation to the murder of Mr. Emanuel.

I am not impressed with the first of these reasons because any sort of calm inquiry would have shown that Taupa had a legitimate reason to go to Port Moresby and it has not been shown to me that there would be any particular difficulty in apprehending him should he not answer to bail. However, it is the second and third which I am satisfied were the substantial cause of the police attitude.

On Monday morning before Taupa and his co-defendants appeared in the District Court, Mr. John Kaputin who had but a few days since returned to Rabaul went to see Superintendent Feeney for the purpose as he said of asking him whether legal representation could be arranged for the men then in gaol in relation to the Kabaira Bay trouble, and whether he could speak to these people whilst they were in custody. To the first of his inquiries the Superintendent said that the matter of legal representation was one for the people concerned and to the second he refused permission. As I understand Mr. Kaputin he did not then know who were the men charged but he “discounted” the Public Solicitor as being of use in the situation and he regarded himself as having a duty to all people in Papua and New Guinea to interest himself in this case because he also had no confidence in any other legal representation in Rabaul. The same morning he sent off a telegram to some person or persons unspecified in Australia inquiring about the possibilities of legal representation for the persons charged. The same morning too he was in court when Taupa and the others were brought before the court but he made no statement or plea of any sort in relation to them although he had previously spoken in court on behalf of indigenous persons.

When the defendants were brought before the court the police prosecutor asked for a remand as I understand in custody and without further ado, except for one matter which I will mention, the resident magistrate granted such remand in custody until 6th September. He could not remember whether the date, the 6th September was fixed for the convenience of the court or at the request of the police prosecutor. He did not advert to the question of bail, but contrary to usual practice he asked Taupa and each of the persons before him whether they had any complaints of their treatment. He was reminded by Mr. Galbally, for Taupa, of the sections of the District Courts Ordinance and of the Criminal Code relative to bail but said in effect that he did not consider bail. The defendants did not ask for it and he observed that the Deputy Public Solicitor was sitting in the court. The Deputy Public Solicitor upon being called testified that he was in court on that morning but purely as a curious layman and that he was not acting for any of the defendants.

The actions of both the police and the resident magistrate were strongly criticized and I think with some justification. However, it must be remembered that Rabaul is a small community, that the dispute about the ownership of the land upon which the confrontation with the District Commissioner took place would be common property and that the murder of the District Commissioner was an event which was unique in Rabaul and indeed in Papua New Guinea and that it had caused both shock and horror in the community. Further, whilst qua penalty the offence of riotous behaviour is technically a minor offence a charge for that offence is commonly initially brought throughout the Territory where large numbers of persons have been involved in mayhem and indeed murder. In more primitive areas than Rabaul where large-scale tribal fighting has occurred and where when a small and on the whole comparatively untrained police force is called upon to preserve law and order, and where in many cases it is well nigh impossible to sheet home a charge of murder, a charge of riotous behaviour and consequent conviction thereon is the only practicable method of temporarily preserving the peace.

The warrant of committal signed by the resident magistrate on 23rd August directed that Taupa should be held by the Corrective Institution at Kerevat, some 40 minutes or more drive from Rabaul. He was not in fact taken there after the court hearing but was returned to the police station where he was placed in one of the larger cells with another person or persons. There he appears to have stayed until he was brought into Sub-Inspector Baker’s office on the following morning at about 8.15 a.m. There after a caution which differed from that usually given he agreed to answer further questions by Baker and a typed record of interview was made in Pidgin English. The questioning lasted until 12.40 p.m. with a break from 10.15 to 10.45 a.m. for a smoke and a use of the toilet and a luncheon break from 12 midday until 12.25. Taupa seems to have had his lunch daily in the police office and his evening meal in the cell. At the conclusion of the interview, which was recorded on the typewriter and which filled five single-spaced foolscap pages, what was typed was read back to him. He made a correction on one page and signed each page at its foot. The Charge Book shows that he was charged with wilful murder at 1.00 p.m. but I am unable to be satisfied as to where the entry in the Charge Book was made, that is whether it was in the general office or in Baker’s office.

From what I have said it is clear that Taupa was in custody from approximately 6.30 a.m. on Friday 20th August until 1.00 p.m. on Tuesday, the 24th. And it was agreed by Mr. Baker that for approximately 8 hours of this time he was being questioned and that at no time during this period was he advised that he could have legal representation nor that he could make an application for bail.

Mr. Galbally has powerfully argued that I should not admit the record of interview taken on the morning of 24th August. Before dealing with the basis of his objections I should state that I have also ruled despite argument to the contrary that I am entitled to look at the record of interview for the purpose not of considering the truth of its contents but of the assistance it may afford me in considering whether or not it was voluntarily made.

Mr. Galbally’s primary argument was based on the general circumstances preceding and surrounding the making of the record and on the conclusions which he urged upon me as inescapable that Taupa had been physically assaulted prior to his appearance in the Court, sunk into despondency by statements or threats as to the fate of his land and his wife, oppressed and overborne by his lengthy period of incarceration or custody, more particularly as the Court had by its attitude left him in a hopeless frame of mind and one in which he himself feared death at the hands of the police, and finally, that he had been threatened with a knife immediately prior to the statement now in question. These circumstances he said could not fail to show, firstly, that Taupa’s statement was made after threats to him and so attracted s. 15 of the Evidence Ordinance and, secondly, that I could not be satisfied that it was made voluntarily in the sense in which the cases at common law showed that term to be understood. I have reread and derived assistance from the cases cited to me and in particular from Cornelius v. The King[clxiv]18; McDermott v. The King[clxv]19; R. v. Lee and Ors.[clxvi]20; Jackson v. The Queen[clxvii]21; Wendo and Ors. v. The Queen[clxviii]22. As would be expected I have derived particular assistance from the judgment of Dixon J. (as he then was) in McDermott v. The King[clxix]23 where he a ys[clxx]24:

&#8220ommon law a confessional statement made oute out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.”

Before proceeding further with an analysis of the circumstances I think I should at this stage express my view as to the personality of Taupa. I had the advantage of seeing and hearing him for some time in the witness box. He was called on the voire dire and examined and cross-examined at some length. He is on the evidence about 45 or 46 years of age, he lived in Rasimen village until about the age of 21 years after having had some four or five years’ education at a mission school, and has lived at Nonga which is in effect a suburb of Rabaul for 25 years during the latter eight years of which he was an admission clerk at the Nonga Base Hospital, and he had some training the nature of which I do not know at the Nonga Medical School. In my view he is a man of some force of character fully aware of the position in which he now finds himself. He is in my judgment a man who would not be easily browbeaten. I noted particularly when he was being pressed in cross-examination the force with which he gave his answers and his determination not to let the cross-examiner get the better of him. I remark also that, as I understood Mr. Galbally’s case against the admission of any statements of Taupa and in particular of this last one, the statement was made because of the fear induced in Taupa by all the circumstances which I have earlier set out. This however was not Taupa’s story when he came to give it. He really said nothing about his state of mind before the Sunday evening and I can nowhere see any evidence to show that fear dictated his statement on the Friday afternoon. His story as it eventually emerged was that he had in fact freely related his version of the land dispute to Sub-Inspector Baker, that it was about the time that he had finished speaking of the land dispute that Sub-Inspector Bryant threatened him with a bayonet or knife and thereafter that he was in such fear that he said nothing. His suggestion then was that the latter and inculpatory part of the statement had been manufactured by the police officers.

