Sirinjui-Biagwei v The Queen; and Jaminyen-Urinjimbi v The Queen [1962] PGLawRp 17; [1967-68] PNGLR 198 (3 April 1962)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 198 - Sirinjui-Biagwei v The Queen; and Jaminyen-Urinjimbi v The Queen

[1967-68] PNGLR 198

PAPUA NEW GUINEA

[HIGH COURT OF AUSTRALIA]

SIRINJUI-BIAGWEI

V.

THE QUEEN;

JAMINYEN-URINJIMBU

V.

THE QUEEN

Sydney

Dixon CJ McTiernan Owen JJ

3 April 1962

CRIMINAL LAW - Wilful murder - Common purpose - Eight spears discharged by two natives - Three mortal wounds by spears of either native - Causation - The Criminal Code, s. 8^*[cclxxi]¹ .

J. and S. decided to join with N. in killing R. and W. As J. and S. approached N., J. decided to kill N. and threw four spears he was carrying into N. S. then also threw four spears into N. who by that time was lying in water. N. died as a result of some of the spear wounds, three of which would have proved fatal, but the evidence did not establish whether the spears of J. or of S. or of both caused his death. There are many cases in the Territory where a native man will discharge a spear or arrow into a body mortally wounded or dead so that he can claim by native custom the prestige of having killed a man.

Held:

That the trial judge, in convicting both J. and S. of the wilful murder of N., had misdirected himself in applying s. 8 of The Criminal Code, that leave to appeal should be granted and there should be a new trial, and that there was evidence upon which a jury, properly directed could have convicted one or both men.

Application for Leave to Appeal.

Jaminyen-Urinjimbu and Sirinjui-Biagwei applied to the High Court of Australia for leave to appeal from their conviction at Wewak on 8th November, 1961, by the Supreme Court of the Territory of Papua and New Guinea (Bignold J.) for the wilful murder of Nami. The evidence at their trial is sufficiently summarized hereafter.

3 April 1962

DIXON CJ:  Delivered the judgment of the Court.

These are applications for leave to appeal from convictions for wilful murder followed by sentences of death recorded against two natives by the Supreme Court of Papua and New Guinea. The trials took place at Wewak before Mr. Justice Bignold.

The two men were named respectively Jaminyen and Sirinjui. It appears that in response to certain native messages they decided to consider the killing of two natives at Gwalip. They appear from their own statements to have come to the conclusion that they should go and interview another native named Nami, with a view to getting him to join them in considering the proposal to kill the two natives of Gwalip.

The charge against the two accused, Sirinjui and Jaminyen, is in effect based upon their own statements to patrol officers, confirmed to a very considerable extent by their statements made to the committing tribunal. Both sets of statements are in writing. From them, it appears, describing the case in outline, that Jaminyen and Sirinjui went each with four spears towards the place where they would expect to find Nami. In fact they came upon Nami bathing in a river. Jaminyen was leading and according to him when he saw Nami bathing the thought came into his head that after all Nami had exposed himself, if I might put it in very general terms, to the blood feud, that his conduct against somebody connected with Jaminyen made it proper for Jaminyen to kill him. This thought having come into Jaminyen’s head, he approached him and threw four spears at his body, all of them hitting him and entering his body to a degree which may be said to be uncertain.

The learned judge has caused the Registrar of the Supreme Court of Papua and New Guinea to forward to us the following message through the Registrar of this Court. “His Honour the trial judge has handed me a note with the papers wherein he states—‘I think it might be useful to the Appeal Court to be informed that there are many cases in the Territory where a native man will discharge a spear or arrow into a body mortally wounded or dead so that he can claim by native custom the prestige of having killed a man, and in many cases by that reason is entitled to wear a killing emblem.’ ” We acknowledge the usefulness of that information. It accords with the evidence which I am about to state.

As soon as Jaminyen had discharged his spears into Nami, Sirinjui who followed him came up and threw his four spears into the body that was lying in the water.

Again it may be said that as a matter of positive knowledge it is not certain to what degree Sirinjui’s spears inflicted serious wounds upon the body. But the man was dead, and investigation by an officer, not highly skilled in post mortem examination but with some knowledge of such matters, disclosed that according to his opinion, of the eight wounds which were inflicted on the body by the eight spears three were likely to prove mortal, indeed almost immediately fatal. So you have a picture of a man murdered as a result of eight spears being poured into him, three of them inflicting mortal wounds, and you do not know in what order and you do not know from which hand.

The case is curious from the point of view of those more familiar with administering the criminal law within Australia, in that it is taken for granted—and it seems reasonably certain—that Jaminyen was suddenly moved to this act by his mind working on the past causes of what I have called a blood feud, and that Sirinjui had no thought of throwing his spears until he saw that Jaminyen’s spears had been thrown into the body and that he acted upon an immediate desire to take part in what would be a killing wherein his prestige might be increased. He did not know whether the man was dead; but whether he was dead or alive he was prepared to throw his spears at him.

