R v Korea-Menene [1968] PGSC 17 (26 June 1968)

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

CORAM: CLARKSON, J.

Wednesday
26th June 1968

R.

v.

JAMES KOREA-MENENE & 15 ORS.

JUDGMENT

On Saturday, the 17th February 1968, shortly after 9.00 pm, a disturbance occurred at the corner of Moreatoba and Doqura Roads, a road junction described at the trial as Six-Mile and which is on the main road from Port Moresby to Jackson's Airport.

In the fighting which occurred a number of civilians and some members of the Royal Papuan and New Guinean Constabulary were injured. As a result sixteen persons were jointly indicted on three counts which may briefly be described as, firstly, taking part in an unlawful assembly contrary to section 62 of the Criminal Code; secondly, taking part in a riot contrary to section 63 of the Criminal Code; and thirdly, assaulting one Gorin a police officer while acting in the execution of his duty.

In addition one of the accused, James Korea, was charged in the same indictment that with intent to do so he did grievous bodily harm to Gorin.

The trial commenced before me at Port Moresby on the 21st May 1968.

At the conclusion of the Crown case on the 12th June I upheld a defence submission that one of the accused, Kekea-Tuke, had no case to answer on any of the three counts on which he was indicted, and I discharged him. I also held that another accused, Eromaea-None, had no case to answer on the third count. The trial proceeded and the evidence and addresses concluded on the morning of the 22nd June 1968 when I reserved my decision.

During the trial the Crown sought to lead evidence of certain statements made by some of the accused which the defence claimed to be inadmissible on a variety of grounds. I conducted eight separate voir dires and admitted six of the statements and rejected two, namely those made by Maipu and Kekea.

At the close of the Crown case the defence requested me to view the scene where the disturbance had occurred. The sole purpose of the view was that having made my own assessment of the lighting at the scene I would be asked to discount certain Crown evidence of identifications made during the disturbance.

I refused to view the scene as requested.

I mention these matters merely to record them and do not now repeat the reasons I gave when ruling on each application.

I should also record that on the afternoon of the 12th June counsel for the defence suggested to me that the trial had become a nullity due to the presence near and around the Supreme Court buildings of a squad of riot police. I refused to consider the matter without evidence and adjourned until 13th June when I was informed that no evidence would be offered and that the submission would not be pursued. I accordingly continued with the trial.

I turn now to a broad account of the relevant events as I find them and against the background of which I will then deal with certain general questions which have arisen and with the case against each accused.

A convenient starting point is a discussion on Friday, 16th February, between some of the accused, all of whom come from the Kerema District, and one Kevau, a Kerema elder who gave evidence reluctantly but impressively for the Crown. Timos in the presence of at least James and Pehoe complained to Kevau that one of their friends, Maka, had been brutally treated by the police and was then in hospital as a result of his injuries. Meakoro and Eroao discussed the matter with Kevau on the same day if not at the same time.

These men were angry and clearly were contemplating reprisals. Kevau attempted to dissuade them. He told Meakoro and Eroao "to live in peace and not to force any disturbance or cause any trouble". He added, "they listened to me and said nothing. They left and I did not know what was in their mind". The others he told, "not to break the law but leave the trouble to the people who can make courts against people who make wrong". He said, "this is not your trouble....My advice (is) not to fight and take the law into your own hands..... I told them again and again. They listened and said nothing".

In the evening of Saturday 17th February, a number of the accused including at least James, Meakoro, Timos, Eroao, Hoa and Moro were at the Gateway Hotel.

At about 9.00pm they left the Hotel and walked along the road in the direction of Port Moresby to the Six-Mile junction.

Shortly after this a police vehicle driven towards the Airport by Senior Constable Torasel and containing Police Constables Bau, Ito and Taimi, arrived at the junction. By then a crowd of Kerema men, variously estimated as 30 to 50 strong had gathered. James was sitting on the roadway. Torasel stopped his vehicle and asked James what was wrong and what he was doing on the road. James got up and approached the vehicle. There is some variation in the accounts of the exact words used but there is no doubt that James referred to the alleged assault on Maka, and made it clear that he and his companions intended to fight the police. He attempted to open a door of the vehicle and to pull Police Constable Ito from it. He was prevented from doing so by Police Constable Taimi who gripped Ito's other arm. Torasel saw the crowd gathering to support James, talking loudly in their own language and armed with stones and pieces of timber. This prompted him, with encouragement from at least one member of his crew, to drive off forcing James to release his hold on Ito. As the vehicle left it was hit by a volley of missiles one of which smashed a window.

