State v Bellam [1979] PGNC 7; N192 (18 April 1979)

Unreported National Court Decisions

N192

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JIMMY BELLAM

Waigani

Wilson J
3 April 1979
5-6 April 1979
9-12 April 1979
18 April 1979

CRIMINAL LAW - practice and procedure - the criminal onus of proof - meaning of proof beyond reasonable doubt - the assessment of the witness who tells lies - a method to expose the liar - the technique of the advocate who is cross-examining.

CRIMINAL LAW - evidence - dying declaration - common law rules now superseded by statute - whether the conduct and the expressions of the deceased before and after the time of the declaration are relevant in a consideration of the state of mind of the deceased - the significance of evidence of a dying declaration - Evidence Act, 1975, s.78.

CRIMINAL LAW - causation in homicide - accused’s conduct to be a substantial cause of the death - effect of medical treatment supervening considered - whether death required to be attributed to one single cause - defence of accident - Criminal Code Act 1974, s.23.

WILSON J: Tcused, Jimmy Bellam, is c is charged with “wilful murder”. Particulars of the offence alleged against him are that he on or about the 27th day of December 1978 in Papua New Guinea lly murdered a woman, one Hone Homoka Biru.

This case is an unusual one. The State Prosecutor informed the Court at the opening of this trial that this is the only case in Papua New Guinea’s history in which petrol has been used as a weapon to kill a person.

The trouble in this case which culminated in the death of the deceased on 27th December 1978, occurred on Saturday, 16th December 1978, at Tatana Village, a village on the outskirts of Port Moresby. The accused and the deceased were next-door neighbours; they and their respective families had lived at Tatana for years. The prosecution alleged that on the morning of the trouble the accused had threatened the deceased’s husband, Oki Daure, by saying inter alia “If you don’t move away later in the afternoon, I’ll burn this house or kill either you or your wife or children”. Stones and beer bottles had allegedly been thrown at the deceased’s house. The prosecution further alleged that later on the afternoon of the 16th December an argument took place between the accused and the deceased. It was alleged that the accused came over to the deceased’s house and behaved violently towards her. It was alleged that the accused threw two stones at the deceased, then threw an empty beer bottle at her, and subsequently threw a dish of water over her. He then threatened to burn her with petrol (or benzine) if she did not move away. It was alleged that the deceased remained at her house near the kitchen. The accused then returned to his house where he got a plastic container of petrol. Upon returning to the deceased’s house (when it was still light) he removed the stopper and then proceeded to pour the contents towards the roof of the house and towards the deceased. He threw the container away. He then, so it was alleged, struck a match, which he had removed from his pocket, and threw it at the petrol, which immediately ignited. When flames engulfed the deceased and the house was on fire, the deceased’s 16 year old son (who said he had observed the events just recounted) went to his mother’s assistance with a view to extinguishing the flames. It was alleged that the accused then tried to prevent him doing so by threatening the deceased’s son with a piece of wood. The accused is alleged to have said “Don’t do it or I will kill you”. When some people started to arrive at the scene, the accused threw the stick away and ran off to his house.

The deceased at this stage was lying on the ground suffering from a considerable number of burns. The flames had been extinguished in the meantime. Sometime later the deceased was taken to the Port Moresby General Hospital on the back of her husband’s truck and was admitted to the intensive care unit suffering from 3rd degree burns to a little more than a third of her body. After receiving treatment over a period of some days, infection set in, and on 27th December the deceased died.

It was the State’s contention that the accused intended to kill the deceased. He meant her to die. A suggested motive for the killing was concerning land; it was the desire on the part of the accused for the deceased and her family to leave the house - which had previously been a government clinic - so that the accused and his family could establish a petrol bowser or service station on the site; if the deceased and her family refused to leave the house, then the house or one of the family would be incinerated. An alternative motive, which had been suggested by what the accused told the police when he was interviewed on the day after the deceased died, was that he set the deceased on fire in retaliation for her having made allegations that he was a sorcerer and had been responsible for the death of the deceased’s mother-in-law.

The defence case, in summary, was that the accused, who had been working on a car in his yard, in the latter part of the afternoon of the 16th, went across to the deceased’s house carrying a plastic petrol container with him to ask the deceased why she had accused him of killing her mother-in-law by making sorcery, an accusation which the accused said she had made to him for the first time that day. He said that he forgot to leave the petrol container behind but he also said that he took it with him because he was concerned not to leave it behind in his yard in case any of his small children should drink the petrol in it. It was “a bit dark” at the time. When the accused confronted the deceased with the sorcery allegation and approached close to her to ask why she had called him a sorcerer, the deceased, so the accused said, suddenly pushed him causing him to go off balance. He said the petrol container dropped from his hand and spilt over the deceased and himself and over a lighted hurricane lamp which was there. The petrol ignited and both the deceased and the accused were burnt. The deceased ran out, and the accused (so he said) ran (or walked) straight to a tap in his yard to put out the flame on his foot. He then went to his house, put some ointment on his burns, and went to bed.

The defence case was that the fire starting was an accident. The accused denied that there was any ill-feeling between the two families - in fact he said that they were friends - and he denied making any threats against the deceased or her family. He also denied throwing stones or beer bottles at the deceased’s house. He denied that he behaved in the manner testified to by the deceased’s son.

