Regina v Terem-Sagu [1966] PGSC 13 (25 October 1966)

IN THE SUPREME COURT
OF TERRITORY OF
PAPUA AND NEW GUINEA

REGINA v. TEREM-SAGU and ORS

Coram: Mann C.J.

MENDI

August 29^th, 30^th and 31^st
September 1^st, 2^nd and 3^rd
And
October 20^th, 21^st, 22d, 24^th and 25^th
1966

REASONS FOR JUDGMENT

On the 2nd March, 1966, a Policeman, URAGABOIM, was attacked and beaten to death by an excited crowd of people belonging to several different communities living in the area between Kandep, Margarima and Nipa in the Southern Highlands. The attack occurred very shortly after two shots were fired from his rifle by the Policeman.

The five accused were charged with the crime of wilful murder and it was alleged that each of them took part in the attack upon the Policeman and, in varying degrees, contributed to his death.

The accused POMBORE confessed that he was personally responsible for the crime, but no witness saw him take part, although the eye-witnesses called by the Crown purported to describe every movement in closest detail, and his confession was inconsistent with known facts. POMBORE was described as a man of no account, "a rabis man", and the view was put forward, with every likelihood of truth, that POMBORE confessed to the killing at a stage when competing groups were in conflict about what had happened to the Policeman, in order to take the blame away from others and serve, on their behalf, whatever prison sentence might be forthcoming. In all the circumstances, I concluded that no jury could reasonably convict POMBORE on the evidence and, in the circumstances, I found that there was no case to answer and discharged POMBORE at the close of the Crown case.

Each of the four accused gave evidence on his own behalf and the defence afforded a very substantial and detailed body of evidence as to the relevant facts.

The Crown case was strongly supported by several eye-witnesses, and there are in the result several substantial issues of fact which must be decided having regard to the credibility of the witnesses. The background to the attack on the Policeman has an important bearing on the credibility of the witnesses and on the probability of their various accounts being reliable.

The Groups Participating:

The area in question has only been brought under Administration influence in very recent years and Patrol Posts have been established recently at Kandep, Nipa and Margarima. The groups present on the occasion in question were the local Biako people; the Wapi, led by TEREM; and the Rumbipaga, led by PIOP. The accused PABULU was a leader of a sub-group living at Manirume, who may be regarded as part of the Rumbipaga main group. The same applies to the accused YANGE, whilst POMBORE was also of the Rumbipaga group. All of the foregoing were comprised within the Census Divisions of the Western Highlands District, and accordingly they regarded themselves as New Guineans, and were acutely conscious of this. The other group involved, the Biako people, regarded themselves as Papuans and were included in the Census Division of the Southern Highlands District of Papua. TEMENDI was one of their leaders.

Before the Administration was formally established in this area, each small community was, by tradition, a bitter enemy of each other group living within range, and until about five years ago the order of the day was the constant fighting, raiding and killing of neighbouring groups or their members, The Rumbipaga were regarded as a very powerful and large group, as were the Wapi. TEREM was the great fight leader of the Wapi, and he stated in evidence that he participated in many tribal fights with a great deal of success, so that his enemies were determined, if possible, to kill him. They told him that if they succeeded they would burn his body, apparently as a symbolic act of utter destruction.

The Administration Patrol Post at Kandep was established in consequence of the work of an exploration patrol from Wabag some ten or fifteen years ago. At that time the precise position of the border was probably uncertain and in this, as in some other places, it was found administratively convenient not to be unduly concerned on which side of the border the Patrol Post was located. Accordingly, the Kandep Patrol Post was administered from Mount Hagen as part of the Western Highlands District of New Guinea, and in consequence the Wapi and Rumbipaga groups were included in the New Guinea Census Division, although the people concerned are in fact Papuans living in the Southern Highlands District.

Under present conditions there appears to be for the first time some prospect of economic development reaching these people, provided that they can find access by road to markets for their produce, since the cost of air transport is too high. The people living in the area are acutely aware of the advantages that they may derive from serviceable road links, and they have been pressing for help from the Administration to establish roads. They are willing and eager to do the work themselves so far as possible, and are seeking guidance and assistance from, the Administration.

There is some conflict of interest between the two districts concerned, because it is felt in the Western Highlands that the interests of that district would be best served by a roadway to the north, linking Mount Hagen with Madang. This would connect at Mount Hagen with a road to Lae and another road to Mendi in the Southern Highlands. This road would give the Southern Highlands an ultimate link with a major seaport, but there are great engineering problems involved and very difficult country to cross. In the Southern Highlands it is felt that the interests of that District would be better served by a much shorter road and a much easier one to construct, running from Mendi to a seaport near the south coast.

