Regina v Wendo [1962] PGLawRp 9; [1963] PNGLR 217 (14 August 1962)

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CRIMINAL LAW - Wilful murder - Admissibility of depositions taken by Coroner from affirmed witnesses upon trial of those witnesses - Coroner also Assistant District Officer and Police Officer - Evidence illegally obtained - Unlawful custody Common Law powers of Coroner to apprehend witnesses - Confessions - Voluntariness - Standard of proof of voluntariness - Discretion to exclude admissible evidence - Assessment of native evidence - Identification by natives - Acceptance and rejection of parts of same deposition - Conduct as a guide to intention - Common purpose. - Coroners Ordinance 1953-1957, SS. 9, 10, 12, 21, 25, 26, 35A - Evidence and Discovery Ordinance 1913-1957, SS. 58, 65(1), 68 - Oaths Ordinance 1912-1960, S. 22(1) - Courts and Laws Adopting Ordinance 1889-1951, S. 4 - The Criminal Code, SS. 7, 8.

A coroner conducting an inquest into the deaths of a number of inhabitants of Yaba Village in the Territory of Papua instructed native police constables to bring in as witnesses persons who seemed to have some knowledge of the deaths at Yaba. The coroner was also an Assistant District Officer and a commissioned officer of the Field Constabulary of the Royal Papua and New Guinea Constabulary and when giving instructions to the police constables he considered himself to be an officer of Police. One native police constable upon apprehending any prospective witness said:

“We are looking for people in connection with the killing at Yaba and I am taking you to the Kiap for questioning, depending on the result of the questioning you may be detained or you may be allowed to return to your villages. You should tell the Kiap if you went there or if you didn’t go there. You should speak true.”

It did not appear in evidence which of the witnesses were brought in by this police constable. Those who seemed strong and likely to break away were brought in handcuffed or with their wrists tied with rope. At the inquest each witness was informed of the nature of the inquiry, cautioned and affirmed. The affirmation was in words to this effect:

“You are before a Court, all your talk must be true, you cannot tell lies to the Court, if you do tell lies you will be punished by the Court.”

Twenty-seven of the thirty-two accused who were subsequently indicted for the wilful murder of Maga of Yaba then made statements admitting they were members of a party which attacked and killed a number of inhabitants of Yaba, including Maga. At the trial the Crown tendered as evidence against each of the twenty-seven the deposition of his evidence taken by the coroner. The other evidence is referred to in the judgment.

That the depositions were admissible. None of the twenty-seven accused was at the time he made his statement to the Coroner an “accused person” within the meaning of S.26 of the Coroners Ordinance 1953-1957, and therefore the depositions were not illegally obtained. Even if the accused were in unlawful custody at the time their depositions would still be admissible.

There is no presumption that where a person has given evidence upon oath or affirmation before a tribunal legally constituted and empowered to take such evidence then this evidence was given voluntarily.

A confession is admissible only if the Crown proves that it was voluntarily made. The standard of proof of voluntariness of a confession is proof beyond reasonable doubt.

A tribunal in the Territory is not required by law to inform a witness that he has the right to refrain from answering questions, the answers to which may incriminate him. However, it is proper to so inform him. Answers to such questions given without warning and without objection are (if voluntarily made) admissible against him in a subsequent trial.

Also, that the circumstances proved by the oral evidence called by the Crown justified findings of guilty intention and common purpose from the conduct of the accused persons, that the admission in each deposition of some of the accused persons of being present at or near the scene should be accepted and the exculpatory portions of such depositions rejected, and that their criminal responsibility could be found in Subsections (a), (b) or (c) of Section 7 and, possibly Section 8 of the Queensland Criminal Code (Adopted).

OLLERENSHAW J: The thirty-two accused persons are charged under Section 301 of the Code that in or about the month of June, 1961, in the Territory of Papua, they wilfully murdered Maga of Yaba village.

They are indicted together as permitted by Subsection 5 of Section 568 of the Code. No objection has been taken to this procedure and I see none.

The charge arises out of the massacre of twenty-seven men, women and children of the thirty-one inhabitants of the Kukukuku village of Yaba, which occurred early one morning in or about the month of June, 1961. The Crown alleges that Maga, the victim named in the charge, was one of the inhabitants who were killed in the massacre. [His Honour then described the Kukukuku people of Yaba and nearby villages and the physical environment in which they live. His Honour continued:]

It appears that when news of a massacre at Yaba reached Menyamya, the District Officer there sent out a small party of native constables of police under first class Constable Gaigo, who spoke the same language of the Kukukukus of the Hawabanga-Yaba region, to verify what had happened at Yaba. He saw the bodies from the massacre, interviewed the surviving Yabas and returned with his party to Menyamya. Thereupon a patrol left Menyamya on foot under an Assistant District Officer of the Department of Native Affairs and proceeded to Yaba. It included two other European officers of the Department, native constables of police and the interpreter, Auwatago.

At about the same time a patrol left Kerema on foot for Yaba. This patrol went under Arthur Thomas Carey, an Assistant District Officer stationed at Kerema. It included, doubtless, native constables of police and carriers.

In addition to being a senior officer of the Department of Native Affairs, Mr. Carey was a Coroner, appointed as such under Section 5 of the Coroners Ordinance 1953-1957. By virtue of his office in the Department he was also a commissioned officer of the Field Constabulary, as distinct from the Regular Constabulary, of the Royal Papua and New Guinea Constabulary, the Police Force of the Territory: See Royal Papua and New Guinea Constabulary Ordinance No. 14 of 1955, Sections 6 and 10.

As a Coroner, Mr. Carey had jurisdiction to investigate the deaths at Yaba and it was his duty so to do. It would seem to me, however, that the question whether or not he should leave his station and perform this duty would depend upon superior instructions.

At the same time, it would have become the duty of the District Officer at Kerema, as the senior officer of the Department here, to cause the massacre to be investigated with a view to the apprehension and trial of the perpetrators. This was so because there was no European member of the Regular Constabulary, that is a commissioned officer of the Police Force, in, or for that matter, near the Kerema Subdistrict.

Mr. Carey left Kerema on the 18th August, 1961, with the intention, which he carried out, of holding a coronial enquiry into the deaths at Yaba in pursuance of his responsibility and powers under the Coroners Ordinance, by Sections 10 and 12 of which it is provided inter alia as follows:

N2>“10(1) A Coroner has jurisdiction to enquire into the manner and cause of the death of a person who:

N2>(2) Subject to this section, a Coroner shall forthwith enquire into the manner and cause of a death occuring under any of the circumstances referred to in the last preceding subsection.”

N2>“12. Where an inquest concerning the death of a person is held, the Coroner holding the inquest shall:

(a) examine on oath touching the death all persons whom he thinks fit to examine or who tender their evidence or whom, in the opinion of the Coroner, are able to give relevant evidence respecting the facts;

(b) after hearing the evidence, give his decision or finding and certify it in writing in the prescribed form, setting forth, so far as they have been proved, the following particulars:

(iii) if the deceased came by his death by wilful murder, murder or manslaughter, the person (if any) suspected or accused of having caused the death by wilful murder, murder or manslaughter.”

