King v Turan [1952] PGSC 10; N211 (7 March 1952)

THE KING -v- TURAN.

NOTES FOR SUMMING UP.

(Delivered on 7/3/52:

CHARGE (read) one of Wilful Murder - (Section 301) Queensland Criminal Code (explains what Wilful Murder is) but Crown does not charge accused as direct cause of death but as an aider in killing, Section 7(c) Queensland Criminal Code, and, pursuant to that Section, as a "principal."

In my view, to be an "aider" in that sense, one must "aid" with a full appreciation of what the active party may be doing and with intention to aid him; (with respect to Defending Counsel, I do not think "consensus" - if that means pre-arrangement or agreement between the two - is necessary in every case: - Section 8 Queensland Criminal Code deals with that situation).

Crown Prosecutor conceded in closing address that evidence did not show Wilful Murder and Defending Counsel submitted evidence did not show premeditation or intention to kill. But Crown, relying on Section 576 (Queensland Criminal Code) (quoted) submitted jury might convict accused of "murder" or "manslaughter". The Crown considered evidence showed that Lapae was raping or attempting to rape Iapiloman when he commenced to hold her nose and mouth and Turan held her hands: in the former case Mr. Quinlivan submitted Section 302 Sub-Sections (5) and (3) applied to make Turan guilty of Murder: in the latter case Sub-Section (2) applied with same effect.

Mr. Jones for Defence, however, submitted that the evidence did not establish beyond reasonable doubt that a rape was committed by Lapae, or any offence for which arrest without warrant could be made, therefore Sub-Section (5) of Section 302 did not apply and this was not murder under that Sub-Section. Nor (he submitted) was any crime proved, beyond reasonable doubt, as having been in course of commission by Lapae, therefore Sub-Section (2) of Section 302 did not apply and there was no "murder" under that Sub-Section. He said the evidence was consistent with sexual intercourse having occurred with a willing girl, and with that girl, who was subject to fits, suddenly having a fit while that un-criminal sexual intercourse was taking place. Whether the girl had a fit or not, Mr. Jones contended, the real point was whether Turan reasonably thought she had: (and speaking for myself - I think that if Turan reasonably thought she had, or even honestly thought she had - though part reasonable man would not have thought so - and acted honestly and lawfully and appropriately in that belief - he would not be criminally responsible). Turan, Mr. Jones contended, reasonably thought the girl had a fit, thought Lapae was pumping air into her mouth, and himself merely held and squeezed her wrists in an attempt to help the girl to recover from the fit, and with no idea at all of helping to kill her or helping Lapae in any criminal act: the Crown had not proved (beyond reasonable doubt) that Turan had aided Lapae in any criminal act that would amount to Wilful Murder, murder or manslaughter: I find not so proved that the death, - though Defence admitted it due to suffocation by accused persons - amounted to an "unlawful killing" - and in any case it did not follow that Turan was privy to or aiding all that Lapae did and the Crown had not proved that he aided Lapae in anything criminal.

I have referred to Wilful murder and murder:- As to manslaughter see Section 303 (the manslaughter referred to in section 304 is not relevant here - as no "provocation" is alleged) These are the three unlawful killings referred to in section 300.

What is a killing? Sections 391 and 395 note that acceleration of death is deemed "killing" by section 296.

The onus is on the Crown (explain fully):

(None on accused): Therefore, the Crown must prove beyond all reasonable doubt in a charge of murder or manslaughter

(a) the death of the alleged deceased;

(b) that accused caused that death; "killed" (or in a case like this aided the killing of IEPILOMAN;

(c) that the killing was unlawful.

Re (a), Defence does not dispute: Re (b) Defence argues (?) death due to suffocation by mechanical means. External pressure but not that accused aided it. Re (c) Defence does not concede that accused party to any unlawful killing.

Review evidence: Difficult task in this case because of the PLN(?) or very contradictory evidence given by some witnesses.