A radio call from this vehicle was heard by Sub-Inspector Gorin who, accompanied by Police Constables Itu, Saripa, Kauli and Kageni, was travelling towards the Six-Mile junction from the direction of the Airport.

Gorin passed Torasel's vehicle which then turned to follow him back to the junction.

When Gorin's vehicle arrived at the junction Gorin found a group of men spilling off the grass verge on to the roadway and in his words "milling around and shouting among themselves". He stopped his vehicle on the junction facing up the road to Port Moresby and, dismounting, walked to the front of his vehicle towards the man who, again in his words, "appeared to be doing most yelling". Again there is some variation in the accounts of what was said but the gist was that Gorin asked what the trouble was, James - who was the man Gorin was speaking to - shouted back defiantly and told Gorin in English to shut up. Gorin attempted to arrest James by taking his arm. James resisted and swore at Gorin, again in English, and then attacked Gorin with an instrument referred to during the trial as a whip, a somewhat misleading description of an instrument consisting of a short length of thick insulating cable at one end of which is fixed a flanged steel ball resembling the fitting attached to a motor vehicle to enable a trailer to be drawn.

In the meantime James' companions had pressed around threatening Gorin's companions and as they attempted to go to Gorin's assistance they also were set upon.

Torasel's vehicle then arrived and stopped. Police Constables Bau, Ito and Taimi immediately went to the assistance of the other police. Torasel drove his vehicle into Rigo Road in an attempt to break up the advance of attackers. Subsequently he returned and parked his vehicle across the rear of Gorin's vehicle. He left his headlights burning and sent a radio call for further help.

This was answered by Sub-Inspector Hamboken who arrived from the direction of Port Moresby in his vehicle with siren going and warning lights flashing. All this time confused fighting had been going on. The arrival of Hamboken and his crew seems to have signalled the end of the attack. The attackers began to disperse into the darkness and when two further police vehicles arrived the situation was quiet.

The rescuers arrived to find Gorin, Bau, Itu and Kageni lying unconscious or semi-conscious in the roadway and Taimi incapacitated by a head injury.

I have set out the general course of events as I find them from the evidence of the participants. The whole atmosphere is best described by the account of an eye-witness, Luton, who was driving from Port Moresby towards the scene and who arrived just after Gorin had been attacked. The following account is taken verbatim from the transcript:-

"As I was driving down the hill towards the intersection of Moreatoba and Dogura Roads, I noticed a police vehicle, a Toyota Land Cruiser, parked on the side of the road nearest the entrance to Dogura Road. This vehicle had its parking lights burning. There was a large number of approximately 40 to 50 people milling around the vehicle with a lot of yelling and shouting. There were men standing around the vehicle, some of them picking up objects from the ground and throwing them. One person in particular picked something up from the ground - I couldn't see what it was - and threw it towards the front of the police vehicle. I heard the sound of breaking glass immediately following this throwing action. I did not see any part of the vehicle being broken, any glass fixture being broken; however some minutes later I heard again at least two sounds of breaking glass. There were a number of police constables near the front right-hand side of the police vehicle, around which there was an arc of men who were in the process of attacking the constables. At about this time I also noticed what appeared to be someone lying on the ground near the front right-hand side of the same police vehicle. The men in the arc continued to attack the constables, kicking, punching and in some cases throwing objects which I could not see. There was a scene of general confusion in the intersection with people running in all directions and the constables attempting to defend themselves. I saw a second police vehicle approach from the direction of the Gateway Hotel into the intersection. The vehicle stopped and a number of constables got out. These constables immediately moved into the assistance of the other constables at the scene. The second police vehicle moved off very fast up the Rigo Road. I didn't see where this vehicle went. 'With the other constables on the scene the whole area became one enormous brawl. About this time I recall my wife suggesting we leave. She was obviously afraid for her safety as was I. However, we decided to stay and be prepared to move in a hurry should anyone come our way. In the bulk of the fight continuing in the intersection I saw a police constable fall to the ground in the centre of the large brawl. A second constable moved in behind him in an attempt to assist him to his feet. Before the second constable could do this he was attacked by two others and the man on the ground was left lying there. The constable on the ground attempted to prop himself up on his elbow. As he did, a man moved in from near the first police vehicle and very slowly and deliberately threw an object into the man on the ground. The constable immediately fell back and did not get up again. The man who threw the stone - I'll say again - the man who threw the object, then moved in and commenced kicking him, the man on the ground. In this general scene of confusion there were a number of men armed with objects in their hands which appeared to be about 18 inches in length. These objects were being used in the brawl. The brawl continued for some minutes without my noticing any specific action. There were people still running both to and from the scene with a lot of shouting and general noise when another police vehicle arrived from the direction of Boroko. Some of the people fighting at the scene then began to disperse along the Rigo Road and towards where my wife and myself were sitting. With the arrival of the additional police the brawl was toned down considerably. Two other vehicles arrived soon after and after some minutes we left the scene.

