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Fineko, The State v [1978] PNGLR 262 (25 July 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 262 - The State v Titeve Fineko 

[1978] PNGLR 262

N155

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

TITEVA FINEKO

Waigani

Prentice CJ

12-14 July 1978

17-18 July 1978

20-21 July 1978

24-25 July 1978

CRIMINAL LAW - Evidence - Corroboration - Accomplices - Applicability of common law practice requiring warning that it is dangerous to act on uncorroborated evidence of accomplice - Applicability to circumstances of Papua New Guinea doubted - Constitution Sch. 2.2.

EVIDENCE - Corroboration - Accomplices - Applicability of common law practice requiring warning that it is dangerous to act on uncorroborated evidence of accomplice - Applicability to circumstances of Papua New Guinea doubted - Constitution Sch. 2.2.

CRIMINAL LAW - Practice and procedure - Indictment - Averments - Allegation that offence committed “on or about (the date)” - Date not material unless essential part of offence - Reasonable approximation to date sufficient - Common law applicable and appropriate - Constitution Sch. 2.2.

WORDS AND PHRASES - “on or about (the date)” - Criminal law - Indictment - Reasonable approximation to date sufficient.

The accused was charged with wilful murder (under s. 7(d) of the Criminal Code) “on or about 30 July 1976”, and in a record of interview and in a statement from the dock made certain admissions which were corroborated by an alleged accomplice who had already been dealt with and was serving a sentence in prison. At the trial a submission was made that the prosecution had not proved the death “on or about 30th July, 1976”.

Held

(1)      The common law rule that a date specified in an indictment is not a material matter unless it is actually an essential part of the alleged offence is suitable to and applicable in Papua New Guinea.

(2)      Accordingly, where the words “on or about (the date)” are used in an indictment, proof that the offence was committed within some period which has a reasonable approximation to the date mentioned in the indictment will suffice.

R. v. Hartley [1972] 2 Q.B. 1 and R. v. Wae Wae Uatuku [1948] N.Z.L.R. 648 at p. 652 applied.

(3)      Bearing in mind that it is regarded as dangerous to convict on the uncorroborated evidence of an accomplice and accepting the accomplice as a witness of truth, there should be a verdict of guilty as charged.

The appropriateness to the circumstances of Papua New Guinea of the common law practice of requiring a warning that it is dangerous to act on the uncorroborated evidence of an accomplice doubted.

Trial

This was the trial of an accused on a charge of wilful murder, the charge being laid under s. 7(d) of the Criminal Code.

Counsel

L. Gavara, for the State.

A. Jackson, for the accused.

Cur. adv. vult.

25 July 1978

PRENTICE CJ: The accused is charged with the wilful murder of Benjamin Rokavu “on or about 30 July 1976”. The charge is laid under s. 7(d) of the Criminal Code; the accused is alleged to have counselled and procured the murder at the hands of Obiranke Sekete.

After a long trial, in a statement from the dock, the accused admitted giving money to William Nimino Kararifa (inferentially for the purpose of having Benjamin killed), and that he “caused the trouble”, and that “that means I am involved and I am in it too. That means I have done this trouble”.

In a record of interview on 15th March, 1978, (which was the subject of a lengthy voire dire), the accused admitted talking with William and Sekete as to contributing money to have Sekete (whom he described as the son of his brother) go to Port Moresby to kill Benjamin. He and William paid the air fare and gave Sekete money for expenses. He admitted he and William planned this. Their motivation was revenge for the suspected killing of William’s mother (accused and William are first cousins it seems). Benjamin’s clan, they thought, had killed the mother, and they knew Benjamin was a likely target as he was “staying far from his relatives” in Port Moresby. Sekete went to Port Moresby with which he (though not William and accused) was familiar. He came back and reported having done the killing. More money was promised him.

However, even without the evidence of admissions made in the statement from the dock and in the record of interview, I would have been prepared to convict the accused on the evidence of Obiranke Sekete. This man and William have already been dealt with and are serving sentences in prison. His evidence is that of an accomplice. In Papua New Guinea, the law permits conviction on the evidence of an accomplice alone. Some of the decisions under the English Common Law as to the evidence of accomplices, and in particular the way in which the tribunal must be directed, I consider may be regarded as inappropriate to Papua New Guinea conditions. The situation in Canada is interestingly referred to in R. v. Joseph[cdlxv]¹. In Papua New Guinea the evidence of accomplices, in the experience of the judges, is usually given not in a spirit of vindictiveness; but with a sense of justice very much in mind. It is more than possible that in many cases, it is done also with an intent to avoid a pay-back upon the unconvicted man’s family or clan.

Nevertheless, I remind myself that it is regarded as dangerous to convict on an accomplice’s evidence alone. But, in fact, Sekete impressed me as telling the truth. He spoke moderately, and I thought impressively, telling how he had at first three times resisted William’s and the accused’s attempts to get him to effect the murder, but succumbed to their pressure when under the influence of alcohol. His story has the ring of truth and no motivation for his lying has been suggested by the accused or in cross-examination. I accept him as a witness of truth. His story implicating the accused does, I think, find some support in the evidence of Nakambi Billy.

A submission was made as a last ditch defence that the prosecution had not proved the death of Benjamin or that he was killed “on or about 30 July 1976”. However, the death of Benjamin at the hands of Sekete was never really in issue. Sekete said he killed him with a knife borrowed from a policeman wantok; he killed him with two blows to the chest and side. He, Sekete, was convicted in respect of that. He could not remember the date but said it was a Friday; “Government Friday”. A Constable Gani was called who remembers the 30th July, 1976, which he describes as a “Government Friday”. After a heavy drinking session that day and night, a crowded truck containing among others Sekete, Benjamin and himself, came to his house towards midnight. People got off there and a little later he saw Sekete coming out of his (Gani’s) house. He had some conversation with him. At the trial of Sekete, Constable Gani recognised and identified a knife (there apparently put in evidence as the murder weapon) as his, Gani’s. On the 3rd August he attended at the morgue with Benjamin’s relatives with the object of viewing Benjamin’s dead body, but he remained outside.

I am satisfied beyond reasonable doubt that Benjamin died in the early hours of the morning 30th/31st July, 1976 or very shortly afterwards.

There appears to be nothing in our Criminal Code which bears upon the proof required when an allegation is made that a crime was committed “on or about” a certain date unless the date and time is material to the constitution of the crime itself.

The English Common Law as revealed by Archbold 39 ed. par. 43 would appear to be that:

“From time immemorial a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence ... the jury were entitled to find the appellant guilty of the offence charged ... even though they found that it had not been committed on the actual date specified in the indictment.”

(R. v. Dossi)[cdlxvi]² and, “where the words ‘on or about (the date)’ are used, to render a verdict of guilty lawful the offence must be shown to have been committed within some period which has a reasonable approximation to the date mentioned in the indictment (R. v. Hartley)[cdlxvii]³”. The New Zealand case of R. v. Wae Wae Uatuku[cdlxviii]⁴ is to the same effect.

The Common Law in this regard, seems, if I may say so, peculiarly suitable to Papua New Guinea, where in so many cases deceased bodies are not found for some considerable time, and facilities do not always exist for the preservation thereof or their competent examination so as to establish a time of death. I find the offence as charged beyond reasonable doubt.

Verdict: guilty of wilful murder.

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

Solicitor for the accused: M. Kapi, Public Solicitor.

[cdlxv](1939) 3 D.L.R. 22.

[cdlxvi](1918) 13 Cr. App. R. 158.

[cdlxvii][1972] 2 Q.B. 1.

[cdlxviii][1948] N.Z.L.R., 648 at p. 652.