For my part I reject entirely his evidence concerning the use of the knife. I reject it because of his inconsistencies in the witness box. His evidence carried no conviction to me and I prefer on this point that of Sub-Inspectors Bryant and Baker and also that of Constable Compoun. Other inconsistencies in his evidence generally were pointed out to me by Mr. Brennan which I will not take time to discuss in detail but which in my view have considerable force. I do not accept his evidence that he was slapped in the face by Baker and Bryant in the way he describes and this despite the reconciliation which I believe is possible between what he said before me and what he said to the magistrate, viz. that he was slapped twice by a European. I have no confidence that anybody assaulted him prior to the court hearing on the 23rd nor that the verbal taunts as he described them were in fact uttered. However, on this latter score I do not altogether reject his evidence as in what I can well conceive to be the atmosphere existing in Rabaul at that time it is possible that some member of the police force did utter what he described as the taunts set out in the magistrate’s notes.

I was concerned about the questioning after the period spent in custody but I think that Taupa’s reason for talking as freely as he did was that his grievances once again had to find expression. He was of course aware and made aware of some of the results of the inquiries which were being conducted and could not but have realized that the police were gradually piecing together the events of 19th August and his part in them. I have obtained great assistance from my perusal of the record of interview itself. In the first place I am confident that neither Sub-Inspector Baker nor Sub-Inspector Bryant could have been aware of the detail of the land dispute going back to 1961 which is dealt with at length for practically the first three pages of the record. This part of the statement reads as that of a man who is both willing and anxious to give vent to what he considers to be and what in fact may be legitimate grievances. Nowhere here can I see any sign of a man oppressed and overborne. In the second place the portion of the record after the mid-morning break does not bear any evidence of oppressive questioning, and in the third place there is no allegation of any sort by Taupa that he was badgered or hectored nor that he was pressed to agree with a police view of events. In the result, I am satisfied that the confession was voluntary in the extended meaning which that term has come to have at common law and that it was not made as the result of any threat or promise so that it would contravene the provisions of s. 15 of the Evidence Ordinance.

I am still left with the difficult question as to whether I should exclude this confessional statement in the exercise of the discretion which the cases show that I have. Here the onus lies on the defence to convince me that I should. A number of what are said to be improprieties have been eloquently and colourfully attacked and that attack has in my view in part hit home. In order to see whether there has been such impropriety as should vitiate the document tendered I set out seriatim the individual matters of which complaint is made. It was made clear to me that strong reliance is placed on these matters singly and also on the totality of the situation created as a result of their existence. They are:

1. ¦
au; Taupa was kept in custody from approximately 6.30 a.m. on Friday, 20th Augustil 1.m0 p. . ondTuesday, 2ay, 24th August.

2. ـ &#He ; s quas questioned for approximately eight hours over teriod
. #160; &##10;&#160 < He w detaidetained and questioned for the purpose of extracting a confession from him.

5. &##160; ـ He ; He was assaulted twice by a European on Sunday, 22nd August, and ta or, dooked at in another guise,uise, threatened by an unidentified indigenous policeman on the same day or evening whilst he was locked in his cell.

6. On his appearance in the District Court on 23rd August no questio askehim ahis consent to the adje adjournmournment aent applied for by the police prosecutor.

7. ¦&#1o ; No advice was given to him either before or on his appearance at the Districtt thac he ould seek bail.bail.

8. No advice was given to him by the magistrate or by anybody else a othee thacould seek or obtain lain legal egal aid.

9. &  &#1o ; Nps teps were taken by the magistrate to inquire iis cont ofviolence or taunts suffered ered by hiby him on m on the previous day.

10. The flagrant disobedience of the warrant of committal of the magistrate committing him to trevateCorrectivt Institutiitution.

One, 2 and 3 above I think can be conveniently dealt with together. There is no doubt that Taupa was in custody for the period stated and it is true enough that he was questioned for approximately eight hours during this period. But it is to be observed that the first detailed or the first real questioning on the Friday afternoon occupied 2 - hours of that total and the final questioning on 24th August just on another 4 ½ hours, so that something over 7 hours was occupied on these two occasions leaving a quite short time divided between the remaining conversations or interviews with him. With regard to the extracting of a confession the word “extracting” and the argument supporting it were necessarily emotionally based. Whilst I have no doubt that the police officers concerned were themselves subject to the emotion of anxiety that a confession should be obtained from Taupa, that they were convinced that he was deeply involved in the events of 19th August and that they were determined that he should not be released from custody until they had a full opportunity of questioning him, I cannot see as I have I hope made clear earlier, that he was in fact overborne or that they in fact “extracted” a confession from him.

With regard to 4, I am satisfied that the police officers concerned were determined that Taupa should not be allowed to be released on bail. I make the comment that the instruction noted in the Charge Book “not to be released on bail under any circumstances” was both inapt and apparently in breach of the spirit of the station memorandum and instruction to which I have referred earlier. I can understand the police opposition to bail in this case but it is an opposition for which opportunity should have been provided, if required, for its public expression and justification. I am not to be taken as saying that the opposition was not justified, but that was a matter to be decided publicly. In my view both the station memorandum and station instruction indicate a proper appreciation on the part of the senior officers of the police force of the necessity to safeguard the rights of the citizen but I do not wish to be thought to be attempting to lay down any “Judges’ Rule” in this regard. Papua and New Guinea are both so diverse in character and in their degree of development that every case must be looked at in the light of its own circumstances. The criticisms made in this case serve to show the basic considerations which have to be kept in mind, but I only need to say that such criticisms would be laughable in the case of a man in a remote highland area who has attacked his wife’s father and has travelled for two days to the nearest “kiap” both to confess what he has done and to seek incarceration and protection against avenging relatives, to illustrate this point.

I can only think that the police conduct was brought about by their determination to leave no stone unturned to bring any persons whom they thought to be a malefactor to justice. Their determination and their zeal blinded them to the necessity of remembering at all times the rights of the citizen.

With regard to 5, that is the assault on the accused, I have already dealt in my findings of fact with this matter.

With regard to 6 and 7, and they relate to the questions of adjournment and bail, despite Mr. Galbally’s innuendo—and I do not say he was not entitled to utter such—there is no evidence and I would not for one moment draw any inference from the evidence before me that the magistrate was acting in any way in co-operation with the police. However, he has been criticized, and I cannot say improperly, for failing to seek Taupa’s view as to and consent to an adjournment of the charge preferred against him. It is now clear that a number of people were before him charged with riotous behaviour, a charge which as is well known may always be a prelude to one more serious. He erred I think in not requesting consent. The magistrate should also in my view have asked Taupa (and this of course applies to the other persons charged before him on that morning) whether he was making any application for bail. The appreciation in the mind of an indigenous prisoner as to what bail means I know is generally a matter of some doubt and the decision whether or not to grant bail can well pose difficult questions. A basal consideration can be whether an indigenous person charged has any conception of the processes of the law. This highlights the educative function of all judicial tribunals and lawyers in Papua New Guinea. In this particular instance I have no doubt that a case could and in all probability would have been made out for refusal, but at the same time I think it important that in the operation of the legal process citizens should be made aware of their rights and of the proper processes of the law. Again in this particular case it may well be that the magistrate was imbued with the general sense of shock and horror of which I have spoken and it is all too easy to criticize after the event and in a different, less hurried atmosphere.

The question of advice as to legal aid raises other difficult considerations. Perhaps the more so if there are people in Rabaul of the same mind as Mr. Kaputin. I am fully aware of the extent to which the resources of the Public Solicitor are stretched and of the way Papua New Guinea generally has in the past lagged behind in the training of lawyers. This is a malady which has no easy solution. The most I think that the magistrate might have done would have been to have reminded the defendants before him of the existence of the Public Solicitor but I am not prepared to criticize him for not so doing. After all the institution of the Public Solicitor is very well known in Rabaul.