Investigations began immediately. Acting on information which they obtained at the scene and elsewhere the police visited a number of living quarters in the area and took a large number of men to the Police Station at Port Moresby for questioning. This round-up continued during the night and by Sunday morning some 70 men were at the Police Station.

The events of Saturday night and of Sunday were examined in considerable detail, especially on the voir dires to which I have referred. There were allegations of unnecessary violence by the police while rounding up suspects, while holding them at the Police Station and while obtaining admissions. I will refer later and separately to the circumstances in which certain admissions were obtained by Inspectors Giddings and Reade.

There was undoubtedly considerable tension during Saturday night and on Sunday morning and it is by no means unlikely that some policemen, especially when not directly under the supervision of senior NCO's or officers, may have been rough, but on the evidence there was no complaint by any of the accused which appeared to me to be justified.

During Sunday the number of suspects was rapidly reduced. By Sunday night most of the present accused had been formally arrested and charged; others, notably Hama, Moro and Yeia, were arrested on the following Tuesday.

I turn now to a number of general matters which arose and with which it is convenient to deal before considering the case against each accused.

The first of these is the circumstances in which statements from nine of the accused were obtained by Inspectors Giddings and Reade on Sunday, 18^th February. The nine accused were Maipu, Hepe, Kekea, Naia, Raruka, Tom, Eromaea, Eroao and Pehoe. Each except Pehoe claimed his statement to be inadmissible. In the cases of Maipu and Kekea I upheld the submission. The statements of the other six I admitted.

At the conclusion of each voir dire I said no more than was necessary to dispose of the question then before me but I think I should now make some further comments.

There were a number of puzzling features. Each of these accused with one or two exceptions insisted that the statement was obtained in the morning, that Police Constable Gururau was used as interpreter because of the accused's inability to communicate in Pidgin and that some coercion or inducement was used.

All this was denied by the police officers who said that during the morning they merely indentified the accused by reference to a list of names and addresses with which they had been supplied, that Gururau was not used as an interpreter, that each accused appeared able to communicate adequately in Pidgin and that each statement was made voluntarily after proper caution.

Although the defence did not press the matters I was for a time somewhat troubled by the inability of Inspector Reade to produce the list or any notes made by him in the morning. I am sure a jury would be entitled to weigh this against him in assessing his credibility and I have done so.

It also concerns me that the nine "records of interview" as they were described, disclosed that all interviews had proceeded without the necessity for correction or repetition and without any misunderstanding. I also think that the time of the interview should have been noted by the police officers.

However, having said all that and having taken into account the many and varied submissions by the defence I am satisfied that I should accept the substance of the evidence given by the two police officers.

In particular I am satisfied the final interviews did take place between 3.00pm and 5.00pm on the afternoon of the Sunday and that Gururau was not then used as interpreter and that the accused were not threatened in the ways they alleged.

I am inclined to think that more occurred on Sunday morning to these nine accused than the two police officers now recount or perhaps are aware of. I think that during the morning a number of persons including Gururau, acting on his own initiative was endeavouring to sort out the suspects and that when not engaged with Inspector Anderton, Gururau may well have been used intermittently to guard, give directions to and make enquiries of the large body of men then present including these nine accused, and that it was these activities which formed the basis of a more or less common story adopted by the accused.

Of those accused who gave evidence on the voir dires two comments should be made. Firstly, I am entitled to assume in the absence of some explanation or indication to the contrary that Counsel has received adequate instructions. The record shows the number of occasions in which a voir dire commenced on the basis that the substance of a statement had admittedly been made but had been obtained by a specified form of threat or inducement only to conclude with the accused under cross-examination denying that he had said what was alleged, asserting that the statement had been fabricated in whole or in part by the police but still setting up that some threat or inducement had been used. Secondly, subject to the comments which I make later I am quite satisfied that each of these accused was able to communicate in Pidgin to the extent indicated by the fairly simple statement made.

Since I have commented adversely on the truthfulness of these accused and have accepted the substance of what Reade and Giddings say I should add a comment on my rejection of the statements of Maipu and Kekea.