Notwithstanding the accusation that the deceased had allegedly made against him, the accused said that he was not angry or cross with the deceased. He said he felt happy - “smiling”.

I need not set out in these Reasons for Verdict all the matters that I have taken into account during this trial. In reaching my decision I have approached this case in the same manner as I did in the case of The State v. Manasseh VoetoN192.html#_edn153" title="">[cliii]¹. I only desire to repeat one or two things of particular importance.

THE ONUS OF PROOF

I have remembered throughout this trial (and I have been reminded by Mr. Quadrio, counsel for the accused) that it is not for the accused in a criminal trial to prove his innocence. It is for the prosecution to prove his guilt. Every accused person is to be considered innocent, unless and until the evidence establishes his guilt, s.37 (4) (a) of the Constitution.

PROOF BEYOND REASONABLE DOUBT

Furthermore, the prosecution must prove his guilt beyond reasonable doubt. It is not enough for the State to establish a mere suspicion of guilt or to show that the accused is probably guilty. The evidence must satisfy me that the accused is guilty. I cannot convict the accused unless I am convinced to a degree of moral certainty that he is guilty of the particular charge laid against him or, in the case of an alternative verdict, convinced that he is guilty of that alternative crime. If I am not so convinced, he is entitled to an acquittal. Entirely fanciful or capricious doubts need not weigh with me. The law would fail if it admitted fanciful possibilities. If I think that the evidence which I have heard at this trial is open to any other reasonable conclusion than that the accused is guilty, he is entitled to the benefit of my doubt and to a verdict of acquittal.

INTERESTS OF THE ACCUSED AND THE NEED FOR PUBLIC PROTECTION TO BE CONSIDERED

I bear in mind that there are two matters to be considered in every criminal trial. On the one hand, regard must be had to the interests of the accused. He is not to be convicted on insufficient or doubtful evidence. On the other hand, criminal courts exist for the protection of the community and for the conviction of offenders who are found (after a proper trial and the application of proper principles) to be guilty, i.e. the conviction of those who break the law as the National Parliament (the legislature) has given it to the people of this country. The public interest requires that, just as an innocent man should not be found guilty, so a guilty man should not be allowed to escape the consequences of his acts by false evidence, ingenious explanations or plausible excuses. There would be a failure of justice if an innocent man were found guilty, but on the other hand there would be a failure of justice too if a guilty man were found not guilty where the evidence should convince the court of his guilt.

If I am satisfied that the accused committed a crime of which he may be convicted at this trial, I should not shrink from my duty of finding him guilty, however unpleasant that may be.

LIES

I wish to add some observations concerning lies. In this case either the prosecution witnesses were lying and the accused was telling the truth, or the prosecution witnesses were telling the truth and the accused was lying. Of course, it is conceivable that one or more of the witnesses gave partly true and partly false testimony. I do not overlook the law that, if I am in doubt as to who is telling the truth and who is lying as to matters essential to the charge, then I should resolve that doubt in the accused’s favour. I will refer later in more detail to my general impressions of the witnesses and to the method by which I have been led to a strong conclusion as to who was lying in this case. This is not a case where the witnesses could have been mistaken nor is it a case where the events were confused.

THE ESSENTIAL ELEMENTS

The essential elements of the charge against the accused are:

1. That on the 16th Derembe8 1978 he threw petrol towards the deceased.

2. ҈& T60; That heat he struck a match and lit the petrol.

3. That the fire that resultrd burnt the deceased.4.&##160;; That she subsequentquently dily died on 27th December 1978.

5.&#>5. &##160;; T60 bure burre a ae a antial cause of the deceased’s death.

6. ـ T6at when then the the ache accusedcused lit the petrol on the 16th December he ind to the dehe death oath of thef the deceased.

For the accused to be convicted of the crime as charged, i.e. the crime known in the Criminal Code Act as “wilful murder”, the State must prove each of the essential elements of the crime beyond reasonable doubt. If the State fails to prove one or more of those essential elements then the accused is essential to be acquitted of the crime as charged. If the accused is acquitted of the crime as charged, he may be convicted of a less serious crime.

THE FACTS AND THE WITNESSES

This case is one which to a great extent is to be decided on the facts. There are also a number of important questions of law to be decided, i.e. causation, the defence of accident, and/the significance of evidence of dying declaration. I shall deal with those questions later. I turn now to my findings of fact. In order to reach conclusions of fact it is necessary for me to analyse the evidence of the witnesses and to assess their credibility and reliability. It will be convenient to deal with each of the witnesses in turn in the order in which they were called.

The first witness was Tasini Oki, the 16 year old son of the deceased. I agree that he was the most important witness for the prosecution. He told the Court that he arrived home at about 5 or 6 o’clock on the afternoon of 16th to find the accused and his mother fighting; it was not dark. He told of seeing the accused pick up two stones and throw them at his mother; both stones missed their target and hit the corrugated iron wall. He said that the accused then picked up an empty bottle of beer which he threw at the deceased striking her on the thigh. Tasini Oki then told of the accused picking up a dish of water and throwing it at the deceased; the dish missed but the water poured over the deceased. Tasini Oki then heard the accused say to this mother in Motu “Get out of my way quickly or I will burn you with benzine”. When the deceased refused to move, the accused then left and came back shortly afterwards carrying a plastic container full of petrol. Tasini Oki then witnessed the accused remove a paper stopper from the container and then pour most of the contents first onto the kitchen wall and then towards his mother. The accused then, according to Tasini, threw the plastic container away towards the garden and then struck a match, which he got from his shirt pocket, and lit the petrol. Tasini Oki said “the fire caught her - and then she jumped with the flames”. Tasini Oki then told of how he tried to help his mother, who by this time was on the ground, only to find that the accused threatened him with a piece of wood about four or five feet long and said: “Don’t do it or I will kill you”. This prevented Tasini Oki from extinguishing the flames on his mother. At this stage the accused threw the stick away and ran off; Tasini then extinguished the flames on his mother’s body just as people from the village arrived at the scene.

