Queen v Evans [1954] PGSC 1 (4 February 1954)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

THE QUEEN -v- COLIN EDGAR EVANS

JUDGMENT OF HIS HONOUR MR JUSTICE A KELLY
DELIVERED AT 10.30 am ON THURSDAY 4^th FEBRUARY, 1954.

The charge against the accused arises out of the trial of JOHN THEODORE MUMFORD who was tried before Mr Justice Bignold in this Court - the trial commencing on the 11th December last. During that trial, Mumford alleged that the accused, Inspector Evans, and another police officer, Sub-Inspector Young, had assaulted him at the C.I.B. Office at Konedobu on the evening of the 9th November last, and forced him into making a confession.

The C.I.B. Office is in what I would term, the Administration Section at Konedobu. Standing with one's back to that Office, it faces on to what I would call a square, with, on the opposite side, two buildings (amongst others) which were referred to in this case as the Office of the Commissioner for Police and the Exchange Building. On the immediate left of that C.I.B. Office and approximately (for the purpose of my judgment I do not intend using exact measurements, as I do not think they are important) 20 feet to the left and somewhat slightly forward of the C.I.B. Office between the C.I.B. Office and the Forestry Building, there is a very large mango tree, with a spread of branches covering a fair part of the C.I.B. Office and part of the Forestry Office. On the front right of the C.I.B. Office there is a building referred to in this trial as the District Office.

Describing the C.I.B. Office, still standing with one's back to the front of the Office, practically the whole of the right hand side comprises what I shall term the Interviewing Office. On the left hand side, the front section is comprised of what I shall now term the Photographic Room, and behind that - the remaining portion of the left section - what I believe to be a Photographic Dark-room.

Briefly, Mumford was picked up by Evans and Young on the evening of the 9th November, together with two natives, Mopio and his wife, Seara, (who at that time were employed by Mumford), taken into the Police Station, where Sergeant-Major Bagita was picked up, and then taken on to the C.I.B. Office at Konedobu. There Mumford alleges that he was assaulted by both Evans and Young.

The accused can not be convicted on the uncorroborated testimony of one witness. The Crown depends for corroboration mainly on the evidence of Police Constable Koro, who was on guard duty in the area that evening, together with the evidence of Mrs Mumford, Miss Pamela May Blazey, Kenneth Jack O'Dell and Doctor Tonakie.

Evans entered the witness box and gave evidence on oath. Young also gave evidence on oath. They both denied that they had assaulted Mumford, and as Mr O'Driscoll, the Crown Prosecutor, has stated, little could be done with them on cross-examination on the question of their having assaulted Mumford. They simply denied that they had assaulted him, and that denial left little opportunity for cross-examination on the assault so far as they themselves were concerned.

Dealing now with the evidence of Koro. He was on duty that night - guard duty in the area - and his evidence is to the effect that he walked across the square from the vicinity of the Exchange Building in a direct line to the front of the C.I.B. Office. Some 20 odd feet back, before arriving at the front of the Office, he noticed both Evans and Young assaulting Mumford and Evans asking Mumford questions. He proceeded up to the front wall of the C.I.B. Office where he was in a position to see what was happening in that room. On measurements taken at a view on Tuesday evening, his eyes were approximately 9 inches above the lower section of a band of are mesh which runs across the front of the office.

In evidence-in-chief, he demonstrated and gave evidence that Evans was standing up in front of Mumford, holding Mumford by the hair of the head and, to use my own term, pummeling him viciously on both sides of the face, particularly above the eyes. He also stated that in addition to Evans' assault, Young also slapped Mumford on the left side of the face with a book. He indicated a book from the bookshelf above the Bench as a Police manual. He also gave evidence that about half-way through the assault, Mumford partly collapsed; the assault continued and Mumford fell to the floor, after which he was picked up by Evans and Young, each holding him by one wrist, and taken into the photographic room. He could not see what happened there, but he could distinguish the three Europeans going into that room, but he lost sight of them because they went in to what is shown on one of the plans in evidence as the light trap to the dark room.