N2>“25(1) A Coroner upon an inquest taken by him shall put into writing or cause to be put into writing the evidence given before him.

N2>(2) The deposition of a witness taken under the last preceding subsection shall be read over to or by the witness and shall be signed by him and the Coroner.”

Subsection (3) is an enabling section and Subsection (4) of this Section 25 provides that, at the conclusion of the inquest, and whether a person is committed for trial or not, the Coroner shall forward the depositions and his certificate to the Government Secretary.

Mr. Carey reached and inspected the locus on the third of September and viewed there the remains of twenty-seven human bodies. On the fourth of the month he opened his coronial enquiry at Yaba where he took evidence from some or all of the three survivors and from Pungaiwagabu, a nephew or other close relation of Maga, who had come from his home in a nearby village to Yaba later in the morning of the massacre and found Maga amongst the dead. She had several cuts as of an axe through her skull. He had decently erected for her a burial platform in the open and placed her body, with a few others, upon it.

With the assistance of one or two of the survivors he had placed the rest of the dead on makeshift platforms erected within four of the houses of Yaba by using their sloping roofs as supports for sticks thrust through them to form the platforms.

The protruding ends of these sticks are clearly visible in the photo of one of the houses, Exhibit “A”.

This Pungaiwagabu, who gave evidence also in this trial, identified his aunt Maga’s remains to Constable Gaigo on his first visit to Yaba and, in the presence of Watama, a survivor, who also gave evidence in this trial, to Mr. Carey there as Coroner. Both Gaigo and Mr. Carey saw the fractures in her skull and it will be unnecessary for me again to refer to the proof of her death which undoubtedly occurred from violence received in the massacre of the Yabas. She was healthy and well when Pungaiwagabu visited her the day before the massacre.

Over a period of two months or so, Mr. Carey held his enquiry at Yaba, Kaintiba, Gemantua, Didama, Hawabanga and Kerema, taking evidence from about fifty-seven persons.

Although he had it in mind that eventually he would commit for trial, under Section 21 (1) (c) of the Coroners Ordinance, the persons against whom it ultimately appeared to him that there was a prima facie case upon the evidence which he was taking, Mr. Carey did not complete his enquiry. Although he had taken evidence from all available witnesses, he had not brought in his inquisition charging any person in pursuance of Section 21, when, committal proceedings being about to commence before a Magistrate at Kerema, he adjourned the enquiry and it still stands adjourned.

The procedure to be followed where a Coroner’s inquisition does charge a person with the offence of wilful murder, murder or manslaughter, and provision for the committal of such person for trial is set out in Subsection (1) of Section 21 and Subsection (3) of that section provides as follows:

N2>“(3) The Coroner shall forthwith transmit the inquisition, depositions, statement (if any) and recognizance, with a certificate under his hand that they have been taken before him to the Registrar of the Supreme Court.”

Each of the accused was a witness called before Mr. Carey as Coroner and in this trial the Crown tendered as evidence against each of twenty-seven of them the deposition of his evidence taken by Mr. Carey. Counsel for the accused objected to the admission of these depositions on a number of grounds and so the question of their reception was dealt with on the voire dire. In the course of the voire dire witnesses were called by the Crown and cross-examined for the defence and all Counsel contributed to a lengthy argument, for which I am indebted. I am also indebted to Counsel for the authorities which they made available to me here at Kerema.

Having reached a firm conclusion upon the question I ruled that the depositions should be admitted in evidence and after orally and briefly mentioning some of my reasons, I intimated that in order to permit the trial to proceed without delay and for the convenience of Counsel I would defer putting my reasons in writing until I delivered my judgment in the trial.

It is now necessary, before coming to the submissions of Counsel and my reasons for the reception of the depositions, to set out the rest of the evidence relevant to this question, particularly the evidence relied upon for the defence of the accused.

After taking evidence at Yaba and eventually obtaining information pointing to the villages whence had come the large party of raiders who had butchered its population, Mr. Carey moved into the area of these villages.

It is convenient to mention here that it was not disputed in the trial that a large party of raiders from the named villages in the region I have described did in fact kill the people of Yaba in a massacre in their village.

The defence of each accused, at this stage, largely turned upon the question whether he could be indentified as a member of the party.

It would appear that Mr. Carey did not have any native police from Kerema who could speak the language of the native peoples involved and amongst whom his investigations were to take place and so he took over, from the Menyamya Patrol with which he had met up, the native police constables Gaigo, Patengi, Mera and Miawat, who did speak the language, and when sitting as a Coroner, he used as interpreter, Auwatago from Menyamya.

The Assistant District Officer, who was in charge of the Menyamya Patrol, did assist Mr. Carey in the supervision of the patrols of the native police constables, the four leaders of which patrols he had provided, and he and his Patrol Officers occasionally were spectators when Mr. Carey was sitting as a Coroner. It is not suggested that that they had any intercourse at any time with the witnesses.

For the purpose of obtaining witnesses, the native police constables Gaigo, Patengi, Mera and Miawat were sent out by Mr. Carey to bring in persons who appeared to know something significant about the happenings at Yaba. It would appear that each of them went out in charge of a small body of native police.

It will be appreciated that the task of these police constables was at the same time made difficult and facilitated by the presence in the area of the larger patrols under European Officers and their own smaller patrols going out from them in that persons who did not want to be caught made their capture more difficult by leaving their villages and taking to the bush but at the same time they thereby indicated that they were persons whose apprehension might be worthwhile. By the time the constables moved into the area of any particular village the purpose of their visit would have been known. As the enquiry proceeded the evidence of witnesses pointed to other individuals by name so that after it had been proceeding for some time Mr. Carey was able to send out Gaigo to apprehend particular named persons.

It seems that Gaigo did interview some villagers in their villages and, ascertaining from them that they knew something about the matter, he brought them into where Mr. Carey was camped. Others, these police constables found hiding in the bush and they took them by stealth or surprise or after a chase. These prisoners, particularly if they appeared strong and likely to break away, they handcuffed and they brought them in usually one at a time, sometimes in pairs and occasionafly, perhaps, in small groups. When there were more than one they handcuffed them in pairs. One constable used rope to tie wrists when he found himself short of handcuffs.

While Constables Patengi, Mera and Miawat said in evidence that they did not speak to their prisoners before or after apprehending them Constable Gaigo spoke to his words to the effect that he was after information about the trouble at Yaba, that he was trying to find all the people who had any knowledge of the trouble there and that he was going to take them to the camp to see the officer; and that whatever they told him he would tell the officer. In cross-examination Gaigo agreed that his recollection of what he had said to them was this:

“We are looking for people in connection with the killing at Yaba and I am taking you to the Kiap for questioning, depending on the result of the questioning you may be detained or you may be allowed to return to your villages, you should tell the Kiap if you went there or if you didn’t go there. You should speak true.”

In some, if not all instances his prisoners had something to say about the Yaba affair (what it was Gaigo could not remember) and this Gaigo would include in his oral report in broad terms to Mr. Carey when he returned to camp.

It does not appear which of the witnesses were brought in by Gaigo nor which were caught by the other constables and so I must consider the matter as if Gaigo had had this conversation with each of the persons accused in this trial.