Maipu was the first of the accused to challenge the statement sought to be proved against him. I had had only a limited opportunity of assessing the credibility of the witnesses. The Crown called Gururau to rebut the suggestion that he had interpreted when the interview took place in the afternoon. He attempted to give his evidence in English and gave me the impression, as I am sure he did Counsel, that he was saying he had interpreted at that interview. This evidence raised a doubt in my mind and Maipu was entitled to the benefit of it.

Subsequently in the trial when Gururau gave his evidence in Motu, a language in which he is more proficient, he made it quite clear that his only relevant conversation with Maipu was on Sunday morning and then at a time when the two of them were alone. This evidence I accept and if it had been clear to me when I ruled on the voir dire that that was the true position I would have admitted the statement.

The defence did not allege that the statement made by Kekea was involuntary but that it should be rejected in my discretion substant4 ially on the grounds that his demonstrated lack of intelligence and inability to communicate made it unfair to admit the statement against him.

I am satisfied that in Court Kekea grossly exaggerated his disabilities but even so the evidence raised a doubt in my mind whether communication between Kekea and the police officers, particularly at the beginning of the interview when the caution was given, was as complete as the latter thought and I decided to exercise my discretion in Kekea's favour.

A considerable amount of the evidence was directed at identifications of the accused as having been at the scene. Most of them were made at identification parades held in the three or four days following the disturbance. In every case the identification was made by a policeman of a man whom he had admittedly not seen before the night of the 17th February and was made immediately before or during the fight and at the scene. Nearly all the identifications were challenged, some in my view successfully. At the conclusion of the evidence the presence at the scene of all accused except James, Pehoe and Moro was left in issue.

I have already referred to the fact that I was asked to view the scene at night not for the purpose of enabling me to understand the evidence better but because it was said I would be obliged to conclude that some identifications by Crown witnesses could not have been made in the circumstances those witnesses described.

As I have said I refused to view the scene for this purpose. Even if I felt it would be proper for me to do so, and of this I have considerable doubt, it is sufficient to say only that I have no way of comparing my visual acuity at night with that of any of the Crown witnesses concerned nor can I be satisfied even if the street lighting were the same that any useful comparison could be drawn between the lighting now and that when the vehicles of Gorin, Torasel and Hamboken were at the scene.

The defence then called evidence of certain experiments made at the scene on one night during the trial. I accept the two witnesses who gave evidence as completely honest but I gained little of value from them. Apart from the uncontrolled factors referred to previously the processes of recall and recognition can be aided by more than the mere full face view of a person. Apart from other characteristics body shape and size are important.

At the same time I have been mindful of the many cases in which confident identifications by a number of honest witnesses have been proved completely wrong. (See Glanville Williams "The Proof of Guilt" (3rd Ed.) 106 et seq).

I turn now to the general questions of law which were discussed. The first count is laid under section 62 and the second under section 63 of the Criminal Code, both of which sections are contained in Chapter 9 of the Code. These sections make liable to punishment any person who takes part in an unlawful assembly or a riot respectively.

Section 61 reads:-

"When three or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner, as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

An assembly of three or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to break and enter the house in order to commit an indictable offence therein is not an unlawful assembly.

When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled. "

I could not doubt on the facts I have related that here more than three persons had assembled with intent to carry out the common purpose of stopping and assaulting any police who came along, nor that those assembled acted in so tumultuous a manner as to disturb the peace. The only doubt which could arise is whether the conduct of the assembly in fact caused persons in the neighbourhood to fear a tumultuous disturbance of the peace or whether such an element were necessary if in the event the assembly did begin to act in such a tumultuous manner as to disturb the peace. It would perhaps be strange if no offence under section 63 of the Code could be proved unless it were shown that someone in the neighbourhood feared a tumultuous disturbance of the peace notwithstanding that such a disturbance subsequently occurred. However, I have decided it is unnecessary for me to resolve this difficulty, because I am quite satisfied that Torasel and his crew at or soon after their first arrival at the scene feared a tumultuous disturbance of the peace.

Furthermore I am satisfied that when James with his supporters closing in noisily and threateningly on the vehicle attempted to drag Ito from the vehicle the assembly became a riot.

I consider now the third count relating to the joint assault on Gorin. The time which elapsed between the departure of Torasel's vehicle and the arrival of the vehicle driven by Gorin was short as was the time between Gorin's arrival and the assault on him. Again I do not doubt that those in the assembly at the junction, frustrated in their intentions by the departure of Torasel's vehicle, still shared a common intention of assaulting the police when Gorin's vehicle arrived.

Such an assault then took place in the manner and with the results I have already indicated.