In both districts funds for the purpose were short, and the two officers at Nipa and Kandep, Messrs. Hicks and Allen respectively, had a number of conferences. They worked together very well, and agreed on the approximate courses that the two roads might take in their sub-districts. There was a road to the south running through Papuan territory on one section of which, known as the Biako section, the events involved in this case took place. The other road, which was put as an alternative, ran on the New Guinea side and was designed to run out in a westerly direction from Mount Hagen, so as to provide access to the native population living along the Lai river. Mr. Allen, who has some remarkable road making achievements to his credit, preferred the road which would provide access to the Lai river area, but Mr. Hicks wanted to undertake as a joint project the Biako/Mendi section linking up with the road through Kandep.

Neither officer had enough resources to undertake both projects and Mr. Allen was going on leave. Accordingly, he left it to Mr. Hicks to make what progress he could in Mr. Allen's absence on the Papuan side of the border.

The Biako's were pressing Mr. Hicks for assistance, and asked him to send a Policeman to supervise the road work and help them with the problems of marking out the gradients and alignments for river crossings, which was a task beyond their capacity. This course would necessitate some degree of supervision on the part of Mr. Hicks, who would need to visit the site frequently and check the levels. There was some patrol work being carried on in the area and fair. Hicks said that he posted the Policeman, URAGABOIM, to the area to "maintain law and order". The Policeman certainly did some work for the patrols and brought some prisoners into Nipa, about three days' walk away from Biako, on at least one occasion. But it is clear that the substantial reason for his posting was that he was to live at the site of the Biako section of the road and supervise the work being carried on by the village people.

The practice of having a Policeman supervising road work is a survival from the days when prison labour was normally used for this kind of purpose. Prisoners are no longer regularly used for this purpose, but there has been a tendency for Policemen to be used to supervise road work being performed by village people in carrying out their obligations to maintain existing roads under the Roads Maintenance Ordinance. This practice appears to have been extended to new road construction works. The reason for this is a practical one, for community projects of this kind involve a large number of village people meeting on the roadway and placing stories and other material by hand, and there is a tendency for the whole operation to develop into a kind of social occasion with very much of a picnic atmosphere in which there is much talking and very little work carried out. The same thing can be seen at any market place or trade store where people habitually meet. The function of the Policeman is to provide some show of authority and keep the people working. It seems clear that in fact the Policeman has no authority.

It is an unfortunate practice for the Policeman supervising this type of work to use as his symbol of authority a military rifle. In order to prevent the obvious dangers involved, there is a firm policy designed to prevent Policemen carrying with them live ammunition, except in such cases of immediate urgency as might justify a responsible officer in issuing a limited number of rounds. When the situation justifying the issue has passed, the ammunition must be accounted for and returned immediately to appropriate custody. Throughout the Territory it is well understood by native people that live ammunition is not normally allowed to be in possession of Policemen, and therefore they regard the rifle as having no practical value beyond its significance as a symbol of authority. In these circumstances, when a Policeman does fire his rifle, the fact that he has live ammunition comes as a very sudden shock to the native people in the vicinity.

In the present case, the Policeman was not only carrying a rifle and three rounds of live ammunition, which were already in his rifle magazine at the time the incident started, but he also carried a cane some four feet long. There is no reason to suppose that the Policeman either used or intended to use the cane for striking any of the people under his supervision. In many parts of the Southern Highlands District, and no doubt in other places, a length of cane about ¾" diameter and 4-5 ft. long is often carried by village leaders and people accustomed to being treated with respect, and it may fairly be regarded as a "status symbol" amongst the village people. Thus the Policeman carried both the rifle and the cane as symbols.

On the occasion when he did want to strike at or threaten some of the people who were approaching him too closely, he picked up a stick from the side of the road.

The question of how the Policeman came to be in possession of three live cartridges was investigated during the trial. Evidence was given to the effect that the cartridge cases revealed that the ammunition was different in origin from any other ammunition kept in stock at the Nipa Patrol Post, and the ammunition taken from the store over a considerable period was accounted for. I did not think that this evidence was by any means conclusive and asked the officers to see whether any other types of ammunition were available in the store at Mendi so that I could make a further comparison.

An extraordinary range of odd types of ammunition was revealed. Some is new, factory made and packed in boxes of twenty without loading clips. Other ammunition was factory re-loaded with used cases and fitted with clips. The re-loaded ammunition covers such a range of issues that I did not feel that I could infer positively that the Policeman did not by some means obtain ammunition from Administration supplies. I do not think that this point really matters, because it is clear enough that in any event and wherever it may have come from, the Policeman was acting in direct contravention of orders in having this ammunition in his possession. I am satisfied that Mr. Hicks did not authorise the issue.