He also stated that during the assault, Inspector Evans saw him come to the front door of the building, which is situated in the photographic room, and called to Sergeant Major Bagita and instructed Sergeant-Major Bagita to send him, Koro, away.

According to Koro, he was later called to the C.I.B. Office and interviewed by Inspector Evans and Sub-Inspector Young at about 8 a.m. on the morning of the 17th December. That was during the course of the trial of the charge against Mumford before Mr Justice Bignold. There he states he was questioned by Inspector Evans, and without quoting the evidence word for word (which according to Koro was the conversation which took place in that Office between himself and Inspector Evans), it amounted to this: Evans said - "Did you see what happened on the 9th November?" Koro demurred a trifle and said - "Well, you talk first. I want to hear what you have to say". After some little skirmishing between the two, Koro said - "Yes, I saw what happened. You and Sub-Inspector Young assaulted Mumford." Whereupon Evans said "Now you listen to me. You help us both. This has reached Court, and when you go to Court, you give a story somewhat like this ... ... ' I was on duty on that evening. I saw the people arrive. I saw Inspector Evans and Sub-Inspector Young and Mumford go into the Interviewing Room. Then I went away".

At that interview there was present Corporal Jinjara, also known as Corporal Willie.

To refute the evidence of Koro, the Defence called the evidence of both Inspector Evans and Sub-Inspector Young, and also the evidence of Sergeant-Major Bagita, Corporal Willie and the two natives, Mopio and Sears. Inspector Evans and Sub-Inspector Young denied that there was any such endeavour to persuade Koro to give false evidence. The conversation was in pidgin and Sub-Inspector Young states that he does not know very much pidgin but he just grasped portions of the conversation. Corporal Willie understands pidgin and he supported Evans in Evans' contention as to what conversation took place in the Office that morning. Koro was brought into the Office. He was asked was he on duty that night, and when he replied - "Yes", Evans asked him - "Do you know what happened in the room that night?" - to which Koro replied -- "NO. I don't know," or to that effect. Whereupon he was told to return to his duty.

Sergeant-Major Bagita gave evidence, and he denied that he had been called that evening by anybody, and he denied that he instructed Koro to leave the vicinity of the C.I.B. Office.

At a view taken on Tuesday morning, there was some doubt as to the position of the three natives on that particular evening of the 9th November. They placed themselves under the mango tree on the near side of the truck towards the C.I.B. Office, but slightly half-left forward from the line of the front of the C.I.B. Office; Sergeant-Major Bagita with his back to the C.I.B. Office and not facing the police truck, which was drawn up into the position which practically everybody agreed was the position on the 9th November - and with Mopio on Sergeant-Major Bagita's left and Seara on his right, both facing, I will not say towards the C.I.B. Office, but facing towards the truck which was in front of the C.I.B. Office. All three natives, according to their placement, were sitting squatting on the ground. Koro placed them round the near front corner of the Forestry Building - all three standing up facing somewhat towards the front of the C.I.B. Office, but intervening between their sight, some brances of the mango tree so far as relates to the front of the C.I.B. Office, but with a clear view of the square.

After Koro had placed the three natives in that position, Sergeant-Major Bagita volunteered that on a view taken by Mr Justice Bignold on the Mumford trial before him ad when Mopio and Sears were not present, Koro had placed Sergeant-Major Bagita, as representing all three, well away on the far front corner of the Forestry Office. Mr Justice Bignold was called to clear up that point. According to his notes, Koro had placed Sergeant-Major Bagita in the position as indicated by Bagita. But the Crown called Sir Colman O'Loghlen of the Crown Law Office and Mr Norman White, both of whom appeared on the trial of Mumford. Both gave evidence that Koro had placed Sergeant-Major Bagita jest around the near front corner of the Forestry Office.

Varying evidence was given as to the time of the arrival of the party at the C.I.B. Office on the evening of 9th November, but as best I can judge that time, I would say it was approximately 7 o'clock in the evening.