I was impressed with Tasini Oki as a witness. Notwithstanding his youth, he gave his evidence clearly; he appeared to be recounting what had actually happened. He was cross-examined at length, but was not shaken at all. I believe what Tasini told me.

If the truth of the matter is as the accused testified then quite obviously Tasini Oki was lying and he must have fabricated many aspects of his evidence. If fabrication was “the name of the game” as far as Tasini Oki was concerned, it is hard to imagine why he would want to go further than implicate the accused in the burning itself. The additional allegations of Tasini Oki (i.e. allegations not essential to a charge of murder by setting fire to petrol) are the significant ones. I cannot believe that Tasini Oki made up the allegations of stone throwing, bottle throwing, and dish throwing, nor that he made up this threat made to him with a stick. I simply do not believe that he could concoct such allegations and persist in them. I agree with Mr. McMaster that all that additional evidence is not the evidence you would expect from a boy who was fabricating a story.

The second witness was Buruka Biru, the sister of the deceased. She gave evidence of a dying declaration, to which reference will be made later in these Reasons for Verdict. She also told the Court that the trouble occurred between 5.30 and 6.00 pm. When from her place she saw smoke come up from her sister’s place, she ran over to see what was going on. It was still light. She saw the deceased lying on the ground badly burnt, with Tasini standing near his mother crying. She later saw Tom Bellam, the accused’s brother, standing near the deceased’s house.

Buruka Biru also testified as to an incident which occurred on the day following the trouble. She told of some 20 or 30 villagers, including herself, who were throwing stones at the accused’s house and crying - presumably in anger and sorrow. She told the Court that the accused came out of his house and said “I am very sorry that I did that - it is because of my brother Tom, forced me very hard to do that”.

There was no objection taken to the admissibility of the evidence of the accused’s statement. Be that as it may, I took the view that such a statement was admissible against the accused, it having been a voluntary statement, and I saw insufficient reason to exercise my discretion to reject it. Although such evidence had the character of an admission or confession I regarded its weight as evidence of an admission or confession to be minimal; an apology in those circumstances was not necessarily incriminatory and the passing of blame to the accused’s brother does not point strongly to the conclusion that the accused was necessarily responsible for lighting the fire.

The real significance of the evidence of what the accused said (and I believe Buruka Biru when she said that that is what the accused said) is to be found when considering the question of credibility. If the main prosecution witnesses were lying (as Mr. Quadrio has argued) and were attempting by their evidence to frame the accused, it is inconceivable that Buruka Biru would have the ingenuity to fabricate, as an adjunct to a basically false story, a further story to the effect that the accused was forced by his brother to do what he did. No reason was suggested by the accused, nor by his counsel, as to why Buruka Biru should make up such a story and introduce for the first and only time the suggestion that Tom Bellam was in some way responsible.

I have said that the subject evidence has minimal weight as evidence of an admission or confession. Some (but not much) significance is to be found in what Buruka Biru said she heard the accused say on the day following the trouble. The words attributed to the accused are some corroboration of the prosecution evidence to the effect that the accused was the aggressor in burning the deceased, and they go some way (but not very far) to negative the defence of accident.

All in all, I was impressed by Buruka Biru, who gave me no cause to think she had fabricated her evidence or had made mistakes in what she saw or heard. She also was not shaken in cross-examination.

The third witness was the deceased’s husband, Oki Daure. He was not at home when the trouble occurred, although he said he was at home earlier that morning when the accused threatened him by saying “If you don’t move away later in the afternoon, I’ll burn this house or kill either you or your wife or children”. When the trouble occurred, Oki Daure was at Baruni watching a football match. Having seen some smoke rising from the direction of his home, he returned home and found his wife lying on the front steps of his house writhing in agony from the burns she had sustained. Oki Daure gave evidence of a dying declaration made by the deceased to him. I shall turn to the subject matter of that evidence later. Oki Daure also said that it was he who transported his wife to hospital in his truck.

In his evidence Oki Daure told of a dispute between his family and the Bellam family over land, and he said that talk about this occurred in particular in the weeks leading up to the day of the trouble. The Bellams wanted the Oki family to move out so that they (the Bellams) could establish a petrol bowser business. The Bellam’s claimed that they had a lease over the land which was Government land. The Oki’s claimed that the land was theirs by customary right; the Government never having paid for it. The subject of the land was, according to Oki Daure, brought up often, especially on Saturdays and threats had been made and stones and bottles had been thrown. I accept Oki Daure as a witness who was basically honest and truthful.