The criticism that no steps were taken by the magistrate with regard to the allegations of violence has caused me some concern. I think it is a fair comment that he should have called for some answer on the part of the police prosecutor in order to enable him to properly consider both the question of adjournment and bail, but it is conceivable that in asking the question that he did the magistrate realizing the magnitude of the matter before him may have had it in mind to put the police force on warning that it should take care to guard against any impropriety.

Whatever may have been the defects in the District Court—and the Crown did not seek to minimize or excuse them—these have not been shown to me to have arisen out of any co-operation with the police and I am not prepared to think that they had.

With regard to 10, that is the disobedience of the committal warrant, I can see no reason for this disobedience other than a desire on the part of the investigating officers to have Taupa readily at hand when he was required and to save them the trouble of seeking permission of his legal custodian to interview him. This is but part of the general view which I have formed that the members of the police force had decided to take Taupa under their close supervision until he had given them all the assistance they required in their inquiries.

It will be evident from what I have said that there were improprieties in the course of the investigation into the murder of Mr. Emanuel, and I am fully conscious of the words of Mr. Justice Dixon (as he then was) in McDermott v. The King[clxxi]25 so times ques quoted to me—”The abuse of the power of a by using the detention of an accused persoperson as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence.” But I do not regard those words as laying down a proposition of law that were I to come to the conclusion that in this case there had been such an abuse of the power of arrest, that impropriety must result in the exclusion of the evidence. As I have already said I am satisfied that Taupa’s statement was a voluntary one. The ultimate question really is whether the improprieties which did occur are such that the voluntary statement made by Taupa ought to be rejected because the admission of that statement is unfair to him. But at the same time I must ask myself whether the court’s disapproval of conduct and consequent rejection of evidence should outweigh the public interest in seeing that all relevant evidence is before the court when guilt or innocence of a serious crime is being considered. After serious and anxious consideration I do not think either that the conduct was so unfair or the balance of public interest such that I should reject the confessional statement. I am fully aware that justice must be seen to be done and that in some aspects in this case some veils have been sought to be cast over that view. But after the benefit which I have had of a thorough investigation and most helpful argument I have come to the conclusion that I should not exercise my discretion in favour of Taupa and that I should admit his statement of 24th August, and I rule accordingly.

RULING ON APPLICATION FOR DISCHARGE OF TRIAL JUDGE

With regard to the latter submission made this morning with reference to my choice of language and the consequent state of mind which the choice of language is said to show, all I can say is that at all stages I had in mind the authorities which were cited to me and the law clearly laid out therein. For what I had in mind persuasion might have been a better term. The defence urged that I should reject this statement because of the improprieties that had been shown. That because of those improprieties, amongst other things, it would have been unfair to the accused. But let it be said now that the defence have not persuaded me that that degree of impropriety has been shown or, more accurately, that in all the circumstances which have emerged I should in the exercise of my discretion reject the statement. I come back now to the initial submission made on Friday. Mr. Lusher, on behalf of William Taupa ToVarula one of the persons before me on the present indictment, has submitted that because of certain remarks of mine uttered in the course of delivering a ruling, I should discharge myself from taking any further part in this trial. In that submission he was joined by counsel for nine other of the accused. Counsel for the Crown has submitted that I should continue with the trial and counsel for three of the accused have stated that they do not join in Mr. Lusher’s submission and have urged me to continue.

The ruling in question was made not in the trial itself but consequent upon a voire dire lasting several days and which was collateral to the trial or subsidiary to it in the sense that portion of the conduct of the trial depended upon my ruling.

To the lawyer it needs no saying but to the non-lawyer it should be made crystal clear that the manner in which Mr. Emanuel met his death and the guilt or innocence of any of the accused neither was nor is in any way material to the issue on which I had to rule —that is, whether the statement by the accused man, William Taupa ToVarula, sought to be tendered in evidence was or was not a voluntary statement and whether in the exercise of my discretion I should reject it. Indeed I had thought that I had made it quite clear at the outset when the admission of the statement was challenged that if Taupa decided to give evidence on this issue I would not allow any questions to be directed to him which concerned the truth of any confessional statement which he may be said to have made.

At this stage I have scarcely entered upon the trial proper. I have already categorically stated that I have a completely open mind on any issue relevant to the trial.

I have carefully considered what has taken place and has been said so far in the proceedings. That any persons could conclude, either from what I said in the course of my ruling or from what I then said associated with any conduct of mine or statement made by me at any other time, that I have already decided that the 13 men accused before me of the murder of Mr. Emanuel are guilty seems to me a proposition beyond the bounds of reason and commonsense.

I reiterate I have come to no conclusion however tentative relative to the circumstances of Mr. Emanuel’s death nor to any connection which may or may not be had with that death by any of the accused. I have given full, worried and repeated consideration to the submissions made to me and in the result have come to the view that I should continue with this trial—and by that I mean of all the persons who are presently arraigned before me.

RULING ON DISCLOSING NAMES OF INFORMANTS

In the course of the cross-examination of the witness at present in the witness box, Inspector Bell, Mr. Lusher for the accused man ToWaliria sought to elicit from him the names of two informants from whom he stated he had obtained information leading to a decision to apprehend ToWaliria.

Mr. Brennan for the Crown properly pointed out that it has long been declared to be a matter of public policy that in criminal proceedings, indeed in any proceedings, the names of informants where criminal prosecutions were involved should not be divulged and of course there is a very good reason for that public policy.

The present matter arises in this way. Mr. Lusher is in the course of seeking to show that a statement or statements made as the result of questions put in an interview at the Livuan police station on 22nd August should not be admitted in the Crown case. As I understand it—there has been no real argument on this subject as yet—but as I understand what he is doing, it is this: he is seeking to show both that the statements made by ToWaliria are not voluntary and also that even be they voluntary the circumstances in which the statements were taken and recorded were of such unfairness in the exercise of my discretion I should reject them.

In regard to the first matter, that is the voluntariness of the statement, at the moment I cannot see that the names of Mr. Bell’s informants could be relevant on that matter. With regard to the second line of attack I think the position is somewhat different. I should preface my further remarks by saying that the admission of information taken in these statements seems to me to be crucial both to the Crown case and to the accused’s defence. Mr. Lusher, as I understand his line of approach, is seeking to show amongst other things that the apprehension or arrest of ToWaliria fairly early in the morning of 22nd August was completely unwarranted and that the Inspector had no reasonable grounds existing at that time upon which to make such an arrest and in the course of so doing, he is currently setting about attacking the validity of the grounds upon which the arrest was made. To do that, of course, it is necessary firstly to ascertain what those grounds are said to be and once those be established, and I note that so far of course they have not been established, Mr. Lusher says it will be necessary in testing the belief on those grounds to ascertain from where the information was obtained. This may or may not be so in fact, but at this stage I cannot say that that will not necessarily be so.

Although the cases which have been cited to me—and the case law on this subject appears to be minimal—although these cases appear to show that the public policy against disclosing the name of informants is one which is very strongly upheld by the courts, yet in the case of Marks v. Beyfus[clxxii]26 tharks by L by Lord Esher seem to show that there is a distinction in the case where the question e prisoner&oner’s guilt or innocence may be involved. I note from an article which was referred to this morning in 1959 Criminal Law Review that a case is cited of The Queen v. Richardson[clxxiii]27, a case apparently decided by Chief Justice Cockburn in 1863, in which the name of the informant was ordered to be given. I am inclined to think that I have a discretion in a case of this sort, a discretion not lightly to be exercised but one which none the less exists and in view of the importance of the admissibility or otherwise of this statement and of the circumstances in which it was taken, I think that I should exercise my discretion in favour of the person accused. I have had anxious thought about this because as I have remarked in the course of argument, in a country such as Papua New Guinea I think it is of great importance that names of informants should, where possible and except where there are overriding considerations, be withheld for reasons which I think it is hardly necessary to elaborate upon. But for the reason which I have given, I propose to allow this line of cross-examination.