The witnesses, after being brought into the camp, were kept under restraint in temporary structures both before and after they were taken before Mr. Carey as Coroner. If the weather were fine they sat about in the sun from the commencement of the day’s proceedings until they were required. Mr. Carey, himself, had no intercourse with any of them except when he was sitting holding his court as Coroner.

This he did in a tent into which each witness was brought singly by a police constable. In the tent were Mr. Carey and a native interpreter and a native police constable was on duty there. Sometimes one or more of the European Officers from Menyamya looked on.

Sometimes witnesses were kept a few days waiting before they could be brought before the Coroner. Four of them who appear to have been apprehended late in the patrol, were brought to, and gave their evidence at Kerema, where the enquiry was resumed in the European School and these were held under restraint during a journey of some seven days before their evidence was taken.

As each handcuffed witness, including all the persons accused in this trial, was brought into the tent, his handcuffs were entirely removed except that, in the case of a witness who was thought to be likely to attempt to escape, the handcuff on one wrist was unclipped and clipped to his other arm. At Kerema the witnesses were kept in the witness section of the native gaol and were taken to the Coroner’s Court under native police guard but not in handcuffs.

Each witness was identified, informed of the nature and purpose of the enquiry, warned and affirmed and thereupon anything he said was written down. When the witness had finished what he had to say he was questioned as to his knowledge of anyone who had been with the party at Yaba on the occasion in question.

The witnesses were not cross-examined or otherwise questioned upon their stories except that in one or two cases a question was asked by Mr. Carey to clear up an obscurity.

His evidence was then read back to the witness, who was asked: “Is this true”, and, any necessary corrections made in the deposition by Mr. Carey before the witness put his mark upon it and Mr. Carey signed it as Coroner.

In the warning to which I have referred Mr. Carey informed the witness that he had heard evidence that threw suspicion upon the witness of being involved, or, in some cases, that tended to incriminate him and, in others, that tended to involve him directly in the matter, that he had nothing to be afraid of from threats nor could he expect any favour from talking, that he need not say anything but that if he did decide to talk, what he said would be written down and might be used in evidence at a subsequent trial. This, I think, is a fair sample. In evidence before me Mr. Carey gave his recollection of his caution and each of the depositions, which were tendered and admitted without objection in the voire dire, bears a record of the warning given to each witness.

The form of affirmation used by Mr. Carey does not appear on the depositions but it is in evidence that he said to each witness words to this effect: “You are before a Court, all your talk must be true, you cannot tell lies to the Court, if you do tell lies you will be punished by the Court.” Thereupon the witness signified that he understood by saying that he would tell the truth or that he would not tell lies, and in some cases by simply and without hestitation commencing his story.

I have not set out every detail of the investigations and enquiry but I believe that I have given an accurate and sufficiently full account of the relevant methods, procedure and circumstances.

I should add, because something was made of these matters in cross-examination, that Mr. Carey said in evidence that when he gave his instructions to the police constables he considered himself to be acting as an officer of police. It seemed to me that he conceived that it was only in this capacity that he could give orders to them. All these instructions were given away from the shelter he was using as a Court. He was asked in re-examination whether as Coroner he had ever instructed himself as a police officer to act and he replied, sensibly enough: “I can only presume that, subconsciously but not in a conscious manner, I may have.” He also said in answer to questions to this effect that he did attempt to keep his two positions separate, more particularly when sitting as a Coroner.

The objections to the admission in evidence against each accused person of his deposition so taken by the Coroner were grouped under three heads, namely: (1) that they were illegally obtained, (2) that they were not made voluntarily and (3) that, in any event, the circumstances were such that they should be excluded under the discretionary rule.

I treat this as an imperative ground for the rejection of the depositions because it was so treated in argument for the defence although I am not satisfied that it is a ground separate from the general ground of involuntariness.

The basis of the submission was that each witness, when he appeared before the Coroner, was in fact and in law an “accused person”, within the meaning of that phrase in Section 26 of the Coroners Ordinance which expressly extends to an “accused person” in “proceedings before a Coroner” the right granted by Section 58 (1) (i) of the Evidence and Discovery Ordinance No. 9 of 1913 to a “person charged with an offence” not to be called as witness in the proceedings except upon his own application.

It was further contended in support of this submission, that the phrase “accused person” was used in Section 26 of the Coroners Ordinance to avoid any possible confusion with Section 21 of the Coroners Ordinance, the section that prescribes the procedure to be followed by the Coroner where his inquisition charges a person with the offence of wilful murder, murder, manslaughter or arson. I gathered that the suggestion was that an “accused person” included a person who had suffered some lesser formality than that of being charged in the Coroner’s inquisition. If this means that it would include a person who has been brought before the Coroner upon a charge laid by a police officer and not yet charged in the Coroner’s inquisition, I would agree with it. It is clear, to my mind that, whatever lesser meanings may be given to the phrase “an accused person”, in other contexts, it means in Section 26 a person charged with an offence. A person charged with an offence within the meaning of Section 58 of the Evidence and Discovery Ordinance is exactly the person Section 26 of the Coroners Ordinance calls an accused person so that thereby the privileges under Section 58 are made to extend to and be available in proceedings before the Coroner. I do not see any significant difference between an accused person and a person charged with an offence and I have no doubt that a person charged with an offence or an accused person (if there is any difference) is entitled to the benefit of both Section 58 of the Evidence and Discovery Ordinance and Section 21 of the Coroners Ordinance and that would be so whether he were brought before the Coroner on a charge laid by the police or was first charged by the Coroner in an inquisition under Section 21 of the Coroners Ordinance.

In my view of the facts none of the persons, including of course, those who are now the accused persons in this trial, was an accused person or a person charged in the proceedings before the Coroner notwithstanding that he was at that time under restraint and in custody and in all the circumstances relied upon by the Counsel for the defence.

Each of them was a person suspected, a distinction pointed to by Mr. Pratt in sub-section (b) (iii) of Section 12 of the Coroners Ordinance.

Indeed those called after the enquiry had got under way may have been the subjects of strong suspicion but no formal charge or accusation, oral or in writing, had been laid or made by police or by the Coroner.

I do not here refer to the various authorities that were cited to me by Mr. Croft and by Mr. Cruickshank upon the meaning of the expressions in question but I do consider that they, even including the judgments in Arnell v. Harris[ccxcii]¹, with which I was strongly pressed by Mr. Cruickshank, do support my conclusion.

I should add that Mr. Cruickshank sought to support his submission that the persons brought before the Coroner were persons charged with an offence by an argument that they were in reality persons arrested without warrant in pursuance of the powers conferred upon a “constable” in Section 17C of the Police Offences Ordinance, 1912-1961 inserted by the Police Offences Ordinances (Papua) No. 27 of 1956 and No. 68 of 1957. I should apply, he said, the maxim omnia praesumuntur rite esse acta and assume, for the purposes of this argument, that they were arrested upon a charge or to be charged rather than that they were unlawfully taken into custody.

In my view the presumption so called in aid is not strong enough to prevail against the facts and, in any event, upon the submission of Mr. Pratt for the Crown as to the meaning of “constable” in Section 17C (see the definition Section 3) of the Police Offences Ordinance, it would seem that the native police in this trial had no such powers of arrest.

