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Wanu, The State v [1977] PNGLR 152 (25 May 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 152 - The State v Nataemo Wanu 

[1977] PNGLR 152

N96

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

NATAEMO WANU

Lae

Frost CJ

16-20 May 1977

25 May 1977

CRIMINAL LAW - Evidence - Corroboration - Accomplices - Applicability of common law practice requiring warning that it is dangerous to act on the uncorroborated evidence of an accomplice - Who is an accomplice within the meaning of the rule - Wilful murder - Accomplice previously convicted as accessory after the fact - Rule applied.

EVIDENCE - Corroboration - Accomplices - Applicability of common law practice requiring warning that it is dangerous to act on the uncorroborated evidence of an accomplice - Who is an accomplice within the meaning of the rule.

The accused was charged with the wilful murder of one Siri Bena on a date unknown between 1st June and 30th June, 1973. The murder was alleged to have been committed in an isolated corner of the Morobe District, and the State case depended on the testimony of a single witness, Toropen, who had been convicted in October 1976 of being an accessory after the fact to the murder. Toropen’s evidence was to the effect that he and the accused and three others went to the hut where the deceased was sleeping, that they stood outside while one of the three others killed the deceased, that all five men then carried the body down to a river, packed the body with sand, built a raft and took the body out to sea where it was dumped overboard. This story was not uncovered until 1976, by which time two of the three others were dead and the third missing, leaving Toropen and the accused as the only participants.

Held

(1)      The witness cannot be held to be an accomplice within the common law rule as to obligatory warnings, unless chargeable as principal or accessory. An accomplice must be a person privy to the criminal intent of the accused and the common law rule as to obligatory warnings is limited accordingly.

McNee v. Kay [1953] VicLawRp 2; [1953] V.L.R. 520 followed.

(2)      It is for the Tribunal of fact to decide the question whether the witness is an accomplice.

Glanville Williams Corroboration — Accomplices [1962] Crim. L.R. 588 referred to.

(3)      Accordingly the Court was not bound by the judgment against Toropen upon the charge of being an accessory after the fact.

(4)      The mere fact that the witness has already been convicted does not relieve the court from the necessity of giving the warning.

(5)      On Toropen’s evidence, the degree of participation by each of those involved in the incident being the same, the same criminal intent was to be inferred against each of them.

(6)      Accordingly, the common law rule of practice requiring a jury to be warned that it is dangerous to act on the uncorroborated evidence of an accomplice, but that they are entitled to convict on the uncorroborated evidence if they think fit, was applicable in the circumstances (including the circumstance of Papua New Guinea in which the Tribunal of fact is not a jury).

McNee v. Kay [1953] VicLawRp 2; [1953] V.L.R. 520 followed.

(7)      On the evidence it would be dangerous to act on the uncorroborated evidence of Toropen as to whether the accused was a participant in the crime and there should accordingly be a verdict of not guilty.

Trial

This was a trial of an accused on a charge of wilful murder, where the State case depended on the testimony of a single witness who had himself been convicted of being an accessory after the fact.

Counsel

B. T. J. Sharp, for the State.

D. L. O’Connor, for the accused.

Cur. adv. vult.

25 May 1977

FROST CJ: Trial upon indictment of the charge that the accused on a date unknown between 1st June and 30th June, 1973, that is four years ago, wilfully murdered one Siri Bena.

The murder is alleged to have been committed in an isolated corner of the Morobe District, near the mouth of the Waria River. The State case depends on the testimony of a single witness, one Toropen Komburo, who was himself in October 1976 convicted of being an accessory after the fact to the murder and sentenced to 18 months’ imprisonment. The deceased’s widow, Norah, was also called but her evidence is really confined to filling in the background of the case.

Toropen’s testimony reveals a crime of great treachery, ferocity in the way it was done, and deceit. Whether it should be accepted as proof beyond reasonable doubt that the accused was implicated is the real issue in this case.