RULING ON CALLING EVIDENCE OF MAGISTRATE

With regard to the question of the Crown’s power to call the evidence of Mr. Mitchell, I have reread the arguments adduced before me on 24th February last and whilst at the time I thought it desirable to defer a ruling, in the light of what has happened this morning it seems to me that now I should give a ruling on this matter.

I intimated on that day, 24th February that I was inclined to agree with the arguments by Mr. Brennan for the Crown and having reread the arguments I see nothing in them to cause me to change my mind. I will accordingly rule that there is power in the Crown to call the evidence if it so desires.

Unfortunately, here we have not at this moment a library adequate for the purpose of considering a matter such as this in great detail but I refer to the 10th ed. of Phipson on Evidence, par. 569 at p. 245. That paragraph reads:

“Judges of the superior courts cannot be compelled to testify to matters which have arisen before them in other trials; though this does not extend to collateral incidents occurring during such trials—e.g., the attempted rescue of a prisoner in court. But there is no objection to the judge of an inferior court being called in some circumstances, although it would seem highly undesirable to call such a witness unless there was absolutely no other means of proving some piece of evidence vital to proceedings.”

It seems to me from other references in Phipson that a judicial officer is both competent and in circumstances such as this, as I see it, compellable to give evidence should he be called.

I hold that the Crown has power to call if it so desires.

RULING ON ADMISSIBILITY OF EACH STATEMENT BEING DEALT WITH ON TENDERING

For some days I have been hearing evidence on the voire dire directed to the admissibility or rejection of a record of interview said to have been conducted by Sub-Inspector Baker with the accused man Anton ToWaliria. The admissibility having been challenged on the ground that any admissions or statements made by ToWaliria during the course of that interview are not voluntary it is for the Crown to satisfy me on this issue. The principal witnesses called have been Sub-Inspector Baker and his superior, Inspector Bell, who had the general charge of and was responsible for the conduct of the investigation into the death of Mr. Emanuel. Portion of their evidence was to the general effect that ToWaliria voluntarily answered questions asked of him and that there were no force, threats, intimidation or oppression of any kind used or offered to him. Their evidence has been strongly challenged and at this stage it is not for me to nor do I make any comment whatever on their credibility nor on their conduct of the investigation which has emerged from their examination-in-chief, their cross-examination and their re-examination.

Before lunch yesterday Mr. Lusher called Mr. Keenan as a witness and tendered some other documentary evidence. I was of the impression that he then announced that that was their evidence called on the voire dire and so noted that fact. However, the transcript makes no reference to this announcement and as I have no precise recollection of the words used by him I am not prepared to say that he in fact closed his case on the voire dire.

Prior to lunch Mr. Lusher outlined some general submissions on behalf of his client and on resuming after the luncheon adjournment he continued with those submissions. He outlined the difficulties under which he felt himself to be labouring and initially asked me to postpone addresses on the voire dire until all evidence had been heard, but his ultimate submission was that I should allow him not to close his case nor address until they had been completed. Fairness demanded this course because there might be matters elicited in subsequent voire dires of which he could avail himself in attacking the credit of Baker and Bell—and their credit and perhaps most importantly lack of credibility was vital to the success of his general submission.

All the other defence counsel except Mr. Carruthers and Mr. E. Pratt dissociated themselves from Mr. Lusher’s submission but it does not necessarily follow that their attitudes would remain unchanged when the admissibility of the confessional statements tendered against their respective clients comes to be considered.

The possibility in this is that there are 11 more statements to be challenged. Were I to accede to Mr. Lusher then as Bell’s conduct may come into question in respect of all these 11 statements he may seek to use material elicited on each voire dire which he thought to be favourable. This could involve further cross-examination of Bell in his case. I can only deal with the admissibility of each statement on the evidence called in relation to that statement. Each succeeding counsel could in respect of the diminishing number of voire dires ahead of him take the same course. To a lesser extent such a course could be sought in respect of the other police witnesses called. I have been told from the bar table there are some statements the admissibility of which will not be challenged but I will not know how many of these there are or indeed whether any until the occasion arises to tender them. In the present voire dire no question arises at this stage as to the credibility of ToWaliria. I have not heard him and have no material from which I should even attempt to assess him. If I allow Mr. Lusher to keep his voire dire open, might it not be possible that having heard all the remaining evidence to be called he would seek then to call ToWaliria—and so with other counsel. With these considerations in mind it seems to me that it would be extraordinarily difficult to appear to be doing justice in the confusion which could eventuate. As Mr. Brennan has pointed out any conclusion I come to on admissibility in circumstances such as exist in this case is open to change.

I appreciate Mr. Lusher’s concern that his client should be fairly treated and that he should appear to be fairly treated. That is also my concern. Giving the matter the best consideration I can I am of opinion that the admissibility of each statement or record of interview should be dealt with as it is tendered. If later evidence gives grounds for a submission that my ruling on it should be reversed then that submission can in due course be debated and ruled upon. I should add that in so far as any ruling depends on the credit of witnesses that credit I determine as I see it at the moment in relation to the question before me and in the light of the requisite standard of proof.

I rule accordingly.

RULING ON ADMISSION OF TOWALIRIA’S RECORD OF INTERVIEW

On 21st August, 1971, Sub-Inspector Baker conducted an interview with the accused man ToWaliria at the Livuan police station. Questions were asked by him in Pidgin and recorded and the answers said to be given by ToWaliria in Pidgin were similarly recorded. The resulting document, which has throughout been referred to as the record of interview, has been tendered by the Crown but its admissibility has been vigorously attacked by Mr. Lusher for the accused man. Evidence on the voire dire began on 21st February and the arguments concluded on 2nd March. I regret the delay which has been brought about principally by the necessity of my attending to some urgent matters in Port Moresby and also by what I deemed to be the necessity of carefully rereading the evidence given and the authorities cited to me. As far as the evidence goes I find the following to be the sequence of events.

At some time shortly after 11 o’clock on the morning of 19th August, 1971, Sub-Inspector Baker was taken by Superintendent Feeney in company with Sub-Inspector Kneebone and Sub-Inspector Bryant to a small road bordering Kabaira Plantation. This road also bordered a reserve within which is Rasimen village. On this road and somewhere about 90 feet from its junction with a track leading down to Rasimen village, he saw the body of the District Commissioner, Mr. Errol John Emanuel. There was a series of blood stains from the vicinity of the road and track junction to where the body was lying. There was a lot of blood on the deceased’s clothing. A subsequent post-mortem showed a laceration 2 to 3 centimetres long in the seventh inter-costal space and what appeared to be two internal wounds, one passing through the right lung and eventually penetrating the left, the other one apparently branching off the first some 5 to 6 centimetres inside the body and turning downwards for 5 to 6 centimetres into the lower lobe of the right lung. Death was due to a massive bilateral pneumothorax and massive haemorrhage. After the body had been removed Baker, along with Superintendent Feeney and the mobile police, made a sweep through the bush to Rasimen village. There he observed a large number of native males running away in the bush. There was one man, ToGigie, who remained in the village and Baker had a conversation with him.

On 21st August Inspector Bell, who by then had arrived from Port Moresby and had taken charge of the investigation into the death of Mr. Emanuel, had a conversation with Sub-Inspector Kneebone in which Kneebone reported the following to Bell: “I told Taupa (one of the present accused) that ToBoro had told me ToWaliria killed Emanuel. I asked him if this was true and Taupa said ‘Yes’ and named some of the men.” Bell also had a report from Sub-Inspector Bryant that during an interview with ToBoro the latter had said to Bryant, “ToWaliria killed the District Commissioner”.