Clear that on Sunday morning, the 1lth November, 1951, the dead body of IEPILOMAN, a girl of 15-16 years of MAILAWAN Village was found on a beach - at the edge of the sea: (Discovered by the man JAPANDEI, the first native witness) It was brought to the Native Hospital at Rabaul in a lorry. (The accused, TURAN, accompanied it). At the Native Hospital the body was seen by Sub-Inspector Holloway who noticed abrasion on it. It was also, at the Hospital, examined by Dr. Saave who did a post-mortem on it: (Review his evidence re what he saw):

His findings were:-

(i) Death was not due to drowning - his reasons for this.
(ii) Death was due to suffocation or asphyxia mechanically produced - his reasons:
(iii) Evidence that girl had recent rupture of hymen and congested vagina, which is indicative, in his opinion, of sexual intercourse shortly before death.
(iv) No signs of her having had a fit just before death.
(v) Opinion that body had been immersed 10 to 14 hours.

Next day, Monday 12th November, 1951, Holloway and Dr. Saave went to VULAVOLO Village and the body was exhumed and photographed by Dr. Saave. Dr. Saave left and Holloway remained to make enquiries.

During enquiries and at LUNGALUNGA, he question TURAN who voluntarily said he knew IEPILOMAN, but did not know how she died. He said he had seen the girl the previous Saturday morning 10/11/51, had sent a message to her and had had sexual intercourse with her (she agreed). He denied knowledge of marks on her face or of who killed her and said, "Nobody, killed her". He said he had sexual intercourse with her first and then LAPAI had, and that the girl's hymen had broken and that she had "died" (Quaere whether swoon or death). Holloway noticed sticking plaster behind TURAN's ear and asked about it. TURAN had first stated he had cut it with a razor and persisted with this awhile. Then he said IEPILOMAN had scratched him there - but not because she was unwilling, but only because it was her first sexual intercourse. He then showed Holloway a place in the bush north of the sand where he said had had sexual intercourse with the girl.

They returned to LUNGALUNGA where Holloway said to TURAN, "Did you know there was a post mortem on IEPILOMAN's body?" TURAN said, "Yes". Holloway said, "The Doctor who did that post mortem was of opinion that she died from suffocation. Do you know anything about that?" TURAN said, "No". Later that Day at LUNGALUNGA, Holloway spoke to TURAN and LAPAI together, told them he suspected them both of murder of IEPILOMAN and that he would take them to Rabaul Police Station, which he then did. Upon arrival at the Police Station and after OYN (?) cautioning them, Holloway said to them both, in their joint presence "Did you kill IEPILOMAN?" TURAN said, "LAPAI killed her". Holloway said to LAPAI, "Did you kill her". LAPAI said, "Yes, she sang out and I placed my hand over her face." Holloway asked LAPAI to demonstrate this which he did in TURAN's presence. LAPAI's demonstration was to grip the nose with the thumb and index finger and put the rest of the hand strong over the mouth. Holloway asked TURAN what he had done and TURAN said he had held her two "arms". They were then both arrested and charged with wilful murder. It appears that when Holloway and these two prisoners spoke at that interview both sides used Pidgin word "KILIM" - which does not necessarily mean kill in English: But in that context both natives, knowing that IEPILOMAN was dead and that Holloway was enquiring into her death, I think it would be open to a jury to find that "KILIM" mean kill, as we understand the word in English:

It will be noted that, during the interview Holloway had with the two natives at the Police Station that day and during his two previous interviews at LUNGALUNGA with TURAN, there was no reference whatsoever (if Holloway's version is correct and it has no way been denied by Defence to IEPILOMAN's having had a fit.

Two days later, Wednesday, 14/11/51, Holloway had a further interview with TURAN at the Police Station: This time with TURAN on his own. His account of what TURAN then said has not been in any way denied by the Defence, and it was as follows:-TURAN, after being cautioned, said that on the Saturday morning (10/11/51) he left his house and went along the road towards KERAVAT and met the girl, IARUAE, and spoke with her – while doing so, LAPAI joined them:

IARUAE agreed to have sexual intercourse with TURAN and they had sexual intercourse, but LAPAI did not. TURAN told IARUAE to go and tell IEPILOMAN to come to them and have sexual intercourse with them. She left. A little later IEPILOMAN arrive and he (TURAN) and she had sexual intercourse in the bush near the road while LAPAI waited on the road. After the sexual intercourse was over he and IEPILOMAN returned to the road and met LAPAI and all three went to a corn patch on the other side of the road to a spot near a mound of earth. Then TURAN said, "LAPAI tipped IEPILOMAN up and laid her on her back and laid on top of her and she struggled and sang out - he saw LAPAI put his hand over her mouth and press strongly. He wished LAPAI to hurry up and finish what he was doing." and he, TURAN, "had taken hold of her two arms and had held them over on her left side. He did this because when she sang out he thought somebody on the road might hear her and he became frightened. He did not want to kill her and he only held her arms because he was frightened that somebody might hear her and find them and he wished LAPAI to hurry up". He said that when LAPAI put his hand over her mouth she struggled a little and then lay still and then he and LAPAI stood up", LAPAI saying to me "Sorry, I held her mouth too strong and now she is dead". LAPAI told me not to tell anyone about what had happened. He left LAPAI and went to the road and saw LAPAI pick up the body and carry it away. Next day when the body was found on the beach he helped to put it in the lorry that brought it to the Native Hospital at Rabaul and he came on the lorry himself.

Once again, it may be noticed that in that long statement (as repeated by Holloway and not denied by Defence) TURAN said nothing about IEPILOMAN's having had a fit - though he had had four days to think about it.

At the preliminary hearing at the District Court on 19th November, 1951, TURAN (after statutory caution) made an unaffirmed statement: (read). It is of nine lines - the first five regarding her being subject to fits: the next three about her having a fit when LAPAE was "going to" have sexual intercourse with her. ("going to" -? "laik"? - does this mean was about to or had just begun?): the last line regarding disposal of body. In that statement TURAN mentions that LAPAE put his hand over girl's mouth but it does not mention that he, TURAN, held her hands; nor does it say anything about the two reasons TURAN gave to Holloway for holding her hands (fear someone would come, and desire that LAPAE should "hurry up").

At this Court, TURAN gave evidence in his own Defence and that evidence was largely along the lines of his reputed statement to Holloway on the 14th November, 1951 - but there were differences. He still said he had sexual intercourse with IEPILOMAN first - being the elder - on beach side of the road, and that she was a willing party. He still said that he and she then came to the road and went to the other side of the road into the bush and that LAPAE did, too. But he did not, at this Court, say LAPAE picked her up and laid her down, etc. Indeed, he seems not altogether clear in his evidence about LAPAE's approach; at one time he said LAPAE came up and straightaway proceeded to have sexual intercourse with the girl. Again at one time he said she sat down in readiness; at another he said LAPAE took her by the shoulders and put or assisted her down. He was quite positive that LAPAE not only commenced to have sexual intercourse with the girl, but had actual penetration as TURAN says he saw from about a pace away.

He was also positive that after LAPAE had started to have sexual intercourse with the girl and had lain on top of her, she called out and her whole body began to tremble. Then he, TURAN, pulled the girl's right arm over her body, and under LAPAE's chest and under the arm LAPAE was using to hold the girl's mouth with: and then held both her arms at the wrists, squeezing them again and again, he said, to help her to recover from the fit he thought had suddenly taken her (VEMSTTO). He said he thought LAPAE's idea in putting his hand over her mouth was to "pump wind" into her mouth, and help her recover from the fit. TURAN said he did not tell LAPAE to desist and he did not wish her to die. But her eyes closed, her breathing ceased, her heart beat no more; and she was dead. They got up. LAPAE said he was sorry, that he had held her breath and now she was dead. TURAN said he also was sorry. He told LAPAE that it was he, LAPAE, who had killed, and it was therefore LAPAE's job to hide the body. LAPAE asked him to look along the road to see no-one was about. TURAN says he did so and said all was clear and then saw LAPAE take the body away. (It has not been suggested at this trial that TURAN took part in LAPAE's actual disposal of the body by swimming with it out to sea and releasing it there).

