Regina v Binengim [1975] PGLawRp 505; [1975] PNGLR 95 (13 May 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 95 - Regina v Witrasep Binengim

[1975] PNGLR 95

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

WITRASEP BINENGIM

Wewak

Frost CJ

12-13 May 1975

CRIMINAL LAW - Degrees of criminality - Principal offenders - Wilful murder - Aiding - Minimum requirement, encouragement - When giving of consent is sufficient encouragement - Consent given on terms that no killing would take place without it - Relevance of intention - Criminal Code (Queensland adopted) s. 7 (b) and (c)[xcvi]1 and s. 23[xcvii]².

CRIMINAL LAW - Degrees of criminality - Principal offenders - Aiding - Giving of consent - Dissociation from assent requires evidence of timely estimation of withdrawal.

The accused was charged with the wilful murder of her husband B. as a principal offender under s. 7 (b) and (c) of the Criminal Code (Queensland adopted): the accused taking no part in the actual killing which was performed by two men called Thomas and Tari. The evidence established that during the year the accused who was having an affair with Thomas, had discussions with Thomas about killing B. and the accused then marrying Thomas, and, had some two months prior to the offence given her assent to a proposal put by Thomas that he should kill her husband; and that she was aware that her assent was required by Thomas as a necessary condition to him carrying out the offence. The accused made an unsworn statement.

Held

A mere consent or acquiescence that a killing should be carried out by others does not amount to an encouragement, which is the minimum requirement for the operation of s. 7 (b) of the Criminal Code (Queensland adopted), but where it has been made clear to the accused by the intending killers that they would not kill unless the accused consented, then the giving of consent upon those terms amounts to sufficient encouragement to those persons to constitute criminal responsibility under s. 7 (b).

Reg. v. Umarum, [1969-70] P. & N.G.L.R. 190 followed.

N1>(2)      Reading s. 23 of the Criminal Code (Queensland adopted) with s. 7(b) or (c) if the act of killing is done independently of the will of the accused the latter cannot be criminally responsible for that act.

Reg. v. Solomon, [1959] Qd. R. 123 at p. 128 followed.

N1>(3)      Where an accused has at first assented in circumstances constituting aiding, and then relies on dissociation from that mutual aiding, there must be evidence which shows distinctly the dissociation — evidence which shows that the accused made an unequivocal “timely communication” of the intention to abandon that assent.

Reg. v. Saylor [1963] Q.W.N. 14 applied.

N1>(4)      In the circumstances the accused should be found guilty of wilful murder.

Trial

This was a trial on a charge of wilful murder by the accused as a principal offender under s. 7(b) and (c) of the Criminal Code (Queensland adopted). The relevant facts appear in the reasons for judgment.

Counsel

A. Webb, for the prosecution.

W. Kaputin, for the accused.

Cur. adv. vult.

13 May 1975

FROST CJ: In this case the accused is charged upon an ex officio indictment that on 7th October, 1974 she wilfully murdered her husband, one Borli Ditokmosep. It is not alleged the accused took any part in the killing.

The Crown case is that, at Telefomin close to the station, the deceased was killed by two men named Thomas and Tari, both of whom have already been convicted by the Supreme Court for the wilful murder of the deceased, and that the accused was a principal offender under s. 7(b) and (c) of the Criminal Code.[xcviii]³

Upon the evidence it is established that during 1974 the accused was having an affair with Thomas and had committed adultery with him, and that there were discussions between Thomas and the accused concerning Thomas killing Borli and the accused then marrying Thomas. The Crown case is that she agreed that Thomas should kill Borli and that in the circumstances the agreement had constituted an act done by the accused for the purpose of aiding Thomas to commit the offence or actually aiding him therein.

It is generally accepted that there can be no aiding for the purposes of s. 7(c) where a person merely stands by and does nothing to aid in the commission of the crime — Ex parte Parker; Re Brotherson & Anor.[xcix]⁴. This is clearly so where the only duty resting upon the person said to have been aiding is the general duty resting upon all citizens to prevent crime (op. cit.). But that is not the end of the matter. Thus in the case referred to it was held:

“where the supposed aider and abettor stands in a special relationship to the owner of the goods stolen, as for example where he is an employee with a duty to preserve his employer’s property, an intimation by words or conduct to a person who has announced his intention to steal property belonging to that employer that he does not propose to perform that duty may be treated by the tribunal of fact as an act of encouragement or acquiescence sufficient to make him an aider and abettor.” (Per Owen J at p. 330).

Another application of the general rule is to be found in Reg. v. Umarum[c]⁵ where it was held by Clarkson J that a mere assent or acquiescence that a killing should be carried out by others does not amount to an encouragement which is the minimum requirement for the operation of s. 7(b).

But the Crown in this case strongly relied on the dictum of Clarkson J in that case, that if there was evidence that the intending killers by custom were bound not to kill if the accused refused his assent then a strong case would be made out that the giving of assent amounted to an enabling or aiding within the meaning of s. 7 (b). (ibid. at p. 191).

I am content to adopt his Honour’s words as a sufficient statement of the law for the purposes of this case. If upon the evidence it was made plain to the accused by Thomas and Tari that they would not kill the deceased unless she consented, then the giving of consent upon those terms would amount to a sufficient encouragement to those persons to constitute criminal responsibility under s. 7(b).