I am therefore of the opinion that the depositions were not illegally obtained in the sense in which it was argued for the purposes of this submission, that is that they were taken from accused persons or persons charged with an offence who had not applied or volunteered to give evidence.

In the course of argument upon this submission, I did raise the question whether the depositions would be admissible if in fact the witnesses were held in unlawful custody as it appeared they may have been at the time when these depositions were taken. By unlawful custody I mean tortiously so that babeas corpus would lie and the persons so held could maintain actions for damages.

I note from Jervis on Coroners at page 149 of the ninth edition that Lord Hale maintained that there was a duty upon all persons who were acquainted with the circumstances to appear before the inquest as witnesses. The authors of this edition proceeds to say that:

“By common law every person who is able to give evidence is bound to attend at the coroner’s court and if he absents himself he does so at his peril.”

It may be that the Coroner had a corresponding common law power to apprehend a witness, without prior message or summons, where he believed that a witness would avoid his duty and depart beyond the reach of the Coroner unless restrained. Mr. Carey would certainly have had good grounds for such a belief about the witnesses with whom he was concerned and by virtue of either or both of Section 9 of the Coroners Ordinance and Section 4 of the Courts and Laws Adopting Ordinance 1889-1951 he may have had such a common law power if it existed. I do not think that it necessarily follows as a matter of construction that the provision in the Ordinance of express matters and powers in relation to securing the attendance of witnesses excludes any common law powers. Here at Kerema I was not able to pursue this question and I wish to guard against being thought to hold that the witnesses brought before Mr. Carey were in unlawful custody at that time.

However, for the purposes of this trial, I am prepared to assume that their custody was unlawful in that the Coroner had not gone through the farce of issuing summonses for their attendance under Subsection (1) of Section 27 of the Ordinance and delivering them to a European member of the Police Force for service and then, in the unlikely event of service being effected and the likely event of the witnesses neglecting to appear, even if served, followed up with his warrant under Subsection 4.

At this stage I was indebted to Mr. Cruickshank who frankly referred me to and made available two cases bearing upon this question of the admissibility of statements taken from persons held in unlawful custody.

In R. v. Jeffries[ccxciii]², Jordan C. J. cited two cases one, Ackroyd v. Warburton’s case against and the other, Sylvester Thornton’s case, for the admission of such evidence. The Chief Justice did not decide the point and assuming that unlawful custody did not of itself make a statement inadmissible he went on to reject it upon another ground.

Since that judgment of the Chief Justice of New South Wales, the question has been answered in the Privy Council in the trial of Kuruma, Son of Kaniu v. Regina[ccxciv]³.

It was there held, after a review of a number of authorities, that in criminal trials as well as in civil cases the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue and that, if it is relevant, it is admissible and the Court is not concerned with how it was obtained.

It is true that in that trial the admissible evidence of guilt was the possession of ammunition found on the accused person in the course of an unlawful search. However, as I read the judgment of the Privy Council and from the express statement in it that their Lordships were not qualifying in any degree the rule of law that a confession can only be admitted if it is voluntary, it appears clear to me that the principle of the decision applies to statements made by persons while they are held in custody unlawfully.

I am therefore of the opinion that these depositions which are tendered and do contain material relevant to the issue before me in this trial, would not be inadmissible even if the persons accused before me were in unlawful custody when their depositions were taken.

(2) THAT THE DEPOSITIONS WERE NOT VOLUNTARILY MADE WITHIN THE MEANING OF THE RULE OF COMMON LAW THAT ANY DECLARATION MADE BY THE ACCUSED IS ADMISSIBLE AGAINST HIM PROVIDED THAT HE MADE IT VOLUNTARILY.

I should refer firstly to the case cited by Mr. Croft for the Crown: Regina v. Coote[ccxcv]⁴ because a large proportion of the argument upon the law under this submission revolved around the judgment in this case. This was because the Crown submitted that it created a special class of declarations or statements to be called “depositions”. A class to be exempted from both so much of the common law rule as still depended upon the common law, applicable in this Territory by virtue of Section 4 of the Courts and Laws Adopting Ordinance 1889-1951, and so much of the rule is now found in the express provisions of Section 68 of the Evidence and Discovery Ordinance, 1913, as to the effect of threats and promises by persons in authority upon confessions.

The conclusion reached by the Privy Council in Coote’s case[ccxcvi]⁵, is set out in these words at page 563 of Cox’s report:

“From these cases, to which other might be added, it results, in their Lordship’s opinion that the depositions on oath of a witness legally taken are evidence against him should he be subsequently tried on a criminal charge, except so much of them as consists of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends upon the principle Nemo tenetur se ipsum accusare, but does not apply to answers given without objection, which are to be deemed voluntary.”

Mr. Croft’s argument, which he endeavoured to support by an analysis of the authorities reviewed in Coote’s case[ccxcvii]⁶ was that where a person has given evidence upon oath or affirmation before a tribunal legally constituted and empowered to take such evidence then this evidence is deemed to have been given voluntarily and is admissible against him in his subsequent trial, freed from further investigation under the common law rule.

I need say no more here than that I am firmly of the opinion that Coote’s case[ccxcviii]⁷ did not create any exception to the rule of the common law and that its real significance is that it authoritatively and finally decided that his deposition is admissible against an accused person notwithstanding that it was made by him as a witness on oath before a tribunal, constituted with compulsive powers to obtain his appearance before it and compulsive powers to obtain the evidence from him. In all other respects it left the common law as it found it and left such depositions subject to all the incidents of the operation of the common law rule.

The breadth and scope of this rule is fully set forth in the judgments delivered in the High Court of Australia in the cases cited by me in my judgment in R. v. Toronome-Tombarbui[ccxcix]⁸. This judgment has been referred to in argument and I do repeat what I said there.

I would, however, repeat my citation from the judgment of the Supreme Court of the United States delivered by Brandeis J. in Wan v. United States[ccc]⁹, which I took from the judgment of the High Court in Cornelius v. R.[ccci]¹⁰ per Dixon J. (as he then was) Evatt and McTiernan JJ. at page 246:

“The requisites of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law, if, and only if, it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion and whether the compulsion was applied in a judicial proceeding or otherwise”.

I would add here that the words “judicial proceeding” in the phrase “. . . . and whether the compulsion was applied in a judicial proceeding or otherwise . . . .” may conveniently for my present purpose be taken to include the coronial enquiry conducted by Mr. Carey.

In R v. Thompson[cccii]¹¹ where it was held authoritatively that it is for the Crown to prove that a confession sought to be tendered was voluntarily made, it does not appear to have been decided expressly what standard of proof should be required to discharge this onus. In Toronome’s case[ccciii]¹² I said that I was not satisfied beyond reasonable doubt that he had made his confession voluntarily. I find that this approach is supported by Edmund Davies J. in R. v. Sartori, Gavin and Phillips[ccciv]¹³ and in R. v. Podola[cccv]¹⁴ and in this trial I consider that I must be satisfied to that degree.

In support of their contention that the Crown had not discharged the onus of establishing that the depositions were voluntarily made Counsel for the defence relied upon: (a) Generally all the circumstances in which they were raken and which I have already recited and particularly upon (b) Gaigo’s conversation with the witnesses upon their capture, and, (c) the terms of what Mr. Carey said to them by way of affirming them.