I am satisfied that there is no ground for any criticism of the parts played by Messrs. Hicks and Allen. They are both first class officers, each undertaking a very responsible task in a situation in which facilities are deficient and the problems difficult. They have carried out their duties according to their instructions and in a manner which has placed each of them in a position of high regard and respect amongst the native people in their care. Although these two officers were influenced by policies which were, to some extent, in conflict, they carried out their duties in a spirit of mutual co-operation and conferred on questions of mutual concern and, so far as possible, arrived at decisions which were sensible and practical.

There is one other circumstance of major importance that is that at the time of the killing of the Police Constable the Koroka season had started. The Koroka is a species of Pandanus palm which grows throughout the Highlands and its fruit is very highly esteemed for food. The seeds, up to 2" long and round in section, are poisonous, but with suitable heat treatment, usually in the form of smoking, can be rendered harmless. They have a very attractive taste and are esteemed as a great delicacy. Further, they are a very important source of protein food.

The Koroka palms are not normally cultivated, but are allowed to grow freely in the bush where they occur, and since different tribal groups are willing to travel great distances to collect the nuts, it is usual to find many different groups, and some of them keen rivals, collecting the nuts from the same general area. This has given rise to the sharpest conflicts affecting these people whenever the fruiting season approaches. Individual trees, and sometimes small areas containing clumps of trees, are claimed by individuals or families, and marked to warn trespassers. Sometimes these marks are respected, and sometimes not. Many people have been killed as a result of the disputes which arise and which can flare up immediately.

In March 1966 the Koroka season had just commenced. The Wapi, the Rumbipaga and the Biako peoples were all in the habit of collecting Koroka nuts in the mountainous area nearest to Biako; the others had to travel through Biako territory to reach the area in which the pandanus trees grew. No doubt this was one of the underlying circumstances which gave rise to the traditional enmity between these peoples. The Koroka season can be guaranteed to provide sufficient incidents to maintain a state of hostility previously existing between rival groups.

When Mr. Allen went on leave and left it to Mr. Hicks to carry on with his road making operations on the Papuan side of the adopted border, the Biako people got to work on their section of the road and were making a good deal of progress under the supervision of Constable URAGABOIM. The Rumbipaga and Wapi people were left with nobody to assist them in building the section of the road in which they were interested and their leaders made several visits to Kandep Patrol Post enquiring as to Mr. Allen's return and seeking assistance.

In the meantime some of their people were visiting the Koroka collecting areas behind Biako. The Biako people were very suspicious of this and readily assumed that the others would be stealing their nuts. Since all the able-bodied men of Biako were working full time on the road project, they made representations to Constable URAGABOIM, through the interpreter LESEDI, to take action to prevent the Rumbipaga and Wapi people from collecting nuts in the absence of the Biakos, and to take them into custody and make them work an the road with the Biakos. Apparently there were already some disputes and incidents between the Biakos and the Rumbipaga people in relation to the collecting of nuts, but I have no specific information.

It is clear, however, that the Policeman did take into custody either six or seven Wapi people and a much larger number of Rumbipagas and put them to work on the road. Owing to the death of the Policeman, it was not possible to obtain any satisfactory explanation. No charges appear to have been laid and no process was issued. It had been Mr. Hicks intention to visit the site of the road work at frequent intervals, but by reason of other duties, he was delayed so that these people were in fact in custody and working on the road for almost a fortnight without trial.

It may be thought that the Policeman was guilty of deliberate misconduct in these matters, but it must be remembered that his knowledge of the law and of Court procedure would be very slight, and he would not be well-equipped to discharge his Police functions without the immediate supervision of a responsible officer. There is not the slightest suggestion of ill-treatment of the prisoners, who, in such circumstances, would be disposed to accept the Policeman's decisions without question as decisions of a person in authority. There is no doubt that the Policeman was in fact acting illegally for whether the Rumbipagas were in custody or not, they had no obligation to work on the road. In some cases the Policeman had impounded valued ornaments to prevent his prisoners from escaping.

Constable URAGABOIM was held in very high regard by Mr. Hicks and other officers who knew him and was described as a thoroughly trustworthy man. It is evident that the native village people also had a very high regard for him. He was not a local man, but he married a Papuan woman and was serving at the Wapi Patrol Post where he became well-known and well-liked. TEREM, the leader of the Wapi group, and the others of the Humbipaga group, treated the Policeman with the utmost respect and addressed him as "father" - a mode of address which signifies his acceptance as a responsible member and leader in their social groups.

It appears that a very close friendship had grown up between LESEDI, the interpreter, and URAGABOIM. LESEDI had been working in the Biako area as a Mission representative and it appears that the Mission had decided to withdraw from the area and LESEDI then obtained some kind of employment as an interpreter at the Hipa Patrol Post. When the Policeman was posted to Biako, LESEDI went with him to act as interpreter. They were living together at a house which LESEDI said was his. LESEDI, although a New Guinean from the Wabag area, had settled with the Biako people and was well-known to them. It appears that his remuneration for his services was partly in cash and partly in garden produce and other food obtained from the Biako people. LESEDI claimed to have an interest in gardens in the Biako area.