Up to this point, it will be noted, TURAN had said nothing at all about fearing that the girl's crying out might bring somebody to the scene, or about wanting LAPAE to hurry up and finish what he was doing. At the virtual end of his evidence, the Court asked TURAN whether he had told Holloway that he held the girl's arms because he was afraid someone might be attracted by her crying out. He replied that he had. He also volunteered, unasked, the further statement:- "I also wanted LAPAE to Hurry up." The Court asked him had he told Mr. Holloway that he had thought IEPILOMAN suddenly got a fit when LAPAE was on top of her? He said he had not told Holloway that. Asked why he had not told Mr. Holloway that, he said:- "I forgot to mention it."

The young native woman, IARUAE was called and said that she obeyed TURAN's directions that she should go and tell IEPILOMAN to come to TURAN and LAPAE. At first, she said she did not disclose to IEPILOMAN why the men wanted her to go to them or that she herself had just had sexual intercourse with TURAN: in cross-examination she said she had told IEPILOMAN both these things.

LAPAE was also called. In examination-in-chief he made a number of statements, which he completely reversed in cross-examination. He said that when he followed TURAN and IEPILOMAN into the bush on the opposite side of the road from the beach, at TURAN' summons, he found the girl IEPILOMAN lying on her back, legs slightly apart, staring upwards and motionless: and that TURAN told him to go ahead and have sexual intercourse with her. He said "But she is motionless, what shall I do?" Curiously, this part of LAPAE's evidence was not denied or referred to by TURAN in his evidence. LAPAE, in evidence-in-chief, said that before he even touched the girl, she cried out loudly and began to tremble all over, whereupon he held her mouth and TURAN her chest and hand. But in cross-examination, LAPAE said he was lying on top of her with the object of having sexual intercourse, before she cried out, etc.: he said he had not effected penetration. (TURAN says contra as already mentioned). LAPAE said that neither he nor TURAN changed their positions before she died: and after he had said to TURAN that he was sorry, that he had held her mouth too strongly, and she was dead.

Both LAPAE and TURAN said the girl was subject to fits and that they had seen others, at such times, pacifying her. The method they saw used, LAPAE said, was to stroke her face and chest and TURAN (as already noted) said he squeezed her hand with usuch object).

TOVUA, IEPILOMAN's father called by the Defence, said his daughter was subject to fits and that at such times she was troubled with breathing, swooned and foamed at the mouth. He and his wife and others would stroke her arms or pinched and, if she had fallen, get her into a sitting position gently or held her if she seemed about to fall to prevent her falling.

Dr. Saave, as already stated, said he had looked for, but could find no, signs of the girl's having had a fit just before.

These are essential positions of the remarks of evidence given. This Court has had the advantage of seeing and hearing the witnesses give their evidence (including accused) and nothing their demeanour in the box. The witnesses Holloway, Dr. Saave and TOVUA and JAPANDREI all gave evidence with apparent candour and frankness, but this can hardly been said of the other witnesses. IARUAE contradicted herself – a frightened witness ready to say yes to anything: impossible to say on her evidence whether she helped ambush IEPILOMAN, or carried her message as she was told to. LAPAE was described by Mr. Jones as a discredited witness: not a far-fetched description for he seemed an unmitigated liar, and on a number of points. The accused also varied in his statements, and he struck me as being more astute than LAPAE.

The Court has had the assistance of excellent addresses by both Counsel, each of whom put their points – pro and con – with lucidity and force.

Mr. Jones contended and Mr. Quinlivan conceded, the evidence did not establish beyond reasonable doubt wilful murder. I think they were right.

The question then is was TURAN an "aider" to "murder" or "manslaughter" of IEPILOMAN?

The Defence consider that the evidence has established beyond doubt that IEPILOMAN is dead and that her death was due to suffocation caused by the pressure put on her mouth, the stopping of her breath by LAPAE: Though the Defence does not consider this was an unlawful killing or that TURAN had been proved, beyond all reasonable doubt, to have aided in any sort of unlawful killing.

We come then to the crucial question the jury has to determine in this case: - What was LAPAE doing when the girl cried out? Was he having sexual intercourse with her with her consent as Defence submits? Or was he having sexual intercourse with her without her consent, as the Crown submits? In this connection I should mention that lack of consent and penetration are essential components of the crime of rape: but, as Archhold's Criminal Pleading Evidence and Practice, 30th Edition p. 1036, says

"It is no excuse that the woman consented at first if the offence was afterwards committed by force or against her will".