The third count charges that the accused assaulted Gorin, a police officer, while in the execution of his duty. That Gorin was a police officer acting at that time in the execution of his duty was not contested nor was the fact that he was unlawfully assaulted. The real question which arises is which, if any, of the accused are liable for the assault and this must be determined on the facts by reference to sections 7 and 8 of the Criminal Code.

There is evidence, some of which I accept, of acts of assault on Gorin by identified accused. Such a person is liable by virtue of section 7(a) as being a person who actually does the act which constitutes the offence. Others, who prevented policemen coming to Gorin's rescue while he was being assaulted, may have so acted for the purpose of enabling or aiding a person to assault Gorin and may therefore be liable under section 7(b). Similarly others may on the evidence be shown to be liable under (c) or (d) of section 7.

At this stage I note again that the third count refers to an assault on Gorin. There is no charge of assault on any other person, for instance Bau, who was grievously wounded. The question then arises, what of the person who is not shown to have been in any way directly concerned in the assault on Gorin but who on the contrary concentrated his efforts on assaulting one of the other policemen.

In the circumstances which existed it could be argued that an attack on any of the policemen who might otherwise have been able to attempt the defence of Gorin is an act falling within the terms of section 7, although I note that section 340(2) itself under which the charge is laid makes it an offence to assault "a police officer while acting in the execution of his duty or any person acting in aid of a police officer while so acting".

If the attacker had no intention of aiding the attack on Gorin or for that matter on any person other than the one he was himself attacking, and regard is had to section 7 only, problems arise of the sort discussed in Reg. v. Solomon^[1] and Brennan v. The King.^[2]

Hama for instance on the Crown case may well have attacked Saripa before James attacked Gorin and with no intention other than that of assaulting Saripa.

But whatever the correct view of the application of section 7 I am satisfied that in considering the cases I have mentioned section 8 is also relevant. This provides: -

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

Here there was a common intention to prosecute the unlawful purpose of assaulting any policemen who could be intercepted and there is nothing to indicate that the attacks were to be limited to policemen who were on duty, nor to Gorin. The intention was formed and held by a substantial number of able-bodied men armed with sticks, stones, bottles, angle iron pickets and the whip to which I have referred. In the prosecution of that purpose Gorin was assaulted and indeed grievous bodily harm was done to him by his attackers. I have no difficulty in finding that the offence of assaulting Gorin, a police officer while in the execution of his duty, is one of such a nature that its commission was a probable consequence of the prosecution of the purpose to which I have referred. It seems to me that liability for the assault on Gorin then attaches under section 8 at least to each of those who formed the common intention and was taking some part in the prosecution of the purpose mentioned when the assault was committed.

The fourth count concerned James Korea only and my views on the application of sections 7 and 8 in respect to him can be stated shortly.

Notwithstanding the highly damaging statements made by him to Aiyola, there is insufficient evidence to establish that James himself caused grievous bodily harm to Gorin although from all the evidence including that of the nature of the weapon he used and his mode of attack I am quite satisfied that when he attacked Gorin he intended to do him grievous bodily harm. However James was one of a number of persons who attacked Gorin armed with a variety of weapons. Gorin was felled to the ground, bones in both his arms were broken as he attempted to defend himself from further attacks and ultimately he was battered into unconsciousness. There can be little doubt that those who so attacked him, including James who led the attack, intended to cause grievous bodily harm as a payback for the injuries which they thought had been unjustly caused to Maka. In these circumstances liability on the fourth count attaches to James under section 7(c) and also it would appear under section 7(b).

In these circumstances it is unnecessary to consider a question raised by the defence, namely, what the position might be if of those attacking Gorin, James was the only one shown to have an intention to do him grievous bodily harm.

One general comment should be made on the admissions proved against the accused and the use to which they have been put in considering the case against each accused. Although the decision of the High Court in Tripodi v. The Queen ^[3] was referred to only once during the trial it appeared to me that Counsel on both sides accepted, and in my view correctly, the statement of the High Court appearing on page 7 of the report:-

"When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. In The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries (the Coal-Vend Case) ^[4] Isaacs J. said of evidence of the acts of individuals done in furtherance of a preconcerted common design in cases of conspiracy what is doubly true when such evidence is tendered in proof of a charge of a substantive crime committed by several acting in preconcert: 'It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an)offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both.'^[5] It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise.

I have proceeded on this basis and statements made by any of the accused after the event which implicate any other accused I have treated as being evidence only against the person making the statement.