When word was received by the Rumbipaga group that something like twenty of their people had been taken into custody by the policeman and put to work on the Biako section of the road, they were very angry. They did not formulate their complaint in legal terms so as to raise a case of false imprisonment or kidnapping, but they felt strongly that this form of detention was unjust, and particularly so since the Rumbipaga people were anxious to get to work on their own section of the road and were strongly opposed to their people being compelled to work on the rival Biako section.

PIOP, the leader of the Rumbipaga, made two visits to Kandep to try to communicate with Mr. Allen and to have the prisoners set free so that they could return to work on their own road. Mr. Allen was not there. While he was waiting PIOP got word of threatened violence, and he travelled to Laiagam, a considerable distance away, to report the situation to the nearest European officer. Apparently no action was taken and feelings were running high. It is not improbable that PIOP would have been prepared to lead a hostile expedition against the Police-man to release his people by force, if necessary.

TEREM met PIOP on the road and they had a discussion about their mutual grievances. I think that at this discussion TEREM must have influenced PIOP to moderate his proposed action and to go in peace and unarmed, to hold what has unfortunately become generally known in Pidgin and "place-talk" as a "Court", with the Policeman, who, of course, had no judicial authority. TEREM agreed to join the expedition and to lead it. TEREM had two other objectives to achieve at the same time. A close relative of his had just died and his family wanted to meet the Biako people in order to negotiate for the purchase of a pig for a feast for the departed. At the same time TEREM intended to go and collect some Koroka nuts from the Biako grounds, since he had not yet had an opportunity to collect his share. It was for this purpose that TEREM carried a bush knife, which he says he carried in his belt throughout the whole episode with the Policeman. I accept his evidence on this point.

Before the expedition set out TEREM told PIOP and the others that they must not go to the Biako section of the road armed. They must go in a friendly manner and not behave in a threatening or hostile manner. PIOP would normally have been at the head of the Rumbipaga people, but for some reason not fully explained, his place was taken by PABULU, a leader in his own right, but a much younger man, who stood with TEREM as representative of the Rumbipaga, but allowed TEREM to play the leading role throughout. When the party arrived at the road making site, TEREM and PABULU went forward to meet the Policeman, whilst PIOP stood back with the crowd some short distance away from the road working site.

There was a crowd of something like three hundred people in the expedition and the main concern of most of them was to collect nuts and buy one or more pigs. There was something of a carnival atmosphere amongst the members of the expedition, for when they were approaching the working site they started to chant and sing and execute a kind of festival dance. This worried PIOP, who told them that they must not do that, because the Biako people were traditional enemies and might be alarmed. The crowd therefore approached to within a reasonable distance of the working site and then, on the instructions of TEREM and PIOP, they remained there while TEREM and PABULU went forward to speak to the Policeman.

LESEDI, the interpreter, was there and there appears to have been something peculiar about the manner of the Policeman. He did not want to speak to the visitors and when TEREM asked LESEDI to tell the Policeman that they had come to make a "Court" LESEDI replied that the Policeman would not discuss the matter now but would hear what they had to say at midday. This was accompanied by a remark which could not be satisfactorily interpreted in spite of the close attention given to the point.

The evidence called by the Defence was quite specific that LESEDI's remark was, (as interpreted into Pidgin), "em ilong-long istap". This might be taken to mean in English "He is still drunk" (continuing), or it might import a variety of meanings indicating that the Policeman was "mad" or either felt unwell for some reason, or was in a difficult mood, or bad tempered, or something of the kind. I hesitate to accept the meaning that the Policeman was suffering from over-indulgence in alcohol, for although this might be possible, it seems very unlikely in the circumstances. I think it much more likely that the Policeman was already nervous and excited having seen such a large party of the traditional enemies of the Biako's approaching, and realising that it was more than likely that this was a protest against his holding prisoners from these groups and putting them to work on the Biako road. He must have felt very anxious, as his subsequent conduct showed, especially in the absence of a senior officer to whom he could turn for guidance.

When the problem was put to LESEDI, who was recalled for the purpose, LESEDI denied using the expression, but said that the policeman was unwilling to take time off during the morning to enter into discussions because it was their practice to work hard through the day with an interval at lunchtime. His version was that the Policeman did not want to relax the work at that stage but would hear the complaints at the midday meal break.

It does not really matter what the Policeman's reasons were. What eventuated was that the crowd showed a tendency to move forward at this stage, which again apparently made the Policeman anxious, because he picked up a stick from the side of the road as if to strike the people closest to him. He apparently did not try to hit them and did not do so, but the gesture carried a warning to keep away.