Early on the morning of the 21st a party of police, which included Inspector Bell, Sub-Inspector Kneebone and Constable ToButinga, conducted a search in the vicinity of caves behind Rasimen village and, when making their way back towards the North Coast Road, Inspector Bell at about 8.00 a.m. saw ToWaliria clad in shorts and with a bush knife in his hand about to cross from left to right the path upon which the police officers were walking and about 12 feet ahead of them. ToButinga was in the lead and Inspector Bell saw him grasp ToWaliria by the right arm and heard him say, “What is your name?” to which the reply was “ToWaliria”. ToButinga walked with ToWaliria about 300 yards to the main road and to a Datsun car parked by the roadside. About 30 minutes later Bell saw ToWaliria at the Livuan police station which is about 15 minutes’ drive from Rasimen on the way to Rabaul. He was then standing in front of the station together with nine other Tolai men. A short time later he saw ToWaliria in a line of men and later again saw him in the office at the police station. The police station consists of three rooms, these from right to left as one looks at the station from the main road being the duty office, a single men’s dormitory and a kitchen cum mess-room. Bell left the station and returned about two hours later and then observed ToWaliria sitting in a chair in the office. The latter then left the office in the direction of the kitchen at the other end of the building. About 10 or 15 minutes later he returned to the office, walked to a desk and sat down on a chair in front of the desk. At this time Sub-Inspector Baker, Sub-Inspector Bryant and Constable Wagi were also in the office. At this time, which I find to be 12.05, Baker began to type out the document which is the subject of this voire dire and has throughout been referred to as a record of interview. The desk at which the interview was conducted was placed a short distance away from and parallel to the righthand end wall of the police station and almost adjacent to the counter which ran from right to left the length of the office as one entered it. Bell seated himself at a table in the lefthand far corner of this office and remained for about 1 1/2 hours whilst the interview was being recorded, compiling a list of persons whom he wished to interview. After about 1 ½ hours he walked into the next room where he remained until the conclusion of the taking of the interview. The interview concluded at 2.25 p.m. Baker was present for the whole of the interview as were Sub-Inspector Bryant and I think Constable Wagi and there was a short break for a meal from 1.30 to 1.40 p.m.

I am satisfied that at no time whilst ToWaliria was under the observation of Baker and Bell was there any violence of any sort proffered to ToWaliria. I am satisfied too that there was no sign visible of any injury to ToWaliria’s right ear. On Bell’s return to the office where the interview took place and immediately after the interview he asked ToWaliria whether the police officer hit him or said that he would later hit him if he did not speak, or tried to bribe him or said to him he would not later go to court or prison if he spoke. ToWaliria answered in the negative. Bell also asked him whether any other police officer or policeman had acted similarly towards him, to which he also replied in the negative and similarly replied to a question whether when the police first arrested him and prior to them asking him questions had any policeman hit him.

During the morning there were a number of Criminal Investigation Branch members in and around the station at Livuan and in the vicinity there were at least three members of the mobile or riot squad armed with shields, batons and at least in one case with a rifle. Two of the five police officers were armed with a pistol although there was no pistol on the table at which the interview was being conducted and I do not think there was one in the room. After the interview was completed and the questions and answers typed in Pidgin by Sub-Inspector Baker, Constable Wagi read the contents of the document over to ToWaliria. At some time after this ToWaliria was taken back to the vicinity of the finding of Mr. Emanuel’s body and later to the Rabaul police station where he was charged with wilful murder and locked up. He was kept in a separate cell, measuring 6'6” by 12' by 8' high, and was so directed to be kept. A reason for this direction was given but I do not think it important in the present context. He was later brought to court before the resident magistrate, Mr. Mitchell, on the morning of Monday, 23rd August. There he was asked, in the course of proceedings but at a time which I am unable to determine in relation to the other accused who were also before the court that morning, a question the result of which was recorded in English on the court record by the magistrate as being that he had no complaints of his treatment. However the magistrate did not record in Pidgin the question asked nor the answer given. According to the best of his recollection he asked the question of which he stated the English translation to be, “Do you want to tell the court about anything that happened to you when you were arrested and when you were waiting to come before the court?” I am not able to determine whether ToWaliria understood that he was being asked as to whether he had any complaint of police treatment and I do not derive any assistance on the question of violence from what took place in the court on this day.

On 20th October ToWaliria was seen by Dr. Beatty at the Nonga Base Hospital and was observed to have a hole in his eardrum which was discharging pus. He was brought back to hospital, in all five times but at not very regular intervals. The treatment was completed but the doctor thought it would not be as effective as if he had been brought back regularly. The damage observed by the doctor was not of itself consistent with a blow on the ear but it may have arisen from such a blow. In the doctor’s opinion a blow on the ear was more likely to damage ToWaliria’s eardrum because of previous ear trouble. The history which ToWaliria gave to the doctor enabled the latter to say that the damage that he saw could have been caused by a blow to the ear and he would expect some bleeding from a severe blow if it had damaged the eardrum. The doctor recollected that ToWaliria when giving his history said that he had received a blow on either the evening of the day of his arrest or of the day after. He was sure that ToWaliria said it was in the evening.

On 20th August there were both a charge book and an occurrence book at the Livuan police station although Bell was not aware of their existence and he in fact regarded Livuan merely as a convenient base to be used in the course of the investigation. To him Rabaul was the centre of the investigation.

Mr. Lusher contested the admissibility of the record of interview with ToWaliria on three main bases. The first was that the Crown had not succeeded in proving that any statement made by ToWaliria during the course of this interview was voluntarily made, the second that even were I to hold that they were voluntary I should exercise my discretion in ToWaliria’s favour and the third related to the document itself and to its contents.

The submission that the statement was not voluntary was supported in two ways. Firstly, it was said that the evidence showed that ToWaliria had been assaulted before the record of interview began and, secondly, it was urged upon me that the circumstances showed what amounted to an inducement to him to speak. I can see nothing in the evidence to enable me to come to a conclusion that there was an assault. I appreciate Mr. Lusher’s difficulties with regard to calling his client but the fact remains that I have no evidence whatever from him to support this assertion. No suggestion was put forward as to the circumstances in which or the assailant at whose hands ToWaliria might have received a blow on the ear. The most that can be said is that when examined by Dr. Beatty on 20th October he alleged that on an evening after his arrest he was assaulted by a native policeman, but this could have no relation to his answering questions in the middle of the day and in any event such a piece of hearsay cannot be admitted as evidence of the fact in issue. Whatever else may be said about Messrs. Bell and Baker I see no reason to doubt their assertion that no violence was exercised by them or in their presence and I accept Bell’s evidence as to his questioning ToWaliria on this subject at the conclusion of the interview. In coming to the conclusion that there has been no violence I have not relied upon anything that was said by ToWaliria in court on Monday 23rd August because I am not satisfied that the language which the magistrate recollected he used was necessarily understood as inviting complaint of the sort of treatment alleged.