Now, only three people could have told us what really happened, if they wished to; TURAN, LAPAE and IEPILOMAN. But IEPILOMAN is dead. We have no evidence from her and it is useless, and would be improper, to speculate about what she might have said. TURAN says that the girl allowed him to have sexual intercourse with her willingly: and although he varied his accounts of LAPAE's approach to the girl he seems to say that he considered she was willing to get LAPAE have sexual intercourse with her too. TURAN is quite positive that LAPAE did have sexual intercourse or had started to before she cried out. LAPAE, though at first denying that he had even touched the girl before she cried out, later said that he was laying on top of her with the intention of having sexual intercourse, when she cried out. He had also described her as being motionless and (appear in a faint) but he did not go as far as to say he actually had sexual intercourse with her. On the other hand, TURAN clearly thought LAPAE did have sexual intercourse with her. On the other hand, TURAN clearly thought LAPAE did have sexual intercourse with her. He says he saw his organ penetrate hers. Then TURAN says she cried out. Until the District Court TURAN said she cried out, and struggled. the District Court and since TURAN said she cried out and had he thought was a fit. Of course, if she did cry out and struggled LAPAE WAS ON Dangerous ground – as TURAN would be too if he helped LAPAE to continue. TURAN told Holloway that when she cried out and he saw LAPAE put his hand on her mouth he himself pulled her right arm underneath LAPAE's chest which was raised because of LAPAE's position in holding her mouth:

And at this time LAPAE was still lying on the girl. TURAN told Holloway that he took her hands because he was afraid she might attract others to the scene by her cries, and because he wanted LAPAE to hurry up and finish what he was doing. He also said that at this Court (His demonstration significant). On TURAN's own statement therefore he was holding her hands and one at any rate of his objects and his wish obviously were to assist LAPAE to finish what he was doing.

It is for the jury to say whether what LAPAE was doing was rape, or attempted rape, or sexual intercourse with the girl's consent, or whatever else it was.

In considering that question, the jury must decide whether the evidence establishes beyond all reasonable doubt that the girl's cries and movements of her body (whatever they were) showed and should have shown to any reasoning individual that she was not consenting. If the jury thinks she genuinely had a fit at that moment, and that TURAN honestly thought she had, the jury must find that he may well have thought that her actions were not indicative of willingness or at any rate the jury must have a doubt about it. In that event, the jury must also consider that the accused honestly meant to help her to recover from that fit, and meant to do nothing more (except perhaps to allow and help LAPAE to finish his act of sexual intercourse). The jury then must decide whether she had a fit in fact; and whether, if she did not have a fit in fact, TURAN honestly thought she had. Even if the jury did find she did not in fact have a fir, the jury would still have to decide whether her cry and movements were such as should have indicated to a reasoning mortal that she did not wish LAPAE to have sexual intercourse with her.

I have most carefully considered this case, heard and seen evidence given, written it down, re-read, watched the demeanour of witnesses and accused. I have considered the arguments of learned Counsel and inferences fairly to be drawn from the evidence.

There is no doubt in my mind that TURAN's evidence that IAPILOMAN, had a fit or that he thought she had, is false. He had several opportunities (three) to mention that to Mr. Holloway on 12th November, 1951 but did not do so. Again on the 14th November 1951, he failed to do so. Why? He says he forgot. Yet his mind was on the reasons he was advancing for holding her hands and he only mentioned two – fear of her cry attracting others to the scene and a desire that LAPAE should finish quickly what he was doing. (He confirmed that at this Court). It was not until the District Court that he mentioned she had a fit. This was on the 19th November 1951. Obviously he must have thought of that in the meanwhile or it must have been put into his mind by somebody else. I consider that, after the event, he or someone else thought that the girl's past history of fits could be used with advantage. If, in fact, she had had a fit, why did not TURAN and LAPAE brazen it out and tell the villagers she had died of a fit? The villagers, knowing of her past fits, would doubtless have swallowed the story: and TURAN and LAPAE have shown themselves at this Court and TURAN elsewhere, quite capable of romancing. Why lie, as he has? Mr. Jones has so forcefully argued that TURAN's holding and squeezing of the girl's hands was solely due to solicitude on her behalf: how can that be reconciled with TURAN's holding and squeezing of the girl's hands was solely due to solicitude on her behalf: how can that be reconciled with TURAN's statement to Holloway and at this Court that one of his motives, in holding her hands, was a desire that LAPAE should carry his sexual intercourse to completion – unless the desire that LAPAE do this quickly be tender solicitude. The medical evidence was that there were no signs of the girl having a fit just before death: but that, of course, is not conclusive of what TURAN may have thought. But his own statements are, in my opinion. I find that she did not have a fit and that he did not believe she had a fit: in other words, I think his first tale about this to Holloway was true, his later one, false.