On the view taken on Tuesday evening, which commenced at ¼ to 7 when the Court was convened and completed about to ½ to 8, two demonstrations were given by Koro at ¼ to 7, but, unfortunately, they were of no benefit to the Court because of the fact that after those demonstrations had been given, it was discovered that the police truck was not in the correct position as agreed by the parties as it was on the 9th November. Therefore Koro gave two more demonstrations as to his movements across the square.

Assuming that Koro's placement of the three natives was correct, then had they been taking notice of events happening around them, they could not have escaped having seen Koro walking across the square, but it is very doubtful - and in, this I have no assistance as to the growth of the mango tree - whether they would have seen, or could have seen, Koro when he was standing up against the wall of the C.I.B. Office. Assuming that their position was as indicated by them - squatting under the mango tree - Mr O'Driscoll admits, and correctly I think, that although Bagita would normally not have seen Koro, both Mopio and Sears would have seen him when he approached the front wall of the building and stood there; that is, if they were taking notice of events which happened round about.

There has been some contention as to the placement of those three natives, and in my own opinion, knowing what little I do of natives, I would accept the evidence of the natives themselves that they were squatting under the mango tree, rather than all three standing up in a line facing the one direction round the front corner of the Forestry Office.

I have already remarked that Sergeant-Major Bagita denies that he was called by anybody to order Koro to leave the vicinty, and both Mopio and Sears say they did not see Koro at the C.I.B. Office that night. Both Mopio and Sears say that they did not see anybody come to the front door of the building. All three say that they did not hear anything untoward in the C.I.B. Office that night. They did hear the noise of a typewriter and possibly some talking. Mr O'Driscoll submits that the evidence of those natives, when they say they did not see Koro there that evening, can be construed that they were alert but did not see him, which can be carried further that at the material time when Koro walked across the square and moved up to the front wall of the building, they had other things to concern themselves with and would have escaped noticing him. I am afraid I cannot accept that submission. I would imagine that three natives in the position in which they were would have seen Koro if he approached the front of that Office, and further, that they would have heard Evans call out to Bagita to remove Koro, if such were the case, and that they would have seen Evans come to the front door.

On that evidence I have a very grave doubt- a very grave doubt - as to whether Koro did move to the front wall of the building on that evening, and because of that grave doubt, I do not feel disposed to accept his evidence as being the necessary corroborating required in this case.

Dealing with the evidence of Mr O'Dell -he gave evidence of having seen injuries on Mumford's face.

On the evidence generally, Mumford was arrested on the afternoon of the 10th, taken to the C.I.B. Office, photographed and finger-printed. Photographs have been tendered in evidence, and enlargements of those photographs do show signs of injuries. Two scars above his left eye - what I would term a slightly blackened left eye, and Doctor Tonakie suggests a swollen left cheek. Mr O'Dell noticed those injuries, arranged for Mumford to see a Solicitor, who, in turn, arranged for him to interview Doctor Tonakie, Of course, the mere fact of Mr O'Dell having noticed those bruises is not proof that Evans inflicted them. It may perhaps be taken into consideration in a long chain of circumstantial evidence.

Doctor Tonakie gave evidence of the bruises, already mentioned by me, as having been noticed by her O'Dell, also a bruise on the back of the right should which, I think, is described as a contusion. Doctor Tonahie was asked in cross-examination that assuming Mumford was struck on the right side of the face, as also he was on the left side of the face, would the Doctor have expected to have found some bruises on the right side of the face, to which the Doctor replied -

"I can't answer that question". I would have hoped for some little more help from Doctor Tonakie on the matter. That I think, leaves me with the evidence of Mumford and his wife, and as they are husband and wife. I must scrutinise their evidence perhaps more than carefully.

Both claimed that they did not know why, the Police were taking Mumford to the C.I.B. Office but both admitted that earlier that afternoon a complaint had been made by Mopio alleging some act of familiarity by Mumford towards Seara. On cross-examination they did admit that they might have thought it had something to do with that.