The fourth witness was Dr. Ruben Kila, who gave evidence relating to the deceased’s medical condition on admission to Port Moresby General Hospital - “critical” or “serious”, he said, and he spoke of her being placed in (and remaining in) the intensive care unit at the hospital. He testified as to the deceased’s burns covering about 36% of the body surface and as to them being third degree burns. He also gave evidence of the treatment that followed and as to the cause of death of the deceased. After what I regarded as an understandable reluctance on his part to be pressed into expressing opinions that were not wholly his opinions or into assenting to things about which there was medically-speaking some uncertainty. Dr. Kila eventually stated that in his opinion the burns were “the major precipitating cause of death”. He also testified as to the onset of infection three or four days before the deceased’s death, which infection may have been introduced to the hospital by the deceased’s relatives ignoring the hospital rules regarding visitors and having access to the restricted area during her stay in the intensive care unit. Except as to his evidence as to how the burns expressed as a percentage of the body surface were calculated, I accept the totality of the doctor’s evidence. I am satisfied that his conclusion as to percentage of the burns was right, but I felt that he could not understand or explain the mathematics of the situation. I noted that the doctor was not very experienced, especially in serious burn cases, but nevertheless his evidence, when viewed in association with the objective evidence of the fire and burns, was convincing.

Reference will be made later in these Reasons for Verdict to the issue of causation that arises in this case.

The fifth witness was Dibura Oki the 17 year old son of the deceased. His evidence was important only in so far as he told how he found the empty, but substantially undamaged, plastic petrol container (Ex. “1”) in the garden on the Tatana side of the deceased’s house. In this regard he corroborates his brother, Tasini Oki, who had testified that he saw the accused throw the container away towards the garden, and his evidence is in conflict with the accused’s evidence to the effect that he (the accused) dropped the container onto or near the lamp. I accept the accuracy and honesty of Dibura Oki’s evidence as to where he found the container. I thought that the witness’s inability to positively identify the container that ultimately became Ex. “1” was of little consequence. That container was clearly identified by other witnesses, including the accused, who admitted that Ex. “1” was the container that he brought with him to the deceased’s home on the afternoon of the trouble.

The sixth witness was Constable Wari Momoto who gave evidence that he received from Oki Daure the plastic container (Ex. “1”) and later gave it to Sgt. Jimmy Nunumatau. His evidence largely completed a chain of possession regarding the container, and it is not in dispute.

The seventh witness was Sgt. Jimmy Nunumatau who conducted a record of interview with the accused on 28th December, 1978, the day after the deceased’s death. There is no dispute as to what was said as between the sergeant and the accused. In the course of considering the Record of Interview, I overruled an objection to the fourth question on page 3 of the record of interview on the ground of the alleged unfairness of the question. Other formal matters were proved through this witness.

The eighth witness was Sub Inspector Clement Wallis whose evidence was largely uncontroversial.

I was reasonably impressed by the three police witnesses. I have relied upon their testimony as far as it goes.

THE DYING DECLARATIONS

I now deal with the evidence of two dying declarations that was produced by the State. It was alleged by the State that the deceased shortly after the flames had been extinguished at her home on the day of this incident said to her sister, Buruka Biru, “Jimmy Bellam burnt me with a gallon of petrol, and I am going to die. Hurry up and get the transport and take me to the hospital”. It was alleged by the State that the deceased a little later on said to her husband, Oki Daure, words to the effect of “Take me to the hospital quickly that I will die, because Jimmy Bellam burnt me with benzine”.

It was argued on behalf of the defence that such evidence was inadmissible and should be excluded. In the course of this trial I received evidence on the voir dire in relation to such evidence, i.e. I conducted a trial within a trial, and I subsequently overruled the objection. I said that I would announce my reasons later. I now do so. There is a fundamental rule of evidence that assertions of persons other than the witness who is testifying are inadmissible as evidence of the truth of that which was asserted.

There are a number of exceptions to that rule, one of which relates to dying declarations. The admissibility of such evidence is covered by s.78 of the Evidence Act 1975 which provides:

“78. DYING DETIONS

A staA statement made orally by a person before his death relating to the circumstances resulting in his death are admissible in a proceeding if:(a)&ـ at the time when the pere person mson made tade the statement he believed, or may be reasonably supposed by the court to have known or believed, that his death was imminent, whether or not he entertained at that time any hope of recovery and whether or not he anticipated that legal proceedings may eventuate; and

(b) &#16 the time that the pers person made the statement, he would have been a competent witness in a legal proceeding; and

(c) ҈ msone mthe ment , nt , if he had not died, have give given dven directirect oral oral evidence in the legal proceeding of the matter in the statement.&#82p>

Req. v. MadobiN192.html#_edn154" title="">[cliv]² Reg. v. Kipali IkaruN192.html#_edn155" title="">[clv]³ and v. AmbimpN192.htdn156" title="">[clvi]⁴ are no longer gger good law.

Having heard evidence from Buruka Biru, Oki Daure andRuben Kila, I am satisfied fied that in relation to each of the statements alleged to be a dying declaration:

1. &##160;;&#16 wast was a as a as a statement made orally.

2. ҈& i60; it was was made by the deceased befor deap>

3. ;ټ i60; in so f so far as it identified the aggreaggressor ssor in the incident which resulted in herg burd ideed the nature of the inflammable material which bich burnt her, it related to the circumstaumstances nces resulting in her receiving burns.

4. & t60;bure wers “the0;the major precipitating cause of her death”.