There can be no doubt, whatever, on TURAN's own evidence here, and the reported and undenied statements he made to Holloway that he thought (he says he saw) LAPAE having sexual intercourse with IAPILOMAN, and that he wanted LAPAE to finish that sexual intercourse – quickly, no doubt. But was he under the reasonable impression, or honest even though unreasonable impression, that she was willing, right through? The Crown has suggested that LAPAE began his act of sexual intercourse (or its attempt) on an unconscious girl. That may be so, and there is some evidence to support it but that evidence was LAPAE's evidence and he, I agree, is a most unreliable witness – an incorrigible liar, though even incorrigible liars sometimes tell the truth by accident or misadventure. Let it be assumed, then, that LAPAE commenced his sexual intercourse or attempt to have sexual intercourse with the girl with her consent: and that TURAN, standing right by and viewing the whole proceedings from a pace distant, honestly believed she was willing. What was the position when she cried out and struggled (as TURAN said up to the 14th November, 1951) and as I find she did. Should TURAN and LAPAE have realized then, that she might be unwilling? At least they should have been on their guard. But what did they do? LAPAE immediately stopped her breathing. (He described this to Holloway on the 12th November, 1951, in TURAN's presence): It was obviously the most effective way of stopping breath). TURAN saw LAPAE do that. He did not protest or tell him to stop. On the contrary, he held the girl's two hands. Why? – For one reason, as he himself told Holloway and this Court – For one reason, as he himself told Holloway and this Court – he wanted LAPAE to finish quickly what he was doing. His description of this, of the position he and LAPAE were in, and what they did: fortified by his demonstration in this Court – convinces me beyond any doubt that TURAN wished and helped LAPAE to finish that sexual intercourse he had started on: he and LAPAE jointly applied force, they overcame her struggles so that LAPAE could finish the act of sexual intercourse quickly. They must have known she was resisting.

What they did was designed to overcome and did overcome her resistance. Unfortunately, their force overdid things, LAPAE's wilful and deliberate stoppage of her breath went on too long: she died of it; and TURAN had willingly helped him and knew what LAPAE was doing. This does not mean that I find they intended to kill her. It means that I find that they meant to hold her own and restrain her, and prevent her crying out until LAPAE had finished his sexual intercourse – which by this time was against her will and consent and affected by force, as I find they well knew.

These being my findings it follows that TURAN assisted LAPAE, knowingly and willingly, when LAPAE was willfully stopping her breath for the purpose of enabling him to rape her: and that is murder under section 302 (whether Sub-section (3) or (2) against (5)).

I therefore find TURAN Not Guilty of Wilful Murder but Guilty of Murder.

__________________

ONLY OTHER CASE IN BOOK 87 is LAPAE – COMPANION CASE TO THIS R v. TURAN

5th March, 1952 – 10 a.m. to 4.40 p.m.
6th March, 1952 – 8.40 a.m. to 4.35 p.m.
7th March, 1952 – 9.00 a.m. to 11.30 a.m.
- 8.00 p.m. to 9.55 p.m.

P.J. QUINLIVAN – Asst. Crown Law Officer for Prosecution
JONES of Counsel for Defence.

Page 58: The court referred to Hughes v. King 1951, A.L.R. 348, and pointed out that its effect was really to make the words "an unlawful purpose" in section 302 (2) mean "another unlawful purpose".

QUINLIVAN: The Crown contends that the putting of LAPAE's hand on her mouth was extraneous to the attempted assault, and "another unlawful purpose".

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