Mumford's evidence as to the events at the C.I.B I think, can be taken - without reading the evidence in detail - to amount to this: In the Interviewing Room he was told to sit down. He was told briefly the facts of the charge against him. He was then asked - "Tell us the truth" - but before he had time to reply, he was assaulted by Evans. Young joined in the assault. He was shocked and dazed and in a distressed condition. He was then lifted up by the shirt front by Evans and pushed into the Photographic Room, where the assault continued by both Evans and Young - an assault with fists or hands - and where Young struck him with a book.

Firstly, he claimed that he could not see anything in that room as it was so dark, but he could distinguish both Evans and Young because they were standing close to him. He could also distinguish the book with which he was assaulted. He described it as a book measuring, 7 inches by 41 inches by one-half inch. After that assault, Evans and Young left Mumford in the Photographic Room and returned to the Interviewing Room. He was asked by Mr O'Driscoll - "What effect did this have on you - the two officers striking you?" He replied - "I was getting very dispirited and at the point of breaking down'". On cross-examination, he said that it was so dark in that room that he could not distinguish anything nor could he see anything outside the photographic room. From the photographic room, he heard the sound of a typewriter and he also heard the sound of paper being taken out of a typewriter and he heard the sound of paper being crumpled. That is after he had been assaulted and was dazed and in a distressed condition and in a broken-down condition. There is no time stated but I take it, and I think I am safe in taking it, that very shortly after he was assaulted in the photographic room he was asked to go back into the interviewing room. He was asked to sit down. Evans asked him "would you care for a smoke" and he said "No thank you"; Evans said "Would you like a drink of water?" and he said "No thank you". Evans then said "Well now, tell us what happened" and he replied to Evans something to this effect (I do not quote the evidence work for word) "I only smacked her on the backside" after which Evans began to type. From then on, according to Mumford in evidence in chief, he remembered nothing or very, very little. He was not further assautled and after he returned to the interviewing room and a statement was produced in evidence as having been made by Mumford. On examination in chief, he gave this evidence as to that statement:

"Q. Can you remember making any of those remarks to Inspector Evans, the remarks in this statement":

A. I don't remember it.

Q. What do you remember that eventually happened?

A. I can only remember I wanted to go home.

Q. Describe your condition.

A. I felt very sick and I wanted to go home.

Q. Mentally were you alert?

A. No.

Q. How were you?

A. I was in a broken-clown condition.

Q. Do you think that is what causes you not to be able to remember what was happening when Evans was typing?

A. I don't know."

On cross-examination after the invitation to have a drink of water –

"Q. What happened next?

A. Inspector Evans was typing.

Q. Yes.

A. I do not remember any more.

Q. Do you mean by that answer that you do not remember anything more that happened in the C.I.B. Office that evening?

A. No, I do remember some things.

Q. What happened next after Inspector Evans typed?

A. I told Inspector Evans I only smacked the girl on the backside.

Q. Yes.

A. He said "We do not call it 'backside'. We call it "private parts".

Q. Anything else?

A. I said "Part" (singular).

Q. What happened after this conversation?

A. Inspector Evans continued to type.

Q. Yes.

A. I do not remember any further conversation.

Q. IN the interviewing office that evening?

A. Yes."

During the addresses yesterday, I remarked to Mr O'Driscoll Crown Prosecutor, that an answer given by Mumford to me after I had assured him that he was not on trial was important insofar as it would allow me to assess the veracity of Mumford, but Mr O' Driscoll assured me that I was wrong in my approach to that question, so I shall not use that answer. But on at least two occasions, Mumford gave me the impression that he was not so much giving evidence as against Evans only but he was also endeavouring to protect himself against any possisble second charge against him on the alleged assault against the native woman Seara.

As to the photographic room and Mumford's presence in it, Mr O'Driscoll cannot give any reason why he should be taken in there. I cannot find any reason. If the Crown evidence is correct, Koro had been dismissed from the area. Why take Mumford into this darkened photographic room to continue an assault which Koro had already seen? May be, of course, they said "Well, Koro has seen it. We are not finished. We will finish off the job in the photographic room". But I must bear in mind that the three (3) native witnesses apart from Koro were in the vicinity and one most important aspect so far as I am concerned in arriving at a decision in this matter as to where Mumford was that evening is his contention right through his evidence in chief and cross-examination that it was practically pitch black.