5. if so s r aidet ifiet the the aggressor and the nature of the inflammable material (as per 3 above), it related to the circnces ting r deap>

7. &##160; a60; at the thme when tceadeceased made the statement she would have been a competent witness in criminaceedings against the accused.

8. &ـ t60; the dece deceased coed could, if she had not died, have given direct oral evidence in criminal proceedings against the accused of the matter in the statement.

The onus of proving the conditions precedent to tmissibility of a dying decl declaration is upon the prosecution. It was unnecessary for me to decide whether the standard of proof is the criminal standard of proof beyond reasonable doubt or the civil standard on the balance of probabilities, because in any event the facts had been proved beyond reasonable doubt.

In R. v. RogersN192.html#_edn157" title="">[clvii]⁵ Napier C.J. said .108):

:

“The fact to be proved is the state of mind at the time when the declaration was made, but the conduct and expressions of the deceased before and after that time cannoignored. The question of faof fact falls to be determined upon a consideration of all the circumstances in evidence (R. v. Booker) (1924) 88 J.P. 76.”

It was having regard to that dictum that I received evidence of what preceded and what followed the fire, including evidence as to the conduct and the expressions of the deceased in hospital and up until the time of her death.

I do not place much weight on the dying declarations themselves as evidence of the truth of which was asserted therein. They are not wholly inconsistent with the incident having occurred in the manner testified to by the accused, although, if it had been an accident (as the accused said it was), one would not have expected the deceased to have blamed the accused or branded him the aggressor. The significance of the dying declarations in the case as a whole is to be found in the fact there is yet another person (in this instance the deceased) whom the Court is asked to disbelieve. In much the same way as circumstantial evidence accumulates and strengthens, so in the present case the evidence against the accused has accumulated; the dying declarations add some weight to the prosecution case and give it an important strength.

THE ACCUSED’S EVIDENCE AND HIS WITNESS

The accused himself gave evidence on oath. That is to his credit. He need not have gone into the witness box; he need not have subjected himself to cross-examination. The accused told me, in summary, the story summarised by me when outlining the defence case at the commencement of these Reasons for Verdict. I have not lightly disregarded his oath. Nevertheless, the very definite conclusion I have reached is that the accused is not to be believed. I was not impressed by him as a witness - and was of that mind at the end of his examination-in-chief. It was in cross-examination that my bad impression of the accused was confirmed. He was shown to be a determined and persistent liar.

I desire to take time to consider Mr. McMaster’s cross-examination of the accused. It was, if I may be pardoned for using a pun in this context, a masterful effort by a State Prosecutor. The technique used was that appropriate to the cross-examining of an accused person whom the cross-examiner firmly believed was not telling the truth and who, as one could see from the manner in which his case had been conducted, was necessarily suggesting that the prosecution witnesses were lying (as opposed to being mistaken). It was obviously cross-examination that had been carefully prepared before-hand; the questions put to the accused covered each of the more important matters that were in dispute between the accused and the prosecution witnesses.

I propose to quote a portion of this cross-examination.

“XXn

Q. ҈ Y60; You’ve hOard aui Daure give his evidence to the Court and you heard him say that the problems between the two families arose because your family wished to start a business at the place where Oki was g.

Q. ـ Y6u said before youe you and Oki Daure were good friends?

A. &##160;; Y60; Yes, wes, we were friends.

Q. ټ whe ma that?

A. &160;  & &#160 Because nf us ever mentionntioned making any business, Your Honour.

A. &#160 &##10;&#160& Bec; Because none of us mentioned making asiness over there.

H.H. Mr. Bellyou’ve twicetwice been askedasked a question and you haven’t ans it, you e answer it?r it?

A. &< Because ue wouldn’t 17;t mention any business over there, Your Honour.

XXn.

Q. ـ D60; Do you remember hearing Buruka Biru give her talk to this court?

A. ټ&# Yes, Yes, Your Hour Honour.

Q. & D60;ou ymember that laat laat lady saying that on the morning of 17/12/78, the Sundaning,le were stoning your house and that you came down down from from your house and spoke to those people?

A. &##160;; I60; I didn&didn’t went down and speak to anybody.

Q. &#I60; gesugto t u thot yout you did and you said tou werry fat had happened and that “my brot brother Ther Tom forced me to do it”. Do you you remember saying that?

A. ;ټ&##160; That is a ls a lie, Yie, Your Hour Honour.

Q. &##160; Why would that lady lady tell a lie?

A. & secaum nTo pretent (there)here) at that time.

Q. &#160 &#16am askingwhy wthat come come to this Court and telie?

Objection

Ruling: I uphold the objection aion as to s to the fthe form oorm of thef the question, but I indicate in view of cMast217;sanation in supporupport of t of the qthe question, that a question or series of questions in the form “Can you suggest a reason...?” would not be objectionable. Objection having been taken to a question prefaced with the word “Why?” the question is in the circumstances inadmissible.

XXn.

Q. Can you suggest a reason why Buruka Biru would tell such a lie to this Court?

A. &##160; B60; Because oom d#8sn&;t 17;t live with u liveGereh>

60;&##160;; < 160; But you haou have suve suve suggestggested that that lady has made up that story?

A. 䃘&s e-up e-up story.tory.

Q. & I60;k yas agaun; can you you sugu suggest gest a reason why she should make up that ?

. ـ B6cause shee she mihe migh might be told by somebody else to say that.