The evidence establishes that in June 1973 the deceased, a short, plump but strong man, grey-haired and elderly, who ran a tradestore upstream at Pema village, was minded to convey some garden produce to Morobe for sale at the market. So, stacking the cargo on board a raft and taking with him his wife, a young son and a grandchild, he drifted the raft down the fast-flowing river to a village called Kobo near the mouth of the river. In his bilum he carried the funds from the trade store, consisting of notes and coins, about K200 in all. The journey took all Tuesday and they arrived at dusk. He had made arrangements in advance for the Morobe Council boat to be there on the Wednesday for the final stage of the carriage along the coast. Morobe, the Court was told, is six hours’ journey by foot from the opposite side of the river to Kobo. The deceased had been to Kobo some years before to see relatives in the vicinity. Indeed, he spoke the same language as the Kobo people. He had planned to stay overnight with the pastor, but when on arrival he found the house locked and the pastor away the accused, who was a councillor, came forward and made arrangements for the deceased and his family to be put up at the village, a short distance from the river. The accused, who did not know the deceased, also helped bring up the deceased’s produce to a safe place above the bank. The deceased’s wife stayed with the accused’s family in their haus meri, and the deceased, with certainly the elder child, spent the night in the haus boi.

Next morning the deceased was up at sunrise, and after awaking his family took them down to the river. The Council boat had not arrived as promised. They aroused Toropen, who was the ferryman employed by the Council. The deceased’s plan was for his wife to cross the river and send the word to Morobe for the Council boat. Toropen said the entire family went across on the canoe and he brought back the deceased, who had decided to await the boat. Whether he went over, however, is doubtful because the widow said he stayed on the Kobo side of the river. Certainly it was the last time she saw her husband, and his body has never been found.

Toropen’s evidence is that on Tuesday night he and the deceased slept in a house belonging to his brother-in-law, one Aso, and which was very close to the accused’s house. After his return on Wednesday morning, the deceased spent the day in the village and slept again at Aso’s house. Toropen’s habit was to sleep in the haus boi, but to spend the day in the ferryman’s hut by the bank of the river. It had no walls presumably because of the heat, and was fitted only with a narrow bed upon which the ferryman used to sit as he waited for travellers. Toropen next saw the deceased at dusk on Thursday as they passed on the path between the village and the ferryman’s hut. The deceased was carrying “a fire” and also his bilum as he went towards the hut. They did not speak.

It was early on that night, at about 8 o’clock, that the deceased was murdered. Toropen said he was approached as he was eating his meal by three men, Doiemo, David and Ziama. In giving his evidence-in-chief, he said he was told that they planned to kill the deceased, and rob him of his money. Later he said that what was said was that they were off to the beach to catch crabs, and he replied he would join them later. It was at the river he said, and this was the account he had given earlier both in his record of interview with the police on 5th June, 1976 and also at the committal proceedings upon the charge against the accused, that Doiemo told him of the plot after he, Doiemo, David and Ziama had been joined by the accused. He warned them of the government law to no avail, and the four left the beach and went to the hut. Toropen followed them. There the deed was done. Whilst the others including Toropen stood outside, Doiemo crept into the hut, where the deceased was asleep on the bed and, wielding his tomahawk, slew Siri with a single cut to the head. It was done without compunction because Siri was no “wantok” and for his money. As for the money, in evidence Toropen said Doiemo took the money from the bilum, which the deceased had been using as a pillow, and gave the money to the accused who put it in his pocket. Doiemo then threw the bilum away.

But this was not the only account of this incident. In the record of interview tendered on his own trial he said merely that it was Doiemo who got the money from the string bag and threw the bag into the river. A different and more detailed account was given at the committal proceedings, that after Siri had been killed, it was the accused who went and got Siri’s bag from underneath the bed and took out the money from the bag and put it in his pocket.