He did ease up a trifle but he still claimed that he could not discern anything in that room except, of course, the two officers themselves and the notebook. On a view taken on Tuesday eveing from 6.45 pm to 7.50 pm., there was ample light in that photographic room. There is bank of arc mesh about two feet in depth, similar to that in the front wall, running along the partition of the interviewing room and the photographic zoom, which threw a fair amount of reflection in that photographic room, and in that photographic room, according to the evidence, there was on the evening of the 9th November a normal-sized refrigerator, cream colour, and, on a bench and about chest hight, a large photographic washing dish about two feet long, comprised of two bowls both about 15" in diameter, which could hardly escape a vision of Mumford if he was able to detect a white notebook 7" x 4½" x ½". I do not believe that he was in the photographic room that evening.

As to his condition in the Interviewing room I do not believe that he was dazed and shocked and in a sinking condition, and so sick that he just wanted to go home. According to his own evidence, we was not assaulted when Evans commenced to take the statement from him. He remembered he was told to sit down; he remembered being invited to have a cigarette; he remembered being invited to have a glass of water; he remembered being asked to tell what happened; he remembered stating what happened; he remembered Evans saying - "We don't call it 'back-side,' we call it 'private parts.'" (plural) and he was so alert that he said - "No, not 'parts' but 'part' (singular).

I do not believe that he was in such a shocked and dazed condition that he did not have his wits about him in that Interviewing Room. That, of course, does not mean that he was not assaulted. He could still be lying about other aspects of events at the C.I.B. Office, and still be truthful that he was assaulted.

Mr Cromie, in his address, pointed out that if he was assaulted, as he alleges, then one would naturally expect to find some bruises on the right side of the face. Of course, it is not conclusive; submissions may be put on either side; arguments may be put on either side, but I now find myself looking to the evidence of Mrs Mumford and Mumford.

Mr O'Driscoll submitted that Mrs Mumford is an innocent witness, in effect not knowing what is happening and not a witness standing by her husband.

Having taken into consideration the evidence taken by Mr Justice Bignold - which, both Counsel, assure me, I am entitled to do - and taking into consideration the evidence given before me, it does not appear to such a simple matter.

In answer to the final question put to Mrs Mumford by Mr O'Driscoll on re-examination - after she had given her evidence-in-chief and having admitted on cross-examination that on the evening of the 9th November when her husband returned home she did not inquire why the Police assaulted him - she stated - "I did not inquire because I was too upset". But within ten minutes she was entertaining Miss Blazey and her friend for practically an hour. Even if she did not inquire that evening why the Police had assaulted her husband, surely one would have expected, when she got over the initial shock, that she might have inquired the following day or some time later.

According to the evidence before me, there were two conversations between Mumford and Mrs Mumford when he returned home that night. According to Mumford on cross-examination by Mr Cromie, who was reading from page 22 of the evidence taken on the Voir Dire before Mr Justice Bignold, the following questions and answers appear on record:

"Q. Did you have any conversation with her (meaning his wife) after your interview with the police?

A. Yes.

Q. Where?

A. On the side of the bed.

Q. What did you say to her?

A. My head is bursting. The swine beat me up.

Q. No other conversation that night?

A. No.

Q. by Mr Cromie on that evidence: Is that correct?

A. It is correct with the exception of "swine" I used the word "swines" meaning both police Officers.

Quoting from Mrs Mumford's evidence on cross-examination before me:

Q. When your husband sort of collapsed against the bathroom door, did he bump heavily against it?

A. No.

Q. Did he fall to the floor?

A. No.

I interpose here. I am not meaning to bring those in as evidence but merely to lead up to the conversation.

Q. You had a conversation with him immediately after that?

A. I had one with him then and there.

Q. What did your husband say to you? What did you say to him?

A. I said "What has happened?" He said "The swines beat me up".

What did you say?