The defence has made certain submissions in respect of the application of section 16 of the Code in the present case. As I have said all accused were charged jointly on each of the first three counts. There was no objection to this course and no application for separate trials. The Crown indicated in opening that if an accused were convicted on the second count it would not ask for a verdict to be returned on the first count, and I accept this attitude as correct.

The defence has further submitted that an accused should not be convicted under both the second count and third count or under both the first count and the third count, since this would result in the accused being punished twice for the same act or omission contrary to section 16 of the Code.

After consideration I have rejected this submission.

The essence of the first count is the allegation that a person took part in an assembly, the conduct of which caused fear of 3 tumultuous disturbance of the peace.

The second count relates to the taking part in that assembly when it has begun to act so tumultuously as to disturb the peace.

Neither an assault nor any element of that offence is a necessary element of the offence created by section 62 or by section 63. The offence under these sections could be established without it being shown that anyone was assaulted. Similarly a person may be guilty of an offence under section 340(2) without breaching section 62 or section 63.

On the facts of the present case certain persons took part in a riot. This is evidenced by acts of assembly, shouting, throwing missiles, obstructions of the road and so-on, all amounting to a tumultuous disturbance of the peace. For this those taking part are liable under section 63. During the course of the riot a policeman on duty is assaulted by persons taking part in the riot. For this any person doing the act which constitutes the assault or who is deemed by section 7 or section 8 to be guilty of the assault is liable under section 340(2) and in my view section 16 does not prevent his punishment for both offences.

Having reached these general conclusions on the facts and law I go on to comment on the case against each of the remaining 15 accused. I do not attempt to summarise all the relevant evidence for and against each accused but mention merely some of the matters raised by Counsel in the course of argument which require some comment and my findings.

James:

A considerable body of evidence shows that James was certainly one of the ringleaders in the organization and execution of the disturbance at the junction. I have already expressed my reasons for concluding that this accused intended to do grievous bodily harm to Gorin and that he must be held under section 7 of the Code to have done it. The Crown conceded that if the accused were found guilty on the fourth count then no verdict should be returned on the third count.

My verdict is: Guilty on Second Count
Guilty on Fourth Count
No Verdict First and Third Counts.

Meakoro:

I do not rely on the identification made by either Singul or Hamboken but still find ample evidence to compel a conviction on two counts. He was well aware of the cause of the trouble and was amongst those expressly counselled by Kevau not to fight.

He was in the group at the Gateway Hotel and left there with James and Eroao to go to the junction. He is one of the persons who on his own admission struck Gorin.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count.

Timos:
In the course of his closing address, Counsel for the defence submitted that Timos had not been shown to have taken any part in the disturbance before Gorin was assaulted and that therefore a conviction on the third count could not be recorded. This suggestion arises from a passage in his statement to Anderton where he says, "I came up after the fight and the police stopped me". Prior to this however, he had described how he joined his friends waiting at the junction and goes on to describe the arrival of what is obviously Gorin's vehicle, portion of the conversation which followed and the commencement of the fight.

If the statement "I came up after the fight" is intended to refer to a point in time after Gorin was assaulted - and I doubt whether it is - I do not accept it. I note that this accused was amongst those counselled by Kevau, he was at the Gateway Hotel and accompanied Eroao and Meakoro to the junction. In addition, I accept Taimi's identification of him.

I am quite satisfied that he assembled at the junction with his friends for the purpose of assaulting the police and that far from immediately withdrawing he took an active part in the fighting. In view of the considerations which I have discussed earlier he will be convicted on two counts.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count

Hoa:

Hoa admits that he was at the Gateway Hotel with James and Pehoe, and that he was present when the fight started. He told Anderton that when that happened he ran away because he was afraid. Even if this were so he did not dissociate himself from the enterprise until after Gorin had been assaulted and would therefore be liable to conviction, but in any event I accept Taimi's identification of him and note also that he was still with James and Pehoe shortly after the fight when James spoke to Aiyola and handed Yeia the whip.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count

Yeia:

This accused was admittedly at the scene when the fighting started and at some stage joined in, if only for a brief period. He claims that immediately on being hit by a baton he retired and watched, and this account was not seriously challenged by the Crown. Even if Saripa's identification of him were accepted, that is not inconsistent with the story the accused told Anderton.

It is significant that there is no evidence which links him with any of the other actors before his appearance at the scene nor with the planning of the enterprise, and there is no evidence to show at what stage he joined in the fight. His own account is consistent with his being nothing more than a bystander at the time Gorin was assaulted. He should, I have concluded, be convicted on the second count but it has not been shown beyond reasonable doubt that he is liable on the third count.