At the hearing Toropen said that the body was then carried down to the river by all five men. Doiemo took his axe again, cut open the adbomen and the others then assisted to pack sand inside the body. Siri’s shirt and shorts were thrown into the river. To dispose of the body, a rough raft was made of logs from banana trees. Siri’s old raft was not used. The ropes had been cut and it floated down river. As a bier for the body, the raft was then towed out to the mouth of the river with the accused paddling the canoe. Toropen remained on the shore, apparently with Ziama, whilst the others pushed the body into the sea. On their return the money was counted; the five men went to Wegu Creek nearby and Doiemo retrieved the money. What happened to it, whether Doiemo kept it or distributed it, Toropen did not know. Certainly, said Toropen, he got none of it. The accused and Toropen returned to Kobo village, because on his part Toropen said he had work to do next day, whilst Doiemo, David and Ziama went to Wainsuduna village. An indication of the possible fate of Siri’s body appears from the evidence that Siri considered spending the first night on the beach by the river, but was warned against it because of crocodiles.

This story was not uncovered until June 1976. It was told to the police by Toropen after enquiries had been renewed by the police following information as to statements made by Doiemo, shortly before his death in Lae.

So the final chapter is one of deceit, certainly on the part of Toropen. It was not brought to light earlier because, Toropen claimed, the accused told him not to reveal the story. It was on the Friday that Norah returned from Morobe to meet her husband. She saw Toropen. He went to the place where deceased had left his produce and found it missing. There were no tracks in the dried grass to tell the tale. Worried about her husband’s whereabouts she returned, she said, to Morobe, but probably only to the village on the other side of the river. On the Sunday again she crossed the river. She enlisted the aid of Siri’s relatives living in the area. The matter was reported to the accused, no doubt in his capacity as Councillor. A search was organized. It was said that the ferryman was sick in his hut. No trace of Siri was found but something did come of the search. Siri’s clothing was found on the beach, and his old blanket. The next day the accused and Toropen set out for Morobe Patrol Post to report Siri’s disappearance. On their way they met Norah. She identified the clothing as Siri’s. At the patrol post it was the accused who made the report. Toropen said all this was only for show. On Wednesday, 27th June 1973 the patrol officer came to Kobo, accompanied by Sgt. Major Beno of the police. As no body was found, the police enquiries were fruitless. So Norah, now an old woman, was left in ignorance of her husband’s fate.

The accused did mention to the police that Toropen had an injured hand, an approach apparently intended to convey the inference that Toropen had been involved in a fight. At the trial Toropen was strongly cross-examined about his injury, but he maintained it was due to an incident in which a hook penetrated his hand whilst he was out fishing with Nataemo.

Shortly after Doiemo, Ziama died. David is missing, whereabouts unknown, so the only participants in the crime now available, as it is alleged by Toropen, are Toropen himself and the accused. Constable Manggin who conducted the enquiries told the Court that, apart from Toropen, his efforts have revealed no other witnesses. There is no evidence, as counsel for the accused submitted, that any other person except the alleged participants saw the deceased alive after he spent Tuesday night at Kobo. Aso was not called, nor was any reason for not calling him put before the Court. The fact that the deceased’s body was never found is, of course, in itself no reason for the prosecution to fail. Peacock v. R.[cliv]¹. The accused gave evidence and denied any complicity.

The issue is whether, upon Toropen’s evidence, it has been established beyond reasonable doubt that the accused was present at the scene with the intention of encouraging or assisting in the killing of the deceased, and thereby aiding in the commission of the offence. If proved the accused would then be guilty of wilful murder. Criminal Code s. 7, s. 304. R. v. Tovarula & Ors. [clv]², per Minogue C.J.

It was at the outset strongly submitted by counsel for the accused that Toropen, on his own account, was an accomplice, and that his evidence was uncorroborated. This was not contested by the State Prosecutor. It was then submitted in accordance with the common law rule of practice that it would be dangerous to convict on Toropen’s evidence alone. The provision of the Queensland Criminal Code, s. 632, that a person cannot be convicted of an offence on the uncorroborated testimony of an accomplice has long ceased to be part of the law of this country. So the question is whether the common law rule of practice is applicable to the circumstances of Papua New Guinea and in proceedings in which the tribunal of fact is not a jury.