The only other section of the Code to which it is necessary to refer is s. 23[ci]⁶ or the relevant portion thereof. Reading that section with s. 7(b) or (c) if the act of killing committed by Thomas or Tari was done independently of the will of the accused the latter cannot be criminally responsible for that act. Reg v. Solomon[cii]⁷ per Philp J This particular view of the law does not seem to be affected by the criticism of the judgment by Gibbs J in Stuart v. The Queen[ciii]⁸.

Upon the facts the Crown case consists of the evidence of Thomas and Tari and a statement made by the accused to Mr. G. J Smith, a patrol officer, on the day of the offence, and a statement made by the accused to the District Court. The course adopted by the accused in this trial was to make an unsworn statement.

As Thomas and Tari were both accomplices in the Crown case to the extent that their evidence is uncorroborated it can only be acted upon so long as the judge bears in mind the danger of acting on such testimony. Having heard the evidence of Thomas, which was conflicting and unsatisfactory, I am unable to act on it to the extent that it is uncorroborated. On the other hand, I was impressed by Tari and as his evidence is largely corroborated by the accused’s statement I feel able to act on it.

There are two matters of law to which I should advert. The first is the weight to be given to the accused’s unsworn statement. I take the law to be as laid down in Peacock v. The King[civ]⁹, that the prisoner’s statement is to be taken as prima facie a possible version of the facts and considered with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts established by evidence. (Per Griffiths CJ at pp. 640-641). Secondly, an accused person who relies on dissociation from any mutual aiding of another person must be able to point to evidence which shows distinctly that dissociation (Reg. v. Saylor[cv]¹⁰). Thus, if the accused had first assented in circumstances constituting aiding, there must be evidence that she made to Thomas or Tari an unequivocal “timely communication” (op. cit.) of her intention to abandon that assent.

Mr. Kaputin, who conducted the case ably for the accused, argued that the accused’s mind did not go with her expressed assent and that the element of a guilty mind was thus not established. R. v. Thomson[cvi]¹¹. Counsel also put another argument based on s. 23 that the accused’s consent was given independently of her will, relying on her evidence of a threat by Thomas to kill the accused if she divulged his discussions concerning killing the deceased. It is largely upon the accused’s unsworn statement that Mr. Kaputin relies, but having given consideration to it together with the other evidence I am unable to attach any weight to it.

The conclusions I have come to are that it has been proved beyond reasonable doubt that on one occasion when the accused met Thomas on the road, which may have been two months before the offence, the accused did give her assent to the proposal put forward by Thomas that he should kill her husband, and that she was aware that her assent was required by Thomas as a necessary condition to him carrying out the crime, and that she fully intended that assent which was not thus given independently of her will.

Although, on her own account, there had been a threat made to her if she divulged the conversation there was no evidence of any threat made to induce her assent. When the matter was brought up between them Thomas left the matter entirely to her as to whether she would agree to him killing her husband with a view to them subsequently marrying.

There was no warrant for her to suppose that by reason of the lapse of time Thomas was not intending to act on her statement because, on her admission to Mr. Smith, Thomas again raised the matter on the Saturday before the crime, and her failure to answer I am satisfied did not amount to dissociation from her previous statements. In any event the conversation which she had with Tari on the Monday evening a few hours before Thomas and Tari proceeded to waylay and kill the deceased confirms her previous statements, and I am satisfied that it should be inferred from what she told Tari that she was aware that both men were waiting on her assent as the only condition upon which they would commit the crime.

These conclusions are fully supported in my opinion by the accused’s statement to the District Court, which I accept. Although from the terms of her statement the accused regretted her actions after Thomas and Tari left to carry out the crime, this is a consideration which can go only to penalty.

It thus follows that by assenting in the terms she did the accused’s agreement constituted criminal responsibility for wilful murder under s. 7(b) and (c).

I refer to a final argument put by the Crown based upon the accused’s failure to report the criminal intentions of Thomas and Tari. This does not seem to me to constitute such an omission as would amount to an aiding in the commission of the offence within the meaning of s. 7. It is to be seen designed to prevent crime rather than to aid it.

I therefore find the accused guilty as charged.

Verdict: guilty of murder.

Solicitor for the Crown: B. W. Kidu, Crown Solicitor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

[xcvi]Section 7 of the Criminal Code (Queensland adopted) provides:— Principal Offenders. — When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —

N2>(a)        Every person who actually does the act or makes the omission which constitutes the offence;

N2>(b)        Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

N2>(c)        Every person who aids another person in committing the offence;

N2>. . .

[xcvii]Section 23 of the Criminal Code (Queensland adopted) provides:— Intention: Motive. — Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

[xcviii]Supra p. 95.

[xcix] (1957) S.R. (N.S.W.) 326.

[c][1969-70] P. & N.G.L.R. 190.

[ci]Section 23 of the Criminal Code (Queensland adopted) provides:— Intention: Motive. — Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

[cii] [1959] Qd.R. 123, at p. 128.

[ciii][1974] HCA 54; (1974) 48 A.L.JR. 517, at p. 524.

[civ](1911) 13 C.L.R. 619.

[cv] [1963] Q.W.N. 14.

[cvi] (1965) 50 Cr. App. R. 1.