The submission with regard to inducement amounts in essence to an allegation of a deliberate lulling of ToWaliria into a false position. The circumstances of his apprehension, as it is argued, misrepresented the reality of his position and so amounted to an inducement. I do not think this is so. I think it reasonable to assume that at least ToWaliria must have been aware of the death of the District Commissioner, that that death had occurred in close proximity to his own village, that it was the subject of police investigation and that when he was taken in custody along with a number of other villagers and was for some time, however short, in their company at Livuan police station on the 21st, he would expect to be questioned as to what he could say about that death and as to his knowledge of the circumstances in which it took place. I appreciate that there is no evidence to show that he was made aware that he was a suspect or prime suspect but there was nothing in the nature of the questioning to trap or compel him into an admission. My main concern has been whether the form of caution given to him was sufficient to advise him of his right to remain silent. I have not heard from him of course that it was not, but in this case the onus does not lie on him to satisfy me. I have read and compared the evidence of Mr. Parker and Mr. Keenan. In the course of the debate I have expressed the view that I prefer the form of caution composed by the latter although I have had second thoughts about some aspects of it. However, my preference remains for a rather more elaborate form for general use and on this matter I hope in due course to consult with my brother Judges. But the question remains whether with this man and in his environment was the caution administered sufficient to make him understand that he had a right to remain silent if he so desired. I observe that even in the Police Manual there is nothing said about verbal expression of a duty to warn. See the form of caution set out under Rule II and Rule V. I have not the benefit of being able to assess his level of intelligence or comprehension. I can only go on Mr. Parker’s view, and he has had a good experience of the Tolai people, that the form of words used would convey the meaning of freedom not to speak. So far as I can see ToWaliria has been taking a consistent and intelligent interest in the proceedings. Having in view the importance of this matter I think that, on the balance of probabilities, the caution would be sufficient in his case and that so far as concerns the beginning of the interview he exercised a right of voluntary choice. However, when one comes to question 57 as it is numbered in the English translation the position is somewhat different. The question is virtually in imperative form and although there are some cautionary words at the end I have some doubt as to whether ToWaliria would fully appreciate that he continued to have a free choice. I think it possible that he would have freely continued to answer questions as the record shows his having done up to that point but I have not that degree of satisfaction that I should have that this was so. Accordingly I hold that the questions up to and inclusive of question 56 were answered voluntarily but that I am not satisfied that they were so answered thereafter, and I would reject that part of the record after question 56.

This brings me to the submission that I should reject the whole of the record of interview on the basis that it was unfairly obtained. Here it is for the accused to satisfy me, an onus which in my opinion is quite clearly established by the authorities.

In the first place Mr. Lusher made a general and sustained attack on the police approach to this investigation and on the conduct of the investigation itself. He invited me to condemn and rebuke the police officers concerned in the strongest terms and by way of ultimate sanction to reject the record of interview now tendered. He referred me in detail to the relevant portions of the station memorandum issued under the hand of Superintendent Parry at Rabaul in October 1967 and to the volume entitled “Police Procedure” issued under the hand of the Commissioner of Police in September 1970. This has been referred to constantly as the “Police Manual” which I think a convenient term. The manual he said in effect left no room for the use of the record of interview technique. It was and is incumbent on the members of the police force to ensure that the suspect interrogated should give his story in his own words and in such context as he selected without questioning or examination of any sort except such as was necessary to clear up ambiguities. Mr. Brennan on the other hand strongly urged upon me that there is no directive which forbids the use of the record of interview procedure and that rule 7 of the Judges’ Rules, which also happens to be rule 7 of the relevant instruction in the manual, has no application where such a procedure is adopted. He readily conceded that the spirit of the Judges’ Rules is to be observed and that in the application of this procedure care must be taken that there is no breach of statutory or common law rules and also that fairness towards the person being interrogated must be observed. In support of his argument he reminded me of the obiter dicta of the court in R. v. Lee[clxxiv]28—”The expression ‘voluntary statement’ in rule 7 probably has reference to a volunteered statement”.

Whilst I am inclined to doubt whether the procedure directed to a record of interview could stand with the imperative way in which the Judges’ Rules as expressed in the Police Manual have been promulgated, the reference to R. v. Deverell[clxxv]29 cited i expe explanatory matter to rule 2 has caused me some confusion and would, I think, be apt to co any policeolice officer seeking guidance from the manual.

However, I have no confidence that either Bell or Baker is as familiar with this section of the manual as he should be and I do not think that any thought was given to the contents in this case. Before passing from Mr. Lusher’s argument on this aspect I should say that I do not attach the same importance to the October memorandum as he does. I think the later September document is the one to which an officer or member of the police force should be expected to look for direction and guidance. But whatever be the situation in relation to internal police management the rules are not to be considered as the law of this country. This itself is recognized by par. 2 of the relevant section in the manual. They are at most guides to proper conduct and guides which in appropriate cases may well be of the utmost importance in judicial consideration of matters in issue. For myself I think there is a lot to be said for the views expressed by McClemens, J. in R. v. Ragen[clxxvi]30 at p. 574 where he says:

“Speaking for myself, I think the system of recording interviews haseat amount ount to commend it. This is of particular importance in this case; the events took place on the morning of 15th December, 1962, and the trial is now proceeding, on 23rd June, 1964, and it prevents either the reality, or the suggestion, of defective memory; it prevents the suggestion or the reality of what is not uncommonly claimed and alleged in these courts, namely the fabrication of verbal admissions. If a person who has been charged is served with a copy of his statement immediately one cannot imagine any greater protection that any accused could have against subsequent fabrication, addition, alteration or other change in the evidence. Unfortunately, one sees in this court, criticisms of the police, either on the basis of invention or of slippery memory. Hence it is much more satisfactory to have put before the jury a contemporary document which is recorded, which cannot be changed, because it is there as a permanent record, rather than to have a witness going into the box and giving evidence perhaps quite honestly but in respect of a matter which, in the ordinary way of human nature, he has forgotten and which he has set about, probably the day before, to learn off by heart. As I say, it is much more satisfactory to have a document that comes into existence at the time and of course, unfortunately one does frequently hear suggestions in this court of fabricated admissions. In that instance also the contemporary document does mean that as from the time it is brought into existence and served on the prisoner any addition to or alteration by way of confessional evidence must be looked at with suspicion. It is a protection to the police concerned, to the prisoner, and what is more important, to the public.”

Whilst I have not had the advantage of reading other than the digested headnote in R. v.Deverell[clxxvii]31 I am inclined to agree with what is set out in (2), (3) and (4) therein.

I know something of the difficulties of police administration in this country—not the least of which is the necessity to appoint relatively untrained officers to senior positions. This, of course, makes it all the more important for the courts to carefully scrutinize the conduct of police investigations and interrogations and to rigorously uphold proper standards of propriety and fairness. In my respectful opinion the passage from the judgment of Street J. (as he then was) in R. v. Jeffries [clxxviii]32, approved in R. v. Lee[clxxix]33 has equal applicability in this country and correctly states the law here. That passage reads:

0;The obligobligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence.”

With these considerations in mind I turn now to look at what happened with regard to the interrogation of ToWaliria. Although the evidence is sketchy I would not be prepared to say that Bell did not have reasonable grounds for suspicion that ToWaliria had killed Mr. Emanuel. On the other hand having taken him into custody at 8 o’clock in the morning I can find no justification in law for holding him at the Livuan police station until he could be interrogated. On the evidence before me there seems to have been a breach of s. 522 of the Criminal Code. As far as I can judge, again on the evidence so far before me in this voire dire, the police officers concerned had it primarily, if not solely, in mind that ToWaliria should be detained for investigation. He was not told, as he should have been, what was the reason for his detention nor that any charge was to be preferred against him. Such conduct is to be strongly deprecated. I realize that both Bell and Baker were concerned in investigating the general circumstances of Mr. Emanuel’s death and that the officers available for this investigation may have been insufficient in number but that does not excuse the failure to carry out what I consider to be the clear requirements of the law.