After a not too promising beginning TEREM explained to the Policeman that they had come in peace and did not want to make any trouble, but they wanted to ask the Policeman to release the prisoners and let them return to work on their own section of the road. At this stage TEREM and PABULU shook hands with the Policeman and they appeared to have established a friendly contact.

It was at this stage that the crowd began to press forward and TEREM told them to sit down and not move any closer. The Policeman pointed his rifle towards the ground a little distance in front of him and operated the bolt so as to carry the first round into the breech and he then fired the rifle. He must have done this for the purpose of frightening the people in the crowd and to make them keep their distance, although there is no serious suggestion of anything amounting to an attack or hostile threat up to this stage.

At this point of time the most unfortunate mishap occurred. There is no doubt that the Policeman did not intend to hurt or wound anybody when he fired his rifle, but he appears to have fired it at a dangerous angle into the moist heavy soil in the area. At such an angle there would be a high degree of probability that the bullet, in penetrating and travelling some short distance through the ground, would create a pressure differential which would cause it to rise to the surface and continue on its way. If it struck anything firm there would be the immediate danger of a ricochet.

I was greatly assisted by the evidence of Inspector Miles, the Police Ballistics expert, but it is difficult to say precisely what happened because upon contact with the ground the bullet which had been defective broke into two pieces, and the rear section, which was the larger and heavier piece, travelled on and struck the leader PIOP, (of all people), in the chest. The smaller portion, which was much lighter and comprised only the aluminium nose and that portion of the jacket which covered it, stayed in the ground at about the point where the bullet entered.

When PIOP was hit in the chest, he immediately fell to the ground and appeared to be dead. His tongue was protruding and his eyes had a fixed glazed expression and he was apparently unconscious, and had an obvious wound in the chest. Everybody, including the Policeman, was completely surprised by this development, for the Policeman had pointed the rifle towards the ground and the people had observed this. The people could not understand how the bullet had come to hit PIOP and a great deal of confusion and anxiety was the result.

There must have been much movement amongst the people and some of them immediately ran away, whilst others started running around in all directions. TEREM, PABULU and the Policeman went up close enough to see PIOP and he did appear to have been killed. The Policeman said "I did not intend this" and then, apparently acting defensively, he held the rifle with the muzzle pointing at the crowd, and moved it from side to side as if to keep them covered. He called out to the crowd telling them to "line", (which is to form a line as if a census were being taken), and added a remark the precise wording of which is subject to dispute, but it was understood by at least some of the people in the crowd to be "line up, I am going to shoot some more of you." Again, I would not attribute these words to the Policeman, but having experienced a great deal of difficulty throughout the trial because of the differences in dialects of the Mendi language used by most of these people, I am convinced that the Policeman must have said something to this effect, "If you do not line up I may be forced to shoot somebody else", or "I do not want to have to shoot anybody else. I did not mean to shoot this man. I do not want to be forced to shoot anybody else, so line up and keep still."

TEREM, who was standing close to the Policeman at the time, was horrified when he thought that the Policeman was simply saying that he intended to shoot somebody else, and again he acted in a manner consistent with his sense of responsibility, by moving forward quickly to a position behind the Policeman and seizing the stock of the rifle and trying to take it out of the Policeman's hands. The Policeman at the bolt mechanism again, re-loading fired a second time while the two of them struggled. I think that in these circumstances it is clear that the Policeman was not able to aim the rifle in any particular direction. I do not accept the argument canvassed at the trial, to the effect that the Policeman must have been down on the ground when he fired because otherwise the bullet might have been expected to travel in a different direction. The second bullet struck and injured two men, but I do not know the nature of, or the extent of, the injuries which they suffered.

It is at this point that the greatest conflict arises between the case for the Crown and that for the Defence. I think it will be more convenient to deal with LESEDI's evidence at a later stage.

When the second shot was fired, a state of panic broke out, particularly when it was seen that two men had been wounded. At this point of time the Biako people moved in to protect the Policeman, and fight with their traditional enemies, some of whom were running away, whilst some, in a state of excitement, were apparently uncertain what to do.

When this general fighting broke out, there was at about the same instant an attack by a number of people against the Policeman, in the course of which he received some injuries. It is impossible to say precisely which injuries he received at this point of time. According to LESEDI's evidence all of his injuries were suffered at this stage, the first blow being struck by TEREM, followed in rapid succession by blows struck by the other accused persons. I am satisfied that LE5EDI did not see, and could not have seen, these things take place. The only four men he knew amongst the members of the expedition were the four accused, who happened to be leaders of their groups. I think that LESEDI, not knowing the facts, has simply reconstructed in his own mind what he thinks must have happened, and he is heavily influenced by the partisan role which he plays as a friend of the Policeman and as a virtual member of the Biako group.