Q. S e isofer Bipa Q <#160& #160;   #160; ټ
nd you hyou have told the Court ther beenroublween famil Homoka Biru’s family?

A. & Y60; Yes, Yes, Your Honouronouronour.

.

Q. Yet,say that lhat hadycome come to this Court and told a lie?

A. & ; Ye0, it , it was a as a lie.

Q. ټ&##160;he dathe te (thh Decembecember) I r) I put iput it to t to you tyou that that there was an argument at around 8.00am between you and Oki Daure?

A. ҈&&#160re was nothingthing between me and Oki DaureDaure.

.

Q. ҈ A60; And in that artumen myou m thre blow the house or his members of the family living in it?

A. &160; t&##16; I didn&#idn’t menblowie hou argue with anybody.

Q. < &160; #1660҈ Would you agre agree that these words were said in this Court man ay walose friend iend of yoof yours?

A. &##10;& He0;s a is a friendriend - but I didn’t mention anything of this to him, because I was at work.

Q. &##160; Can you suggest a rt a reason that he would make up that story?

A. Because I didn’t sat anything to him and we didn’t have an argument, and this is Gospel truth.

Q. 𧝼&#Liste answe que. que. Can you suggest a reason that he would ould make make up thup that stat story?

A. &#1 didn’t have an argument to him; I didn’t say asay anything to him.

Q. Do you standquest/p> <#161;; Yes, I didn’tasay anay anythinything tong to him. him.

Q. ;&#16 am skingthingthat. ast. askiu, ca suggest a reason why Oki Daui Daure wore would tell a lie to this Court? Why wouy would held he do i do it?

A. &ـ; I d217 d217;t.

...p>...............

Q. I put it to yau thou ar6.0d 6.00pm you were having aument Homoka.

A. ـ #160; Yes.

Q.&#>Q. &##160; A60; And you tnew auatDhuse husbwas not present?

A. ҈ Yes, Yonour.

Q.&#16. &#160  ʔ҈ Bec; Because huse his truck wasn’t , was/p> <#160; &##1160; The truck wack wasn̵het there.

Q. &#160 &#660 &#160 And And you knew thate ware was nobody around to s fighan argument between you and Homoka Biru?

A

A. ;ټ #160;#160; I 0; I did thought of that.

Q. ـ;&# it toit to you tyou thau that yout you threw two stones at Homoka?

A. ; It is nut trp>.

Q.&p>Q. ـ&#1160d thnd that yoat you then threw an empty beer bottlbottle at e at her?

A. ҈& I60;s n is not trut true, Yonour.

Q.; < And thatthrew a dish of waof watf water at her?

A. & It is not tro .&#1>. &&#1That has tid evidence once of Tasini Oki, the son?

>

A.&#1A. < &160; & In0;y opinionis wationesoonesomeone and for him to say in Court - that is a lie.

Q.&#>Q. &160; #1660;&##16; Bu0; But he is part of thms family with whom you closendshp>

A. < t&#If I hadI had a stoa stone I could not miss her.

Q. ـ S60; Suggest son wis smoy from a famil had a close relationship with would tell a lie to this courtcourt?

?

A

A.&#16. ـ B6ca havetones me o me or anything else.

H.H. &#160  Mr. ellam - I want to seeo see you give a good account of yourself as a wit I muint o you again you have not answered ared a ques question tion askedasked by the State Prosecutor. For your own sake, please try to answer the question directly. Please suggest, if you can, a reason why Tasini Oki would tell lies to this Court?

A. ; I60is a lie, Your Honour.nour........”

It is to be noted that the absence of any ill-feeling between the accused he ded&#82famil emphd by the accused in the witness box, both in the pahe passagessage just just quot quoted aned and earlier in his evidence. Such was important for the accused to assert in order to negative any motive for the killing arising from anger or ill-will and in order to be consistent with the defence of accident.

It will be seen that counsel for the State established clearly that the relationship between the accused’s family and the deceased’s family was one of friendship. That such could be established through the accused was obvious from a reading of what was said in examination-in-chief; any motive for the killing was being strongly denied. The accused was tested as to his conduct after the fire started to see whether it was consistent with that of a friend. The accused found himself under a lot of pressure to answer questions relating to his mood in response to the accusation of sorcery. I think the accused was “caught between two stools”. On more than one occasion in the extracts from the transcript quoted above, counsel for the State got the accused to agree that a prosecution witness had said something which the accused not only said was untrue but also said was a lie. The accused was then asked if he could suggest a reason why the prosecution witness would tell a lie. The asking of that question in cross-examination was clearly designed not so much so that the Court might receive some evidence by way of reply upon which it could rely, but rather so that the demeanour of the accused could be made manifest. An accused person’s inability to suggest any or a satisfactory reason for a witness having told lies is of little consequence, and, of course, an inability on the part of an accused person to do something in the witness box is not of itself evidence of quilt, but his demeanour manifested after a confrontation of this kind may be of great importance in the assessment of his credibility. The value of confronting a suspect with a story told by another person lies in what the person under suspicion says or does and in his manner of answering.

An accused person’s lack of inclination to answer a question of this kind or the evasiveness of his reply or the extent to which he may appear disconcerted by the question may afford some indication that the witness whom he says is lying has been telling the truth and that the story told by him is untrue. That is precisely what happened here on a number of occasions during the cross-examination of the accused by Mr. McMaster (see those portions of the transcript quoted above).