There were a number of other matters adversely commented upon by Mr. Lusher, e.g. the failure of Bell to acquaint himself with the police records available at Livuan police station and the consequent failure to enter the charge in the Charge Book and other matters concerning the investigation in the occurrence book. The general unreliability of the entries in the Charge Book at Rabaul and perhaps in particular the police attitude to bail, which I have already commented upon in the case of Taupa, are matters which I would hope would be taken up administratively. All these matters I would also hope would be realized by the general public, by the executive and the legislature as requiring training and adequate supervision and consequently time and money for their proper observance. When I am told that there were something like 25 records of interview conducted and 120 potential witnesses to be sorted out and, if possible, interviewed, I can well understand the problem facing the police in this case. This, of course, is not confined to Rabaul. Time and time again I see the results of investigations inadequately carried out because of both the lack of personnel and because of the lack of the necessary training. But all this being said the simple question with which I am concerned is whether the improprieties I have referred to and the apparent determination of the police officers concerned to question ToWaliria at length, both as to his own part in Mr. Emanuel’s death and as to the part played by anyone else therein, produced such an unfairness as should vitiate what I have held in part to be a voluntary statement. I cannot see that there was such unfairness. Whilst the questioning evidenced by the record of interview was searching except for the one instance that I have already dealt with it does not show any attempt to overbear much less entrap. There is nothing in the answers which, prima facie, shows that ToWaliria was confused or disturbed and nothing in what I see to be the general circumstances existing that morning which would lead me to think that there has been such oppressive conduct on the part of the police officers as to make it unfair to him to admit such of the record of interview as I have held to be voluntary. In all the circumstances I do not think I should exercise my discretion in ToWaliria’s favour.

I come now to the final submission by Mr. Lusher which goes to the admission of the record of interview as a whole. He submitted that on the Crown case here this document is one of a confessional nature which is put forward as containing admissions as to the nature of the crime with which ToWaliria was charged. He argued that the matter contained in the document must be related to the offence with which the accused is charged and this document does not come within that category and consequently should be rejected at the outset. He went on to submit that it contains nothing by way of confession or admission of wilful murder. He then made some analysis of the document and of the interpreters’ evidence with relation to the words “kilim” and “kilim i die”. There was nothing in the record of interview which could be taken as an admission of wilful murder and as the Crown in opening had said in effect that there was no other evidence against ToWaliria than that contained in the document it was inadmissible on this charge. The submission was novel, no authority was quoted in support of it and I think it is misconceived. So far there is evidence going generally to the circumstances of the death which I have not heard. Mr. Brennan informed me that there are other small pieces of evidence which he proposed to lead and which will have relation to ToWaliria. There are admissions in the document which if I accept when I come to consider its weight will show that ToWaliria stabbed the deceased man. The intent or lack of it with which he stabbed will no doubt be a matter of inference when I have heard all the evidence for the Crown. In my opinion, the document is not inadmissible on the ground urged and I would reject this argument.

Accordingly I rule that the record of interview up to and including question 56 as so numbered in the English translation be admitted into evidence.

RULING ON MOTION TO STOP TRIAL—DEPUTY CROWN SOLICITOR ACTING AS LEGAL ADVISER TO POLICE AND PROSECUTION.

Mr. Lusher has submitted that at this moment I should bring this trial to an end. The submission arises in this way. From evidence given yesterday afternoon it appeared that Sub-Inspector Baker had two conferences with Mr. Pratt, Deputy Crown Solicitor at Rabaul—one on the afternoon of Sunday, 22nd August, 1971, and the other on the early morning of 26th August. Both were to discuss legal aspects of the police investigation, that investigation being then in progress, into the death of Mr. Emanuel. It was stated, and I accept as the fact, that Mr. Pratt appeared for the Crown in the committal proceedings against the accused and he appears in this trial as junior counsel assisting Mr. Brennan of Her Majesty’s Counsel, who leads for the Crown.

Mr. Lusher based his submission on the principle that justice must appear to be done and he said that justice does not appear to be done when the Deputy Crown Solicitor, as it now appeared, had not only been advising the police on the legal aspects of their investigation before at least some of the charges in this case were laid, but followed up his advice by assisting to prosecute those very charges. Mr. Lusher made it clear that in his submission it was entirely proper for the Deputy Crown Solicitor to advise the police and also to act as a prosecutor, but to act in both capacities in the one case breached the principle. He amplified that to some extent this morning with further submissions that it was an irresistible inference that Mr. Pratt must have taken some part in the preparation of the indictment, or perhaps the indictments that have been at one time or another presented in this case.

I do not propose to go any further into the argument. In my opinion there is nothing that has happened or been said in these proceedings to lead to a conclusion that justice is not being seen to be done. Apart from a little and understandable heat which entered into the Crown’s submission this morning—some submissions made by Mr. Lusher seemed to carry an implication which could be thought to be personally attributable to Mr. Pratt, from which improper conduct could be attributed to Mr. Pratt—apart from that the conduct of the prosecution has been patently beyond reproach, as I and the public would expect, and I have no reason to anticipate that it will not continue. And I propose to continue with the trial.

RULING ON CROSS-EXAMINATION UPON CREDIT OF WITNESS

This is a matter which has caused me considerable concern, not only now but earlier in this trial. Mr. Carruthers seeks to put a series of questions to Inspector Bell relevant to advice which he may or may not have received from the Deputy Crown Solicitor at Rabaul on the afternoon of Sunday 22nd August.

As I understand him he hopes to be able to show that there has been, or may have been, a deliberate flouting of advice given to the police inspector. There may be other advantages to his client, which I for the moment cannot conceive, that he may also seek to obtain.

Mr. Brennan for the Crown has objected to this line of questioning, in the first place because he says a privilege exists in the case where a senior officer of police—in this case the officer in charge of the investigations into the death of Mr. Emanuel—seeks advice from the Deputy of the Crown Solicitor here in Rabaul. And he puts it much higher, in that there is or he avers that there is a general Crown privilege existing where one department or branch of government seeks advice from another branch or department of government which is the appropriate branch to give that advice. That is I think Mr. Brennan’s case.

In the second place, although I think this is the primary matter for consideration, he has submitted to me that this line of questioning should be excluded on the grounds of irrelevance, that is irrelevance as I understand it to the credit of the witness in the box, Mr. Bell. The only way in which I can see that it could be relevant is, if successful, in showing that the Inspector is a man who is prepared to deliberately flout advice given to him by the Crown in the conduct of his investigation, and to flout it to such an extent as to possibly deliberately break the law in the course of that investigation.

This of course must be looked at in the setting of this voire dire which is an attack on the admissibility of a statement made by the accused man, ToGogol, a statement which it is said will be inadmissible—firstly as having been involuntarily made, and the basis of that involuntariness being the inducement on ToGogol to make a statement brought about by his arrest at 10 o’clock on the morning of 22nd August his detention without cause at the police station at Rabaul, and his continued incarceration there under conditions which will be alleged to be disgraceful, for a period of some 96 hours. I might note in passing that none of these matters seem to depend upon the credit of Mr. Bell.

Secondly, assuming that I would uphold the statement that the record of interview was voluntarily made then the general conditions of unfairness attendant upon this making should lead me to exercise my discretion against its inclusion at the trial. It is only with regard to the second aspect that this line of questioning attacking the credit of Mr. Bell could have any relevance.

On the whole, I think that this line of attack is too remote to urge upon me in my consideration of the unfairness of admitting the statement. I have I think already, and indeed on previous occasions, allowed a great deal of latitude in this matter of cross-examination upon credit. I think this is going just too far. I am not saying that in any criticism, but it is always a difficult question to know just where the bounds of cross-examination as to credit lie. I think this is on the other side of these bounds, and accordingly I would not allow the examination on that premise.

I say nothing about the question of the solicitor/client relationship or the privilege between government departments. That is a difficult subject and requires more study and reference to authority that we can embark upon at this moment.

RULING ON CROSS-EXAMINATION OF ACCUSED THOMAS PAINUK

The Crown announced its intention, or desire, to cross-examine the witness now in the box, the accused man Thomas Painuk, as to some previous convictions. This application was strongly opposed by Mr. Hamilton for the accused man and I have heard a good deal of argument on the application.