Verdict: Guilty on Second Count
Not Guilty on Third Count
No verdict on First Count

Maipu:

I accept Kageni's evidence that he saw this accused adopt a threatening attitude towards Gorin immediately before Gorin was struck. I also accept Itu's identification of this accused which confirms his participation in the fighting. Although there is no direct evidence that he was concerned with the planning nor that he was with the others at the time when Torasel's vehicle first arrived, he is on the evidence clearly placed at the scene at the critical time immediately before Gorin was assaulted and threatening to assault.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count

Hepe:

Although there was evidence from the Crown of Hepe assaulting Gorin and of other unlawful acts Hepe denied that he was present at the scene and called witnesses to show that he was at Hohola at the time when the disturbance occurred.

The identification of Hepe by Saripa was challenged because of some confusion which appeared in Saripa's evidence when discussing Hepe and Pehoe. I was very impressed by Saripa's evidence of his identification of Hepe and am satisfied that the confusion was adequately explained and is not significant. I also accept Itu's evidence that Hepe was at the scene. I have also as I have already indicated accepted the evidence of Reade and Giddings that Hepe admitted fighting a policeman at the bus-stop.

It will be seen then that I have rejected the alibi set up by Hepe. The evidence of the two witnesses called for the defence was not unimpressive except in relation to two matters, the circumstances surrounding Hepe's departure and the fixing of the time of his departure. This however is not surprising because I have no doubt that Hepe did go to a party at Hohola. He may even have been a little drunk as he suggested but I am also satisfied that he left Hohola much earlier than he and his witnesses maintained and returned to the junction prior to the assault on Gorin. He is then in somewhat the same position as Maipu in that although there is no direct evidence of his earlier complicity he is placed as a participant at the scene at the critical time immediately before Gorin was assaulted.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count

Naia:

I accept the identification of Naia at the scene by Taimi and Itu and but for one matter to which I will refer I would give full weight to the statement recorded by Giddings and Reade. This would show that he was at the scene at least before Gorin's vehicle arrived and that he himself took part in the fight although there is no evidence of an actual assault by him on Gorin.

The matter to which I refer is the evidence of Gururau that Naia does not speak Pidgin. This statement is no doubt an expression of opinion and I do not know the facts on which it is based. It was suggested that it may be nothing more than an assumption. Whether opinion or assumption it could of course be wrong or of little value. Nevertheless Gururau adhered to the view he expressed.

Gururau was at times confused but I accept him as a truthful witness. I have decided that in fairness to the accused I cannot disregard Gururau's evidence and in deciding what significance should be attached to it I must contemplate that notwithstanding the evidence of Giddings and Reade, communication might not have been as complete and efficient as they thought.

I refer to McKay's case ^[6] later in relation to the accused Tom and the general principle there stated to which I adhere. I have decided that because of the doubt raised by Gururau's evidence I should not rely on the statement. There is then no evidence other than of his taking part in the riot at a time which could be after the assault on Gorin had taken place. And in these circumstances he should be convicted on the second count only.

I should add that nothing in Naia's evidence on the voir dire leads me to adopt this course. I have no doubt that the substance of his evidence on the voir dire is a complete fabrication.

Verdict: Guilty on Second Count
Not Guilty on Third Count
No verdict on First Count

Raruka:

In the circumstances discussed in argument I would not be prepared to accept the identifications of this accused made by Kauli nor by Taimi. I do however accept the identification of Itu that this accused took part in the fighting and the evidence that he admitted seeing his friends fighting the police and that he joined in. When asked why he fought the police he said the other people, meaning his friends, were fighting the police so he helped them.

In my view this accused is in much the same position as Yeia. There is no evidence to associate him with the planning nor with any of the other participants before the trouble occurred. While there is evidence which I have accepted that at some time he was in the fighting I am not satisfied that this was necessarily before the assault on Gorin.

Verdict: Guilty on Second Count
Not Guilty on Third Count
No verdict on First Count.

Tom:

This accused was not identified as being at the scene and the only evidence against him is the statement made to Giddings and Reade. The admissibility of this statement was challenged on the voir dire and I ruled in effect that it was not inadmissible by reason only of anything done or said by the police. I have now to decide what use if any should be made of the statement at the trial.