It is true that these native people, who are now the accused persons in this trial, did give their evidence before Mr. Carey after capture and while in custody. However, that is not, and I do not understand it to be maintained that it is, the end of the matter. In the first place there is no evidence of menaces or threats against them by ill-treatment or otherwise, nor of any terror on their part and I do not think that there were any menaces nor that there was any terror. It is true that some of them and I must assume all of them did endeavour to evade capture but I am sure that when they discovered that they were not immediately killed out-of-hand they would have started to compose themselves. The very periods of delay in bringing them before the Coroner and such formality as was possible in the circumstances would have contributed further to their composure.

In the second place, I do not think that, either prior to or during their appearances before Mr. Carey, they were subjected to any compulsion or pressure that did or was likely to overbear their wills in choosing to say what they wanted to or to remain silent. They are primitive savages but they are intelligent people. It is, as I have remarked before, true that many of the uncultivated native peoples of these Territories, generally speaking, are prone to confess to a European, particularly one appearing to have a position of authority. However, even assuming that these Kukukukus have such a characteristic, and I am not sure that they have, I do not consider that I should conclude that their statements were not voluntarily made.

Some of the other matters I have taken into consideration will appear from my consideration of the particular objections made on behalf of the accused under this submission against the admission of the depositions.

I have already recited what Gaigo said, and, it is argued that this amounted to a threat to his prisoners that they would be kept in detention if they remained silent and so it had the effect of compelling them to speak when they appeared before Mr. Carey, as Coroner, notwithstanding his informing them that they were not obliged to say anything.

I have carefully considered this submission and do not think that, even in the circumstances, there is any substance in the argument that what Gaigo said contained the implication of such a threat. It was not unnatural for him to give them some explanation for their capture and detention: in any event, I consider that in circumstances, Mr. Carey’s statement would have removed the effect of any such threat, had it been made.

What was done in this connection is set out in my recital of the facts. The argument was that insofar as what Mr. Carey said included reference to a punishment if the witness told lies in his Court, it was a threat by a person in authority within Section 68 of the Evidence and Discovery Ordinance, No. 9 of 1913. Mr. Rissen argued that it was an abortive attempt to affirm (I will deal with that later) and could well be construed as a threat. No other practical way of swearing or affirming such heathen witnesses was suggested. It is, as far as I am aware, universally used in all Courts in these Territories. The requirement that the witness should be made to understand his liability for punishment for untruthful testimony is, I believe, founded upon the common law and in any event it is a duty imposed by Section 22 (1) of the Oaths Ordinance, 1912-1927. In any case I can see no threat in it that would be likely to induce a witness to speak, and I do not think that the witnesses were so induced.

Before leaving this submission against the voluntary character of the depositions within the rule that forbids their reception in evidence unless it is proved that they were made voluntarily, I should refer to one or two other matters that arose in the course of argument.

The most important of such matters is the relation of the principle of Coote’s case[cccvi]¹⁵ to the great common law maxim “Nemo tenetur se ipsum accusare”, and the effect of that principle in this trial.

This maxim is preserved here generally by the Evidence and Discovery Ordinance, 1913, of which Section 65 (1) is in these terms:

N2>“65(1) Except as provided in this Ordinance nothing in this Ordinance shall render any person compellable to answer any questions tending to criminate himself.”

N2>“35a. Nothing in this Ordinance shall render a person compellable to answer a question tending to criminate himself.”

The privilege preserved by these sections is abandoned by a person charged with an offence, who, of his own will, gives evidence upon the charge: See Section 58 (1) (IV) of the Evidence and Discovery Ordinance.

I think that it is clearly shown by the judgments in such cases as Coote’s case[cccvii]¹⁶ and the authorities there relied upon that the law is that if a witness were compelled to answer a self-incriminating question after he had objected to answering it, then his answer would not be admissible against him in a subsequent trial. I conceive that the reason for this is that his answer could not be considered to be given voluntarily within the meaning of the common law rule.

Out of regard for the attention given in argument to the case of R. v. Scott[cccviii]¹⁷, a case at the highwater mark of the admission of depositions, I would mention in passing that it was there held that self-incriminating answers were admissible against a witness although he had been liable to be committed for contempt had he maintained an objection to answering them. The basis of this decision, however, was that that statute under which his examination was conducted had overruled or taken away the privilege of the common law maxim.

I think it is also clear: (a) that a tribunal in this Territory is not required to inform a witness that he has the right to refrain from answering questions, the answers to which may incriminate him, if he is disposed to take that objection, and (b) that answers to such questions given without warning and without objections are admissible against him in a subsequent trial.

I would, however, cite with respectful approval this passage from the judgment of the Full Court delivered by Stephen C.J. in R. v. Meehan[cccix]¹⁸, at page 291:

“His preliminary duty, therefore, being to inquire and nothing more, there seems no sufficient reason for this Officer’s abstaining from examining any person whatever, respecting the cause of death, although suspected of being that cause, or although actually in custody on that suspicion. It may often happen that a person really guilty is so examined, but the Coroner’s duty remains the same - although he would scarcely perform it with propriety, unless he cautioned the examinant that nevertheless he was not compellable to answer any question, or make any disclosure, that might lead to criminate himself.”

The words in italic are mine, and I would add that the propriety of a Coroner warning a suspected person that he may refuse and is not compellable to answer a question that may incriminate him, is now recognised in England, where it is provided in Rule 18 (2) of the Coroners Rules, 1953, that if it appears to the Coroner that a witness has been asked an incriminating question, the Coroner must inform the witness that he may refuse to answer, if the witness is disposed to take the objection.

Although not strictly by law bound so to do, Mr. Carey, as Coroner, did warn each witness that he was a suspect and told him that he was not obliged to say anything at all, so that the witnesses were informed, in effect, of their common law, now statutory privilege, as is indicated in the passage I have cited from the judgment in R. v. Meehan[cccx]¹⁹ suspected persons should be warned.

It was also submitted that inasmuch as Mr. Carey did not expressly declare under Section 22 (1) of the Oaths Ordinance, 1912-1927, in what manner the evidence of the witnesses should be taken and did not require the witnesses to repeat the form of declaration prescribed by Section 21 (a) (i) in the Sixteenth Schedule to the Ordinance, the witnesses were not really affirmed. It was argued, therefore, that their statements, as taken down by Mr. Carey, were not really depositions so as to come within the principle of Coote’s case[cccxi]²⁰. In the view I take and have expressed, of the significance of the decision in that case, it is not necessary for me to determine whether the witnesses were properly affirmed under Section 21, or whether, being satisfied that the witnesses understood that they would be liable to punishment if their evidence were untruthful, it was necessary for him to make an express declaration under Section 22 (1) of the Oaths Ordinance. Assuming that the witnesses were not properly affirmed, their statements would still be admissible if voluntarily made, and all that I have said upon the question of their reception in evidence in this trial applies to them whether they are to be regarded as depositions in the strict sense or as mere statements.

Upon consideration of all these matters, I was satisfied beyond any reasonable doubt that the “depositions” had not been induced by any threat or promise and that they had been made voluntarily within the meaning of the common law rule.