In my view s. 6 does govern the situation in this case—s. 6 that is of the Evidence Ordinance 1934-1969.[clxxx]34 I am of the view that at common law up until 1898, an accused man could not give evidence in riminal proceedings. That phat position of course was changed in England by the Criminal Evidence Act of 1898, an Act which was reproduced in substantially the same terms in the Australian States and in New Guinea by s. 6 of the Ordinance.

I think the clear meaning of sub-s. (1), where it is said that a person charged with an offence shall be a competent witness for himself in any proceedings in connection with the offence, can only be read naturally as meaning any proceeding at all and a hearing on the voire dire in my opinion is a proceeding in connection with an offence. That being so, sub-s. (4) is applicable. And I should say, with regard to sub-s. (1) that I say this despite the implications that might be drawn or possibly could be drawn from Cowell’s case[clxxxi]35 and from Baldwin’s case[clxxxii]36, which none of us have had the opportunity of reading. In Cowell’s case (supra) the report does not show any argument dealing with s. 1 of the Criminal Evidence Act of 1898. I think the reasoning of Mr. Neasey (as he then was) in Vol. 34 Australian Law Journal, is of help, but it is interesting to note in the article that the whole tenor or purpose of the article is to show that questions should not be allowed on the voire dire tending to show that the accused person is guilty of the offence of which he is charged. That question, of course, does not arise in this case because I ruled at the outset that no questions of that nature would be allowed.

We come to sub-s. (4) and its application to the matter before me. A long line of English cases shows that if there is an imputation on the nature or conduct of the prosecution—albeit that imputation be in the development of the defence—the section applies and, subject to the exercise of discretion, cross-examination as to character may be allowed. The King v. Hudson[clxxxiii]37, The Queen v. Cook[clxxxiv]38 and case[clxxxv]39 all show this to be the and on skin skimming—as I did during the lunch-hour—the of The Queen v. S Selvey[clxxxvi]40, it is noticeable how Hudson’s case (supra) forms the basis for the decision of all the noble Lords in that case. And of course the same view of the law is taken in the case of Dawson[clxxxvii]41 whis cited ited to me this morning. These cases show there is no gloss to be placed on the section. I should say now that I do not think that Dawson’s case (supra) necessarily approves of Flynn’s case (supra) in all that it decided. It was only Mr. Justice Dixon (as he then was) of the Justices who decided that case who made any detailed reference at all; Sir Alan Taylor and Sir William Owen both merely referred to it in passing and did not of necessity approve all that was said, particularly of the passage cited by Mr. Justice Lucas in Matthews’ case[clxxxviii]42.

Although there is no definition of “aid” or “aiding” in the Code and as Philp J. remarked in R. v. Solomon[cxci]45 the “8220;abet” is not used, it is interesting to note that as early as in Queensland in R.. v. Kenniff[cxcii]46 Coop expresxpressed the opinion that s. 7 is “really a declaration of the common law” anffith C.J.,C.J., the virtual author of the Code, at p. 43 refers to the position of an “aider and abettor”. The New Guinea Criminal Code was adopted from Queensland in 1921. I have given some consideration to the view of Philp J. (expressed in R. v. Solomon[cxciii]47 ) triminal inal responsibility must be determined solely by the proper interpretation of the provisions of the Code which he says aspires to base criminal responsibility in logic, and further, that it requires consideration of fine distinctions concerning that responsibility which are unknown to common law. At a later stage I will say a little more with regard to Philp J.’s application of s. 7 and s. 23.

I agree with the submission made on the part of the Crown that at common law the class of principals in the second degree includes one who—(a) encourages or otherwise assists in the commission of a felony; and (b) is present at such a place as permits him to encourage or assist as the case may be. Further, I agree that it is not necessarily essential to prove either—(i) any physical participation other than presence, or (ii) the existence of any pre-arranged plan or the accused’s knowledge of any such plan. However, encouragement in one form or another is a minimal requirement before an accused person may properly be convicted as a principal in the second degree of any crime—see R. v. Allan[cxciv]48, per Edmund Davies L.J.

I find particularly helpful and apt and I respectfully adopt what was said by that great lawyer, Sir Leo Cussen in R. v. Russell[cxcv]49: “Various words such as ‘aiding’, ‘abetting’, ‘comforting’, ‘concurring’, ‘approbating’, ‘encouraging’, ‘consenting’, ‘assenting’, ‘countenancing’ are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has as I have indicated a wide meaning. The common dictionary meaning of ‘abetting’ is ‘encouraging’ or ‘countenancing’ and this is to be remembered when the words ‘aiding or abetting’ alone are used. All the words abovementioned are I think instances of one general idea: that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime and is by his words or conduct doing something to bring about or rendering more likely such commission.” But of course those words or that conduct must be wilful or intentional. As was said by Megaw L.J. in R. v. Clarkson[cxcvi]50: “it is not enough then that the presence of the accused has in fact given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.”

In my view Mr. Brennan properly stated the law when he posited that the principal in the second degree whether under the Code or at common law must have a culpable mental state when he aids and abets. His actions must be willed not accidental, intentional not unintentional. If presence is relied upon the presence must not be accidental but willed, that presence must be with the intention of encouraging or assisting the commission of the crime charged. I did not understand any counsel to quarrel with these propositions.

In this case Mr. Brennan says there can be no question but that the aiding and abetting by the present accused is an aiding and abetting of the crime of wilful murder and of no other crime and he does not seek to suggest any other or lesser crime for which they or any of them should be held criminally responsible.

There is one aspect in which the provisions of s. 7 may be wider than the common law. Section 7 (b) attaches criminal responsibility to those who do not in fact aid in the commission of an offence but who engage in conduct for the purpose of aiding. I agree with Mr. Brennan’s proposition that under this subsection an offender who has tried to aid may be guilty of the crime committed even though he did not succeed in aiding. But as will be apparent when I come to consider the individual accused I do not regard this subsection as being relevant in this case.

As I understand the Crown case it is not suggested that any direct physical aid was given by any of the ten people whose cases I am now considering. In all the cases before me a great deal turns on the presence of the accused at the scene of the commission of the crime. In most if not all it cannot be said that they were in the presence of ToWaliria and Emanuel, at least in the sense of being in their sight and presence, and in those circumstances it seems to me that they must be somehow fastened with knowledge of a plan to kill the District Commissioner to which plan they subscribed.

In discussing participation of a number of persons who took part in what was obviously a riotous assembly and in the subsequent demolition by burning of a house, Littledale J. in R. v. Howell[cxcvii]51 had this to say:

“But I take it to be settled at this day, that all those who assemble themselves together with a felonious intent, the execution whereof causes either the felony intended or any other to be committed, or with an intent to commit a trespass, the execution whereof causes a felony to be committed, and continuing together abetting one another till they have actually put their design in execution; and also all those who are present when a felony is committed, and abet the doing of it, as by holding the party while another strikes him; or by delivering a weapon to him that strikes, or by moving him to strike, are principals in the highest degree, in respect of such abetment, as much as the person who does the fact, which in judgment of law is as much the act of them all, as if they had all actually done it; and if there were malice in the abettor, and none in the person who struck the party, it will be murder as to the abettor, and manslaughter only as to the other. It doth not seem necessary to the making an abettor a principal, that the person on whom the felony is committed should be under any terror from the abetment, and by reason thereof discouraged from making that defence which otherwise he might have made; but it seems to be sufficient for this purpose, that the person who does the fact is encouraged and emboldened in it from the hopes of present and immediate assistance from the abettor, whether he be within view of the fact, or not.”

And at pp. 449-450[cxcviii]52 he quoith aith approval the following passage from the 1st ed. of Russell on Crime