I have concluded that the accused in his record of interview, which took place many days after the trouble and after he had had time to consider his position, was more incriminating than his counsel would have me accept. It is true that on one interpretation of the Record of Interview the accused was saying that the incident on the 16th December was simply an accident. On yet another (the one I am satisfied is the correct interpretation to be placed on the English words therein) the accused was on the one hand saying that it was an accident and on the other hand admitting that he was the aggressor and that his “excuse” or “provocation” for burning the deceased was his anger at her false accusation of him being a sorcerer. I have put the words “excuse” and “provocation” in inverted commas, because they were not in my view the real motivation. His explanation about sorcery was a false excuse.

I have concluded that the accused in the witness box found himself confronted with a situation in which he was asking the Court to believe an incredible combination of facts, viz. that there was no animosity between the deceased and him, that the deceased had made a false and wicked accusation against him, that he had gone over to confront her with and find out the reason why she had made such an allegation, that he was nonetheless “happy” with her, and that an accident had happened without any aggression on his part.

The truth of the matter, as I see it on the whole of the evidence, is that the accused has made a number of inconsistent explanations all in an attempt to exonerate himself. I simply do not believe the accused. I am satisfied that he made the various suggestions and explanations in a desperate but unsuccessful attempt to avoid criminal responsibility for what he did. It is not without significance that no other witness apart from the accused testified as to the deceased’s alleged accusation that the accused was a sorcerer.

I am convinced that the accused, as is not uncommon with accused persons who are guilty, but who are desperately (but falsely) denying the charge brought against them, has gone too far. His credibility has been destroyed. He has tried to counter everything which was likely to implicate him with some excuse or counter-allegation and, in doing so, has shown himself to be in a poor light.

The accused’s evidence before me, whilst seeming reasonable and even probable in parts, was in its overall effect both specious and unworthy of credence. His shrewdness and prevarication became obvious to me during the evidence, and my assessment of him was confirmed when I considered the whole of the evidence and heard the addresses of counsel. As an illustration, I mention the subject of the accused’s mood after hearing the so-called accusation of sorcery. Finding it necessary to walk up to her to ask her why she had made such an obviously serious and hurtful accusation, he would have the Court believe that he wasn’t angry or cross; in fact, he said “I feel happy. I wasn’t angry with her - I just walked up to her and asked her.” When asked what he meant by “happy”, he said “smiling”. This just does not ring true.

The extent and the position of the burns on the bodies of the deceased, the witness Tasini Oki and the accused, point to the probability that the fire was started deliberately by the accused in the manner described by Tasini Oki. It is hard to imagine how the burns which were received could have been received if it was all an accident as the accused would have me believe.

The absence of evidence of any real attempt on the part of the accused to help the deceased or take an interest in her welfare operates adversely to the accused’s story that this was an accident. His lack of concern renders his evidence the more incredible.

The second witness for the Defence was Hendry Bellam, the accused’s brother. He said he was at the Bellam house when the trouble occurred. He said he could hear people arguing next door. He couldn’t hear what they were saying. Later, after he saw the fire, he went next door and started putting out the fire. His evidence did not assist the accused very much. It really corroborated other evidence that is not in dispute, viz., that an argument between the accused and the deceased preceded the fire. Having regard to the other evidence that was given in this trial, it was not surprising that the witness’s view of the place where the argument was taking place was obstructed. The fact that the accused’s brother was unable to corroborate his story about the accusation of sorcery is, I think, significant. He was not asked whether he could confirm or negative the suggestion that there had been an on-going dispute between the two families over land. As far as Hendry Bellam’s evidence went, I accept it.

Having considered all the evidence and the testimony of each of the witnesses, I am satisfied beyond reasonable doubt that the facts were as summarised by me on pages one and two of these Reasons for Verdict. The motive for the killing arose from the dispute over land. I reject the alternative motive suggested by what the accused said in his record of interview and not spoken of by any other witness, viz. that the accused, having been angered or provoked by a false accusation made by the deceased to the effect that he was a sorcerer and had been responsible for the death of the deceased’s mother-in-law, he acted in response or retaliation to that.

THE DEFENCE OF ACCIDENT

I should say something about the defence of accident. It is for the prosecution to negative that defence. S.23 of the Criminal Code provides:

“23 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 omissiich o indently e exercise of his will, or foor for an r an eventevent whic which occurs by accident...”

The prosecution has discharged its heavy onus in this regard. The evidence of accident as raised and given by the accused was far from feasible and is in my view not to be believed. I say that notwithstanding the earnestness of Mr. Quadrio’s submissions. I am persuaded by Mr. McMaster that, if the incident had happened accidentally (as the accused could have me believe), then the overwhelming probability would have been for the plastic container (Ex.“1”) to have been destroyed or severely damaged. The fact that the container was found in the garden in a relatively undamaged condition is strong corroboration of the account given by Tasini Oki, the eye-witness. I agree with Mr. McMaster that the evidence regarding the plastic container is crucial.

Operating counter to the accident theory are the shifting explanations of the accused as to why he was carrying the petrol container to the deceased’s house. At various stages he said he forgot that he had it with him. At other stages he said that he carried it with him deliberately to prevent his children from getting it and drinking it. Had the accused stuck to one reason, I would have been more likely to believe him.