This power would enable me to rule against the admission of the depositions, notwithstanding that I feel bound to admit them under the imperative rules of law, if I considered that they had been unfairly or improperly obtained, or, what is much the same thing, that it would be unfair to the accused to admit them, or, possibly, if I considered that they should be rejected as a measure of judicial control of the investigation of crime.

I was pressed strongly by all Counsel for the accused to exercise my discretion in this trial.

Although it is a discretion I conceive that it should be exercised judicially not arbitrarily, and that the most important consideration is consideration of the case in hand.

It is true, and it probably springs from wisdom, that there is not to be found in any of the authorities any attempt to define so as to limit or hamper the exercise of the discretion by trial judges, and it has been left as a broad question:

“ . . . . of forming a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.” McDermott v. R.[cccxii]²¹ per Dixon J. (as he then was).

I regard Mr. Carey’s investigation in the same way as I would look at an ordinary police investigation, except that I consider his position as Coroner in relation to the accused, as well as his position as an officer in charge of the native police constables.

It may be useful if I list here the authorities which I have read and considered and from which I have found assistance:

I have also read again the Rules of the Judges for the guidance of the police in their enquiries in the investigation of crime, Rules around which the discretionary cases in England now tend to crystallize. They are set out in R. v. Jeffries[cccxiii]²²; Carter’s Criminal Law of Queensland at page 388; Phipson on Evidence 9th edition at page 269 and volume 10 of Halsbury’s Laws of England 3rd edition at page 471.

In support of their submission that I should exercise the discretion in this trial, I was pressed by Mr. Cruickshank, Mr. Rissen and Mr. Munro, with all the matters that had been urged in their submissions that the depositions had been illegally obtained and had not been voluntarily made. It was specially urged that the accused were primitive natives who had had but slight contact with the Administration, that they were taken and kept in unlawful custody without being charged, or treated as accused persons after Gaigo had spoken to them in the words mentioned above and that, it was added, it seemed, from what had fallen from Mr. Pratt in the course of his addresses in the voire dire that I would be invited by the Crown to consider parts of the depositions as self-serving and, so, unreliable. It was strongly urged by Mr. Cruickshank, on behalf of four of his clients, and by Mr. Munro, on behalf of all of his, that by the times they were called as witnesses before the Coroner there was such a body of evidence against them that they should have been formally charged and treated accordingly.

This body of evidence was made up against them by their being named by earlier witnesses in their depositions, most of which were exculpatory of the witness himself, as members of the raiding party or as active perpetrators at the place or time of the massacre.

Mr. Munro further submitted, that the treatment of all the persons, now on trial, as witnesses called before a Coroner had all the appearance of a fiction adopted to deprive them of the rights of accused persons and that, even if I considered that there was no unfairness to the accused in this trial, nevertheless, I should reject the depositions lest their reception should be likely to encourage the abuse of the Coroner’s powers in the future.

In answer to my question: what additional safeguards could have been employed, Mr. Cruickshank said that, in his submission, a regular officer of police should have interviewed the persons between their apprehension and their appearance before the Coroner, but, he frankly volunteered that even in that event he would still be objecting and I gathered from his reference to the Judges’ Rules that he imagined that his objection would have been strengthened.

I would say here that I think it was fairer to these prisoners that they were brought before the Coroner without any prior questioning by a police officer, who, even if available, could not have had the experience of Mr. Carey and would not have been under such restraint as he felt in occupying the position of a Coroner.

Mr. Munro argued that upon apprehension, these prisoners should have been regarded as persons charged, informed of the charge and asked if they had anything to say in answer to the charge.

It seems to me, that as no one had made up his mind to charge them, and their implication in suspicion rested upon depositions of the type made by other suspected persons, it was fairer in all the circumstances to caution them as was done and hear what they were prepared to say before formally charging them.

I could not, except at great length, repeat all the arguments submitted by both sides upon this question of discretion and this applies, too, to the considerations which led me to the conclusion that I should not exercise it in this trial. I should, however, state the main considerations, additional to those I have mentioned, that have influenced me.

In the first place, I cannot fail to notice that the investigation was carried out by a native affairs officer of the type and standing of Mr. Carey and I cannot but think that there would be far less possibility of unfairness or impropriety in such an investigation, than one conducted by an inevitably far less experienced officer of the Regular Constabulary. In present circumstances, experienced regular police officers are not available outside the larger centres in these Territories.

In his investigation, there was, of course, nothing at all like what was alleged to have occurred in Smith v. R.[cccxiv]²³ and R. v. Jeffries[cccxv]²⁴.

There was no trap, no trick and no importunate seeking of evidence, and, what I am strongly moved by, there was no interrogation or cross-examination of the witnesses upon their stories, which they gave in their own words after being cautioned and told that they need say nothing.

I gave earnest consideration to the question whether I should regard their treatment, by capture and restraint before they were taken before the Coroner, as itself unfair or improper in the case of these native people. In this connection I would repeat what I have already said, particularly with regard to the submission that the depositions were not voluntary.

I would add that upon a review of all the evidence taken into consideration on the voire dire and looking at the contents of the depositions themselves, I do not consider that the accused persons were induced to, or did incriminate themselves falsely and so unreliably.

It was also urged that I should take into consideration the submission that their custody was unlawful. However, I have no doubt that had the Coroner issued summonses for their attendance, in the event, they would have appeared before him in custody and so, in my consideration of my discretion, I regard the possible unlawfulness of their custody as a mere technicality.

With respect to the submission that, apart from the consideration of unfairness or impropriety in this trial, I should reject the depositions thereby to discourage any future abuse of a Coroner’s position and powers in the investigation of crime; I would say that when such abuse does occur, it will be time enough for judicial disapproval. It is not necessary to exercise the discretion to protect the accused natives in this trial. I can see many good reasons for the use of this form of investigation in crimes of the nature with which I am now concerned. It seems that it is used only in special cases such as this. I am not aware that there is any tendency for a Coroner’s power and duty under the Coroners Ordinance to be improperly employed for the investigation of crime. If it should ever occur that the exercise of this power leads to impropriety or unfairness to accused persons, such a situation can be dealt with when it arises.

Proper consideration can be afforded to the accused persons in any trial in which it is observed and then, before any judicial ruling is given that may have the force of a prohibition, consideration would have to be given to the heavy duty to the public, including the native communities, to investigate and punish crime, a duty about which Mr. Pratt, quite properly, had something to say in this trial.

It seems to me that I should say something about the method of apprehension and restraint in handcuffs, and otherwise, of natives in the course of a criminal investigation, and applied both to suspects and witnesses, by officers of the Department of Native Affairs in their capacity as officers of the Field Constabulary of the Police Force. All I wish to say is that in such cases as have come under my observation, including in this trial, it has been used only in circumstances where, if witnesses and suspects alike had not been captured and restrained, there could be no possibility of any of the alleged murderers being brought to trial. As is only too well known, in many of such cases, there is a strong probability that unrestrained witnesses would be the persons who would do justice, according to their own fashion, to unrestrained and unprotected suspects. In particular, I need mention only that in this trial there is evidence that the survivors of Yaba and Maga’s nephew, witnesses who were not involved in any suspicion at all, and whose interest it was to see that the murderers were punished, absconded from the enquiry and sought to avoid being further involved in it. They probably felt frustrated by what they thought to be the dilatoriness of retribution.