Mr. Justice Bignold, as I have said, tried the case at Wewak. He convicted both defendants and he said that he would deliver a short judgment, but he would prepare a longer judgment as opportunity offered. The learned judge is on leave, I gather, and it has not been possible for him, as it appears, to prepare the longer judgment which he contemplated. We must therefore determine this case on what he actually said upon the occasion of convicting the applicants.

It will be recollected from what I have said that the journey of the two defendants who have been convicted began with an idea of killing two people belonging to another village, the village of Gwalip, and of consulting with the man who was actually killed, Nami, to see if he would join them. It is not common ground among counsel appearing before us whether this project had got as far as determining to kill the two men of Gwalip, or whether it was merely a matter under consideration, but the learned judge was referred to s. 8 of The Criminal Code of Queensland which has been adopted in the Territory. It is a section which appears to us clearly enough to be directed to the kind of case where, to give an example, there is an aider and abettor not necessarily at the actual scene of the crime, and the crime develops into a graver or into some other sort of offence and the aider and abettor is prosecuted for the different offence, a more serious offence usually. The section says:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

His Honour said in the short judgment to which I have referred:

“In this case which is one of considerable legal difficulty I am satisfied that the two accused left their village carrying weapons, four spears each, having in contemplation the wilful murder of two men” (naming them). “The evidence satisfied me that they were aiding each other.”

In saying that the two defendants were aiding each other it is, I think, common ground that his Honour means aiding each other in the proposed wilful murder of two men of the village of Gwalip. His Honour goes on to say:

“The accused Jaminyen discharged all his arrows”—they are more properly called spears—“at Nami inflicting wounds upon him, and upon being hit, Nami fell into the water in which he was bathing, whereupon the other accused, Sirinjui, also threw all his arrows” (namely spears) “hitting Nami with each. It is plain that Nami was killed by one or more of the spears or that it or they caused his death, though it is possible that Jaminyen’s spears (or one of them) alone may have been fatal. I propose writing a judgment on my return from circuit. As I take the view that the two accused were on a murderous expedition”—that is the expedition as his Honour thought to kill the two men of Gwalip—“this Court proposes holding them both guilty”—that is guilty of the wilful murder of Nami—“though the actual victim was not originally contemplated by the accused, Sirinjui. In my view he has not the same culpability as the other accused, though the same legal responsibility.”

We think, and it is conceded, that such an application of s. 8 is misconceived and cannot be supported. Having regard to the fact that his Honour placed the conviction of the men upon such a ground and did not explicitly find the necessary facts against each of the accused the convictions cannot stand. The question, however, which is the important one that has been debated before us, is whether there was sufficient evidence to support a conviction of either or both men, if at the trial there had been no misapplication of the law.

Prima facie the case is one for a new trial, the trial having miscarried in the manner that I have described, but it is said, upon the facts I have stated, for each accused that a new trial should not be ordered because one or both men should have been acquitted for lack of evidence. The contention for each applicant is that it cannot be said that there is sufficient evidence to convict him of the actual stroke which caused the death. It is, I think, correct to say that, on the record we have before us, one could not be satisfied beyond reasonable doubt which hand inflicted any of the three wounds which, on the evidence, were liable to prove fatal at once or in a short time. We have considered this contention. It is supported by detailed arguments which I shall forbear to traverse because we think that a new trial should be had. We think that on the evidence it might be possible to reach a conclusion against both or one of the men. Had the case been one of trial by jury we would say that if a jury upon a full and correct direction had found a verdict of guilty, it would be possible to support that verdict. Upon a new trial it will be entirely for the judge who hears the case to consider, upon the facts as they then appear before him, whether it is proved against either or both accused beyond reasonable doubt that he was responsible for wilful murder in any aspect of the law. Perhaps we may add that upon a new trial the material available may, and we hope that it will, enable a fuller investigation of the facts and probabilities to be made before the learned judge. When I said “in any aspect of the law” I did so because it is possible that the learned judge who hears the case may regard the facts in a different light. It is obvious that we are dealing with a case which to those unacquainted with native life in New Guinea might appear singular in its character, singular for the reason that although ostensibly the two men acted jointly, the principle has not been applied that two persons participating in a crime are responsible for the acts of one another. Why it has not been applied appears from what I have already said. But it will be for the learned judge who hears the case upon the new trial to consider what upon the facts proved before him are the proper inferences to make and to come to a conclusion whether either or both of these defendants should be convicted or acquitted.

The order will be, leave granted, appeals allowed, convictions and sentences set aside, and a new trial or new trials ordered before the Supreme Court of the Territory of Papua and New Guinea.

Leave to appeal granted. Appeals allowed, convictions and sentences set aside, a new trial or new trials before the Supreme Court of the Territory of Papua and New Guinea ordered.

Solicitor for the applicant, Sirinjui-Biagwei: W. A. Lalor, Public Solicitor, Port Moresby, by R. W. Hawkins, Public Solicitor.

Solicitor for the applicant, Jaminyen-Urinjimbu: George F. Osborne.

Solicitor for the respondent: H. E. Renfree, Crown Solicitor for the Commonwealth.

[Editor’s Note: For proceedings on the new trial see [1967-68] P. & N.G.L.R. 209.]

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[cclxxi]* Section 8 of The Criminal Code provides: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”