MOTIVE

I now say something about motive. The evidence leaves me in no doubt that the motive for this killing arose from a land dispute - regrettably an all too frequent cause of dispute in this country. The accused’s motive for acting aggressively towards the deceased was to get the deceased’s family to leave their house and thus enable the Bellams have the use of the land on which the house was built. The accused found in the deceased a person who would not move; she stood her ground. His motivation then developed to the point where he intended to carry out his earlier threat to burn her. When he returned for the petrol and later when he poured it towards the deceased and then lit it, his motive was to kill her. He was determined that the Bellams would succeed in the land dispute, if necessary at the expense of the deceased’s life.

I find support for my finding regarding motive (which finding I also make beyond reasonable doubt) from the long-standing dispute between the parties, the accused’s own words to Oki Daure on the morning of the incident, from his own conduct witnessed by Tasini Oki, from the manner in which the petrol was deliberately poured toward the deceased, from the circumstances of the fire and burns received, from the threat to Tasini Oki when he tried to assist his mother, from the dying declarations, and from the failure to give aid or show concern for the deceased. The progression of violence prior to the lighting of the fire and the conduct immediately after the conflagration renders the crime being one of wilful murder more plausible and probable. What I am saying is that the motive can be inferred (and has been by me) from all of the circumstances of this case. I am left in no doubt that the accused was determined to see the deceased suffer and was determined to see her die.

CAUSATION

I now turn to the question of causation. This question arose to an extent in the dispute over the alleged dying declarations. It arises to an important extent in relation to essential element No. 5 of the charge.

I agree with Professor Howard in his book “Criminal Law” (3rd Edition) (at p. 31-32) that the law of causation “has been put clearly by the South Australian Full Court in relation to murder” in the passage quoted (at p.32) from Hallett v. The QueenN192.html#_edn158" title="">[clviii]⁶ (at p.149). I content myself by quoting only part of the larger quotation:

“The death of the deceased is the material event. The question to bed is whether an act or series of acts (in exceptional cases an omission or series of omissimissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.” (the emphas mine)

I

In this context I refer also to R. v. Evans & Gardiner (No.2)N192.html#_edn159" title="">[clix]⁷ and R. aueN192.html#_edn160" title="">[clx]⁸ both by Mr. McMaster.

e question, therefore, is whether the accused’s conduct was so connected with the dece deceased’s death that it must be so be “a substantial cause” of the death. Mr. Qur. Quadrio, in his argument on the subject of causation, emphasised the fact that infection had supervened between the time when the deceased received her burns and the time when the deceased died. He suggested that this was due either to some defect in the nursing treatment the deceased received (in that there was a want of supervision of visitors to the intensive care unit) or to the conduct of the deceased’s relatives in ignoring the hospital’s visiting restrictions and unwittingly being the carriers of germs to a patient who was at risk of infection. He attempted to put to this Court the type of argument which Professor Howard alludes to at p.35 of his book. I agree with Professor Howard that the rule is that treatment, whether right or wrong, is no more than one of the factors leading up to the death to be taken into account in deciding whether the accused’s act substantially contributed to the death which actually occurred. The discussion that follows on pages 35 and 36 is indeed a helpful one. The important consideration in this context is that the law does not require that death be attributed to one single cause.

Mr. McMaster contended that the Court need look no further than to the medical evidence. Strong as the medical evidence is, I consider that the Court needs to look further than that; consideration needs to be given to the whole of the evidence including the evidence of the extent of the blaze and the extent of the burns themselves. I find as a fact that, to adopt Dr. Kila’s words, the burns were “the major precipitating cause of death” and were at the very least a substantial cause of death.

FINDINGS

I therefore find, beyond reasonable doubt:

(1) &##160; That onat on the 16ch Der mber 1978 the accused threw petrol towards the deceased.

(2) Teat hucstr ma ah anc lit lit the petrol.

(3) Tha fire resulted burnt trnt the dehe deceased.

(4) That she subsequently died on 27th December 1978.

(5) ـ&#1hat trns w subsal cause of the dece deceasedeased̵’s d7;s death.eath.

(6) &#160t whan the accused litd lit the petrol on the 16th Dec 1978ntended to cause the death of the deceased.

I fp>I find that the State has negative the defence of accident or other lawfcuse.

I the accused used guiltguilty of y of the wilful murder of Homoka Biru.

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

Counsel: J.W. McMaster

Solicitor for the Accused: M. Kapi, Public Solicitor

Counsel: S.J. Quadrio

<53">N192.html#_ednref153" title="">[cliii]^{(N134) Unreported National Court Judgmeth April, 1978.}

N192.html#_ednref154" title="">e="">[cliv] ^{(1959-1965) 6 F.L.R. 1}

N192.html#_ednref155" title="">[clv]^{(1967-68) P. & N.G.L.R. 119}

N192.html#_ednref156" title="">[clvi]^{(1971-72) P. & N.G.L.R. 258}

N192.html#_ednref157" title="">[clvii]^{[1950] SAStRp 15; (1950) S.A.S.R. 102}

N192.html#_ednref158" title="">[clviii] ^{(1969) S.A.S.R. 141}

N192.html#_ednref159" title="">[clix]^{[1976] VicRp 53; (1976) V.R. 523}

N192.html#_ednref160" title="">[clx]^{[1975] EWCA Crim 3; (1975) 3 All E.R. 446}