A plea of: “Not guilty” was entered in the case of each of the thirty-two accused persons and it is now my task to consider the criminal responsibility of each one of them.

The Crown, in addition to the witnesses already mentioned, called two of the three survivors of Yaba, namely, Hapigau and Watama, and two persons who were in the party that went to Yaba, namely, Howagawinyi and Hendabagu, and also Topuwagabu of Mambanya.

It was agreed that the evidence taken upon the voire dire, subject to the exception of certain passages which are noted in the record of the evidence, should also be evidence in the trial.

The other survivor and three persons who were in the party, whose names are on the indictment, were available at the trial, but were not cross-examined by Counsel for the accused.

“C”: Sketch showing elevation of the ridges of Yaba. “D”: Map of Hawabanga-Yaba region.

The Defence, as I have indicated, relied in the first instance upon the weakness of the identification of the accused in the Crown case. After the admission of depositions of twenty-seven of the accused persons, their Counsel urged, on behalf of most of them, that although each in his deposition admitted his membership of the party up to at least the time immediately before the attack, I should accept their depositions in full and exculpate those who denied their participation in the massacre.

I would pass these brief remarks as an indication of my general assessment of the more important Crown witnesses: Hapigau was a middle aged male of Yaba and a reliable witness. Watama of Yaba, I took to be in his middle twenties. He was reliable up to a point only; when pressed he resorted to inventions to embellish his evidence. However, in the view I take of the Crown case, he added little if anything to it. Topuwagabu, an adult coming from Mambanya, had reason to be exceedingly cautious.

Howagowinyi of Hawabanga or Hinga is a personable young Kukukuku lady of about sixteen, intelligent and generally reliable except where her father’s or her own security were involved. Handabagu of Howabanga or Kotidanga, is a bright faced intelligent youth of about thirteen years. He was generally reliable but like Howagowinyi, cautious about Weika, her father and obviously a leader amongst the Hawabanga people. As is not unusual amongst some primitive natives, both these young people were comparatively advanced, for their years, in the affairs of their environment.

I have not overlooked tendencies of native witnesses or tendencies which such witnesses have to a special degree, such as to say to a European what they imagine he wishes them to say and to agree with all of what it put strongly to them, particularly if it contains a truth which they regard as the important part, nor have I overlooked that the younger witnesses may be in the position of accomplices, whose evidence requires corroboration.

The population of Yaba lived in six houses, four of which were built on the main ridge of Yaba and two on another ridge of approximately the same height as the first ridge and lying close and parallel to it. There is a gully, twenty to thirty feet deep, between these ridges and through this gully there runs a watercourse about four feet deep and four to five feet wide.

At the north west of Yaba these ridges stop and their ends fall away very steeply to the Yaba River, a shallow, swiftly-flowing, mountain stream, strewn with boulders and about four to five yards wide. In the evidence, it is called a river, a creek and a stream.

Across this river, going away from Yaba, the ground rises to what was the site of the second night camp in this trial.

The track into Yaba passes by this site to go down to the river, where boulders make a ford. It then ascends towards Yaba, skirts around the slope below the crest of the main ridge to its gully side, whence it goes up straight over the crest to the houses on this ridge. The houses on the other ridge are connected with these houses by a track which runs down from this ridge, across the floor of the gully, and then up to join the track into Yaba, where it goes steeply up to the top of the first ridge.

The top of the main ridge, where the houses are, is about one hundred and twenty yards in a straight line from the river-ford and about two hundred yards by the track.

The first house on the first ridge to be reached by the track was in a clearing about forty yards long and fifteen yards across the ridge. The other three houses were in their own clearing, there was pit pit or native sugar cane growing between and around these clearings, between and around the two houses on the other ridge and over the edges and for some distance down the slopes of both ridges.

When Mr. Carey visited Yaba, a burnt area showed where the first house had stood in its clearing on the first ridge and the other houses, four of them with the remains of their corpses, were still standing.

I make the following findings upon the oral evidence admissible, as distinct from their depositions, against all the accused persons:

N2>1. That the accused No. 32, Kaiwetika of the village of Mambanya, visited the village of Patawa, with at least one other man of Mambanya, just before the assembly next mentioned.

N2>2. That a party including Kaiwetika, and made up of residents from Hawabanga, Hinga, Kotidanga and some other villages in the area, assembled at Patawa and left there with the intention of walking together to the village of Yaba.

N2>3. That this party consisted of at least forty grown men, four boys, two young women and some wives.

N2>4. That all the grown men in the party left Patawa with the common intention of going to Yaba and taking part in the extermination of its population. The male members were armed, the grown men with bows, arrows and axes and some had knives.

N2>5. That the journey to Yaba took two days from Patawa. On the first night out they slept in the bush and the second night they slept in the six shelters which they built and are still standing alongside Yaba at the place I have called the second night camp site.

N2>6. That well before sunrise of the next morning, all the adult males of the party assembled in mist and drizzling rain and Kaiwatika addressed them, reminding them of their purpose to kill the Yabas and exhorting them to fulfil this purpose, even if the Yabas fought back.

N2>7. That after Kaiwatika’s speech, all the grown men of the party went down the track, forded the river and went up to Yaba with the intention of carrying out the massacre of the Yabas.

(a) That all the grown men took some part in a massacre that was well organized, thoroughly carried out and calculated to leave no surviving fomentor of retribution, or witness. If, by chance, there were any who did no physical act, other than that involved in being present and walking about the scene, they aided by their presence and readiness to assist.

(b) That the people of Yaba, of whom most were not yet up, and almost, if not all, were still in their houses when the killers arrived, were rounded up, collected in a group and held there.

(c) That if, as it appears probable, the killers at first pretended that they had peaceful things to say, the Yabas were not impressed and this pretence was soon abandoned.

(d) That the people of Yaba, with the exception of the two who appeared as witnesses in the trial, one other male and a baby, who was taken away by one of the killers, were killed. Those who were collected were axed to death.

(e) A watch was kept to see that none escaped and any who attempted escape were shot down or at, with the bow.

(f) That a few women and children and two or three males did find temporary refuge in the first house on the main ridge of Yaba, until this house was fired by the killers.

(g) That the Yaba witnesses escaped by remaining in this house until they were scorched and taking advantage, for their departure, of some distraction probably the capture and killing of those who left the house before they did.

That Hapigau and Watama each received a minor arrow wound from killers who were about the clearing in which this house stood of in the pit pit surrounding this clearing.

(a) That the witness Howagowinyi went with her father and the rest of the party into the village and in the early stage was on the clearing of the first house on the main ridge and later was in the gully between the two ridges.

(b) That as from the time of Kaiwetika’s speech, at the latest, she was fully aware of the purpose of the visit to Yaba.

N2>10. That it was all over by about sunrise when all members of the party left together.

I am satisfied beyond all reasonable doubt, in respect of these findings, and I do not consider it necessary to discuss them in detail. I will, however, very briefly refer to the important findings in 4, 6 and 8.