The common law practice requires a jury to be warned that it is dangerous to act on the uncorroborated evidence of an accomplice, but also that the jury are entitled to convict on uncorroborated evidence if they think fit. The usual justification for the requirement of caution in such a case is the “danger that the accomplice will minimize his role in the crime and exaggerate that of the accused.” Cross on Evidence (Australian ed.), p. 211. The learned author also refers to McNee v. Kay[clvi]³ (the report of which is not available at Lae) in which Sholl J. of the Victorian Supreme Court refers, in such cases, to the “temptation to exaggerate or make false accusations”. An accomplice may do so in order to curry favour with the prosecution. In England the general application of the rule has been criticized in an article by Glanville Williams[clvii]⁴. He refers to the “accomplice warning” having become part of “the mystique” of the administration of justice in England. The learned author gives as the reason behind the rule that the accused may be telling a deliberate lie from fear or spite. He questions the likelihood generally that a man in the hands of police would tell a lie merely out of spite, and comments further “That a man will lie in order to minimize his own responsibility for the crime is to be expected; yet this may be no reason for distrusting his evidence if the part he played is admitted by all.” (op. cit. p. 588). He approves of Wigmore’s view that “distrust should be co-extensive with the reason for it”. (op. cit. 591). The rule, it is said, “also represents the experience and wisdom of the centuries”. (op. cit. 589). This leads the learned author to make the pertinent observation that, without some qualification, “a direction of this kind seems self-defeating; it appears to tell the jury that they are entitled to do what the experience of centuries shows to be dangerous”. (op. cit. 592). I should add that because the rule goes much further and requires proof of corroboration, it goes beyond the caution with which a legal tribunal regards the testimony of a witness who has been convicted of or confesses implication in a serious crime.

Upon this part of the case I have found such references as are available to me of McNee v. Kay[clviii]⁵ of assistance. (Australian Digest, Vol. 7, pp. 1245, 1246, 1267). I would respectfully agree with Sholl J. that the rule of practice is not to be limited to jury cases, but should at common law be applied to any legal tribunal. The case is also helpful on the question, who is an accomplice. It has been held by the House of Lords that persons who participate in the actual crime charged, whether as principals or accessories before or after the fact, are to be treated as accomplices within the rule. Davies v. Director of Public Prosecutions [clix]⁶. However, in Victoria in a report that is not available to me, it has been held by the Full Court that an accessory after the fact is not an accomplice within the meaning of the rule. R. v. Ready [clx]⁷. (Australian Digest, Vol. 7, p. 1267). This point is relevant because Toropen was convicted as an accessory after the fact in the earlier findings. Sholl J. suggests that for the purposes of an “optional” warning the rule might be extended to cover witnesses chargeable with a different but cognate offence, but otherwise, “a witness cannot be held to be an accomplice within the common law rule as to obligatory warnings, unless chargeable as principal or accessory with the same offence as the accused ... An accomplice must be a person privy to the criminal intent of the accused and the common law rule as to obligatory warnings is limited accordingly.” McNee v. Kay[clxi]⁸ (Australian Digest, Vol. 7, p. 1268).

But it is for the tribunal of fact to decide the question whether the witness is an accomplice (Glanville Williams, supra, at p. 594). Accordingly this Court is not bound by the judgment against Toropen upon a charge of being an accessory after the fact. The final consideration is that the mere fact that the accused has already been convicted ought not to relieve the judge from the necessity of giving the warning because the witness’s evidence at his trial may have been influenced by the temptations referred to. (Cross on Evidence, supra, at p. 213).

Now applying these considerations to the facts of this case, as, on Toropen’s evidence, amongst those who followed Doiemo towards the hut were the accused and himself and both stood outside while Doiemo killed Siri, it is clear that the degree of participation by each of them was the same, and the same criminal intent is to be inferred against each. This is so even if Nataemo did take the money; that occurred after the murder. Having regard to the gravity of the crime, punishable as it is with life imprisonment, and also the death or absence of alleged participants, in my opinion there was a clear temptation for Toropen to exaggerate or fabricate evidence as to the degree of participation or guilt of other persons. Accordingly, I would hold that the common law rule of practice is clearly applicable to the circumstances of Papua New Guinea upon the facts of a case such as the present — Constitution, Sch. 2.2. (1). But as the matter was not fully argued before me, and it is not necessary for my decision, I express no view as to whether the common law is applicable to the circumstances of Papua New Guinea in its general and unqualified form.