According to the Defence case, TEREM was knocked off his balance when the rifle discharged, the butt striking his chest. There is also a suggestion that when the rifle was discharged, the Policeman, who was holding the butt under his arm and not against his shoulder, jerked the weapon backwards and this helped to throw TEREM off balance. At all events TEREM fell over backwards into a shallow ditch, but the rifle came with him and fell to the ground. At this point the witness MAIP picked up the rifle and carried it off to a safe distance, so that the Policeman could not use it again.

A number of people surrounded the Policeman using violence and carrying some weapons and some sticks which were lying about in the vicinity. The Biakos attacked the Rumbipagas. TEREM at this stage got up and tried to stop the fighting but the conflict between the Biakos and his own groups made this impossible. He was not prepared to be involved in the fighting himself, and according to his own evidence he then went up to see PIOP and to carry his body away from the scene of the fighting. I believe his version of this and it seems natural to me that TEREM should act in this way. TEREM was surprised to see soon after he arrived that PIOP was still alive. He was, of course, in a position of considerable danger, so TEREM and a few others carried PIOP back to their place. PIOP was sent to hospital and was successfully operated on for the removal of the bullet. He has since recovered.

The main eye-witness for the Crown was LESEDI-OLIAPARON, the interpreter who was stationed at the road-working site and was working for the Police-man. Although he came from the Wabag area he was very much part of the Biako group and his thinking was clearly aligned with theirs. He was in a position of some authority and was the only effective means of communication between the Biako people and the others and the Policeman. He said that everybody knows how the accused killed the Policeman, suggesting that the Biako people adopted a particular view of the facts.

According to LESEDI there was a preliminary discussion between TEREM, PABULU and himself after TEREM and PABULU had shaken hands with the Policeman. TEREM said that he had come to "make a Court over the prisoners" and the Policeman told him to wait until lunchtime. TEREM insisted that they should hold their "Court'". LESEDI said that the men were crowding around at this stage and he asked them were they angry and why they were here. They asked him why he was interpreting when he had previously worked for the Mission.

The accused, WAIP, had also been employed by the Mission and he and another man took some exception to LESEDI's position. According to LESEDI, WAIP spat at him at about this stage. This might have given LESEDI some motive against WAIP.

While these preliminary events were taking place, the Policeman had apparently moved some distance away and LESEDI said that the accused YANGE, went and pulled the cane from the hand of the Policeman. Shortly after this the first shot was fired from the rifle. On LESEDI's account he was still about 30 ft. away from the Policeman and the men were crowding around. After the first shot was fired LESEDI and the Policeman moved towards the position where PIOP was lying. They had a conversation in which the Policeman said he was trying to frighten the people and had fired a shot into the ground. They saw PIOP's body from a distance and LESEDI said that the accused PABULU said "they have killed our Tultul. Let us now surround them and kill them both" LESEDI says that TEREM then went around the outside of the crowd and came close to the Policeman, draw a tomahawk from his bark belt and cut the Policeman's head with it. LESEDI's account of the way in which the Policeman held the rifle and the way in which TEREM subsequently seized him, differ from all the evidence heard from people outside the Biako group, and also differs from what is illustrated in the photographs subsequently taken by the Police of persons posing to illustrate the actions that took place, making their demonstrations under the direct supervision of LESEDI himself.

According to LESEDI, PABULU came forward after TEREM had seized the Policeman and he struck the Policeman with a stick. The stick was described as a piece of tanket and is most probably the same stick that was described by defence witnesses as having been found after the fighting in the garden where the Policeman's body was ultimately found.

LESEDI, says that PABULU struck him twice with this stick on the top of his head and then YANGE cut the mouth of the Policeman with the back of the tomahawk. There is no suggestion that the Policeman was struck more than once at this stage, and on the medical evidence it is clear that a single blow from the back of an axe could not have reduced the facial structure of the Policeman to the mass of pulp and broken bones which the Medical Officer described.

LESEDI said that the Policeman had not fallen to the ground at this time, and this factor raises another barrier against LESEDI's account of YANGE's actions. It was after this, according to LESEDI, that TEREM, still holding the Policeman's hands, and others, pushed the Policeman and finally got him down on to the ground. At this point the rifle was fired a second time while the Policeman was lying or falling backwards. LESEDI admits that TEREM was at this stage holding part of the rifle. According to him, WAIP at this stage got up and struck the Policeman over the nose with his stick, but it was not a very large stick.