4. I should, perhaps, refer to pigs, although they played no great part in the trial. They were introduced by Mr. Pratt who said in opening, that the messages sent round to the Kukukukus who gathered at Patawa were couched in double talk, suggesting to the uninitiated, an expedition for the purpose of buying pigs, and, indicating to adult men the purpose of killing men.

The young witnesses who went with the party had not heard anything about pigs, In all the circumstances, I think it would be idle to suggest that this large body of men was intent upon obtaining pigs enough to satisfy them from the two-days distant and small village of Yaba. It was not suggested that the Yabas would have had more than the usual pigs of a village. No other innocent purpose was suggested and it appears from the evidence that none of the accused had ever been to Yaba before. I do not think that any adult male who joined the party could possibly have had any doubt about its real intention and I cannot imagine any jury of reasonable men coming to any other conclusion.

In some circumstances, what was done is a useful guide to what it was intended to do. I consider that the oral evidence in this trial shows the existence of such circumstances.

I have not overlooked that it would be usual for these people to go armed on any kind of a journey through the bush.

6. There was oral evidence from both Howagowinyi and Hendabagu that all the adult males of the party were present at Kaiwetika’s speech. She was strongly cross-examined about this, but remained firm in an impressive manner. I was impressed, too, by the fact that here she included her father as present at the speech. This oral evidence is, to my mind, overwhelmingly supported by the probabilities.

It follows from this finding, even if I were wrong in my fourth finding, that after this speech, they were all fully aware of the purpose to kill the Yabas and that it was to be relentlessly pursued.

8. I include those findings for brief mention because Counsel for the accused, relying upon the depositions of their clients, did address me to find that in some instances their client did not go as far as the village itself.

The oral evidence that all the grown men of the party did go into Yaba is overwhelmingly supported by the probabilities and the inference that they took some active part is so strong that, at least, in the absence of testimony in this trial on their part, no rational jury could find otherwise.

On the whole, I am inclined to think that the boys of the party may not have gone into the village itself, but I do believe that Ma’ona ventured so close to it that he was hit by an arrow fired by one of his own party.

It is convenient to add here that I think these boys were taken along for experience of manly pursuits and the women to help to carry food, but, particularly, to give the expedition some air of innocence, lest news of its approach to Yaba leaked out, or the party was seen by someone of Yaba before the raiders wished to disclose themselves.

I must say now that I do not feel satisfied to rely upon the identification by the Crown witnesses of the accused persons as members of the party of killers, except in the cases of the few from her own village, or its neighbour, which were identified by Howagowinyi, namely No. 2 Moikoka of Kotidanga, No. 20 Tabawu’u and No. 23 Pimembiagam, both of Hawabanga, and No. 10 Kaiwatno’o of We’a, who from his age could have been an associate of her father. The deposition of each of these is in evidence and I will refer to them again.

I do not think that the survivors of Yaba were consciously giving false evidence when they said that all the accused were in the party of killers in Yaba, but I cannot overlook that they had never seen any of the raiders before the morning of the massacre and that, over a period of many months since the coronial enquiry opened, they have been accustomed to see a group of people reputed to have been members of the raiding party. The accused formed such a group in this trial and it was all too easy to say, what to these witnesses would seem obvious, that they were in the party. Somewhat similar considerations apply to the evidence of identification given by Howagowinyi and Hendabagu.

In the cases, however, of the twenty-seven of the accused, whose depositions were tendered and admitted, these depositions do contain, in each case, an admission, which I accept, that the deponent was in the party and so each of them is affected by the findings which I have already made.

I refer now to the accused separately and I number them in the order in which their names appear in the indictment, as they were numbered throughout the trial:

(After stating that it followed from what he had said that he was not satisfied that anyone of the five accused persons whose depositions were not in evidence, was a member of the party of killers, His Honour considered the deposition of each of the other twenty-seven, each of which admitted the deponent’s presence in or near the village of Yaba at the relevant time. In the case of each deponent His Honour accepted his deposition to show his presence at the scene of the killings and declined to accept in his favour any exculpatory portion of his deposition.

His Honour considered that there was ample corroboration of the case for the Crown against these twenty-seven accused persons in the circumstances and their depositions and, after acquitting and discharging the five accused whose depositions were not in evidence, His Honour concluded his consideration of the case against the other twenty-seven as follows:)

I cannot say, of course, that all the others, or any one or more of them, actually killed Maga. She was seen in the “lined Yabas” just before the massacre and her body was found amongst the dead, but it does not appear who struck the blows fatal to her. However, their responsibility is provided for in Section 7 of the Code. If none of the accused did kill Maga, Subsection (a) of this section may not be applicable to any of them. However, in taking their parts in the execution of the common purpose to destroy all the people of Yaba, they aided whoever did kill this resident, whether he was one of them or not, and the criminal responsibility of any who did not strike her may be found in Subsection (b) or (c). In the case of one or two, like No. 11 Yawungugabu and No. 16 Weika, Subsection (b) may be thought to be the more appropriate. No. 32 Kaiwetika and possibly No. 11 Yawungugabu and No. 16 Weika, would also fall into Subsection (c).

Mr. Pratt also relied upon Section 8, which expressly mentions a common intention to prosecute an unlawful purpose, and, which I thought contemplated, e.g. a case where death occurs in the prosecution of a common purpose, which does not necessarily involve death, and the accused is not present at the actual scene of homicide, as, e.g., Burglary, the facts in Brennan v. R.[cccxvi]²⁵ supplying a typical case.

It seemed to me that it was somewhat naive to say that in the prosecution of a commonly intended purpose to kill thirty people, the killing of one of them was a probable consequence of the intention to kill them all. However, I cannot say that the phrase “probable consequence” in this Code would not also include an inevitable consequence. The killing of Maga was not merely a probably but an “inevitable” consequence of the fulfilment of the common purpose in the execution of which all these twenty-seven took part. Likewise, their presence at, or so near as to be at the scene of the killing, while playing their parts in the plan to kill all the Yabas, necessarily would not, as a pure matter of construction, and we are told that it is such a matter, avoid the application of this section. It may serve the purpose as well as Section 7.

Verdict: in respect of the five accused whose depositions were not in evidence - Not guilty: in respect of the other twenty-seven accused - Guilty of wilful murder.

[ccxcii](1945) 1 K.B. 60.

[ccxciii](1947) 47 S.R. (N.S.W.) 284.

[ccxciv](1955) A.C. 197.

[ccxcv] (1873) L.R. 4 P.C. 605; 12 Cox C.C.557.

[ccxcvi] (1873) L.R. 4 P.C. 605; 12 Cox C.C.557.

[ccxcvii] (1873) L.R. 4 P.C. 605; 12 Cox C.C.557.

[ccxcviii] (1873) L.R. 4 P.C. 605; 12 Cox C.C.557.

[ccxcix]Rabaul, 9th April, 1962. Ollerenshaw J.

[ccc][1924] USSC 158; (1924) 266 U.S. 1 at page 14.

[ccci] 55 C.L.R. 235 per Dixion J. (as he then was) Evatt and McTiernan at page 246.

[cccii](1893) 2 Q.B. 12.

[ccciii]Rabaul, 9th April, 1962. Ollerenshaw J.