Counsel for the defence says that it must be used with caution because it is not corroborated. He accepted the law expressed in McKay v. The King ^[7] and I refer to the judgment of Latham C.J. at page 7 where His Honour said that except possibly in relation to cases of homicide, bigamy and cases affecting titles to property, and I quote, "I have been unable to discover any authority that it is a rule of law that a prisoner cannot be convicted upon evidence consisting solely of his confession. It is for the jury to determine whether the confession, when admitted in evidence, is in fact a confession of the particular offence charged, and whether it is a confession that the accused person was the person who did the acts or was guilty of the omissions which constitute the offence charged. If a confession is subsequently repudiated, it is for the jury to decide what degree of credit should be given to the original confession and the subsequent repudiation respectively."

I think ti is clear that the admission if completely accepted is sufficient to justify conviction. Tom said that he heard of the trouble coming up between the Kerema and the police, that he went with his friends to the callbox at Six-Mile and a police car along and he said, "we stopped the police car and the policemen came down and we fought them". He said that he fought the policemen, throwing stones and fighting with his hands.

Counsel for the defence points out that the accused denied this statement from the dock and in evidence on the voir dire and he urges that before I can convict I must accept that the statement was made as alleged by the police, that it is true and that the accused spoke sufficient Pidgin to make the statement.

I have no hesitation in reaching these conclusions against the accused. In deference to counsel's submissions I indicate some of the matters which have influenced me.

I found Tom most unimpressive when giving his evidence on the voire dire. In effect he said that the statement was completely fabricated by the police officers in the presence of Gururau. If this were so then of course any threats were on his version quite ineffectual. Gururau when he subsequently gave evidence with that of Giddings and Reade I accept. On other matters some of his evidence was demonstrated to be false. For instance his evidence of who was present at the police station at the time of his first interview is clearly wrong. He states that he denied to Giddings in the presence of all the other accused that he knew anything about the fight. Having made this claim that Giddings on the Saturday night spoke to all the accused together, including himself, he was then forced to admit that Timos was then in hospital and that Hama and Moro were not arrested until Tuesday. There are a number of other matters which I need not now detail which satisfy me that Tom's account of events was thoroughly unreliable.

I have already expressed in general terms my finding on the issue of whether the accused was able to communicate in Pidgin to the extent necessary to make the statement alleged against him. I add the following observations. Tom admitted that he understood simple Pidgin. A perusal of the statement which he made shows that only a rudimentary knowledge of English or Pidgin would be necessary to conduct the conversation recorded and I am quite satisfied that Tom had the requisite knowledge.

Accepting the evidence of Giddings, Reade and Gururau as I do and rejecting that of Tom it follows from what I have said that he will be convicted.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count.

Eromaea:

I have already ruled that there was no case for this accused to answer on the third count. There is however ample evidence which I accept that at some stage he joined in the fighting. He is I think in the same position as Yeia and Raruka.

Verdict: Guilty on Second Count
No verdict on First Count.

Eroao:

There is a considerable amount of evidence against this accused which I accept commencing with that of Kevau. It is only necessary to mention his identification by Taimi which I find convincing, his admission that he was with Timos and Meakoro at the Gateway Hotel and left the Hotel with them, his statement to Giddings and Reade, and his further statement to Gururau that he was in the fight because the police had beaten his young brother and that after some drinks he went to the fight.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count.

Pehoe:

Pehoe was present at the conversation with Kevau and his unchallenged admission is that he was drinking with his wantoks at the Gateway, he went with them to the Six-Mile, shouted at the police and fought them. In this case I accept Kauli's evidence that he saw the accused near James assaulting Gorin.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count.

Hama:

I accept the identifications of Saripa and Itu which shows this accused to be a participant at the critical time. He admitted to Gururau that he was at the Gateway and followed the plan to intercept and fight the police, that he went to the junction and took part in the fighting. The earlier portions of Hama's statement as recounted by Gururau were challenged. Even if they were rejected there is still ample evidence to show that he was present before the fighting commenced, that he was one of the crowd which stopped the police vehicle and took part in the fight.

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count.

Moro:

It was not contested that Moro was at the scene where he was identified by Itu and Taimi. His statement to Isaac was that he was at the Gateway Hotel with friends, that he went to Six-Mile and met the police. He then said, "the police vehicle was stopped then the fighting started, I was in the fight".

Verdict: Guilty on Second Count
Guilty on Third Count
No verdict on First Count

_________________

Solicitor for the Crown: S.H. Johnson, Crown Solicitor.
Solicitor for the accused: W.A. Lalor, Public Solicitor.

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^[1] 1959 Qd. R, 123
^[2] 55 CLR 253.
^[3] 104 CLR 1
^[4] (1911) 14 CLR 387
^[5] (1911) 14 CLR 400.
^[6] 54 CLR 1
^[7] [1935] HCA 70; 54 CLR 1