LESEDI at this point says that he took a stick and a cane and an axe and he struck out with the stick and the cane and gave a somewhat heroic account of his actions from then on. He saw the Policeman walking, in an obviously injured condition. LESEDI survived the attack by TEREM, who tried to hit him with a stick, and attacks by other men who were trying to hit him with sticks and stones. While the Policeman went ahead, walking and shaking his head from side to side, LESEDI says he himself ran until he came to a small stream in a gully, where he fell down while people were throwing sticks at him. He later found his way to a garden. At that point LESEDI says he got a stick and chased his attackers away. He then saw the Policeman in another garden, where he fell down on his face. LESEDI says he attempted to restore the Policeman's life, but he too, collapsed. The rest of LESEDI's story appears to be much later in time when people were attending to the body of the Policeman.

In re-examination, LESEDI stated that after WAIP had struck the Policeman, he, LESEDI, then went and got a stick, but he did not see anybody hitting the Policeman while he was away. This at least indicates an absence for a period of time at an important stage of the incident, just after the second shot was fired and just before the Policeman got up and walked from the roadside into the garden. This indicates that whilst LESEDI was concentrating every effort on running away from the crowd, he was quite a long way away from the roadside and the garden. This also suggests that when LESEDI came back the battle was over. On his own version of the facts I must reject any suggestion from LESEDI that he was protecting the Policeman from attack when the Policeman went into the garden.

TEMENDI, a member of the Biako group, gave evidence to much the same effect as LESEDI. He names the same four people as the people who attacked the Policeman, but they are described as making their attacks in a slightly different order.

TEMENDI says he was some 30 ft. away at the time when the attack on the Policeman commenced. He described the attack on the Policeman as occurring just after PIOP fell down on the road, whereupon, most of the people ran away leaving the four accused running around the Policeman. He described TEREM as cutting the Policeman first with the axe, and YANGUE subsequently striking the Policeman with an axe. After WAIP and POMBORE had attacked the Policeman with sticks, TEMENDI says he was angry, and when the Policeman was lying on the ground, he, TEMENDI, got up and took a stick and chased the people away. He says that the Policeman got up and stood behind TEMENDI. It was TEMENDI who took the Policeman across and put him in a small ditch in a garden where he died. TEMENDI could not say where TEREM was when the other three accused attacked the Policeman.

There was considerable disagreement in important details as described by LESEDI and TEMENDI. Each seemed to emphasise that he was protecting and looking after the Policeman after the attack, whereas there is much to suggest that they were both at this stage running away. LESEDI apparently professed to have agreement between them as to what taking place at about the time when the second cartridge was fired. The stories run together again at some stage after the Policeman had reached the garden. TEMENDI says that LESEDI helped him to put the Policeman in the garden, and then they both took sticks and chased the hostile men away. Then, according to TEMENDI, he and LESEDI were with the Policeman while he walked from one garden to another.

Another witness called by the Crown was HURUIZAK. He also gave an account of the incidents of the day which substantially agrees with LESEDI's evidence. HURU says that after the attack on the Policeman, it was he, HURU, who showed the Policeman the road leading to the garden. At this stage somebody struck at the Policeman with a stick and HURU ran away. He says that he did not see anybody hold the Policeman at about the time when TEREM hit him with an axe. He says that the second shot was fired by the Policeman while the Policeman was lying on the ground.

HURU is the half-brother of TEMENDI and apparently belongs to the Biako people, although the language he speaks is different from that normally spoken by TEMENDI. At a later stage in his evidence HURU contradicted what he had previously said about the Policeman being held down and his second version was that TEREM held the Policeman after he cut him with an axe and pushed the Policeman down on to the ground. He said that the Policeman was lying on his left side when the other accused persons attacked him. He differs in his evidence from other witnesses in saying that the men who had come with TEREM and PIOP did not run away. They stood where they were but did not shout out. HURU also said that he watched what was going on from a distance of some 30 feet, and he and PIOP were standing together with TEMENDI.

HURU also says that he joined in the fighting when the people attacked the Policeman and he said that the "three of us" got the Policeman and showed him where to go. In the context by "three of us" HURU appears to mean that he and TEMENDI and PIOP went to the aid of the Policeman and protected him and showed him a means of escape. This, of course, cannot be right.

The key to HURU's discrepancies may well lie in his explanation that when the people were coming along the road he and the other Biako people thought that they were coming for a "Court" about the prisoners, but when they heard the sound of singing, the Biako people thought that they might be going somewhere else. PAIP, (or possibly PIOP) told them that they were coming to make a "Court". It may well be that HURU and his brother were standing in a position on the road where they met PIOP with the party arriving, and were engaged in conversation with him when TEREM and PABULU went on to talk with the Policeman then PIOP appeared to have been killed by the Policeman's first shot, it is more than highly probable that both HURU and TEMENDI took to their heels at once and subsequently during the Police investigation found it necessary to fill in the gaps in their story by adopting information from the Biako group's standard account of the incidents, compiled largely by LESEDI.