Turning to the facts, there is no doubt that in its structure and substance the account given by Toropen in his record of interview, the committal proceedings, and in this Court, is the same. There are discrepancies in details, but to some extent these may be attributed to the failure of memory in the period of three or four years after the crime.

So far as the demeanour of the witness is concerned, there is the usual limitation upon observation arising from the fact that both Toropen and the accused gave their evidence in place talk. However, my impression is that Toropen gave his evidence in a calm manner, and answered readily and without apparent hesitation. His demeanour is to be contrasted with that of the accused who was tense, defiant and on occasions evasive. He kept looking to the Bench, apparently to gauge any reaction to his answers. I was not impressed by his false denials that certain questions were put by him to the accused at the committal proceedings, questions which are clearly recorded in the depositions as having been said. But allowance has to be made for some desperation on his part arising from his position that, on his account, he was defending himself on a false charge.

As the State case is one of aiding in the commission of the offence, the evidence is to be examined to determine whether there has been established, beyond reasonable doubt, a sufficient act or acts, done knowingly, of encouragement or assistance. No explanation was given by the State Prosecutor for the fact that although in the record of interview Toropen admitted, as he adopted in the trial, walking up towards the hut and standing outside whilst the murder was committed, which is in substance the same allegation he makes against the accused, the crime with which Toropen was charged was not wilful murder but being an accessory after the fact.

It is precisely on this point of the degree of participation alleged by Toropen against the accused that the main inconsistency between the accounts given by Toropen occur, and these were well brought out by Mr. O’Connor who conducted the case ably for the defence. I refer in particular to the varying accounts of what happened to the money. As the investigation and the proceedings went on, the accused’s part was clearly exaggerated. Other doubts also arise. There is Toropen’s hypocritical reminder, as he alleged on the beach, of the government law, before he followed the others to the hut, and the cover-up of the crime; the deceased’s decision, unexplained by Aso or anyone else, to change his sleeping quarters and move to the hut; and the curious incident of the two men passing on the path without speaking.

Doubts as to the reliance to be placed on Toropen’s testimony also arise from previous statements exonerating the accused and made by him on two occasions. At the committal proceedings when the accused was questioning him, Toropen said, amongst other things, “You and me, Nataemo, have not been responsible — we are in Court for what others have done”. That statement did shake my confidence in the witness. The other occasion was at the Buimo Corrective Institution when, in the presence of a wantok, Gasapa Gigera, Toropen told the accused that he had not done the trouble. The statement at the committal was explained away by Toropen on the ground that during a lunch-hour break at the committal proceedings, he had been importuned by the accused not to call the accused’s name, as indeed on the next day he told the Court, and the statement at the Corrective Institution on the ground that he was himself suffering from a painful injury to his foot, and he was sorry for the accused.

It is true that much of Toropen’s evidence carries the ring of truth but the conflicting accounts of the incident of the grabbing of the money, second only to the killing as an event likely to remain vividly in the memory of an eyewitness, and these exculpatory statements later said by Toropen to be false, so weaken the testimony as to lead me to the conclusion that it would be dangerous to act on it as to whether the accused was a participant in the crime.

The accused is accordingly found not guilty and discharged.

Verdict of not guilty.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for accused: W. J. Andrew, Acting Public Solicitor.

ence>[cliv](1911) 13 C.L.R. 619.

[clv][1973] P.N.G.L.R. 140, at pp. 195-6.

[clvi][1953] V.L.R. 520.

[clvii]Corroboration — Accomplices (1962) Crim. L.R. 588.

[clviii][1953] V.L.R. 520.

[clix][1954] A.C. 378.

[clx][1942] V.L.R. 85.

[clxi][1953] VicLawRp 2; [1953] V.L.R. 520.