A., I said "Who did it?" He said "Evans and Young."

Q. Did you ask him 'why he was beaten up?

A. No.

Then according to her evidence she takes him into the bedroom and tends to him.

Q. What happened then? (in the bedroom).

A. After that we had a conversation.

Q. What was the conversation?

A. I said "What have they done to you". He said "They kept beating me up and I signed a statement." I said "What was the statement you signed?" He said "That I tapped the girl on the backside, and they may want to see me tomorrow". That was all the conversation we had.

Q. Are you quite sure that was all?

A. Yes.

I quote from the evidence of Miss Blazey taken before Mr Justice Bignold on the Voir Dire, at page 30, on cross-examination, after she had given evidence that she and her friend reached Mumford's house about 8.1.0 pm to 8.15 pm.

Q. Did, you discuss the matter of the police?

A. Yes. When my friend and I entered, Mrs Mumford opened the door. She had been crying and upset. I asked her "Has your husband returned?" She said "Yes" and that he had been beaten up. She said to me "They beat him up trying to get him to confess to raping this native woman and that they had a statement already typed out to that effect. They kept on hitting him and said that they would go on hitting him and said that they would go on hitting him and lock him up until he signed the confession".

Quoting from her evidence before Mr Justice Bignold on the open trial, at page 40, in her evidence in chief: "Mrs Mumford let me in the front door. She came from the bedroom. She was crying and I asked "Had your husband returned?" She said "Yes. The police have beaten him up to try and make him confess to rape. They kept on beating him because he would not sign the confession which had already been typed out. They told him they would continue to beat him up and put him in the cooler if he did not sign the confession. After a while when they found that he would not give in, the Police told Mr Mumford that they would type out another statement that he pushed her out the back door".

Quoting from Mrs Mumford's evidence in chief on the open trial before Mr Justice Bignold, at page 45: "I spoke to Miss B1azey and her friend when I opened the door. As she came in she said "Is Monty Home?" I said "Yes, the Police have beaten him up. They tried to make him sign a confession of rape and they beat him up to try to make him do it and he signed a statement to say that she had been patted by him on the backside. My husband told me about it in the bedroom, saying 'They have beaten me up trying to make me sign a confession that I had raped the girl. Can you imagine how I felt with two of them forcing me. I could not take it any longer and I signed the statement that I hit or tapped her on the backside'".

It may be submitted that when Mumford returned home he was in a dazed condition and might not have remembered all the conversation that took place, but here we have his wife giving a detailed conversation between the two of them to a friend who arrives ten minutes later. It is either that Mumford is correct about the conversation which took place when he returned home that night or it is that she is correct. If she is correct, then he is remaining silent for some purpose or other. If he is correct, then she is not the very innocent and simple witness that Mr O'Driscoll suggests. SHE, is one who is prepared to exaggerate and build up a story.

Had Mumford given evidence which allowed no doubt of his integrity - I do not suggest what evidence he could have given or should have given, but he could easily have said, in my opinion, "Yes, I signed that statement but only after they thumped me about in the Interviewing Room" - and without, in my opinion, padding his story, then I would feel that I could take the view that Mrs Mumford, although exaggerating her evidence, could well be excused; that it might be something one might expect from some woman who is moving around building up some story in sympathy with her injured husband. But he had not given evidence of that nature.

As I have remarked already, I disbelieve that he was in the photographic room that evening. I disbelieve that he was in such a physical state of collapse that he knew nothing or very little of what was happening round about him. Therefore I cannot treat Mrs Mumfordin the way which I suggest I would otherwise have treated her, I find myself facing a decision note on the very weak circumstantial evidence - if it is circumstantial evidence of the others having noticed the injuries, supported by the evidence of Mumford and his wife. But I am not satisfied with Mumford and Mrs Mumford as witnesses to bring me to a stage to be satisfied beyond reasonable doubt that Evans or Young assaulted Mumford on the evening of the 9^th November.

TO THE ACCUSED:

I find you Not Guilty. You are discharged.

J