Other witnesses have made minor contributions towards a better understanding of the probabilities involved in this case, but we have a head on collision on important issues between LESEDI and those who support him and the four accused.

I was unfavourably impressed by LESEDI, and my assessment of him was that he was playing a strongly partisan role and coming forward with a detailed story calculated to rest the blame upon the leaders of the Rumbipaga and Wapi groups.

The evidence given by the four accused appeared to me to be more reliable, with some reservations in the cases of both YANGE and WAIP. I gained a strong impression that each of the accused was acting according to his own reactions to the events which were taking place and not according to some pre-arranged plan of attack. I was greatly impressed by TEREM and only a little less so by PABULU, who was playing a junior role.

I think that PIOP's actions and reactions were inclined to be considerably more hostile and forceful than TEREM's, and that he was much more inclined to engage in a form of confrontation of the Policeman to persuade him to give up the prisoners. He was more inclined to be demanding in his dealings with the Administration, and went as far as Laiagam in an endeavour to see that things were put right. I think that the credit for the peaceful nature of the expedition was due to TEREM's influence, and that this is confirmed by the fact that TEREM took charge of the negotiations. The people must have known that TEREM was held in high regard by Mr. Allen and PIOP and the other Rumbipaga, who had the greater complaint to make against the Police-man, must have been well aware of this.

The Rumbipaga were in the majority and when the hand to hand fighting broke out between the Biako and the Rumbipaga, I think that TEREM's account of his actions in trying to stop the fighting, and then with drawing from the scene to look after PIOP, are quite consistent with reality and the sense of responsibility which he has displayed. Accordingly I find it quite impossible to place such reliance on the Crown case as to justify my rejecting the Defence evidence, and finding any of the accused guilty of the offence charged.

I have expressed some doubt already, and I would entertain considerable doubt about WAIP and YANGE if their evidence stood alone. They do not carry quite the same conviction as did TERM. Nevertheless, on the firm view that I have taken as to the order of events, I cannot place any substantial reliance on the evidence which describes WAIP and YANGE as striking the Policeman with sticks at the roadside and before the Policeman went to the garden.

It is clear that at the roadside there was an attack upon the Policeman, and it is possible that a number of people struck him with sticks and in one or two cases he may have been struck with an axe or a bush knife. The only evidence to support the alleged attacks by YANGE and WAIP is the evidence which I feel that I must reject on the fundamental issues of and it would not be safe to rely on that these two accused on other issues. If I were to accept the Crown's evidence against these accused, other defences would arise, including provocation and self-defence and rescue from kidnapping. These defences were argued at the conclusion of the trial but I do not think it necessary to deal with them because the substantial answers raised by the defence are concerned with questions of fact. On the weight of the evidence as I assess it, I find each of the four accused Not Guilty.

At the conclusion of the trial, I gave oral reasons for reaching this verdict, because we were not well-equipped at Mendi to deliver a written judgment. I spoke from notes setting out the main course taken by my assessment of the issues which arose in the case and I intimated that I would make a written judgment available in more detail as soon as practicable after my return to Port Moresby.

I recorded the following basic findings:

(1) The party came for the three purposes named, and under PIOP's and TEREM's direction. They came peacefully and not armed to fight. Subsequent actions confirmed this.

(2) It is not true that TEREM carried or used an axe. He carried, but did not use, the bush knife.

(3) YANGE did not inflict the intensive destruction of the Policeman's face and bony facial structures with a single blow, or whilst the Policeman was at the roadway. I must reject this evidence.

(4) The Policeman was apprehensive to see all the people, but was under pressure of a difficult decision to make, without an officer to take the responsibility; He must have had the cartridges in the magazine before he spoke to TEREM.

(5) He fired the shot into the ground at an unsafe angle and the defective bullet may have helped to cause the unintended tragedy of PIOP's apparent death. This was to subdue the crowd.

(6) TEREM tried to conform, and assist the Policeman control the crowd.

(7) The Policeman ordered the people to "line" and this was misunderstood by many as including an expressed wish or intention to shoot others. TEREM thought this too, and did not strike the Policeman, but as a responsible Tultul he intervened to save life.

The Policeman fired the second shot in a state of panic when struggling, but not when lying on the ground. When the rifle was safely removed there was no need for TEREM to act further, and at this time the Biako people joined in to protect the Policeman and uncontrollable fighting broke out. TEREM tried to stop it, then withdrew without drawing his bush knife.

(8) After TEREM's withdrawal the Policeman was attacked and received some injuries but I cannot specify which, probably including the head wound. He reached the garden in an injured state and was there killed by persons unknown.

VERDICT: Not Guilty all of the four accused.